The Relevance of Adultery in Custody Cases

In our age where the moral stigma of divorce is almost gone, there is still a certain stigma to adultery.  Although people who have affairs no longer are branded with a scarlet letter, most people are a little leery of those people whom they know to have affairs.  Maybe we trust them less or we choose to avoid interacting with them in certain situations lest we are thought to condone their conduct.

In the context of New York divorces, adultery is almost a non-issue.  Now that New York has adopted no-fault divorce, adultery or some other wrong no longer need be alleged.  Nevertheless, an adulterous affair is relevant in the context of a divorce in a few ways.  One of these is custody.

With respect to custody cases, be they in Family Court or in the context of a divorce in Supreme Court, the evidence of a parties’ extramarital relationship is a factor that may be considered in a court’s determination.  But evidence of a party’s extramarital relationship only will be considered in some very limited ways.

An affair in and of itself is not relevant to the determination of custody.  A parent’s infidelity, or sexual indiscretions for that matter, only will be a consideration in a custody dispute if it can be shown that such conduct may affect adversely the welfare of their children.  If the kids know nothing of the affair or the parent’s lover, the affair probably will not be relevant in making a custody determination.

An affair may be relevant for its impact on the children in a few ways.  First, a court may consider evidence of a parties’ extramarital relationship in evaluating a party’s history of impulsiveness and/or poor decision making.  A court also may consider such evidence in considering if the party has the ability to put the needs of the children before his or her own needs and desires.

Additionally, a party’s behavior while conducting an affair may show that he or she lacks insight preventing him or her from putting their child’s needs before their own.

It is important to point out that the parent’s intimate relationship with a third party, be it a lover or even a new spouse, is a relevant consideration in making a custody determination.  If this is a stable healthy relationship that enables the parent to better care for their children it is a positive.  If it is a dysfunctional mess or the new partner has their own baggage, it can be a major problem.  This is a whole topic in and of itself and will be the topic of another blog post.

Looking at an affair in these limited contexts may show where the children have suffered or may suffer because of a parent’s conduct.  And only in these limited contexts will testimony or evidence of an infidelity or sexual indiscretions be allowed into evidence.

The bottom line is that proof of an affair, sexual indiscretions, fetishes, promiscuity, or other torrid facts are not going to come into evidence at a hearing or trial simply to embarrass a parent.  They must have some tangible impact on the children.

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