Michigan Courts Use Cohabitation Law to Restrict Father's Visitation Rights

Affiliate: ACLU of Michigan
December 21, 2005 12:00 am

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ACLU Asks Michigan Supreme Court to Strike “Lewd and Lascivious” Cohabitation Law

DETROIT – The American Civil Liberties Union of Michigan has appealed to the state Supreme Court on behalf of a divorced man whose overnight visitation with his children has been restricted by the court of appeals. The court order, based on an antiquated law that criminalizes “lewd and lascivious cohabitation,” prohibits his girlfriend from sleeping at their shared home on the nights when the children are in the home.

“This antiquated law allows the state to unconstitutionally interfere with a parent’s relationship with his or her children,” said Kary Moss, ACLU of Michigan Executive Director. “It is based upon the notion that there is something sinful when unmarried adults spend the night together rather than on the best interests of the children and the family.”

Thirty-five-year-old Christian Muller of Ferndale shares legal custody of his two daughters with his ex-wife. But when he became involved in a committed relationship after the divorce, Muller’s ex-wife asked the court to forbid him from having overnight visitation with his children when his girlfriend, Michelle Moon, was present.

After a Friend of the Court Referee would not recommend that her request be granted, the case went to Oakland County Circuit Judge Daniel Patrick O’Brien. Judge O’Brien issued an order contrary to the decision of the referee, prohibiting either parent from having overnight visitation with the children when they had unrelated overnight guests of the opposite sex.

“By forcing the woman that I share my life with to leave our home sends the message that daddy is doing something bad, daddy is doing something morally wrong,” said Muller. “This court order undermines my rights as a parent, as an adult, and as an American with the right to choose how to live my life.”

“The unfounded restriction they have put on my parenting time has done nothing but cause confusion, resentment, physical and psychological hardship and distrust, which affects the whole family,” Muller added.

Michigan made “lewd and lascivious cohabitation” a crime in 1838, the same year it prohibited interracial marriages. Although the state repealed its prohibition on marriage between the races in 1883, the prohibition against unmarried cohabitation remained. Michigan is now one of only seven states that retain this archaic provision.

“We haven’t found a decision upholding a criminal prosecution under the statute since 1925,” said Moss. “Now, in 2005, Michigan courts have used the statute to force a father to choose between visitation with his children and his intimate relationship with his girlfriend. It’s time to finally make clear the statute is unconstitutional.”

The restriction at issue focuses on unmarried cohabitation and suggests that it creates a greater risk to children. According to the U.S. Census, there are now 5.5 million cohabiting households in the United States, an 11-fold increase since 1960, and 39 percent of these households have children under 18.

“Mr. Muller and Ms. Moon are still living together, and Ms. Moon is sleeping in her car, his van, and sometimes at her parents’ house when his children are there,” said Bethany Berger, the ACLU Cooperating Attorney who is working on the appeal. “The order has not ended their unmarried relationship, but instead stands in the way of their efforts to fully share their home with his children and ensure that his children remain a full part of his life despite his divorce from their mother.”

According to the ACLU brief submitted to the Michigan Supreme Court, “If courts are permitted to restrict divorced parents from living with both their unmarried partners and their children without evidence that this restriction is justified by the interests of the children, it will either undermine their ability to move toward permanent loving relationships or their efforts to fully include their children in their lives. Both are contrary to the legislative will in enacting the Child Custody Act, and contrary to the constitutional authority of the state to inject itself into the lives of Michigan families.
The Court of Appeals even stated that ‘the best interests of the children were not actually the issue before the trial court.'”

To read the leave application filed in the Michigan Supreme Court, go to: www.aclumich.org/pdf/briefs/mullerleaveapplication.pdf

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