The Repeal of the Cohabitation Statute and Child Custody Cases by Afshin Farashahi When the 2013 General Assembly repealed the criminal statute that prohib-ited cohabitation, 1 it most likely realized that its action would not affect the prac-tice of criminal law, given that the statute was not enforced. 2 The repeal of Virginia Code § 18.2-345 3 will instead have its impact outside the area of criminal law, namely, in family law. This development comes several years after the Supreme Court of Virginia declared that Virginia Code § 18.2-344, prohibiting fornication, is unconstitutional. 4 (In that case, the Court relied on the U.S. Supreme Court’s ruling in Lawrence v. Texas , 5 which struck down the anti-sodomy statute in Texas.) Even though the statute prohibiting cohabitation’s cousin, adultery, is still on the books, 6 it is subject to serious consti-tutional challenge if the opportunity ever arises. 7 For family law practitioners, this means that the cohabiting household may not be, and should not be, automati-cally ruled out as an alternative for the child’s primary residence. 38 VIRGINIA LAWYER | February 2014 | Vol. 62 | FAMILY LAW Public Policy Based on Anti-Fornication and Anti-Cohabitation Statutes While the cohabitation statute was not enforced, it was still relied upon, along with the fornication statute, as the basis for public policy pronounce-ments by the Supreme Court of Virginia. For example, in an employment law case, the Court made it clear that there are public policies in the commonwealth “against fornication and lewd and lascivious behavior” and that these policies are “embodied” in Va. Code § 18.2-344 (fornication statute) and § 18.2-345 (cohabitation statute). 8 That public policy has also become instrumental in child custody cases. There is a general prohibi-tion of cohabitation when children are involved. Some courts routinely make it a part of custody and visitation orders that no one of the opposite sex, not related by blood or marriage, may stay overnight while the parent has the child. And courts that do not routinely order such prohibi-tion are likely to do so if the issue is raised by one of the parties. Similarly, guardians ad litem (GALs) have felt obligated to recommend a prohibition against cohabitation in custody and visitation cases no matter what the facts may show. One of the Virginia State Bar’s public information pam-phlets, prepared by the Family Law Section and www.vsb.org