Hamidou Diallo won the NBA’s 2019 Slam Dunk Contest in an event that saw a Wright Brothers plane, some major air and some major attitude. His leap over Shaquille O’Neal brought down the house. When you catch the mother of your kids cheating, you might think your custody case is a slam dunk. Is it?

Old World Morality

Unfortunately for a Virginia man with an unfaithful spouse or mother of his children, Old World morality does not apply as vigorously in the 21st century as it may have in earlier times. Sure, adultery is still on the books in Code of Virginia § 18.2-365:

Any person, being married, who voluntarily shall have sexual intercourse with any person not his or her spouse shall be guilty of adultery, punishable as a Class 4 misdemeanor.

It is even still on the books as one of the few fault grounds for divorce, in Virginia Code § 20-91:

1. A divorce from the bond of matrimony may be decreed:

(1) For adultery; or for sodomy or buggery committed outside the marriage …

And yet, remarkably few divorces are granted based solely on adultery. First, it is hard to prove. Second, couples may never bother to marry before having kids. So, unmarried, you cannot then be divorced. Third, if you ignore the prima facie evidence (first, obvious evidence) of adultery and continue to cohabit with her, you lose the chance to claim a wounded ego later in court.

That last part is spelled out in § 20-94:

When the suit is for divorce for adultery, sodomy, or buggery, the divorce shall not be granted, if it appear that the parties voluntarily cohabited after the knowledge of the fact of adultery, sodomy or buggery, or that it occurred more than five years before the institution of the suit, or that it was committed by the procurement or connivance of the party alleging such act.

Are Adultery and Custody Linked?

So, while you may not be able to press a divorce suit based on adultery, do you have the chance to use her immoral behavior in getting custody of your kids?

Since adultery is a crime, you cannot flippantly accuse your wife or the children’s mother of adultery and not back it up with evidence. Such a charge will hold no sway in a Virginia court unless you have evidence and have not tacitly approved of her adultery by continuing to live with her.

So unless you pressed adultery as a fault ground leading to the divorce, you cannot use the attack in court during child custody proceedings.

Yet you may be able to present it during custody negotiations. Reminding her, and her attorney, of her behavior may soften their stance on custody. You may need to suggest that her behavior was in view of the children, meaning she is not a fit mother. You may need to suggest you could, eventually, bring up her behavior in court.

This is a dangerous and double-edged argument, since it cuts both ways. Are you flawless? Did you squander money, gamble, have a substance abuse problem, or commit adultery yourself? Glass houses and stones.

The Cold Reality of Custody Rulings

In Virginia, the cold reality is that the court overseeing custody cares less about the morality of either parent than about the best interests of the children. Never make the assumption that her adultery or cheating automatically makes you the better parent, at least in the eyes of the court.

You may be able to pay less or nothing in spousal support. This is written into Code of Virginia § 20-107.1, where it states,

The court, in determining whether to award support and maintenance for a spouse, shall consider the circumstances and factors which contributed to the dissolution of the marriage, specifically including adultery … 

Feel free to toss that out during negotiations. You may even convince a judge to split custody so you both have the children roughly equal amounts of time. You will likely not convince a judge to award full custody to you based solely on adultery.

Kids First, Always

You need to keep your children’s best interests in mind as you proceed, seething and wounded from her actions. Avoid saying negative things about her in their presence (that can come back to bite you in court anyway).

Avoid bringing up the man (or men!) she may have cheated with — your kids do not need to hear about that. Keep your kids close in heart and mind, and you will still come out ahead, even without custody.

Call The Family Law Firm For Fathers!

Your heart aches, but your head says, “Get some professional advice.” Turn to The Firm For Men. When you contact us online, or telephone our offices at 757-383-9184, we balance compassion with clinical coolness. We can help resolve your Virginia family law matter, from divorce to child custody and more.