06 Dec 18

Can He Get Custody Because I Had an Affair?

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The existence of an affair alone is not enough to determine which spouse gets custody of the children. However, it is possible that circumstances surrounding the affair could lead to questions regarding placement. During a divorce, it is always best if parents can work together to put their child in the healthiest situation. When this is not possible, the court will decide which parent is awarded primary custody based on a set of laws that determine “the best interests of the child.”


Determining the Best Interests of the Child


Each state has a set of laws that help to determine where children are placed in the event of a divorce. State statutes regarding child welfare differ slightly but the general factors deciding placement are similar. Some of the common factors considered when deciding placement can be summarized as:


  • Emotional relationships between the child and the parents and siblings.
  • The ability of parents to provide a safe home, adequate food, medical care, and clothing.
  • The mental and physical health of the parents.
  • The presence of violence in the home.
  • The ability of parents to provide for the mental and physical health of the child.

The principles of child welfare laws are designed to ensure the health, safety, and happiness of children in the home. Some states even consider the wishes of children who are old enough to make a reasonable choice. Other factors likely to be considered are any history of substance abuse, domestic violence, and mental illness in either parent. If one parent had shouldered the bulk of parenting responsibilities, they might be more likely to be awarded custody.


When Your Affair Might Affect Placement


The occurrence of an affair by either parent is not a major deciding factor in child custody. It is common for extramarital affairs to be completely ignored in today’s divorce courts. However, if your affair has affected the well-being of your children, it might become a problem. If the affair caused discomfort, embarrassment, or mental distress to your children, your ability as a caregiver may be compromised. If your children’s health, well-being, or safety was compromised by your actions during the affair, your suitability as a parent may be questioned.


If the relationship still exists, it can have a bigger impact on child placement. If you will be living with the person, certain safety factors will be considered. Negative traits that can affect the lives of your children will be addressed by the court. Some things that might change the determination include the following.


  • If your partner has a criminal history, the children may not be allowed to live in the same home.
  • A partner that suffers from drug or alcohol addiction may not be allowed to spend time around children.
  • The identity of your partner can affect your children. For example, if the person is your child’s teacher or someone well-known.
  • If your partner has a history of mental illness, their medical history and ability to stay on a treatment plan may be reviewed.
  • In the event you have been separated from your husband for a period of time, the court may consider the impact your new partner has had on your children. If the children have been negatively impacted or your partner has willfully interrupted your husband’s visitation rights, that person might not be considered a stable caregiver.
  • As a primary caregiver, the financial stability provided by you and your new partner will be assessed. The children will be most comfortable with the stability they have experienced in the past.

In any divorce situation, the court uses the safety of the children as the top determining factor for placement. Any factors that undermine the physical or mental health of your children will change the court’s view about your ability to be the main caregiver. Every choice can directly affect your children’s lives. It is important not to make uninformed decisions during a divorce,


Laws vary widely from state to state. The court weighs each case individually to make the best decision. Divorce is an emotionally charged situation. It is important to contact an attorney who knows all of the laws regarding divorce, custody, and visitation rights. A lawyer can assess your individual situation and answer all of your questions.




  1. https://family-law.freeadvice.com/family-law/child_custody/extramarital_affair_imapact_custody.htm
  2. https://blogs.findlaw.com/law_and_life/2016/09/will-adultery-affect-child-custody.html
  3. https://rightlawyers.com/does-cheating-matter-to-judges/
  4. https://www.nycbar.org/get-legal-help/article/family-law/child-custody-and-parenting-plans/best-interests-of-the-child/
  5. https://www.childwelfare.gov/topics/systemwide/laws-policies/statutes/best-interest/

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