How Does Adultery Affect Child Custody?

Full question:

percentage of child custody cases awarded to the parent who has committed adultery

• Category: Divorce
• Subcategory: Child Custody
• Date: 04/07/2025
• State: Mississippi

Answer:

I am unable to locate a study on the subject, as each case is judged based on all the facts and circumstances in each situation. There is no hard and fast rule regarding adultery and child custody. Each court's approach to adultery is completely different depending upon the temperament of the judge, and the county in which the divorce is proceeding. A judge may not care about an adultery issue because that which caused the adultery also caused the divorce. In other words, these people were not getting along for other reasons, leading to adultery and divorce.

Another judge may dislike adulterers, hates what it does to a marriage, and will limit the adulterer's possession and access. Another judge may take a middle ground approach. She wants to know what the status of the marriage was prior to the adultery, whether the parties were separated (separate homes or bedrooms), and whether the adultery is the cause of the breakup of the marriage. If the adultery occurred sometime after separation, or during the divorce, she will not give much weight to it. If the adultery is the cause of the divorce, in other words the parties were happily married and had great plans prior to entry of the outside party, then she will attribute fault and rule in accordance.

In our experience, most judges fall into the Judge Candy category. That is, if marital discord and conflict was the status quo prior to the affair, then not a whole lot of weight will be given to it - especially, if the parties are separated and living apart prior to initiation of divorce proceedings. If all was well with the marriage but the adultery caused the marital discord and conflict, the judge will give great weight to it. They will protect the innocent spouse.

Custody may be granted in several different ways. The court may grant joint physical and legal custody, joint physical custody and sole legal custody to either parent, joint legal custody and sole physical custody to either parent, or sole physical and legal custody to either parent.

Custody is awarded based upon the best interests of the child. There is no presumption that it is in the best interests of the child that the mother be awarded either legal or physical custody.

Please see the following MS statute:

§ 93-5-24. Types of custody awarded by court; joint custody; no
presumption in favor of maternal custody; access to information pertaining
to child by noncustodial parent; restrictions on custody by parent with
history of perpetrating family violence; rebuttable presumption that such
custody is not in the best interest of the child; factors in reaching
determinations; visitation orders.

(1) Custody shall be awarded as follows according to the best interests
of the child:

(a) Physical and legal custody to both parents jointly pursuant to
subsections (2) through (7).

(b) Physical custody to both parents jointly pursuant to
subsections (2) through (7) and legal custody to either parent.

(c) Legal custody to both parents jointly pursuant to subsections (2)
through (7) and physical custody to either parent.

(d) Physical and legal custody to either parent.

(e) Upon a finding by the court that both of the parents of the child
have abandoned or deserted such child or that both such parents are
mentally, morally or otherwise unfit to rear and train the child the
court may award physical and legal custody to:

(i) The person in whose home the child has been living in a wholesome
and stable environment; or

(ii) Physical and legal custody to any other person deemed by the
court to be suitable and able to provide adequate and proper care and
guidance for the child.

In making an order for custody to either parent or to both parents
jointly, the court, in its discretion, may require the parents to submit
to the court a plan for the implementation of the custody order.

(2) Joint custody may be awarded where irreconcilable differences is
the ground for divorce, in the discretion of the court, upon application
of both parents.

(3) In other cases, joint custody may be awarded, in the discretion of
the court, upon application of one or both parents.

(4) There shall be a presumption that joint custody is in the best
interest of a minor child where both parents have agreed to an award of
joint custody

(5)(a) For the purposes of this section, "joint custody" means joint
physical and legal custody.

(b) For the purposes of this section, "physical custody" means those
periods of time in which a child resides with or is under the care and
supervision of one (1) of the parents.

(c) For the purposes of this section, "joint physical custody" means
that each of the parents shall have significant periods of physical
custody. Joint physical custody shall be shared by the parents in such a
way so as to assure a child of frequent and continuing contact with both
parents.

(d) For the purposes of this section, "legal custody" means the
decisionmaking rights, the responsibilities and the authority relating to
the health, education and welfare of a child.

(e) For the purposes of this section, "joint legal custody" means
that the parents or parties share the decision-making rights, the
responsibilities and the authority relating to the health, education and
welfare of a child. An award of joint legal custody obligates the parties
to exchange information concerning the health, education and welfare of
the minor child, and to confer with one another in the exercise of
decision-making rights, responsibilities and authority.

