By Robin S. Whitehead
Senior Attorney, The National Obscenity Law Center
With the rise in the number of divorces today comes a rise in issues of child custody and visitation rights. Sometimes those rights can be impacted by a spouse’s pornography usage. This article is for those of you who have cause for concern due to a child who is under the supervision of a parent who regularly engages in the viewing of pornography.
Although we here at Morality in Media do not specialize in the field of divorce and related child custody and visitation issues, we feel a need, due to the inquires we receive on this topic, to provide an overview of how the courts view the issue of pornography usage when it is raised by a parent or sometimes a grandparent in these cases.
People need to know that the issue of pornography usage can, and has been, properly raised before courts across this country as a critical factor in determining child custody and visitation rights. If this is an area of concern in your family, we hope that, after reading this article, you will bring this information to your attorney who can then further research this issue in relation to the specific facts of your case.
Those of you who are involved with custody and visitation issues know that the "best interests of the child" test is the normal rule applied in such disputes between two parents. Although the "best interest" standard can be hard to define in some situations, many factors are common in most custody situations: Wishes of the child if old enough to capably express a reasonable preference; Mental and physical health of the parents; Religion and/or cultural considerations; Need for continuation of stable home environment; Support and opportunity for interaction with members of extended family of either parent; Interaction and interrelationship with other members of household; Adjustment to school and community; Age and sex of child; Parental use of excessive discipline or emotional abuse; and Evidence of parental drug, alcohol or sex abuse.
For instance, Louisiana includes in its statutory language a factor to be considered: "The moral fitness of each party, insofar as it affects the welfare of the child." La. Civ. Code Ann. art. 134.
As you can imagine, this "best interests" legal test leaves family court judges room to consider a wide host of issues, including issues related to a spouse’s viewing of pornography. E.A.L. v. J.L.W., 662 A.2d 1109, 1115 (Pa. Super. 1995) (reversing trial court's change of custody from grandparents back to mother, partly because "mother and stepfather regularly view ‘dirty’ movies," and "there was evidence that these films are physically available to the children"); see also Stephenson v. Stephenson, 847 So. 2d 175, 180-81 (La. Ct. App. 2003) (upholding grant of physical custody to mother, partly because father "periodically possesses and views pornographic magazines and internet websites, although he claims that the child was never exposed to such material," a matter that court seemed to classify as relevant to father’s "moral fitness").
This year in James, G. v. Veronica, G., 2006 Alas. LEXIS 7 (Alaska 2006), the Alaska Supreme Court, affirming an award of sole legal custody and primary physical custody of the parties’ youngest child to the mother, found that it was not in the child’s best interests to force her to have visitation with her father because the court determined that the father "accidentally exposed the children to pornography that he had viewed on his computer and had an erection after one of his daughters sat in his lap at a birthday party." The lower court explicitly incorporated these findings into its custody order.
The issue of running a pornographic website and its effect on custody and visitation rights was addressed in Anderson v. Anderson, 736 So.2d 49, 53 (Fla. Dist. Ct. App. 1999). In this case, the special master (established by Florida Family Law Rules of Civil Procedure) found that the former wife permitted her live-in boyfriend to operate a pornographic website from the home in which a minor child resided. The trial court, however, reversed the special master’s findings, holding that "No samples of material were presented in evidence. In any event, the son had no access to the site and was not present when [the boyfriend] operated it late at night." The Appeals Court, in reversing the trial court for abuse of discretion, posed the question: "Could a reasonable ‘judge’ conclude that the operation of a pornographic business out of the home, even when the child is asleep, has a bearing on the ‘moral fitness’ of the caregivers and affects the child’s best interest?" See Dinkel v. Dinkel, 322 So. 2d 22, 23-24 (Fla. 1975) (discussion of out of sight, out of harm principle where a parent had committed adultery in the home but not in the presence of the child).
Anderson addressed this out of sight, out of harm principle in relation to dealing in home-based pornography when it questioned, "Does not such conduct evince contempt for the law, disrespect for women and disregard for committed relationships and thus permeate the environment where the caregiver lives whether or not the child ‘sees it’? Morality is important; character does count in custody determinations. Children learn attitudes, good and bad, by osmosis - observation and emulation." See also, Miller v. Miller, 893 So.2d 233 (La. Ct. App. 2005) (upholding trial court's determination that an award of custody to the grandparents was in the best interest of the child where both parties fought physically, as well as verbally, over issues such as …internet pornography. Their moral choices, violent tempers, and disregard for their responsibilities as parents…caused the trial court to find them both unfit).
