Q: After 20 years of marriage, I found out that my husband has been cheating on me for over a year and we are in the process of a divorce. He says that he wants joint custody of our three children. I don’t understand how a judge could ever award custody to a person who is clearly at fault for the breakdown of the marriage. Can you explain this?

A: I’m sorry you have found yourself in this position. Unfortunately, in the majority of divorce cases, one or both spouses have gone outside of the marriage for intimacy. Some judges see extramarital affairs, especially those late in the relationship, as more of a symptom of the breakdown of the marriage than the cause of it. Sometimes it is difficult to differentiate between the two. That being said, an extramarital affair is something that, if your case proceeds to a custody trial, will be one issue that is explored. As discussed elsewhere on this website, the court rarely makes custody determinations based on one factor alone. The court is required to hear evidence and consider all of the “Best interest factors“ in the Child Custody Act before making a custody decision. One of those factors is the moral fitness of the parties. An extramarital affair can certainly be considered as evidence of lack of moral fitness. However, there are many other factors that need to be explored, so be aware that in a case where the affair directly impacted the children, it is more likely to be considered in the context of a custody case than if it was a brief episode that arguably signaled the end of an already troubled marriage. The analysis can be rather complex. I would encourage you to talk to your attorney about the impact that an extramarital affair might have on your custody case. This is one of those questions that has no easy answer.

For more information about child custody factors, click here.

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