Ask a Divorce Lawyer: Will my wife’s affair with her ex-boyfriend help me in getting custody?

Question: My wife, we’re still together, had an affair with her ex-boyfriend who is the father of my stepdaughter. I have pictures and tapes from a private investigator to prove everything.

I see her ex-boyfriend a few times a month when he comes to pick up his daughter, I have to talk to him when he calls to talk to his daughter or my wife, etc. So it’s making it very hard to move forward. We live in Georgia, but I work in Florida and come home every other weekend to see my wife and daughter. 

My question is considering the affair and the presence of her ex-boyfriend in our lives, will I get custody of our child if I file for divorce? I am a very good father, have strong family values, and have a large loving family. I don’t want my wife to have custody of our child because of her values.

Answer:

Although I am licensed to practice law in Michigan, Cordell & Cordell has offices in Georgia and Florida, and I strongly encourage you to consult with a local attorney because I can only give you general information. You should not rely upon this information as creating an attorney-client relationship, and you should seek counsel in your area for further instructions and suggestions. 

That being said, there are common themes in child custody cases among states, one of which is that there is no bright-line rule for considering fault in rendering a custody decision. Instead, the court will (or should) conduct a highly fact-specific inquiry to determine which custodial arrangement is in the child’s best interests. Each state defines this standard differently, usually by a set of factors. 

In Michigan, for example, fault in the breakdown of the marriage is not a factor, but “moral fitness” is. I have had judges consider affairs a sign of moral unfitness, and one court even rendered a no-custody decision (eventually overturned) because my client had an affair during her marriage. Another theme is continuity – courts tend to render decisions that maintain the child’s established custodial environment. An established custodial environment is a physical and a psychological environment where the child naturally looks for care, comfort, guidance and life’s necessities. If the child is in school, courts are more likely to award custody to the parent residing in the child’s school district. 

However, if the parents can agree on a custodial arrangement, courts are likely to accept it unless it is clearly not in the child’s best interests. You should consult with an attorney in your area to discuss what options, if any, you have based on the particular orders and facts in your case.   

 

Jennifer M. Paine is an Associate Attorney in the Detroit, Michigan office of Cordell & Cordell P.C. She is licensed to practice in Michigan, and has been admitted pro hac vice in Illinois, Ohio, and the United States Court of Federal Claims. Ms. Paine received her BA in English and Mathematics from Albion College and graduated Summa Cum Laude. She received her Juris Doctorate from MSU College of Law and graduated Summa Cum Laude.

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