Will cohabitating effect my chances of obtaining custody? A look back at how the law has evolved.

In 1979, when Jarrett v. Jarrett, 78 Ill.2d 337, 400 N.E.2d 421, 36 Ill.Dec. 1 (1979), cert. denied, 101 S.Ct. 329 (1980), became law, cohabitation became a central issue in custody disputes. In Jarrett, the mother, who resided with a man without the intent of marriage, lost custody of the children even though her relationship with the man was stable and secure.

Jarrett was eroded first by Brandt v. Brandt, 99 Ill.App.3d 1089, 425 N.E.2d 1251, 55 Ill.Dec. 78 (1st Dist. 1981), which held that Jarrett did not establish a per se rule that cohabitation on a continuing, conjugal basis by the custodial parent was grounds in and of itself for custody modification. The court was to consider whether the child was adversely affected by that lifestyle choice.

In In re Marriage of Thompson, 96 Ill.2d 67, 449 N.E.2d 88, 70 Ill.Dec. 214 (1983), the custodial father retained custody while living with a woman because the father and son demonstrated a healthy relationship.

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. No such presumption exists in this State. . . . [A] custody award is not arrived at by pressing one lever and mechanically denying custody to one parent; rather all of the circumstances must be considered that affect the best interests of the child. [Emphasis added.] 449 N.E.2d at 93.

Cohabitation or sexual encounters that occur outside the presence of the child are irrelevant to custody. In re Marriage of Olson, 98 Ill.App.3d 316, 424 N.E.2d 386, 53 Ill.Dec. 751 (3d Dist. 1981); Cooper v. Cooper, 146 Ill.App.3d 943, 497 N.E.2d 805, 100 Ill.Dec. 627 (5th Dist. 1986).

So what about if my boyfriend or girlfriend comes over during the weekends? In Willcutts v. Willcutts, occasional weekend cohabitation will not result in loss of custody or visitation. Willcutts v. Willcutts, 88 Ill.App.3d 813, 410 N.E.2d 1057, 43 Ill.Dec. 924 (3d Dist. 1980). See also In re Marriage of Nolte, 241 Ill.App.3d 320, 609 N.E.2d 381, 182 Ill.Dec. 78 (3d Dist. 1993).

The courts look at what the best interests of the child are. Just because you are living with someone else other than the other parent, does not mean on its face that it will effect your chances of obtaining custody.


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