Question Regarding Cohabitation


#1

We have been separated / living apart since November 2010. Absolute divorce will be filed 11/18. Boyfriend and I are looking at getting a house and moving in December 1. Can the ex attempt to sue for custody of the children if the boyfriend/fiance’ is not a danger to the children? I’ve been told that this is considered a “change in circumstances” and that allows him to try to sue for custody (we know he wouldn’t get it but he would file a motion just to cause me additional attorney fees). Even after the divorce is final (January/February) and if the fiance moves in, isn’t that still considered a “change in circumstances”? It seems to me that he could file a motion for custody change anytime he wants until the children are 18, no matter the situation. I’m just trying to figure out the logistics. My fiance’ and I are having difficulty making ends meet and would be much better off financially getting a house together but we won’t do it if it might cost me custody of my kids. Please advise whether getting a house now would be an issue or if waiting until the divorce is final would be a better course of action. My thinking is that even if the ex finds out that my fiance lives with us, by the time it goes to court for custody, we will be divorced anyway and it won’t be an issue. Please help. Thanks.


#2

In order to change custody he will have to prove that there has been a substantial change in circumstances which affect the well being of the child since the ruling was made. The judge would consider the arrangement the children are accustomed to in making a determination of custody. Nothing is ever automatic in these cases and all evidence relating to the best interests of the children is carefully considered. Your ex would need to show why a schedule different than the status quo would suit the best interests of the children.

The issue of the paramour is unique to each case. It is not alone a determinative factor in establishing custody but will be considered. Judges normally aren’t as concerned with the morality of the arrangement, but rather its affect on the children. If it is possible for you financially, I would very much recommend you wait to move in together until your divorce is finalized, especially since it is a difference of just a month or so.


#3

Ok, understood.

However! Once we’re divorced and we get a house together, could he not still try to do the same thing? Even once we get married … could he not attempt to gain custody of the children just because he happens to not like my fiance’? My fiance’ is a hard working man, works with my father at a private school, has no history of violence or drugs or anything like that. One DWI 20 years ago and he hasn’t touched alcohol since. He’s just jealous that I’m moving on and is trying to make life difficult.

So couldn’t he try to gain custody no matter whether we get a house together AFTER the divorce or not?

Thank you so much for all your help.


#4

You are correct in thinking that he could come back later and sue for custody at any time. If you have a court order or agreement regarding custody, it can always be modified. The party moving to modify will have to show that there has been a substantial change in circumstances affecting the best interests of the child in order to succeed. From the facts presented, I don’t think he would be successful, but I can never predict the outcome of any one case. Judges are given a lot of discretion in custody cases. I do think that it would “look better” to a judge if you wait to move in with this person until after your divorce is finalized, but how much that would ultimately matter is not known.