A parent's sexual activity outside cognitive presence of child not basis to deny conservatorship.
When will the sexual activity of a parent committed outside the presence of a child be sufficient to deprive a parent of primary conservatorship?
Generally.Texas case law holds that sexual activity of a parent committed outside the presence of a child is insufficient evidence on which to base conservatorship of the child. See Wolfe v. Wolfe, 918 S.W.2d 533, 539-40 (Tex. App.--El Paso 1996, writ denied); In re W.G.W., 812 S.W.2d 409, 414-15 (Tex. App.--Houston [1st Dist.] 1991, no writ); see also Schwartz v. Jacob, 394 S.W.2d 15, 18 (Tex. Civ. App.--Houston 1965, writ ref'd n.r.e.). However, at least one court has granted a modification of conservatorship after the mother violated a provision in the parties' divorce decree prohibiting overnight unmarried male guests, which the mother had not challenged by direct appeal, when she cohabitated with her boyfriend. Jenkins v. Jenkins, 16 S.W.3d 473, 479 (Tex. App.--El Paso 2000, no pet.).
Schwartz v. Jacob--Mother granted primary conservatorship.Schwartz involved a suit by the father to reduce his child support payments, which was later amended to a request that the court grant him custody of his two children from his former wife. The trial court denied the father's request for a change of custody, and the father appealed. Schwartz, 394 S.W.2d at 17. In affirming the trial court, the court of appeals noted that the evidence had shown certain indiscretions on the mother's part, including evidence that showed that before her divorce from the father and between the time of that divorce and the divorce of the mother's current husband, Jacob, the mother had participated in a sexual relationship with Jacob. Schwartz, 394 S.W.2d at 18. "How?ever," the court concluded, "the evidence reflects that these indiscretions took place away from the children. There is nothing from which the inference can reasonably be drawn that the children knew or probably knew of this conduct." Schwartz, 394 S.W.2d at 18. The court further noted that other evidence bearing on the issue of the welfare of the children was such as to reasonably conclude that the mother had been a good parent and that the children's welfare would be best served by leaving them with the mother. Schwartz, 394 S.W.2d at 18.
In re W.G.W.--Mother granted primary conservatorship.In In re W.G.W., a nonparent, the mother's former husband, asked to be appointed man-aging conservator of the child at issue. See In re W.G.W., 812 S.W.2d at 411. The mother had moved back with the former husband after she became pregnant by another man following her divorce from the former husband. The former husband contended that the mother did not provide a stable environment for the child at issue. In re W.G.W., 812 S.W.2d at 412. Witnesses testified that the mother had male visitors at the house during the day when the former husband was at work and that the mother went out at night, leaving the child in the former husband's care. In re W.G.W., 812 S.W.2d at 412. The trial court granted the former husband conservatorship of the child.
The court of appeals reversed the trial court's decision, noting that no witness testified that the mother had overnight visitors or that the mother and the visitors behaved in any improper manner in front of the child, who was between the age of three months and six months at the time. In re W.G.W., 812 S.W.2d at 414. The court sustained the mother's point of error that the jury's finding that the appointment of the mother as managing conservator would significantly impair the child's health or emotional development was against the great weight and preponderance of the evidence. In re W.G.W., 812 S.W.2d at 414-15.
Wolfe v. Wolfe--Father granted primary conservatoship.In Wolfe, the wife appealed the trial court's appointing the husband as their child's man-aging conservator. She contended that the trial court's failure to allow the admission of various sex toys and pornography, which she alleged evidenced her husband's sexual practices with his paramour and his lack of morality, was reversible error. The trial court stated that its ruling was based on the fact that the wife failed to introduce any evidence that the child had been exposed to any of the husband's paraphernalia and, therefore, the evidence would be more prejudicial than probative. The court of appeals affirmed the trial court. Wolfe, 918 S.W.2d at 539-40.