An award of joint physical and legal custody obligates the parties to
exchange information concerning the health, education and welfare of the
minor child, and unless allocated, apportioned or decreed, the parents or
parties shall confer with one another in the exercise of decision-making
rights, responsibilities and authority.

(6) Any order for joint custody may be modified or terminated upon the
petition of both parents or upon the petition of one (1) parent showing
that a material change in circumstances has occurred.

(7) There shall be no presumption that it is in the best interest of a
child that a mother be awarded either legal or physical custody.

(8) Notwithstanding any other provision of law, access to records and
information pertaining to a minor child, including, but not limited to,
medical, dental and school records, shall not be denied to a parent
because the parent is not the child's custodial parent.

(9)(a)(i) In every proceeding where the custody of a child is in
dispute, there shall be a rebuttable presumption that it is detrimental
to the child and not in the best interest of the child to be placed in
sole custody, joint legal custody or joint physical custody of a parent
who has a history of perpetrating family violence. The court may find a
history of perpetrating family violence if the court finds, by a
preponderance of the evidence, one (1) incident of family violence that
has resulted in serious bodily injury to, or a pattern of family violence
against, the party making the allegation or a family household member of
either party. The court shall make written findings to document how and
why the presumption was or was not triggered.

(ii) This presumption may only be rebutted by a preponderance of the
evidence.

(iii) In determining whether the presumption set forth in
subsection (9) has been overcome, the court shall consider all of the
following factors:

1. Whether the perpetrator of family violence has demonstrated
that giving sole or joint physical or legal custody of a child to the
perpetrator is in the best interest of the child because of the other
parent's absence, mental illness, substance abuse or such other
circumstances which affect the best interest of the child or children;

2. Whether the perpetrator has successfully completed a batterer's
treatment program;

3. Whether the perpetrator has successfully completed a program
of alcohol or drug abuse counseling if the court determines that
counseling is appropriate;

4. Whether the perpetrator has successfully completed a parenting
class if the court determines the class to be appropriate;

5. If the perpetrator is on probation or parole, whether he or
she is restrained by a protective order granted after a hearing, and
whether he or she has complied with its terms and conditions; and

6. Whether the perpetrator of domestic violence has committed any
further acts of domestic violence.

(iv) The court shall make written findings to document how and why
the presumption was or was not rebutted.

(b)(i) If custody is awarded to a suitable third person, it shall not
be until the natural grandparents of the child have been excluded and
such person shall not allow access to a violent parent except as ordered
by the court.

(ii) If the court finds that both parents have a history of
perpetrating family violence, but the court finds that parental custody
would be in the best interest of the child, custody may be awarded solely
to the parent less likely to continue to perpetrate family violence. In
such a case, the court may mandate completion of a treatment program by
the custodial parent.

(c) If the court finds that the allegations of domestic violence are
completely unfounded, the chancery court shall order the alleging party to
pay all court costs and reasonable attorney's fees incurred by the defending
party in responding to such allegations.

(d)(i) A court may award visitation by a parent who committed domestic
or family violence only if the court finds that adequate provision for the
safety of the child and the parent who is a victim of domestic or family
violence can be made.

(ii) In a visitation order, a court may take any of the following
actions:

1. Order an exchange of the child to occur in a protected setting;

2. Order visitation supervised in a manner to be determined by the
court;

3. Order the perpetrator of domestic or family violence to attend
and complete to the satisfaction of the court a program of intervention
for perpetrators or other designated counseling as a condition of
visitation;

4. Order the perpetrator of domestic or family violence to abstain
from possession or consumption of alcohol or controlled substances
during the visitation and for twenty-four (24) hours preceding the
visitation;

5. Order the perpetrator of domestic or family violence to pay a
fee to defray the cost of supervised visitation;

6. Prohibit overnight visitation;

7. Require a bond from the perpetrator of domestic or family
violence for the return and safety of the child; or

8. Impose any other condition that is deemed necessary to provide
for the safety of the child, the victim of family or domestic violence, or
other family or household member.

(iii) Whether or not visitation is allowed, the court may order the
address of the child or the victim of family or domestic violence to be
kept confidential.

(e) The court may refer but shall not order an adult who is a victim
of family or domestic violence to attend counseling relating to the
victim's status or behavior as a victim, individually or with the
perpetrator of domestic or family violence, as a condition of receiving
custody of a child or as a condition of visitation.

(f) If a court allows a family or household member to supervise
visitation, the court shall establish conditions to be followed during
visitation.