Virginia law does not impose any form of penalty or punitive damages on a spouse for committing adultery. Adultery might affect the distribution of marital assets and alimony, but has little–if any–impact on decisions regarding child custody and visitation.
Your Virginia child custody attorney will explain that courts in Virginia consider certain factors in custody matters, but a parent having an extramarital affair is not one of them. While the court may restrict a parent from introducing children to a new partner before the divorce is finalized, it is unlikely that a cheating spouse will be denied custody or visitation solely on the grounds of adultery.
Adultery, as per Virginia Law
Adultery is the act of sexual relations between someone who is married and an individual other than their spouse. It is grounds for a fault-based divorce in Virginia, and there is no required waiting period for filing for divorce based on adultery.
Proving adultery, however, can be challenging. There needs to be ‘clear and convincing’ evidence, which can be a difficult standard to meet. Virginia law also mandates corroboration of adultery and confirming evidence or testimony from an external source. This might be third-party testimony, explicit emails or texts, an admission of the affair, or written messages or video.
In many cases involving adultery, individuals hire a private investigator to shadow the suspected spouse and gather compelling evidence (such as photos of the unfaithful couple in action) necessary to substantiate the allegation of an affair.
Adultery is also a Class 4 misdemeanor in Virginia. Because it is considered a crime, a spouse accused of adultery can invoke their Fifth Amendment right against self-incrimination and not answer questions about the alleged infidelity. Despite this long-standing practice, there was a law passed in 2020 to reduce the use of the Fifth Amendment as a defense in divorce cases.
Indirect Effects of Adultery on Custody
If adultery is proven in court, it might tilt the court in favor of the other spouse. For instance, the adulterer may be ineligible to receive spousal support or alimony.
Even though adultery is a criminal act, it does not preclude the adulterer from obtaining child custody or visitation rights. Family courts consistently prioritize the child’s best interests when determining custody arrangements. Adultery alone is not considered by Virginia courts to be a decisive factor when assessing the child’s best interests. Typically, a parent’s extramarital affair does not directly involve or harm the children.
It is possible that the court may restrict a child’s contact with either parent’s new partner for a specific period of time, especially if that partner was involved in the affair. However, these measures are primarily geared towards ensuring the child’s emotional adjustment and wellbeing, rather than serving as a punishment against the unfaithful parent. Even if a parent is proven to be an adulterer, they still retain custody and other parental rights, provided all other factors are equal.
A Few More Thoughts
While adultery may not be formally considered in the determination of child custody, it can still be leveraged to build a case against an unfaithful spouse seeking parental rights. For example, the other parent might contend that the act of cheating signifies the adulterer’s unhealthy lifestyle, which could be detrimental to the child.
The infidelity might also be scrutinized from a financial standpoint, raising questions about the parent’s spending priorities and financial stability. Additionally, it could serve as a basis for concerns about the parent’s behavioral or mental health, particularly if other issues like alcohol or drugs are involved.
The impact of these considerations on the custody case varies and is contingent on the effectiveness of each party’s arguments and the evidence presented. Contact Coastal Virginia Law to discuss the issues involved in your custody petition so that you have an experienced team fighting on your behalf.
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