The Unwelcome Overnight Guest
October 14, 2015 § 4 Comments
In a post back in 2011, we visited the topic of restrictions on overnight romantic guests when the child is present. The case back then was Howell v. Turnage, about which you may read at the link. It enforced the MSSC’s holding that, before a chancellor may impose an injunction against such conduct, there must be some evidence that there is an adverse effect on the child, and an extramarital relationship is not per se an adverse effect.
The question whether a chancellor could restrict the presence of an overnight guest arose in the COA’s decision in Carter v. Escovedo, handed down September 29, 2015. The court affirmed the chancellor’s order awarding custody Kylee Escovedo to her father, Marion, and restricting visitation of the mother, Cleondra Carter, to prohibit romantic overnight visitors, stating that there “shall be no overnight visitors of the opposite sex (or of an intimate nature) unless related by blood or marriage while the child is present.” Judge Maxwell’s opinion held that the restriction was supported by the proof, and affirmed the chancellor’s ruling:
¶32. “Visitation should be set up with the best interests of the children as the paramount consideration, keeping in mind the rights of the non-custodial parent and the objective that parent and child should have as close and loving a relationship as possible, despite the fact that they may not live in the same house.” Dunn v. Dunn, 609 So. 2d 1277, 1286 (Miss. 1992) (citing Clark v. Myrick, 523 So. 2d 79, 83 (Miss. 1988)). This is why “[v]isitation and restrictions placed upon it are within the discretion of the chancery court.” Id.
¶33. Our supreme court has held “an extramarital relationship is not, per se, an adverse circumstance.” Id. (quoting Morrow v. Morrow, 591 So. 2d 829, 833 (Miss. 1991)); Ballard v. Ballard, 434 So. 2d 1357, 1360 (Miss. 1983). So to restrict visitation of overnight guests of the opposite sex, there must be “something approaching actual danger or other substantial detriment to the children.” Id. (emphasis added) (quoting Cox v. Moulds, 490 So. 2d 866, 868 (Miss. 1986)). Indeed, restrictions should be imposed when circumstances present “an appreciable danger of hazard cognizable in our law.” Id. (quoting Newsom v. Newsom, 557 So. 2d 511, 517 (Miss. 1990)). If the presence of a lover would be detrimental to a child, restrictions may be appropriate. Id.
¶34. The chancellor was concerned Carter was “bringing a lot of different men around [Kylee] or sleeping with men with [Kylee] in the same bed.” Carter lived in a one-bedroom apartment and admitted she had allowed men to sleep in the bed with both her and Kylee. Of particular concern was one of Carter’s boyfriends, Michael.
¶35. Wendy Ward, Kylee’s therapist, testified that Kylee suffered from anxiety. And Kylee had confided in Ward that she was scared of Michael. Ward testified that Kylee feared Michael when he “was mean.” According to Kylee, Carter and Michael had fought in front of her, and Michael “made her feel scared and mad.” Because of Kylee’s anxiety over this boyfriend, Ward recommended neither party should have “romantic relationships spending the night when Kylee is present.”
¶36. While we recognize our supreme court has not condoned per se visitation restrictions of overnight guests of the opposite sex, it is clear that such restrictions are in fact necessary when justified. And here, much of the chancellor’s focus honed in on her duty to look out for the best interests of a then three-year-old girl. Based on Carter’s admission of sharing her bed with Kylee and overnight romantic guests, and the therapist’s testimony that Carter’s boyfriend’s presence was detrimental to Kylee, we find the chancellor tailored this prohibition to minimize the detriment to Kylee. We thus find the chancellor did not abuse her discretion in prohibiting overnight nonfamilial opposite-sex guests when Kylee is present.
Here, the lawyers did a nice job at trial of getting adequate evidence in the record to support the chancellor’s finding that there was an adverse effect, and that the restriction was necessary for the best interest of the child.
If you want such a restriction to stand up on appeal, you can’t rely on the mere fact of an overnight visitor. You have to put on proof that the presence of the visitor is having an adverse effect.
Another post on how restrictions on visitation are viewed with disfavor can be found here.
The Better Chancery Practice Blog 
A Rankin County Judge put two children in the temporary custody of their aunt because both parents (who were divorced) were having their significant other spending the night.
Not directly on point, but when one party asks for that relief in their testimony, I always ask the other party whether they will agree to an injunction. If they will not, then I won’t enjoin absent evidence of adverse effect. If they agree, I base the injunction on the parties’ agreement in the record.
I mean, then you run afoul of an interaction between some federal abstention doctrines and substantive due process, and you’re coping with Shelley v. Kraemer; there’s a lot of moving parts. Presumably someone, somewhere has written a law review article. I’m not feeling like looking for it right now, though.
(same commentor; different device).
I would be curious to hear the thoughts of the bench and bar on whether these restrictions run afoul of substantive due process under Lawrence, Griswold, Eichelberger, Zablocki, etc. Seems likely to me.