Should a parent’s adultery be per se relevant to child custody?

I’m no social conservative but, contrary to many South Carolina family law attorneys and judges, I believe that a parent’s adultery is almost automatically relevant on the issue of child custody when such adultery demonstrates a spouse’s failure to honor his or her commitment of sexual fidelity to a spouse.

South Carolina case law generally does not consider evidence of a parent’s adultery to be automatically relevant in determining child custody.  “A parent’s morality, while a proper factor for consideration, is limited in its force to what relevancy it has, either directly or indirectly, to the welfare of the child.” Stroman v. Williams, 291 S.C. 376, 353 S.E.2d 704, 705 (Ct.App. 1987).   As noted by the Honorable Alex Sanders in his concurrence in that case “[w]e are not in the business of gratuitously judging the private lives of other people.” Id. at 707.

South Carolina family law attorneys and judges take this to mean that adultery, without more, is not to be considered as a factor in deciding child custody.  In Davenport v. Davenport, 265 S.C. 524, 220 S.E.2d 228, 230 (1975), for example, mother had an extramarital affair and her boyfriend spent five nights in her condominium with the children present, yet the court still found it proper to award her custody.  In reaching this conclusion the Davenport court noted, “[c]ustody of a child is not granted a party as a reward or withheld as a punishment.”   Last year, in Moeller v. Moeller, 394 S.C. 365, 714 S.E.2d 898 (Ct. App. 2011), the Court of Appeals reversed a custody award to father and awarded custody to mother despite her adultery.

Yet unlike other types of sexual behavior that the South Carolina family courts often disapprove of, there’s a good argument that adultery–or at least adultery that pre-dates the parties’ separation or occurs shortly thereafter–is per se relevant on the issue of custody.  Its automatic relevance stems from the fact that adultery (possibly) demonstrates a failure or refusal to honor important commitments to one’s loved ones.  Sexual fidelity is, after all, a cornerstone of most spouses’ understanding of marriage and dishonoring this commitment is deeply hurtful for most spouses.

Again not considering adultery that greatly post-dates the separation, I believe adultery teaches us some important things about the adulterer.  First, it shows that person is willing to break important commitments to someone he or she vowed to love “until death do us part.”  Further it demonstrates that person was willing to dishonor that commitment understanding this would cause great pain to a loved one.  If a person is willing to treat his or her spouse this way, why expect that he or she won’t treat his or her child this way?

When I first began practicing family law almost twenty years ago, many family law practitioners, and a few family court judges, didn’t see domestic abuse as necessarily relevant to child custody.  “Just because a man beats his wife doesn’t mean he’ll beat his children,” was the explanation.  No one professes that anymore.   I think a similar analysis about keeping commitments–a spouse who dishonors a commitment to the other spouse about sexual fidelity is likely to dishonor difficult or inconvenient commitments to his or her children–is arguably accurate.  Moreover, just as witnessing a parent engage in domestic abuse teaches children that such abuse is acceptable, witnessing a parent dishonoring a commitment teaches children this behavior is acceptable.  Given these concerns any adultery that pre-dates or causes the separation should be considered relevant on the issue of child custody.

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