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Q. Will I lose child custody because of an affair? |
Dear Donna,
My husband and I have separated and will be divorcing. We have two children in elementary school. I have been the most hands-on parent but my husband is also involved in the children's lives. The reason for the divorce is that I have fallen in love with someone else. I'm worried that my husband will use this to claim that he is the better parent and seek primary custody of the children. Should I be lining up witnesses who can prove that I am a good parent? -Distressed in San Diego
Dear Distressed,
No doubt there are a lot of hurt and confused feelings in your family right now. Even though there was an affair, it would be a tragedy if this led to a "revenge" or punishment motivated custody battle, yet this happens frequently. All experts agree that custody battles are extremely hard on the children. I suggest that you focus on how to best help everyone and pull back from this precipice.
Instead of lining up witnesses for a custody battle, you should be lining up professionals to help you avoid a battle. In fact lining up witnesses can make things worse because it ensnares your social circle in your marital conflict, widening the dispute rather than containing it. Your children's service providers—day care providers, teachers and doctors—will not be pleased to be drawn into parental disputes as this is a no-win situation for them. Trying to get these providers to align with you can harm the safety net around your children, right when they need it most. Many judges are beginning to see a parent's effort to "line up" children's service providers as evidence of a lack of insight about what children need to survive the divorce.
I recommend you consider carefully your divorce process. Collaborative Law would be especially appropriate for this charged situation because of the built-in professional support of counselors and neutral experts. Where traumatic circumstances such as an affair accompany the break-up, you really need a package of support services, not just legal services. Each spouse will need help to recover from feelings of hurt and betrayal, so that they can make good decisions for themselves and for the children. A child development expert can help the children with their natural feelings about the big changes in their family, as well as help parents focus on the children's needs to maintain a loving relationship with both parents.
Mediation is another option that could be helpful. If you decide to use Mediation, consider a co-mediation team of a family lawyer and a mental health professional. And do get counseling for yourself and your children. I hope your husband seeks counseling also, so that he can learn to separate his feelings of hurt or humiliation from what the children need going forward. You should probably refrain from recommending this to him!
You can take comfort from knowing that California, like many other "no fault" divorce states, does not award child custody based on who was "at fault" in causing the divorce. No fault states have decided that 'who is at fault' can be a complicated question and the answer should not drive custody results anyway. This is because children still love and need their parents—both of them—despite marital transgressions.
Keep in mind that children often have strong feelings about a new partner of a parent, and this is often exacerbated when the new partner is associated with the break-up. This is going to take some real effort to work through, but the effort will pay big dividends. Pick up a copy of Helping Your Kids Cope with Divorce the Sandcastles Way by M. Gary Neuman. Attend a Sandcastles Workshop or other parenting-through-divorce class with your children and their father if you can.
Good luck!
Donna
This article is not legal advice. You should consult an attorney if you have legal questions that relate to your specific divorce.
