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Can I Get Custody Even If The Divorce Was My Fault?

Can I Get Custody Even If The Divorce Was My Fault?

Talk of divorce is usually preceded by a very complex set of circumstances for many couples. From a personal standpoint, each spouse will typically have an opinion as to why the marriage ended, and the explanations provided across our community can range from lack of trust and infidelity to lack of intimacy and growing apart. As a matter of law in Utah, neither spouse has to prove the other did something wrong or was at fault to file for divorce.

As a no-fault state, spouses can simply file for divorce citing irreconcilable differences, no matter who was personally considered to be the cause of the split. When couples with minor children file for divorce, the details that must be finalized in their agreement will include child custody and child support decisions that will be reviewed by the court if the couple cannot create a parenting plan they can both agree on.

Typically, when one spouse is deemed responsible for the divorce, the other spouse may oppose their being awarded custody of the children. In reality, even if you are willing to take the blame for the marriage ending, that is not a legitimate reason for tipping the scale in your spouse’s favor during your child custody evaluation.

What Actions Will Harm My Chances Of Gaining Custody Of Our Kids After A Divorce?

If a cheating spouse’s extramarital activities are discovered, and the other spouse files for divorce because of this behavior, that fact has little to do with their ability to gain custody of the children.

Child custody should be determined according to what is in the best interest of the child.

That means evidence of damaging behavior must be presented to harm either parent’s ability to obtain custody of their children. And those actions — not the infidelity or the act of falling out of love — will be considered during the divorce proceedings.

Damaging behavior that can jeopardize a parent’s ability to gain custody of the children can include:
• Failure to provide basic needs for the children
• Exposing the child to emotionally harmful or psychologically damaging situations
• Physical abuse of the child
• Abandonment or neglect of the child
• History or conviction for domestic violence or sexual abuse
• Drug, alcohol or other addiction problems

The goal of the family courts is to keep both parents active in the lives of their children, which can often lead to joint custody. However, many factors are considered when determining child custody in Utah, and every family’s dynamics are unique. Simply put, you cannot measure your custody options based on someone else’s divorce proceedings.

Are there Custody Factors A Court Must Consider?

Yes. A court is granted the sole authority for determining whether joint physical custody would be in the best interests of a child, but it is not solely at a court’s discretion. Instead, the court must carefully consider a number of statutorily prescribed custody factors to determine whether joint physical custody would be appropriate.

Those factors are found in Utah Code 30-3-10.2 and include the following:
• The physical, psychological, and emotional needs of the child;
• The parents’ ability to work together and give the child’s needs priority. This includes the parents’ ability to communicate with one another, encourage the child to share love and affection with the other parent, and be willing to allow the child to have continuous contact with the other parent;
• Whether the parent was involved in raising the child before the divorce;
• How close the parents live to one another;
• For older children who are mature enough, whether the child prefers joint or sole custody;
• The parents’ ability to protect the child from conflict that arises between the parents; and
• The parents’ ability to make joint decisions regarding the child;

More often than not a court does not make a determination as to the custody factors above alone. Instead, in contested cases that are expected to go to trial, the court orders the parties to undergo a custody evaluation by a licensed custody evaluator. The custody evaluator will meet with the parents, spend time with the parents and children, interview the parents to determine their mental well-being, and conduct other research into the parent/child relationship to make a helpful recommendation to the court.

What it comes down to is the best interest of the child. The court is obligated to protect children and is not terribly concerned with the divorcing parties except to make sure a party is protected from abuse and given his or her equitable portion of the marital estate. But even then, the court will put the children of the marriage above the parties to the divorce if the choice comes down to that.

Does the Statute Create Any Presumptions in Favor of One Parent Over Another?

No. There is no presumption in favor of awarding divorcing parents joint or sole physical custody. Furthermore, there is no presumption in favor of a parent simply because of the parent’s gender. See Utah Code 30-3-10. The court looks at the issue with a clean slate without any predetermined judgments based on the parties simply because of who they are.

Can I Lose Custody Of My Child For Adultery In Utah?

Yes. It’s possible.

