Modification in a Scandalized Divorce

Divorce Gavel St LouisMany of you may remember a political rising star by the name of Mark Sanford. He was governor of South Carolina and very popular when, in 2009, it was revealed that he had been having an affair with an Argentinian woman and charging their trysts to the taxpayers. Sanford resigned and later ran for and successfully captured a House seat for a district in South Carolina. In between, his wife, Jenny, divorced him in 2010.

In the divorce, the court awarded the parties joint legal and joint physical custody of their children, and Jenny received a larger share of the marital property based on Mark’s marital misconduct.

It seems that since the divorce, life has not been so friendly between Mark and Jenny. Jenny has had to file at least one contempt motion relating to an alleged trespass of her beach house by Mark.

Since the revelation of the affair, Mark has remained with his paramour, and this seems to make Jenny extremely upset. She recently filed a motion to modify, apparently seeking sole legal and physical custody of the children and wanting to severely restrict Mark’s access to their youngest son (Jenny did not plead the reasons yet as she wants the record to first be sealed). However, we have a clue as to what may be going on, as she is seeking to restrain either party from exposing the children to a person of the opposite sex who might be construed as a paramour. Further, she has requested a psychiatric exam of Mark. Yes, it seems Jenny wants to make sure the children have no contact with the woman who brought down her marriage.

While one can understand why Jenny feels hurt, can the law allow a court to limit the children in such a fashion?

It is not uncommon in divorce that a marriage brought down by a paramour sees that paramour become a significant other or even a new spouse after the divorce. It is also not uncommon for the cheated-upon spouse to want the children to have no contact with the person who ended the marriage.

But hurt feelings alone cannot justify a restraining order like Jenny seeks, or support a change of custody. The court must examine all of the facts and circumstances and see what arrangement would be in the best interests of the children. It may turn out that the children have bitterness toward the paramour and exposure to this person is detrimental psychologically or even physically; in that case, a restraining order or change of custody would be justified. However, it may also be the case that the children and the paramour get along fine and that the only resentment comes from the spurned spouse; in that case, a restraining order or change of custody would not be justified.

Another potentially interesting facet of the Sanford case – the youngest son is 16, so courts will give great weight to his preference for custody. It may be that Jenny wants to allege some bad behavior about the paramour and the risk it poses to the youngest son; it seems some aspect of alcohol may be involved as well. Again, these types of charges are not unusual in these types of cases – but they have to be backed up with proof to win over the judge.

Cases involving affairs often become difficult because of the betrayal one spouse feels, and that betrayal bleeds into custody as well. We can only imagine the difficulty when the affair is a matter covered by the press. But even lurid and scandalous affairs cannot automatically take the children away from the cheating spouse – after all, Mark received joint custody in the divorce. Lousy spouses can still be good parents. To succeed in a bid for sole custody, the spurned spouse must produce evidence of harm to the children beyond the fact of the affair – which would explain Jenny’s request for a psychiatric exam.

If you have questions about modification of a custody decree, contact us – we can help.

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