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Can he get custody because I had an affair?

December 31, 2016 Blog

When one spouse has been found to be cheating, the other spouse might file for divorce, but that doesn’t mean that the victimized spouse will have more rights than the cheating spouse. The cheating spouse might be wondering about child custody matters in the impending divorce. The custody of the child will go to the parent who is deemed the most responsible, but an affair doesn’t necessarily mean the spouse is irresponsible when it comes to the children.

Understanding How Custody is Determined

The best interest of the child is the only determining factor in who gets sole custody of the child. The judge will determine this based on who was the primary caregiver of the child during the child’s life. The primary caregiver is the one who took care of the child during his or her life from bath time to feeding to getting them off to school. This will help avoid an interruption in the child’s life.

The court will likely choose the parent who will allow the child uninterrupted time with the non-custodial parent, that parent’s family as well as relationships with extended families. The community where the child grew up will be a factor as well as their school and whether the parent will allow the child to stay in the same area.

Each parent’s ability to provide a stable, loving home will be evaluated to determine who is best for the child. The environment of the home itself is a contributing factor in the decision, which is where the cheating spouse might run into a problem with custody.

There’s also the negative opinion of the judge that might be a factor in the decision process. Unfortunately, it could paint the cheating spouse in a bad light, which influences other parts of the process.

Custody and the Question of Fidelity

While having an affair isn’t grounds for losing custody of the child, there are circumstances that might contribute to the fact that the cheating spouse makes bad decisions or puts their needs before the child. If the affair was an embarrassment to the child, or the child was put in harm’s way during the commission of the affair, that could be a factor in the custody determination.

If the cheating spouse is living with someone else during the divorce, that itself isn’t a problem. The suitability of that person will be called into question during the divorce though. If that person will be sharing a home life with the child, that person has to be a stable, responsible person too.

The court wants to see a devotion to the child in every decision. If there have been multiple affairs or times when the child was in a dangerous situation, that can definitely impact custody.

Answer to the Question of Custody

If you’ve cheated on your spouse, it’s important that the affair hasn’t had an impact on the child’s home situation. This can be a tough one if the divorce is a direct result of the infidelity. Your husband will have to prove that the affair is a detriment to the child or that he is a more suitable parent overall. That needs to be proven with more than just the fidelity in question.

When you’re the primary caretaker, the child lives with you and your providing a stable home life, it’ll be tough to prove that you’re unfit without more evidence than the affair.

It’s always important to consult with an attorney. Without knowing the specifics, it’s a tough question to answer. An attorney can provide advice and next steps after hearing all the details of the case. You should detail how you’re the best parent for your child, and get the advice and help of a lawyer for your divorce case.



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