The Court Certainly Could Consider It

Video Transcribed:  My name is Brian L. Jackson, I’m a Fathers’ rights attorney in Tulsa, Oklahoma. And today we’re going to talk about kind of a touchy subject, and that’s unfaithfulness or adultery.

So the question is if one partner or the other in a marriage is unfaithful and they have kids together, is the act of adultery something that the family court judge can consider in awarding custody and visitation. Well, the shorter answer is yes, they can. In modern custody litigation, the standard is the best interest.

It’s a broad enough standard. The judge can consider almost anything they want that might have some bearing on the kids. And the reality is, look, if somebody screwed around, and it broke the marriage up, it’s going to affect the kids.

So yes, the court certainly could consider it. As a practical matter, if that individual was not brought around the kids, if the kids were not aware that somebody was stepping out on somebody else, then in all reality, I would not expect that the judge would give that a whole lot of weight.

And I don’t think that’s likely to cost you custody or visitation on its own. Now, where it can be a problem is if you have brought that person around the kids. And particularly, if you’re talking about an individual who has a less than stellar character or who has some kind of history, especially things like if they have a history of domestic violence, like they have protective orders out against them, or they’ve been charged with domestic assault and battery, and were convicted or pled guilty to it.

If they have another criminal history, especially felonies. If they have a history of substance abuse, use of illegal drugs, or alcohol, DUIs. Really anything violent is probably going to cause you a problem, or anything drug-related, or anything that seriously has an impact on their character. I mean, I know judges will consider felonies. I’ve seen them considered misdemeanors as well if it’s something like petty larceny because it has a bearing on the character of the individual.

So in those situations, yes, it can, which is a really good reason to one, not bring somebody around while you’re in the midst of custody litigation even if it’s not somebody you were screwing around with. And two, when you go out dating again, you really need to be aware of that person’s background. And I’ve talked about this before in past videos.

The court’s going to hold you responsible for being aware of what your prospective romantic partner’s background is like. And if they have a criminal history, it’s going to be seen by a court as reflective of your judgment.

Same if they have a history of substance abuse or if they have a history of domestic violence. In fact, the statutes require the court to consider that if the person lives with you. But even if they don’t, the court will consider that.

But in the case of adultery where the kids were not aware of it and were not exposed to the individual you or the other partner was messing around with, the court’s probably going to give very limited weight. And I’m not aware of any judges that would take kids away from a parent over that.

For example, put a parent on supervised visitation. So guys, if she cheated on you, that really sucks. That’s painful, but you’re probably not going to convince a judge to seriously restrict her visitation rights on that or take the kids away from her for doing that.

So just be aware of that. And the flip side, if you slipped up and made a mistake, it’s not going to cost you your rights to your kid either most likely. It’s not a good thing to be doing. Also, we’re all human and we make mistakes.

The good news is, is that in this case, this is not in and of itself, it’s not a mistake that’s devastating. Not a good thing, but not a devastating mistake. It may end your marriage though. I mean, that you could probably expect. But most likely, the court will let you have a relationship with your children. It might even award you custody. In modern litigation, custody litigation, adultery by itself is not devastating.

Unless it’s because you brought that person around the kids or they have a checkered character. My name is Brian L. Jackson. And we’ve been talking about whether or not unfaithfulness in a marriage could affect your rights to your kids or affect the other side’s rights to the kids. If you have questions about this topic, or any other situation that you might be facing, and need help with, go to dads.law, and we’d be happy to help you out. I would love to hear from you. My name is Brian L. Jackson, I am an Oklahoma fathers’ rights attorney, and it’s been a pleasure.