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Child Custody & Extramarital Conduct

Alienation of Affection .1By Stacey Golmon

How does inappropriate extramarital conduct effect child custody in a Divorce?

A common thought among people I meet with is that if one parent in a child custody case is caught doing or participating in extramarital activities that show a lack of moral fitness, then that parent will likely be unsuccessful in gaining primary physical custody of their children. While that is certainly a consideration by the court, it is not the sole determination of who should have custody of children. Take the recent opinion by the Mississippi Supreme Court in Borden v. Borden, No. 2012-CT-01258-SCT, decided on October 9, 2014.

In Borden, father and mother were both seeking primary physical custody of their two (2) children. The lower court gave custody to the father, after hearing testimony that the mother had engaged in what the court called “inappropriate extramarital contacts” before the couple filed for divorce. The testimony showed that the mother had reconnected with several high school boyfriends via Facebook and then proceeded to have numerous sexually explicit conversations with one of them online. This led to mother meeting these men at a bar and even accompanying one of them back to his hotel room where that man’s wife confronted the couple. While the court did not find enough evidence in the case to show adultery on the part of the mother, the court stated the mother “should have been home taking care of children…instead of out partying in Memphis or where ever she was at the nightspots and going out on the town and meeting with another man at a motel.” Needless to say, the court was not pleased with mother’s behavior. In awarding custody to the father, the lower court went through the Albright factors (the thirteen factors the courts use to determine custody) and used the mother’s inappropriate behavior mentioned above to favor father on three (3) of those factors, resulting in the father being awarded custody.

The Mississippi Supreme Court reversed the lower court’s decision and said that while moral fitness is an important factor for the court to consider in custody matters, it is only one of the Albright factors and the court cannot use the immoral conduct of one parent as the sole basis in awarding custody of children. To do so, they said, would give undue weight to the mother’s misconduct and was a “sanction” or punishment to mother for her behavior. The Court stated again that the polestar consideration in all child custody cases should be the best interests of the child and cautioned lower courts about “punishing” a parent for inappropriate conduct.

2018