Can Adultery Affect Child Custody? (If So, How Much)

According to the latest statistics on adultery in the United States, about 22% of married men have committed adultery at least once. This has been a major cause of strife among married couples. 

On the other hand, approximately 14% of married women had affairs outside marriage at least once in their lives. 

One of the major causes of divorce in the United States, therefore, is adultery and infidelity where marriage partners engage in affairs outside of their marriage. 

Statistics indicate that about 17% of divorce cases occur due to cases of adultery and infidelity. 

What is Infidelity?

This refers to the voluntary acts of sexual intercourse between a married individual with someone who is not their spouse. 

Men cheat on their wives by having affairs outside of the marriage just for sex or for other reasons such as physical adventure to satisfy their ego.

 While women may cheat for different reasons, that may include emotional connection, or when they are not satisfied emotionally. 

Can Adultery Affect Child Custody?

Before we discuss whether adultery can affect child custody or not, it is important to understand the changes in the laws regarding divorce since that is what happens before child custody. 

We need to understand the law behind divorce in the states, and that brings us to a fault and no-fault divorce. 

In a no-fault divorce, a spouse that is filing for divorce is not required to prove any fault to the court. The court assumes there are irreconcilable differences and that the marriage is beyond repair. 

That means it doesn’t matter whether it was caused by cases of adultery or infidelity. 

In the United States, 17 states have been considered as no-fault states since they have the same law where a spouse filing for divorce is not required to prove any cause. These states include Washington, Oregon, California, Florida, and Minnesota among others. 

In these states, the cases of adultery are less likely to be considered by the court during child custody decisions since they cannot be considered in the first place. 

However, there are instances where the cases of adultery can be taken very seriously by the court if the act of adultery was done in front of the child or children. 

When a parent doesn’t respect or protect the child when having affairs, that may affect the child emotionally and psychologically and that parent may be proven to be unfit by the court. 

In a fault divorce, adultery may affect the child custody since that is considered by the court during the divorce process. The parent alleging the infidelity must prove to the court there was sex outside of their marriage. The person alleging may provide evidence that can be in form of:

Can Adultery Affect Child Custody?

When it comes to child custody, these pieces of evidence are critical to determine whether the parent is unfit to be the custodian of the child or children. Remember, the court may only take the matter seriously if it had a direct impact on the child or children. 

When Does Adultery Affect Child Custody Decisions?

In some states, the court, while advocating for the best interests of the child or children, may not consider the past conduct of parents unless that conduct or behavior is deemed to have impacted the child negatively. This is the case with Ontario, according to the Children Law Reform Act Section 24(3)

That means every court, while advocating for the best interests of the child, would want to consider the parent to be fit to be the custodian unless the parents’ behaviors are proven to be abusive. 

Sexual Acts in Front of The Kids 

This is a serious matter when raised in a child custody case. It is abusive to the rights of the child or children and a parent who engages in the affairs of sex and intimacy in front of the kids may be deemed to be unfit to parent the child. 

It is also important to prove that the parent has been engaging in sexual acts in front of the child and this can be taken seriously if the child is disturbed by the issue. 

In this regard, if the child is interviewed by the guardian ad litem, or by the judge, and the parent is found to have been acting with disregard to the child, that parent is likely to lose custody. 

The New Partner Abuses the Child 

If a parent gets a new partner that becomes abusive to the children with or without his or her knowledge, that parent will likely lose custody and may be subject to supervised visits. 

The child or children should always be protected and when the issues of abuse by the new partner are raised, that becomes a serious matter of concern in the court on matters to do with child custody. 

New partners should not be introduced to the children for many months to avoid serious problems.

Repeated Sexual Intercourse with Different Partners

If the parent is accused of having engaged in sexual intercourse with many different partners, that can paint him or her in a bad light and especially if the child was exposed to the acts. 

However, the court will only take the matter seriously if there are facts and evidence that have been presented to prove that indeed the parent acted in a reckless manner. This also holds true if the parent is shown to have been bringing different partners home and exposing the child to their affairs. 

When Does the Court Disregard Matters of Adultery in Child Custody Decisions?

As we mentioned before, it is only when adultery is proven to be against the best interests of the child or children when the court would take it seriously. 

However, if the cases of adultery that have been raised do not affect the children, then that does not prove the parent to be unfit. In this case, the court will consider other factors that are in the best interests of the child that include:

  • The ability of the parent to provide good care of the child. 
  • Cases of abuse and domestic violence. 
  • Cases of neglect and child alienation. 
  • The child’s wishes and preferences. 
  • Mental and physical health of the parents. 

Of course, there are many other factors that a judge would consider before making child custody decisions and if the parent is found to be fit and the acts of adultery don’t affect the child in any way, that parent is still eligible to have custody.

Conclusion 

While cases of adultery may affect child custody decisions negatively, it is uncommon and is not the only consideration by the court. It is only when the court finds out that the parent has acted in ways that do not promote the best interests of the child, whether through adultery or in other factors, that the parent may be deemed unfit to hold custody.