Adultery: Impact on Custody?

One of the more surprising revelations as a new family law practitioner was how little sex couples were having in their marriage. Sure I had heard all the jokes about marriage (and kids)being the death knell of sex and so I was certainly prepared for couples contemplating divorce to speak wistfully of the passionate sex lives that marked their early years with their partner. I assumed, naively, that a loss of romance and passion among couples in a marriage resulted in a zero sum loss in the amount of sex occurring between the parties. WRONG!! What was surprising to learn is how frequently married people were getting their sexual needs met outside their marriage without their spouse’s knowledge or consent.

Infidelity is as old as the ages. Nevertheless, when infidelity comes to your door it can feel like a betrayal the likes of which have never been seen or experienced. One of the more immediate reactions to learning that a partner has shared intimacies with someone outside the relationship is hurt, quickly followed by anger. When the marriage has produced children, thoughts quickly turn to what impact a spouse’s infidelity will have on the children — which brings me to this week’s question.

Question: Does adultery affect who gets custody of the children?

Answer: No. It comes as a big surprise to many clients that a spouse’s infidelity has no bearing on a court’s custody determination. While it can be easily argued that an unfaithful spouse has failed in many respects to be a worthy life partner, one cannot extend such logic to the spouse’s worthiness as a parent. Just because a spouse has had an extramarital affair does not mean that such spouse is a poor parent per se in the same way that a good parent is not necessarily a faithful and trustworthy spouse. This is not to say that a spouse’s infidelity may not be evidence of some graver issues that may have implications for the spouse’s caretaking. For example, if there are substance abuse or mental health problems that are underlying the adulterous conduct, that is certainly an issue to be examined to the extent that these problems pose a risk to the parties’ children. However, infidelity alone will not tilt the balance in favor of one party and against another when it comes to deciding custody.

The fact that Maryland family law courts will not consider a parent’s adultery in determining custody does not diminish its impact on a marriage and the children. Spouses who have been devastated by infidelity should seek the advice of a counselor to process the range of emotions that attend such a betrayal. The importance of doing so cannot be overstated. Failure to make peace with the infidelity and move beyond the pain can make the sting of adultery last so much longer and be felt by more than just the adults but the children too.