Ask A Lawyer: Can I Get Custody Due to Ex’s Homosexuality?

Question:

My soon to be ex-wife, has decided that she is now a lesbian and has a 40 yr old lover (she is 26). Our daughter is 17 months and currently living with her mother at her mother’s parents’.

I am looking to take sole/primary custody legally and I am curious as to what my chances are with the homosexuality & adultery under NC laws & statutes.

 

Answer:

Laws controlling sexual activity are usually criminal in nature and beyond the scope of DadsDivorce Ask a Lawyer.  As criminal statutes, the issue relevant to child custody would be a conviction for violating the law, as the defendant is presumed innocent and the charges only allegations until proven.  Prosecution of any criminal law regarding sexual activity by consenting adults is up to the discretion of the prosecuting attorney for the jurisdiction.  The specifics of the criminal conviction would have to be reviewed to determine whether the underlying proven conduct would affect a custody determination.

With regard to the impact of your wife’s sexual preference on custody of your daughter, the issue for the judge should be how the conduct affects your child.  At 17 months, your daughter is not going to be aware of the specifics of the situation so as to cause her any immediate adverse impact.  Predicting at this time whether the relationship will continue into your daughter’s more formative years and how the relationship will affect your daughter’s development will depend upon the specifics of the situation and persons involved.

The more immediate impact of your wife’s conduct will be whether your wife is neglecting your daughter in favor of pursuing her new relationship or whether her lover’s personality and conduct are potentially a danger to your daughter based upon past or current behavior towards others, similar to the issues with a new heterosexual relationship.

 

Richard Coffee is a Litigation Manager in the Belleville Illinois office of Cordell & Cordell. He is an experienced divorce attorney whose practice is devoted to domestic litigation. He is licensed in the State of Illinois and is admitted to practice law in the U.S. District Courts for Northern, Central and Southern Illinois.

Mr. Coffee has extensive domestic litigation trial experience representing clients in courts throughout Illinois on all aspects of domestic litigation, including the representation of clients who are current or retired military personnel with issues under the Soldiers and Sailors Civil Relief Act and the Uniformed Services Former Spouses’ Protection Act, clients involved in state court jurisdictional disputes due to the relocation of one or both parties from or to Illinois, and clients with government or private pension benefit valuation and division issues. 

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