Custody decisions based partly on one parent's having had "three children out of wedlock, all with different [partners]"

[davidebernstein at aol.com]

I'm not a family law expert by any means, but I understand that most courts use a "best interests of the child" standard for custody. It's certainly in a child's best interest to have a stable home environment, and besides the general moral environment, having various men coming around to visit one's half-siblings (or simply to hook up with the mother) not only isn't conducive to that, it significantly raises the risk of child abuse.  One has a constitutional right to stay out all night and party, or to drink to excess in the privacy of one's home, or to live in a commune without electricity or running water, but I don't see why a judge couldn't take such lifestyle considerations into effect when determining the best interests of the child. 
 
 
-----Original Message-----
From: hendersl at ix.netcom.com
To: VOLOKH at law.ucla.edu; Conlawprof at lists.ucla.edu; emaltz at camden.rutgers.edu
Sent: Mon, 23 Oct 2006 6:16 PM
Subject: Re: Custody decisions based partly on one parent's having had "three children out of wedlock, all with different [partners]"


Why is it "eminently sensible?" we don't know enough, do we? Flip the question as Eugene suggested, would it be unfair to deny the father custody? 
Lynne Henderson 
----- Original Message ----- From: "Earl Maltz" <emaltz at camden.rutgers.edu> 
To: "Volokh, Eugene" <VOLOKH at law.ucla.edu>; <Conlawprof at lists.ucla.edu> 
Sent: Monday, October 23, 2006 3:03 PM 
Subject: Re: Custody decisions based partly on one parent's having had "three children out of wedlock, all with different [partners]" 
 
> Clearly unconstitutional (although eminently sensible.) 
> 
> At 02:33 PM 10/23/2006 -0700, Volokh, Eugene wrote: 
>> Romans v. Fulgham, 2006 WL 2868314 (Miss. App. Oct. 10), upholds 
>>a lower court decision awarding custody to father Fulgham rather than 
>>mother Romans; the lower court decision was based partly on the "moral 
>>fitness" factor, as to which the lower court "found this factor to weigh 
>>in favor of [the father], pointing to the fact that [the mother] had 
>>given birth to three children out of wedlock, all with different 
>>fathers." Is this constitutionally permissible, or does it 
>>impermissibly count against the mother her having exercised her 
>>constitutional rights? (Let's assume that the courts would likewise 
>>hold against a father his having fathered three children out of wedlock, 
>>all with different mothers.) 
>> 
>> Eugene 
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