Does an extramarital affair have an impact on custody?

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Jeffrey Johnson is a legal writer with a focus on personal injury. He has worked on personal injury and sovereign immunity litigation in addition to experience in family, estate, and criminal law. He earned a J.D. from the University of Baltimore and has worked in legal offices and non-profits in Maryland, Texas, and North Carolina. He has also earned an MFA in screenwriting from Chapman Univer...

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Written by Jeffrey Johnson
Insurance Lawyer Jeffrey Johnson

UPDATED: Jul 16, 2021

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An extramarital affair might have an impact on child custody, but only if it in some way impacts the court’s determination regarding what is in the best interests of the child. An extramarital affair alone will not disqualify you from obtaining child custody or visitation, but it will not help you convince the court that you are a solid, stable, and responsible parent.

Understanding the Custody Determination

A child custody determination is made by the court based on one thing only—the best interests of the child. There are, however, a number of different factors that the court uses to determine what the best interests of the child are. These factors may include:

  • Who has acted as the primary caregiver for the child. If either parent has, the court may be more likely to award primary custody to that parent, so as to avoid an interruption in the child’s routine.
  • Which parent, if any, is most willing to facilitate the possibility that the child may maintain a relationship with the other parent, the extended families on both sides, and the community where the child grew up.
  • The ability of each respective parent to provide a safe, supportive, loving and nurturing environment for the child.

Adultery and  Child Custody

Having an extramarital affair is not a factor considered in its own right, but it does go into the courts assessment of these other factors. For example, if you engaged in an affair that embarrassed the child in some way or that otherwise indicates that you were putting your own needs and desires above the needs of the child, this can be used as evidence against your fitness as a parent.

Further, if you are cohabitating with a significant other during the divorce process or during a custody dispute, the court will also look at whether this impacts the stability of your home and will consider the relationship of the child with the person whom you are living with.

Getting Help

Because there are many different factors that go into a determination of child custody, it is important for you to think carefully before you act. It is also important for you to have a child custody lawyer advising you throughout the child custody process so you can make sure you don’t do anything to jeopardize your right to spend time with your children.

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