Kicked Out of Her Own Apartment
July 1, 2012 9:17 PM   Subscribe

Does an ex-wife in Oklahoma have the right to evict my friend from her boyfriend's house on the weekends when his kids visit?

My friend lives in Oklahoma and is in a relationship with a man who is recently divorced. The divorce was final in April. The custody agreement says that he gets them every other weekend and on holidays in odd numbered years.

When the kids visit, her boyfriend has been informed by his ex-wife that she can not be in the apartment she shares with him because Oklahoma law doesn't permit unmarried partners to be under the same roof overnight with the kids. There's nothing about it in the custody agreement, but she says he called Child Services about it after his ex said this and they confirmed it.

Now this, of course sounds like bullshit to me. I mean, it's her home, where she lives. How can she be expected to find a place to go half the weekends of the year? Under the divorce decree, they can't marry until October at the earliest.

Is this some sort of law in conservative Oklahoma I don't know about? Has anyone else heard or dealt with this before? I told her to seek the advice of a lawyer, but she says he is fearful of wasting their limited money fighting something that can't be fought. I say it's costing them money and effort trying to find a place for her to hang her hat every other weekend.

What's the truth?
posted by inturnaround to Law & Government (14 answers total) 4 users marked this as a favorite
I don't know about Oklahoma, but South Carolina appears to have a law like that. I am friends with two guys who have been together for over a decade and own a house together in South Carolina. One of them has a child from a previous marriage, and in the past his partner has been required to leave the house whenever the kid came over for visitation. They didn't explain this to me in detail, except to say that the law applied to all unmarried couples, but that the ex-wife was invoking the law specifically for homophobic reasons.
posted by Coatlicue at 9:35 PM on July 1, 2012

I am not the OP's attorney (nor the OP's friend's or SO's attorney), and this is not legal advice. I'd never heard of such a thing before (I don't know much family law), but a bit of Googling says that this sort of thing is often called a "morality clause" (or "morals clause"). What's not clear to me is whether this is automatic under Oklahoma law, or whether this is something that has to be specifically included in a divorce decree.

In general, though, it seems like the latter, but I'm just not sure. If that is indeed the case, then your friend's SO needs to determine whether any agreement or court judgment pursuant to the divorce contains such a clause. If it's the former, then he may be out of luck unless he marries your friend once the six months lapse after the divorce, or they move out of state.

Either way, I would strongly urge your friends to follow your advice and contact the lawyer who represented the SO in his divorce proceedings. It might cost a bit of money to get the question answered, but the peace of mind will be worth it. And it's possible the lawyer won't even charge (or will charge very little) if it winds up being a five-minute phone call.
posted by Conrad Cornelius o'Donald o'Dell at 9:53 PM on July 1, 2012 [3 favorites]

Let me throw out the paranoid angle here: did your friend call CPS herself to confirm this whacky law? I know she trusts her partner... but... I'm not sure I would.

"Don't blame me, blame my crazy ex-wife." sounds like an awful easy excuse for something.
posted by chairface at 10:09 PM on July 1, 2012 [2 favorites]

but she says he called Child Services about it after his ex said this and they confirmed it

There's your answer - I'd assume Child Services is an uninterested third party and would give accurate information. Something doesn't have to be in a custody agreement if it's already law.

Until they get married, if your friend stays over the bf's house, she's breaking Oklahoma law. If the ex wants to press it - and it sounds like she would - she would be within her rights. Unfortunately this is just an issue that needs to be dealt with when entering a relationship with only a divorced partner with kids.

This man's been divorced for only 2-3 months - either your friend was with him while he was still married, or they've been together for less than three months. *I'm* not judging your friend, but either way it would look bad from a court perspective. It will either be labeled an adulterous affair or a quick fling. I don't think the mom's being unreasonable enough for her to lose in court.

If the relationship has been short, and if the ex doesn't actually know about it - is there any way he can draw up a lease and pass her off as a tenant? It would be deceptive, but honestly, there's no legal way for you to get around with, and this could be a way of being able to explain why she's staying the night.
posted by Lt. Bunny Wigglesworth at 10:12 PM on July 1, 2012 [2 favorites]

IANAL, IANYL, and neither is Child Services.

I wouldn't assume whoever he asked at Child Services understands the law and the situation thoroughly enough to offer a definitive opinion on it. If there is a state law that covers this, even if she can't afford a lawyer she can at least find out what law it is and look it up to see what it says -- and yes, this is something she would be wise to confirm for herself rather than relying on her boyfriend.

It's possible that there might be different answers depending on what exactly he asked. "Can my girlfriend stay overnight when the children are present?" v.s. "Is a person who is a legal resident of the housing unit required to leave their own home when the children are staying overnight, and does it matter if the gender of that person is the same or different than the person with visitation rights for the children?"

