Adultery: What Role Can It Play in Custody Determination?

A husband or wife going through a divorce is often angry, outraged, and appalled by the conduct of the other spouse and many times, a party wants to know how the presence of adultery will affect custody. As with just about everything in the law, the short answer is that It Depends, and Most Likely It Doesn’t Matter.

Consider SCENARIO 1:

Husband and Wife are married for 10 years and have two school-aged children. The husband has an affair with his female coworker while married to his current wife. (For clarification, I loosely define “affair” to mean an “inappropriate adult relationship.” Inappropriate adult relationships involve excessive telephone or electronic contact with a person of the opposite sex or same-sex. This contact has a flirtatious or romantic undertone. Disclaimer: Your judge may define “affair” or “adultery” differently.). Wife is angry about Husband’s “affair” and does not want him to have contact with his children.

And SCENARIO 2:

Husband and Wife are married for 10 years and have two school-aged children. While married, Husband, without Wife’s knowledge, impregnates and has children with 3 other women. He also enjoys swinging “key” parties and contracts several STDs from people he can’t remember due to drug use. The wife is angry about her Husband’s “affair” and does not want him to have contact with his children.

How Could These Scenarios Play Out in Court?

Most likely, the Wife is not going to get her way in Scenario 1. Yes, her Husband committed adultery, but his “offense” is unlikely to affect the best interests of his children for custody concerns. The Husband, most likely, is able to participate in an inappropriate adult relationship with his co-worker and still share joint legal custody and some portion of parenting time with his children.

Scenario 2, on the other hand, calls into question the Husband’s decision-making ability. This is directly related to the best interests of the children. His behavior could offend a judge and result in the Husband’s visitation or custody being lessened.

Scenario 1 is most common, with both Husband and Wife playing the “cheating” roles from case to case. In my experience, as hurtful as it is, Scenario 1 cheating is simply not the trump card the non-cheating spouse wants it to be. Some loose statistics indicate that the success rate for most marriages is 50%. In addition to this, about 60% of marriages (successful and unsuccessful) involve an affair by one or both spouses. All that is not to say that adultery doesn’t matter. However, increasingly, judges (who are likely part of the 50% marriage failure rate and part of the 60% adultery rate) don’t see it as their role to mete out justice for aggrieved spouses.

Read THIS article to discover how being dishonest about adultery can affect your custody case.