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Does Adultery Affect Custody Decisions?

Adultery is usually seen as a reason to get a divorce. Spouses who have been cheated on typically feel angry and believe that continuing their marriage to their partner no longer makes sense. Still, some spouses choose to remain married even after discovering their partner’s infidelity.

Some fear that they will not find another partner. Some fear that they cannot be financially independent. And some remain married because they fear that they will lose their children. Some, of course, are able to address the causes associated with the infidelity and, usually through counseling or a mutual desire to save the marriage they are able to forgive and move forward.

Fathers, in particular often believe that judges will side with mothers when determining post-divorce custody arrangements. This belief is incorrect, however. Judges may have their own personal biases and opinions, but they must put these opinions aside when considering these cases. In California, judges must focus instead on determining what custody arrangement will best serve the interests of the children. If a judge believes, for example, that a child’s best interests are served by living with his mother, this will be the ruling-regardless of whether the mother has engaged in adultery. Adultery may be frowned on by society, but it carries no real weight in divorce proceedings in California. California is a “no-fault” state when it comes to divorce, meaning that the faults of a spouse, such as adultery, do not play a role in the determination of the issues involved in a dissolution case. This is a very complex subject in and of itself, and it has been observed that recently concepts of “fault” do seem to be creeping back into this area of law. For purposes of this article, however, we can assume that fault has no impact.

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