Not knowing the law in Oklahoma, I don't know if a lease would help (if she was renting the apartment first, he could be her tenant). I disagree with Lt. Bunny on the idea of this being deceptive -- if you can lease the use of part of your apartment to someone else you barely know, I don't see anything wrong with leasing it to someone you like and enjoy spending time with. I've never seen a lease that specifies anything about current or future romantic relationships of the parties or co-tenants, so it's not as though it's some sort of a coverup if that information isn't in the lease.
posted by yohko at 10:49 PM on July 1, 2012 [5 favorites]

I only meant to say a lease would be deceptive if it was solely being used as a workaround to the law - if she's honestly leasing from him, it's not a big deal....but if she's not honestly leasing from him and enters into a lease, then it's a blatant deception. Even though I suggested it, I would still investigate that as well. There may be a provision that states you cannot have tenants - I don't know.
posted by Lt. Bunny Wigglesworth at 12:24 AM on July 2, 2012

Until they get married, if your friend stays over the bf's house, she's breaking Oklahoma law.

IANAL, TINLA. If the law operates like the one in South Carolina (where it is indeed called a "morality clause," but while it is standard in a custody agreement it may be negotiated out if both parties are amenable), then the specific repercussion would be that should your friend stay the night while the children are over, the ex would then have a case to sue for full custody with no (or supervised) visitation.
posted by solotoro at 5:57 AM on July 2, 2012

Response by poster: The ex-wife is aware of the relationship. My friend has been with her boyfriend since March a month before the divorce was final. The ex-wife is the one who sought the divorce saying that she could no longer be with someone who didn't believe in God.

There's your answer - I'd assume Child Services is an uninterested third party and would give accurate information. Something doesn't have to be in a custody agreement if it's already law.

Well, yeah...but I want to be able to cite the actual law. I don't want to assume anything where the stakes are her having to not live at home almost 2 months out of the year.
posted by inturnaround at 6:44 AM on July 2, 2012

I am not a lawyer and know nothing about OK law in particular, but I do know enough about divorce to know that clauses proscribing meretricious relationships are common, although not universal. The boyfriend should look at his divorce decree, parenting plan, and/or custody agreement (or whatever the equivalent papers in OK are), as well as call his lawyer; the lawyer should be able to straighten this out pretty quickly.
posted by TedW at 7:21 AM on July 2, 2012

Lawyer. I know it's expensive, but it doesn't seem to be googlable and the consequences, as solotoro mentioned, could be severe.
posted by woodvine at 7:33 AM on July 2, 2012

I told her to seek the advice of a lawyer

That is 100% all you can do, except that he has to seek the advice, not her, since she's not on the agreement. There's just no way to answer your question, because it hinges on an agreement in a relationship you're two steps removed from: your friend's boyfriend's with his ex-wife. And given that he's resisting the idea of even asking a lawyer, my guess is that he may be uncomfortable himself about the idea of incorporating a person into his kids' home life who is new-to-them, when he's trying to re-establish stability at an unsettled stage.
posted by palliser at 7:51 AM on July 2, 2012

Consulting a lawyer is the best thing to do, but if this is just a question about locating a law so you can cite it, consider contacting the reference staff at the Cartwright Law Library. If it is anything like public law libraries I have worked for in the past, they will help you find the law but will not give you any advice on how it pertains to the situation in question.
posted by marshmallow peep at 8:44 AM on July 2, 2012

A quick search reveals that there are cases in Oklahoma where parents have lost custody for exposing their children to overnight visits with their romantic partners, though all the cases I've found involve either a custody agreement with an explicit provision about non-relative overnight guests or a court order barring same. However, that doesn't mean that there isn't some statute or regulation somewhere that bans or suggests against it, even in the absence of an explicit agreement. It just means that I haven't found one in my 5 minute Westlaw search.

That said, there's no custody law that can determine where your friend is legally allowed to live. The custody law or agreement can only determine the circumstances under which your friend's partner is permitted to visit with his children. So the decree or law or court order wouldn't "evict" your friend every other weekend. It would simply say that if your friend is staying overnight with the children in violation of the agreement/regulation/order, your friend's partner would be in breach and risk losing visitation with his children.

So basically, there are two issues here. One is legal, and the other is a relationship question.

1) Is your friend's partner barred from having overnight visitation with his children when your friend is present? For this, you need to consult a qualified family/custody attorney in your jurisdiction about the laws in your state and the agreements/orders specific to this case.

2) If your friend's partner can't have his kids stay overnight when she's there, what are the two of them going to do about that? No one can kick her out of a house where she legally resides absent a lawful eviction. So the two of them would need to figure out, together, how to handle this. Does he want to seek a modification of the custody agreement, if possible? Should he stay with his kids at a relative's house or a hotel every other weekend (a friend of mine is a noncustodial parent who has a blast staying with his kids at hotels and ordering room service and jumping on the beds)? Does she want to consider these weekends a little mini-vacation for her, and the two of them can work out who finances it? Homelessness for her isn't the automatic, go-to solution, and the two of them need to figure out together how they want to handle this problem, just like any two partners would figure out together how to handle any problem that came up in their shared life. But this isn't something the ex-wife is doing to her; this is a logistical problem that needs to be worked out between the couple.
posted by decathecting at 12:39 PM on July 2, 2012 [4 favorites]

I would urge the OP not to accept what Child Services supposedly said as a correct pronouncement on the law. I'm not saying they're wrong, just that they may not be right. Again, this situation truly calls for a local lawyer.
posted by Conrad Cornelius o'Donald o'Dell at 8:10 PM on July 2, 2012

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