In Virginia, adultery is one of the fault grounds for divorce. It is ugly and sometimes challenging to prove legally, but of the fault grounds, it is one of the more benign malignancies. Your other choices of what to level against your wife are buggery, sodomy, or felony, among others. If adultery is legally proven, though, what does that do to ancillary issues, like child custody?
You, The Adulterer
Some Virginia men may be searching this column because they are the adulterers. We pass no judgments at The Firm For Men. You’re a big boy. If you committed adultery and you were found at fault in the divorce, that crime hangs on you alone. It does not affect your children, which is why your adultery may not affect your child custody case.
If the court — despite your adultery — finds that you are the better parent for your children, you get physical custody. This means your ex-wife, in the eyes of Virginia’s judges, did something, behaved in some way, or said something far worse than your illicit act.
This will not please your ex-wife. She will feel doubly ill-used, since she was the victim of your adultery and lost physical custody of her children. She may retain visitation rights, or even have some influence in legal issues (medical concerns, education, religious upbringing) relating to your children. But she will not have physical custody — your kids will live with you.
This is not to say you are Parent of The Year material if you committed adultery and your children saw something or knew something they should not have. You may want to investigate ways to improve yourself and learn better decision-making, but you still can get physical custody.
Your Wife, The Adulteress
For all the guys trying to find an out for their own adultery, just as many Virginia men are scouring this column hoping to find legal snares to snag their wives. If you know (and can legally prove) that your wife was an adulteress during your marriage, you will be disappointed to learn that such a Scarlet A is not an automatic disqualifier for child custody. She can still earn physical custody if the Virginia judge finds she is the more fit parent.
It all comes down to the “best interest of the child,” a tenet of the Code of Virginia we have referred to more than a few times in previous writings. Your ex-wife may have slipped, yes, and committed an actual crime (adultery is against Code of Virginia § 18.2-365). Yet her other works, acts and thoughts, in the eyes of Virginia, may still make her more worthy than you of caring for and raising your children.
We know, we know: it seems wrong somehow. Yet if you were the adulterer and still won physical custody, you would not decry the Code as biased. So, since the Code is (supposedly) gender neutral, your wife wins the same pass you would have won.
Guidelines Judges Use to Decide Custody
What makes an adulteress a better choice than you for raising your children? The court has nine particular guidelines (and one extremely unparticular guideline) in determining physical custody, as stipulated in Code of Virginia § 20-124.3, the most pertinent of which we paraphrase here:
- Age and physical and mental condition of the child, giving due consideration to the child’s changing developmental needs
- Age and physical and mental condition of each parent
- The relationship existing between each parent and each child
- The needs of the child
- The role that each parent has played and will play in the future, in the upbringing and care of the child
- The propensity of each parent to actively support the child’s contact and relationship with the other parent, including whether a parent has unreasonably denied the other parent access to or visitation with the child
- The relative willingness and demonstrated ability of each parent to maintain a close and continuing relationship with the child, and the ability of each parent to cooperate in and resolve disputes regarding matters affecting the child
That particularly unparticular, wide-ranging guideline? It gives a lot of freedom to a judge to decide who gets custody: “Such other factors as the court deems necessary and proper to the determination.”
You can drive several widebody Porsche 911s side-by-side through that sentence and still not graze either side of the judge’s discretion.
Your attorney needs to know ahead of time if something you did will fall under the judge’s scrutiny and tempt her or him to award custody to your ex-wife, using that singular sentence to justify the order.
Best Interest of the Dad?
In all cases — whether you win your kids or your ex-wife does — the court does not look at you and think, “You are such a great person, we will reward you with these adorable children.” Instead, the court focuses exclusively on the children and thinks, “Which parent — the father or the mother — is more able to provide a supportive, loving and caring environment for these children?”
The Code of Virginia memorializes “best interest of the child” about 38 times in its thousands of pages. Not once does “best interest of the Dad” appear. Sorry; you have to realize Virginia has an overwhelming desire to protect its most innocent Virginians, its children, even at the expense of your heart and happiness. You come a distant second compared to the needs of the child.
We’re Custody Lawyers for Fathers
By calling The Firm For Men at 757-383-9184, or by reaching us online, you can be connected to a caring, attentive attorney who will listen to your individual case, help you find a path through to a better life, and work tirelessly to preserve your connections to your children. We’re conveniently located in both Virginia Beach and Newport News and we’re proud to serve fathers all over Hampton Roads!
