On behalf of The Marks Law Firm, L.L.C. posted in Divorce and Child Custody on Friday October 18, 2013
In making a custody determination, our statutes direct the court to look primarily to the best interests of the children. In helping to refine that examination, our statutes set out eight non-exclusive factors to consider. None of these factors specifically addresses marital misconduct, at least not the cheating spouse (it does address abuse and neglect).
However, the statutory factors do include the adjustment of the children to the home. Depending upon the nature of the extramarital affair and its impact on the household and the emotional and psychological well-being of the minor children, the cheating spouse could be in some jeopardy with regard to custody.
For instance, if the cheating spouse had an affair with a person involved in the family (say a family friend or someone from work), suddenly exposing that affair could have much more damaging implications than an anonymous affair. If the cheating spouse got caught by one of the children in the marital home, that would be considered very reckless behavior (think of Sally discovering Don Draper in flagrante delicto with downstairs neighbor Sylvia). Generally, the more a cheating spouse involved the children in any of the machinations of the affair, the greater the emotional ripples, and the court can reasonably draw the inference that a parent who would conduct himself or herself in such a manner should not have joint custody of the children.
On the other side of the coin, parents who kept their indiscretions well-hidden may suffer less of a penalty, or none at all, with regard to custody. The less the children know, the easier for the parent to continue parenting without a loss of trust or a cloud hanging over his or her head. And a parent who tells the children repeatedly of the misdeeds of the cheating spouse may suffer repercussions as well, as the court may conclude that a reasonable parent would know to keep matters like adultery separate from the children to maintain the parent-child relationship.
As you can see, the ways that cheating can play into a custody decision do not have easy and clear lines of application. In each case, the court must consider whether the impact of the affair has so destroyed the ability of the spouses to co-parent successfully as to eliminate joint legal custody, and whether the impact of the affair has so hurt the family or the children as to make joint physical custody not in the best interests of the children.
Pursuing a sole custody strategy based on marital infidelity may be a self-defeating strategy based on the facts and could backfire. Only an experienced family law attorney can advise you as to how to pursue “cheating” in the context of your custody case.
If you have questions about cheating spouses and divorce, contact us – we can help.