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Parental Misconduct

by Wes Cowell, updated 28 January 2016


"Parental misconduct" used to mean things like adultery, fornication, and (once upon a time) homosexuality.  You'll find a frequent occurrence of the word "immoral" in older cases addressing "parental misconduct."  Today it's more about alcohol, drugs, and (thanks to the Great Recession and the internet) prostitution.  Illinois law says none of it matters if it doesn't impact the children.  Need advice?  Call, leave your info, or scheduleschedule a consultation.


A lot of parents start slinging mud when the squabbles start.  They accuse the other — or fear being accused of — drug use, abuse, addiction, alcoholism, and miscellaneous debaucheries (I once had a case involving vampirism).  Illinois judges, however, just don't care . . . so long as the kids are not in harm's way.  Illinois' parental responsibility law says "[t]he court shall not consider conduct of a parent that does not affect that parent's relationship to the child."  750 ILCS 5/602.5 (e). In short, what the parents do on their own time is supposed to be okay with the court . . . as long as it doesn't affect the children.


Cohabitation WAS a Big Deal:  Before 1977 the courts could consider just about any parental conduct or misconduct.  In one famous, post-decretal case, the former husband hired some detectives and entered the former wife’s home where they found her “engaged in improper conduct with [a man] who was not then her husband . . . .” She probably would have lost custody of the children based on that fact, alone.  So, she fled with her lover to the courthouse that very afternoon and married him!  The hasty marriage sufficiently undermined the allegation of parental misconduct and custody of the children remained with the mother.  Nye v. Nye, 411 Ill. 408, 105 N.E.2d 300 (1952), 


After Illinois adopted its custody law in 1977, courts faced a conundrum:  could a judge step in and say “this parent's 'negative' conduct is enough that it MIGHT affect the children,” or must a judge wait until the children have already been affected before letting parental misconduct sway the outcome of a custody determination?  The Illinois Supreme Court clarified things in In re:  Marriage of Jarrett, 78 Ill. 2d 337, 400 N.E.2d 421 (1979).


Jacqueline and Walter Jarret divorced in December, 1976 and Jacqeline received custody of the three girls and was allowed to stay in the house unless she remarried.  Within five months, Jacqueline had her boyfriend move in with he rand the kids.  They didn't marry because Jacqueline believed that solid relationships were founded on love, not marriage licenses; that and . . . she'd have to sell the house.  Walter complained that Jacquline's was an immoral and improper environment in which to raise the girls; although other than the she's-got-a-man-living-with-her issue, she was a perfectly good mother.


The trial court modified the custody award and gave custody of the girls to Walter.  Jacqueline appealed and won a reversal, but Walter appealed to the Illinois Supremes.


the court held that evidence of negative effects on the children is not required – it may be inferred or anticipated.  “Jacqueline’s disregard for existing standards of conduct instructs her children, by example, that they, too, may ignore them (citations omitted) and could well encourage the children to engage in similar activity in the future.”  Id. at 346-47, 400 N.E.2d at 424.  The majority nicely articulated the must-we-wait-for-the-negative-effect-before-considering-parental-misconduct conundrum:


To wait until later years to determine whether Jacqueline had inculcated her moral values in the children would be to await a demonstration that the very harm which the statute seeks to avoid had occurred.  Measures to safeguard the moral well-being of children, whose lives have already been disrupted by the divorce of their parents, cannot have been intended to be delayed until there are tangible manifestations of damage to their character.

In re:  Marriage of Jarrett, 78 Ill. 2d 337, 400 N.E.2d 421 (1979). at 349, 400 N.E.2d at 425 


The dissent in Jarrett (by Chief Justice Joseph Goldenhersh) pointed out that the result created a per se rule: cohabitation, per se, was sufficient to warrant a change of custody.  Then, along came John and Kathryn Thompson.


General Bad Acts:  In In re:  Marriage of Thompson, John was awarded custody of his son despite the fact that he had, essentially, abducted the boy from his mother in Michigan, had his girlfriend spend weekends at his home while his son was present, apparently attempted to blackmail his girlfriend from testifying against him by threatening to publish nude photos of her, had forged a tax refund check and had allegedly stolen from his employer.  On the other hand, the mother seemed to have dropped the parenting ball – the child was undisciplined, overweight, and often ill when with her.  The boy improved significantly after the alleged abduction by the father and a close and loving father / son relationship developed quickly.


The Illinois Supreme Court, faced with this sticky situation and what had become a per se rule that “cohabitation warrants a change of custody” held:  “The Jarrett case does not establish a conclusive presumption that, because a custodial parent cohabits with a member of the opposite sex, the child is harmed.”  In re:  Marriage of Thompson, 96 Ill. 2d 67, 78, 499 N.E.2d 88, 93 (1983).


Cohabitation Is No Big Deal:  Eventually, the Illinois Supreme Court ruled that parental sexual conduct that does not impact on the children may not be considered as a factor in making custody determinations.  Parental sexual conduct, however, may have a bearing on the stability of the child’s home environment and that, said the court, is a legitimate factor to consider in allocating parental responsibility.  


“Parental conduct that does not adversely affect the child is not to be considered in the custody determination.  Hence, evidence of a mother’s “immoral intimacy” may be deemed insignificant if there is no indication that the child’s welfare is endangered.  Although it is improper for a court to presume harm to a child based on the parent’s allegedly immoral conduct, evidence bearing on the stability of the child’s environment is obviously relevant. (citations omitted).”


