Unfaithful Spouses and Joint Custody

As a divorce and custody lawyer, I often come across cases where a spouse, devastated by their partner's infidelity, must make the tough decision of what steps to take regarding the custody of their children. These situations can be incredibly challenging, and my role is to provide guidance and support, acting as a legal advisor and counselor to help them make decisions that put their family's best interests first. The well-being of the children must always be the primary concern, especially during difficult legal battles.

During this troubling revelation, clients are often left with the harsh reality of our current joint custody law. After all, why should they have to give up half of the month with their children when their spouse is the one who made the decision that ruined their family?

So, what is the law when it comes to infidelity in Arkansas in a custody battle? Perhaps the best answer per an attorney, as usual, is it depends.

"Moral Turpitude" is the legal term we would group infidelity under when discerning whether someone's infidelity can be a factor in custody or visitation. The paramount consideration in all custody cases is the child's best interest and welfare; each case may present a factual consideration that differs vastly from the other. It can be said in most situations that someone's infidelity doesn't necessarily mean they are an unfit or unsuitable parent. However, it can also be true that someone's judgment can affect their children if it is such that the evidence shows a child may have an unstable environment if in the custody of one parent. So, the current law renders that a party's moral turpitude may be considered in the court's best interest analysis. However, I tread lightly when I use the word may. As it has been my experience, the court will not take into consideration a party's infidelity for anything other than grounds for divorce.

Instead of disregarding my client's concerns about infidelity, I would consider how it could affect the minor children. For instance, who is the other person involved? Based on my experience, our courts are concerned if a parent is involved with someone unsuitable because that person is likely to be around the children. Is the other person associating with individuals with a criminal history? Do they have custody of their children? Many questions can be answered by conducting a discovery process during a lawsuit to uncover the truth.

As far as infidelity, how far does it run? Is this something the children have been exposed to multiple times? What evidence can we gather to support the notion that there is a risk this will continue to happen and impact the minor children?

My role is to ensure that my client feels supported and understood while making decisions about their case. I would first ensure that the client's goals align with the law. Then, it's important to consider whether the circumstances of the case align with the likely judicial decision. For example, if the judge doesn't consider the partner's infidelity as a reason to deny joint custody, and there are no other substantial grounds against the partner, I might suggest a trial period of joint custody until the final hearing as the most suitable course of action.

While there are risks involved, the law is clear that infidelity is likely not enough to overcome the presumption of joint custody or be of any significant consideration in a custody case unless there is convincing evidence that it has the potential to impact the children's stability. If not, the question shifts to whether joint custody will work. What better way to assess this than through a trial run during the legal process to see if the other parent will take on all the responsibilities of joint custody? Of course, if safety and other concerns are present that would make joint custody challenging, a trial run would not be recommended.