These days, an extra-marital affair is a fairly common occurrence, and many couples choose to “work it out” when the affair is revealed to the other spouse. If that is not the case for your situation and there are children involved, the situation can escalate quickly. Going through a divorce can be a trying time, and adding the emotions of a cheating spouse can compound the extremes of the experience.

The first thing to know is that proving a spouse is committing or has committed acts of infidelity can be difficult.

Unfaithful spouses are notorious for covering their tracks and destroying evidence of their extra-marital relationship, even before their spouses suspect there was an extra-marital relationship at all. Finding concrete evidence of a cheating spouse can be a difficult chore all in itself, but proving that the extra-marital relationship was the cause of the divorce can be an even more difficult task. Oftentimes, courts view adultery as a symptom of an underlying issue in the marriage instead of the cause of the issue. Adultery could be the result of poor or miscommunication between spouses. If you do happen to have the ability to prove that adultery was the cause of your divorce, the impact of that evidence on the divorce case could be minimal at best.

Adultery and Child Custody

Adultery is technically a crime in many states, but it is considered an ancient law and is rarely enforced. Generally, adultery has a minimal impact on the outcome of a divorce case. As a general rule, courts consider parenting and marriage as separate situations. A spouse could be an amazing parent while being a lousy spouse, and so, just because your spouse cheated on you don’t necessarily mean that the court will automatically decide in your favor when it comes to your children’s custody or financial support. As long as the cheating spouse has not carried on the extra-marital affair in front of the children, adultery also does not play a role in determining, which parent is given custodial rights to the children. However, in some states, when it is known in the divorce that one spouse committed adultery, this can affect the faithful spouse’s obligation to pay alimony to the unfaithful spouse, even if the unfaithful spouse can show a real financial need for the alimony. Also, in many states, the obligation to pay alimony is immediately rescinded, when the spouse receiving the alimony begins residing with another partner or person.

There are a few different causes for adultery to have a direct impact on the outcome of a divorce case.

• One way is that the cheating spouse used family finances and resources to support the extra-marital relationship. The reason is that those resources are considered the family’s and should be used with the family’s best interest at heart. In this instance, you would most likely be due more of the financial distribution.
• Another way adultery can impact your child custody case is if your cheating spouse allowed your children to witness the extra-marital relationship. Doing so would mean that your spouse did not use clear judgment to keep your children’s best interests at heart, and he or she could lose custody privileges or even lose complete custody.
One of the most significant ways adultery impacts child custody is through settlements. When your spouse cheated on you, he or she most likely stirred up a lot of anger and resentment in you and you will most likely be eager to get retribution. And the extra-marital affair also probably brought shame and guilt upon your spouse. The emotions associated with a relationship involving adultery coupled with the cheating spouse’s desire to leave the marital relationship can have a direct impact on divorce negotiations outside of court. Oftentimes, these emotional factors are the driving force behind the 85% (or more) of divorce cases involving adultery that are settled outside of court.

Settling your divorce involving adultery outside of court will give you the upper hand in divorce negotiations, and will speed the process. Not only that, but a settlement is often significantly less costly than an in-court divorce that could drag out for months and sometimes years. The demise of many relationship and marriage comes about, when one person in the relationship finds out that their spouse has been cheating on them and committing adultery. Most people assume, when adultery is the cause of marriage termination, that the faithful spouse holds all the advantages in the divorce settlement. This is not necessarily true. Whether or not adultery even has an impact on the divorce proceedings and decree is different from state to state. Some states place little to no weight on adultery, when considering the outcome of a divorce. Other states show even up to heavy favoritism towards the faithful spouse, when determining the separation of assets and custody in a divorce. Nowadays, adultery is not the marriage-ender it historically was. More couples are “trying to work it out.” Historically, men have been granted much more of a pass to commit adultery than women. When women committed adultery, it was usually punished more seriously. Even today in some countries, like Saudi Arabia and Iran, women who commit adultery can be put to death. In the U.S., a handful of states still legally consider adultery a crime, but the law is rarely, if ever, prosecuted.