In re:  Marriage of Stone, 164 Ill. App.3d 1046, 1053, 518 N.E.2d 402, 407 (1st Dist., 1987).


In In re:  Marriage of Fuesting, (228 Ill.App.3d 339, 591 N.E.2d 960 (5th Dist., 1992)), a post-decretal request to modify custody from mother to father was denied notwithstanding the fact that the mother lived with a man to whom she was not married.  She declared that she thought she would, eventually, marry the man, but had no plans to do so.  A close and loving relationship had developed between the daughter and her would-be step-father and there was no evidence that the relationship had, or would, harm the child. 


Today, a parent with an ongoing, amorous relationship stands on roughly equal footing with the puritan parent -- so long as the relationship doesn't negatively impact the children and the parent doesn't engage in philosophical gymnastics trying to reationalize the sistuation.  In re: Marriage of Radae, 208 Ill.App.3d 1027, 153 Ill.Dec.802, 567 N.E.2d 760 (5th Dist., 1991).  See, also, Cooper v. Cooper, 146 Ill.App. 3d 943, 497 N.E.2d 805 (5th Dist., 1986).  Cohabitation with a lover has been overlooked by the courts in making custody determinations where the parent's cohabitation doesn't negatively impact the children.  In re: Marriage of Nolte, 241 Ill.App.3d 320, 182 Ill.Dec. 78, 609 N.E.2d 381 (3d Dist., 1993).


On the other hand, some courts take the position that the "intimate cohabitation relationship of a parent . . . is a proper factor to be considered  by the trial court in making a custody determination."  In re: Marriage of Diehl, 221 Ill.App.3d 410, 164 Ill.Dec.73, 582 N.E.2d 281 (2d Dist., 1991) appeal denied, 144 Ill.2d 632, 169 Ill.Dec. 140, 591 N.E.2d 20, (1992). See also, In re: Marriage of Martins, 269, Ill.App.3d 380, 206 Ill.Dec. 562, 645 N.E.2d 567 (2d Dist., 1995), appeal denied , 162 Ill.2d 528, 208 Ill.Dec.362, 649 N.E.2d 418 (1995).


The present status of Illinois law on cohabitation and allocatoin of parental responsibility is nicely encapsulated in In re:  Marriage of Brandt, 99 Ill.App.3d 1089, 425 N.E.2d 1251, 55 Ill.Dec. 78 (1st Dist., 1981) where custody of the couple's 16 year-old daughter was awarded to the mother who lived with a man in a continuing, conjugal relationship, and custody of their 14 year-old daughter was awarded to the father.  The 16 year-old had a good relationship with her mother and seemed to thrive in her household although she apparently had some misgivings about her mother’s living arrangements.  The 14 year-old presented a different, more difficult set of facts. It seems from the opinion that the mother’s living arrangements may have caused, and likely would compound, “problems of insecurity” experience by the 14 year old daughter.  In re:  Marriage of Brandt, 99 Ill.App.3d 1089, 425 N.E.2d 1251, 55 Ill.Dec. 78 (1st Dist., 1981).


Non-Cohabitation / Non-Sexual Relationships:  The court can even consider a non-sexual relationship that negatively impacts the children.  In In re:  Marriage of Werner, 493 N.E.2d 1199, 144 Ill.App.3d 263, 98 Ill.Dec. 178 (5th Dist., 1986), the mother had (what she claimed was) a non-sexual relationship with a physician "involving correspondence, phone calls, clandestine meetings and attendance at his church which conduct is the subject of comment in the community of which some of the children were aware of and suffered embarrassment."  The mother said the court shouldn't consider the relationship because it had no sexual aspect and that such a conclusion would be based merely upon speculation and rumor.  The court disagreed, saying:


"the court did not find that the relationship was necessarily a sexual one. The court could properly consider wife's behavior with regard to this relationship, whether sexual or not, as bearing on her relationship with her children."

In re:  Marriage of Werner, 493 N.E.2d 1199, 144 Ill.App.3d 263, 98 Ill.Dec. 178 (5th Dist., 1986) 


Where parental misconduct takes place in the presence of the child, or where a parent attempts to rationalize to the child and explain away his or her misconduct, courts are more likely to consider the misconduct and to rule accordingly in the allocation of parental responsibility.


Recreational Drug Use Is Okay:  Even drug use plays no part in allocating parental responsibility determination unless it impacts the children.  It is well established that a parent's use of drugs is relevant to the issue of Parental responsibility only if the parent's conduct can be shown to affect his mental or physical health and his relationship with the child.  In re: Marriage of Gonzalez, 204 ill.App.3d 28, 34, 149 Ill.Dec.580, 583, 561 N.E. 2d 1276, 1279 (3d Dist., 1990) citing In re Estate of Becton, 130 Ill.App.3d 763, 86 Ill.Dec. 121, 474 N.E.2d 1318 (1st Dist.1985). 


General Misconduct:  The misconduct doesn’t have to be criminal in nature (like adultery) – courts are free to venture out onto the slippery slope of moral judgment – a finding that the misconduct merely interferes with the parent’s ability to parent is all that is all that is needed.  In re:  Marriage of Werner, 144 Ill.App.3d 263, 493 N.E.2d 1199 (5th Dist., 1986) the mother exhibited what might be described as "hoarding" tendencies and engaged in a pattern of bad parenting decisions.  Custody went to the father and Mom appealed . . . and lost.





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