In Re the Marriage of Walter , 27 Or. App. 721 ( 1976 )

SCHWAB, C. J.

In this dissolution-of-marriage proceeding, the trial court awarded wife custody of the parties’ two children subject to reasonable visitation by husband, but conditioned the award of custody by requiring that wife not cohabit¹ with a man not her husband while the children were in her custody. Wife appeals from the imposition of the condition upon the award of custody.

Conditions should be imposed on an award of custody only when necessary to protect the best interests or the welfare of the child. See ORS 107.137. See generally Holmes and Holmes, 20 Or App 161, 530 P2d 889 (1975). While cohabitation may in many circumstances be injurious to the welfare of a child, we cannot say that in every circumstance, forseeable or otherwise, that cohabitation in any form will have such an effect. See Whitlow and Whitlow, 25 Or App 765, 550 P2d 1404 (1976); Hogan v. Hogan, 6 Or App 122, 486 P2d 1309 (1971). We have examined the record and can find no evidence which indicates that the condition placed upon the award of custody is necessary to protect the best interests of the children, and it should be deleted from the decree.

When and if there is cohabitation, the court can, upon appropriate motion, consider its effect on the children and make its decision as to the children’s best interest in light of the actual rather than a speculative situation.

Affirmed as modified. No costs to either party.

1 Though the matter is by no means clear, we understand the court’s use of "cohabit” to mean "[living] together as man and wife.” Webster’s Third New International Dictionary (unabridged 1971).