According to the Missouri Court of Appeals, a father’s viewing of pornography can be considered by the trial court when it makes its finding, but it is not determinative. Cooley v. Cooley, 131 S.W.3d 901, 903-04 (Mo. Ct. App. 2004) (holding no evidence existed to show that the child has been exposed to or has access to the father’s pornography, or that father reviewing pornography affected father's conduct, his relationship with his daughter, his daughter's environment, or otherwise jeopardized his daughter. See also, Butler v. Butler, 859 A.2d 26, 29 (Conn. 2004) (affirming the trial court’s grant of sole custody to the defendant since plaintiff failed to establish convincing proof in her affidavit that the defendant had exposed their daughter to pornography on his computer, and other inappropriate conduct).
Although Cooley and Butler determined that insufficient evidence was presented, it is important to recognize that the issue was properly raised before the court and had sufficient evidence been provided, the courts might have ruled in favor of the mothers. See, Odom v. Odom, 2001 Tenn. App. LEXIS 881 (Tenn. Ct. App. 2001) (mother presented enough evidence to put the husband’s mental condition in controversy concerning allegations that the father was unfit to have custody of the children in part because he was addicted to pornography involving homosexuality, bestiality, and mutilation).
So what happens when the mother is the spouse viewing the pornography? In In re Marriage of P.I.M., 665 S.W.2d 670, 671-4 (Mo. Ct. App. 1984) the father gained custody of his children alleging that the mother kept obscene material in the home available to the children. In an extensive discussion about morality the Appeals Court stated that "the morals of the respective parents are an appropriate subject for consideration in child custody matters, and that grossly immoral conduct on the part of the child’s custodian justifies denying custody to that parent. Ortiz v. Ortiz, 465 S.W.2d 662, 665 (Mo. App. 1971)." The obscene matter in this case involved Hustler, which was in a magazine rack that also contained the little boy's coloring books and crayons. The mother also kept a projector and hard-core pornographic films in her home, which she watched with her boyfriend in the living room, during times when the boys were banished to a bedroom. The boys were never permitted to view the films which they found on their mother's dresser, but did see the boxes in which the films were stored. Both of the boxes had color photographs of males and females engaged in sexual intercourse on the box covers.
The P.I.M. court in fact viewed the films which were submitted into evidence and found them to be "hard-core pornography, and are composed, almost entirely, of scenes depicting masturbation, sexual intercourse, and sodomy." The Court continued, "While it is not our function to formulate codes of moral conduct, and although we do note that certain conduct once viewed by society with disgust does not carry the same social stigma that it did in years gone by, we have reached a firm conclusion that the mother’s moral code and conduct, as shown by the evidence cited, does have and will continue to have a detrimental effect on her youngest son during the years when his character, virtues, and moral values are being formed, and that the moral environment in her home is not suitable for the raising of a child of impressionable years." See also, Myers v. Myers, 153 Ohio App.3d 243, 247 (Ohio Ct. App. 2003) (upholding dissolution of the shared parental agreement and awarding father sole custody based in part on findings that the mother had a history of using pornography and using internet sex chat rooms).
In B.M.M. v. P.R.M., 2004 Tenn. App. LEXIS 528 (Tenn. Ct. App. 2004) the Court puts forth a lengthy discussion of pornography issues and how careful a party must be in their allegations. The Court in this case found that the evidence did not support the mother’s conclusion that the father’s viewing of pornography as their marriage disintegrated and the two incidents that occurred when he was a teenager, one involving a younger child and another involving an interest in bestiality, meant that the father engaged in sexually inappropriate behavior with their daughter or that he was likely to engage in such behavior. Rather, the evidence supported the trial court's conclusion that the mother's hyper vigilance regarding the father’s alleged sexual abuse of the child did harm to the child. The mother’s overreaction resulted in the child being treated as a survivor of sexual abuse, without any evidence that such abuse had occurred.
With this summary of cases now "in your pocket" we hope to have helped equipped you with the necessary knowledge to move forward with your concerns on issues relative to the topic of child custody, visitation rights and the use of pornography by a parent entrusted with the supervision of a child. We suggest that if this is an issue for you or your family that you speak to an attorney about the specific facts of your case and the applicable laws in your state.
Printed with permission from Morality in Media, Inc.