There are few things in a family law context that drive extreme emotion quite like adultery and child custody. When you combine the two, it’s a recipe for volatility.
But … does it matter?
It’s an excellent question and one definitely worth discussing. Let’s get into it.
If your soon-to-be ex-husband (or ex boyfriend) cheated
I’m going to hold your hand while I say this, but … for the most part, it’s not going to be super important. I know, I know. It’s the thing that ended your relationship. And it definitely shows a lot about both his judgment and his ability to put the children first. Right?
Well, maybe.
But probably not, at least in the eyes of the court. The affair has more to do with his relationship with you than it is a reflection of the importance of his role in the children’s lives or even of the specific impact of the cheating on the children themselves.
But what if brought his affair partner around the kids? Or if they witnessed inappropriate behaviors?
All custody and visitation decisions are based on the best interests of the child and, obviously, depending on what they’ve witnessed, it may not be in their best interests to have seen and experienced whatever they’ve seen and experienced. Ultimately, whether it is or isn’t in your children’s best interests would be something that the judge decides – not you and definitely not me.
If the court feels like he is not a fit or proper custodian, the custody and visitation arrangement would reflect that. If the court feels that it isn’t that big of a deal, the custody and visitation arrangement may not.
It’s also possible that, depending on the circumstances, the court would craft a solution that enforced specific boundaries to keep his parenting time focused on the best interests of the children.
Just knowing about the affair partner, though, or having been left in her care, isn’t necessarily something that the court would consider actionable, without more – like, for example, that she has a felony conviction for something violent.
If you cheated on your soon-to-be ex-husband
If you were the one who cheated, the same logic applies. It probably isn’t going to be enough to remove the children from your care or to give dad primary physical custody – at least, not on the basis of the affair alone.
Still, we live in a largely patriarchal society. I personally believe it is fair to say that we judge women – we, as in everyone, but family court judges are part of “everyone” in society – much more harshly for these behaviors as opposed to men.
I don’t think that an affair, taken alone, is enough to warrant dad winning custody. But I do think that it is something that would constitute, essentially, a black mark on your record. You’ll want to be extra careful from here on out.
Have you left the kids in the care of your affair partner? Have they witnessed any part of the affair?
Keep your kids completely separate from your relationships. Ideally, you should not have sleepovers or leave your children in the care of your new partner – at least, not while custody and visitation is being determined.
Is it unfair? Absolutely! A man who is in and out of relationships is not judged as harshly as a woman. A scroll through social media will almost certainly confirm this for you. Especially if the court gets the sense that there is a revolving door (meaning, that you have more than one relationship during the time your case is litigated), you are likely to experience some form of judgment. Does that mean you’ll lose custody? No.
To the greatest extent possible, keep your relationships private and keep your kids separate – at least while your case is being determined. I do believe there is a time and a place for introducing other partners to the kids (after all, this happens all the time), but you don’t want to rush it.
What kinds of boundaries to this behavior might the court put in place?
This doesn’t happen in every case, but it’s possible that the court will put protections in place to keep the parents’ relationships away from the kids. Here are some common ones I’ve seen:
No unrelated overnight guests
The court may or may not include this in your parenting plan; I find that it generally depends a lot on the specific issues presented in a case. But it’s entirely possible that the court will order that neither of you may entertain unrelated overnight guests during your parenting time. If you have sleepovers, you must do it when the children are not in your care.
Sometimes, the language is “unrelated overnight guests,” which may be too broad. Other times, I hear “unrelated overnight guests of the opposite sex,” which may work – or not – depending on who, exactly, you or your soon-to-be ex are dating. I’ve also seen “unrelated overnight guests,” so that extended family members and others with whom the parties are not having a sexual or romantic relationship are not included. The specific phrasing you choose is up to you, but keep in mind that there may be a better choice for you.
Restrictions on childcare providers
You may choose to restrict boyfriends and girlfriends from caring for the children. (You may also wish to disallow your former MIL, but that’s another issue for another article – but the same principles apply.)
You can include a general prohibition or, if your objection is specifically to the current boyfriend or girlfriend, you can mention them by name, or set specific conditions (not to exceed 2 hours, for example, so one or the other of you would still be able to, say, run to an appointment or the grocery store during your parenting time, but so that they aren’t depending on the partner to provide real, substantive childcare).
First right of refusal
Rights of first refusal have some pretty strong advantages and disadvantages, so you’ll want to consider all the pros and cons, but, in general, a right of first refusal disallows leaving the child(ren) in the care of a non-parent third party during their parenting time when the amount of care required exceeds a certain number of hours when the child’s other parent wasn’t offered that time first.
An example? Love to provide one! If dad has parenting time but he wants to go to, say, poker night with the boys between the hours of 6pm and 12am and the parenting plan says that there’s a right of first refusal triggered after 4 hours, he’d have to call mom and offer her the time before he either engaged a babysitter or left the kids in the care of his new girlfriend or wife.
How to introduce new romantic partners
Some people feel much better setting specific rules around when and how new boyfriends and girlfriends are introduced. Do you do it after six months of dating? One year? More – or less? Do you introduce the partner to the child’s other parent first? It’s totally up to you to set rules, if you can agree on them, but many parents feel better having a framework to help guide these introductions.
No alcohol consumption during parenting time
If a part of the boyfriend/girlfriend problem is the way he’s spending his parenting time – he’s home less, he’s partying or drinking more, or similar – you may want to restrict that behavior, rather than his romantic activities. Maybe you don’t consume alcohol during parenting time at all – or even the 24 hours before.
Keep in mind that, in most cases, these provisions are mutually applied, meaning that both mom and dad will be bound by them. (Otherwise, in general, they’d be considered prejudicial; either that, or the other party just would give a flat no.)
Adultery (or cheating) alone is often not a basis for changing custody, but it definitely is in a risky category, especially as a woman. It’s not that I’m so unrealistic that I’d suggest that you don’t date at all – after separation and particularly after a separation agreement or custody agreement is established, it’s generally both sort of expected and understood – but that you should be careful about how the kids are exposed to it and what, exactly, it looks like in practice.
Obviously, and I know you already know, best interests of the child is the most important consideration. We’re looking not just at the relationship but at the impact of the relationship on the kids. Depending on what, exactly, is involved in that relationship – obviously, criminal convictions or other problematic activity in a current or future partner is less than ideal in the extreme – it can have either a negative or even a decidedly positive impact on the kids. As you make decisions in the future about blending families and what the future will look like, keep your focus on your kids, as you certainly already were, and you’ll have the best possible outcomes, both in family court and in life.
For more information or to schedule a consultation with one of our licensed and experienced Virginia custody attorneys, give us a call at 757-425-5200 or visit our website at hoflaw.com.