In Re Marriage of Wellman

In a proceeding for dissolution of marriage between Anne and Roy Wellman, the San Mateo County Superior Court entered an interlocutory judgment of dissolution which, among other things, granted physical custody of their three minor children to Anne but provided (in the third paragraph) that “Petitioner shall have no overnight visitation with a member of the opposite sex, in the presence of the children, until or unless she is married to that individual.” It is from this portion of the interlocutory judgment that Anne appeals, We hold that the trial court abused its discretion in imposing this condition upon appellant, and that the condition is consequently invalid. The reasons for this conclusion follow.

Procedural and Factual Background

The Wellmans had been married 15-1/2 years at the time the petition for dissolution was filed and they had three children, then aged 8, 10, and 13. By the time of trial the parties, through their counsel, had resolved by written stipulation all issues as to the division of their property and child support, and they had agreed that Anne would be awarded physical custody of the children subject to reasonable rights of visitation. At…

I concur in the majority’s decision that the challenged portion of the judgment in issue ought to be stricken. I so conclude, *1000 however, on the single ground that insufficient evidence supported the trial court’s conclusion that appellant’s relationship with Mr. Silver adversely affected the children.

If the evidence were otherwise, I would, of course, be glad to leap with my colleagues into the murky waters of parental sexual morality and its impact upon minor children. There are other rights dimly discernible in those depths: the rights, for example, of noncustodial parents, to have their children raised in circumstances consonant with still widely shared notions of decent behavior; the rights of children to be protected from the effects of “depravity,” to which the majority forthrightly alludes; and the right of government to insist that certain traditional notions of morality be maintained within families, for the benefit of the state.

These waters are dark and deep, and on the record before us I see no reason to enter them.

In a proceeding for dissolution of marriage between Anne and Roy Wellman, the San Mateo County Superior Court entered an interlocutory judgment of dissolution which, among other things, granted physical custody of their three minor children to Anne but provided (in the third paragraph) that "Petitioner shall have no overnight visitation with a member of the opposite sex, in the presence of the children, until or unless she is married to that individual." It is from this portion of the interlocutory judgment that Anne appeals. (1a) We hold that the trial court abused its discretion in imposing this condition upon appellant, and that the condition is consequently invalid. The reasons for this conclusion follow.

The Wellmans had been married 15-1/2 years at the time the petition for dissolution was filed and they had three children, then aged 8, 10, and 13. By the time of trial the parties, through their counsel, had resolved by written stipulation all issues as to the division of their property and child support, and they had agreed that Anne would be awarded physical custody of the children subject to reasonable rights of visitation. At commencement of trial…