There is an old family law saying: “A mother can be a prostitute and, also, a fit parent so long as her children aren’t affected by her profession.” A judge will generally find that sexual misconduct does not make a parent unfit without evidence that the misconduct has a negative effect on a child. A judge will review the evidence in a divorce to determine whether the behavior affect a child mentally, physically, or emotionally. The judge can even determine whether the sexual misconduct in a divorce is evidence of lack of ability to parent a child even if the behavior does not affect the child.
A judge has broad discretion to determine what evidence of sexual misconduct is relevant to awarding child custody. For example, having a child in the same bed where the parent is having sex out of wedlock exposes the child to immoral behavior and promotes that kind of behavior. In a divorce, the court can use sexual misconduct as evidence to give child custody to the other parent. Where a parent’s behavior is not socially acceptable, that conduct is relevant to a mother or father’s ability to parent the child.
A judge understands that social values are ever changing; however, the judge will apply a conservative approach in a divorce to determine what sexual conduct is socially acceptable. The judge will consider sexual misconduct even though there is no evidence that the conduct negatively affects the child. A judge will consider other factors relevant to child custody that may be related to the sexual misconduct. For example, spending several nights each week partying (and having sex) instead of being with the child is relevant to the ability to parent a child. Collecting child pornography or appearing naked in front of a teenage child of the opposite sex may show a lack of ability to properly parent. In a divorce proceeding, any kind of sexual behavior which departs from the accepted moral standard is relevant to a parent’s ability to parent a child.
If a divorce is likely, the parent should review his or her sexual misconduct and correct the parent’s conduct at least during the time of the divorce proceeding and thereafter. Often, one parent is committing sexual misconduct, and the other parent will engage in the same type of misconduct. This may occur because of revenge or by using the first parent’s sexual misconduct as an excuse. But, two wrongs don’t make a right.
Abstinence Is The Best Approach To Sexual Misconduct. Obviously, having no sexual conduct outside of the marriage during the divorce makes better evidence for a judge to consider. Abstaining from sex can be portrayed to the court as the parent’s willingness to create a better environment for the child and as evidence of the parent’s good parenting abilities. Since a divorce may be pending for a year or more, a parent’s abstaining from sex during that time may illustrate to the judge that the parent is sexually responsible and has good parenting skills.
Being Discreet About Sexual Misconduct. In most cases, a parent has moved on with his or her life and entered into a relationship with another person. Under those circumstances, the parent must be as discreet as possible so that the relationship does not adversely affect the child mentally, physically, or emotionally. Sexual conduct should only occur when the child is with the other parent or occur away from the parent’s home residence when the child is residing with the parent. The parent should not mention the new relationship to the child if that knowledge would upset the child.
Being discreet isn’t enough if the parent has a relationship with a registered sex offender or someone who has had children removed from that person’s home by juvenile authorities. Ditto, for any kind of sexual behavior which substantially departs from accepted moral standards.
Springfield, Missouri divorce attorney Jack Cope has been in practice for over 30 years. As a former prosecutor of child abuse cases, he is understands how to approach sexual misconduct and parenting issues in divorce and child custody cases. He welcomes consultations about his legal services.