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Decision in Helling Likely to Lead to Confusion

By Gregg Herman

As it appeared in the June 23, 2004 edition of the Wisconsin Law Journal

A Tennessee court recently imprisoned a woman for spending a night with her boyfriend shortly before their wedding. Or, that is what the newspaper headlines would lead one to believe. A June 4, 2004 article in the Nashville Tennessean was entitled "Spending the Night with Fiancè Lands Divorced Mom in Jail."

The actual circumstances were somewhat more complicated. The mother was incarcerated not for merely spending the night with her fiancé, but doing so with her seven year old daughter present, contrary to court order. In addition, she had violated the court order at least five times and lied to the court about it.

Still, the issue presents a common dilemma in family courts. On the one hand, some courts have moral qualms about overnight guests, especially if the divorce is not final. On the other hand, society seems to have accepted far more permissive bounds of sexual conduct today than in the past. Where should the line be drawn?

A recent Wisconsin court of appeals cases addressed this issue. In Helling v. Lambert 2004 WI App 93, the District IV appellate court reversed Roc County Circuit Court Judge John Roethe’s order awarding placement to the husband due to the wife’s non-marital relationship.

The mother moved in with a boyfriend less than a year after breaking up with the father. By the time of the final hearing, Lambert was expecting a child with her new boyfriend, but had no plans to marry him. Among other findings, the trial court found that her living situation was not stable due to the length of time she and the boyfriend had known each other and the fact that they were not married.

The Majority opinion, authored by Judge Charles P. Dykman, reversed, first finding that by the time of trial, the mother had known her "new" boyfriend fo two years. Second, the appellate court found that the trial court made an improper, generalized assumption that nonmarital relationships were unstable. The appellate court noted that "marital relationships can also end in divorce." Neither court cited any studies on the stability of marital or nonmarital relationships or their effect on children.

Essentially, the appellate court’s holding was that the fact of cohabitation alone was not a basis to modify placement. Rather, the court held that "showing a significant adverse affect upon the child is a necessary prerequisite to adverse consideration of a third-party relationship."

Judge Deininger dissented, believing that the trial court’s reliance on predictability and stability of relationships were proper factors for the trial court to consider. He quoted the lower court’s discussion of the placement issues which extend for three pages of his dissenting opinion. He argued that the trial court decision, taken in its entirety, shows a proper exercise of discretion. In fact, Deininger noted that the court made no negative comments about the mother’s relationship with her boyfriend at all, but only concluded that her present living situation was not as predictable and stable as the father’s – certainly an appropriate factor in determining physical placement.

A generation or two ago, this would have been an easy question – a woman "shacking up" would have had a difficult time persuading a court that she was providing an appropriate home for a child. In today’s world, however, I typically no longer ask prospective divorce clients if they lived together prior to marriage, but more often, I will ask how long they lived together. Rarely do I ever get the answer that there was no premarital cohabitation.

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