But just because no specific law instructs judges to consider extramarital affairs when figuring out child custody orders, there is still a possibility that it can have an implicit effect on child custody decisions. This is mainly because the attorneys, mediators and judges that negotiate child custody arrangements are just humans, and knowing that a spouse cheated can produce a subconscious prejudice that may come through during decision-making. In addition, even if judges are instructed not to consider adultery when overseeing a divorce proceeding, he or she might be less prone to make favorable decisions to the spouse who has committed adultery. An extramarital affair could likewise affect custody arrangements if proceedings are ongoing and may be likely to continue following the divorce case. For example, when making custody decisions in the best interests of the child, a judge would consider with whom and where the kid should live with. Not that adultery will be automatically damaging to the cheating spouse, but the person the cheating spouse was cheating with can have an indirect impact on custody arrangements.

Divorce can be a traumatic process under the best of circumstances, but when a marriage ends over one spouse’s infidelity, the split can be even more difficult to navigate and that’s especially true when a couple has children. One of the most challenging aspects of divorce for families is figuring out who gets custody of the kids, and wives or husbands who’ve been cheated on might feel as if they’re entitled to be the primary caregiver (or even like their soon-to-be ex can no longer be trusted). If the extra-marital affair turns into a long-term relationship, for example, or if either parent wants to start dating again, they can agree that neither party will introduce the kids to a significant other without first meeting certain guidelines: They might have to get permission from their ex-spouse, take their child to talk to a therapist about the change, or mandate a waiting period (such as neither parent bringing a new love interest around the kids for six months post-divorce, etc.).

Past conduct of a parent is not considered when dealing with custody or access issues if that conduct or behavior does not impact their effectiveness as a parent. However, this can be interpreted broadly in instances of infidelity and abuse. That means simply having an affair is not grounds on which people lose custody or access to their children.

However, if you or your spouse committed adultery and are planning to build a relationship with this third person, it may impact custody and access to children of your original relationship. If your new spouse or partner intends to move in immediately after your separation and you want your children to live with you as well, this may pose a problem. For children of any age, it can be confusing and upsetting to see mom and dad together one day and then suddenly; mom or dad is sharing a bed, being affectionate with another person, or creating a new family structure. To expose a child to this type of trauma would be considered insensitive by most judges and not in the child’s best interests. What this behavior communicates to the court is that you as a parent are unable to put your child’s needs ahead of your own desires. Instead, be smart, be respectful of your children’s experience of the separation, have some patience and give it time before you start introducing a new partner to your children.

Be sure that this person is around for the long run and understands that your priority is to be a parent first and a partner second. Failure to take these steps may mean an uphill battle in seeking custody of your children, which can damage them in the long run. Abuse of a child, family member, or romantic partner is an important factor in custody and access cases. It is the exception to section 24(3) of the Children’s Law Reform Act and any past abusive behavior by a parent will be considered by a judge when determining a child’s best interests. Abuse can be physical and/or emotional, and both forms are recognized by the court. When considering custody issues, judges will take into account the parents’ ability to collaborate and co-parent. In situations of joint custody, parties must be able to discuss all major decisions regarding the children and this can be problematic where there is a substantiated history of abuse by one spouse against the other. No judge would force a survivor of domestic abuse to interact with their abuser and would also be hesitant to expose a child to such parental interactions. As such, a parent’s abusive behavior towards the other parent can hurt their chances at gaining shared custody of the children, even if the abusive behavior was never directed at the children in question. As always in family law, the best interests of the children are paramount and that means every action you take within the family context can be considered in relation to their well-being for the purposes of custody and access.

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It’s not a matter of if, it’s a matter of when. Legal problems come to everyone. Whether it’s your son who gets in a car wreck, your uncle who loses his job and needs to file for bankruptcy, your sister’s brother who’s getting divorced, or a grandparent that passes away without a will -all of us have legal issues and questions that arise. So when you have a law question, call Ascent Law for your free consultation (801) 676-5506. We want to help you!

Michael R. Anderson, JD

Ascent Law LLC
8833 S. Redwood Road, Suite C
West Jordan, Utah
84088 United States
Telephone: (801) 676-5506
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