Is Adultery or Cheating Enough to Deny Custody?

Is Adultery or Cheating Enough to Deny Custody?

Under Virginia law, it is generally understood that adultery, without more, is insufficient to justify denial of an award of custody. The key determination for the court to consider is the exposure of the children to adulterous conduct and impact of such conduct directly on the children.

However, sometimes there are exceptions under the case law.

In Clark v. Clark, 209 Va. 390, 164 S.E.2d 685 (1968), the Supreme Court of Virginia considered the case of a woman who had secured custody of a child but was found to have engaged in post-separation adultery resulting in a half-brother. The Supreme Court did hold that it was not in the child’s best interests to be raised with his brother who had a different father. The Court considered the mother’s four acts of adultery over a period of several weeks, when she was residing with his parents as “conduct [which] cannot but be a reflection of the moral character of the [wife].” The Court thought that the change in custody from mother to father should happen before the child of the marriage was “confronted with and understands the status” of his illegitimate half-brother. Id. at 395.

In a different case, Brown v. Brown, 218 Va. 196, 237 S.E.2d 89 (1977), the Supreme Court held that adultery, without more, is generally an insufficient basis to find a parent “unfit.” However, the Court said the trial court must consider the adverse impact on the children. The Court said:

“In all custody cases the controlling consideration is always the child’s welfare and, in determining the best interest of the child, the court must decide by considering all the facts, including what effect a non-marital relationship by a parent has on the child. The moral climate in which children are to be raised is an important consideration for the court in determining custody, and adultery is a reflection of mother’s moral values. An illicit relationship to which minor children are exposed cannot be condoned. Such a relationship must necessarily be given the most careful consideration in a custody proceeding.”

Id. at 199.

More recently, the Court of Appeals of Virginia said in Venable v. Venable, 2 Va. App. 178, 342 S.E.2d 646 (1986), that post-separation adultery, with no exposure of the children, is an not a basis for denying custody.