Will the Cheater Get Equal Custody?

Updated on May 31, 2011
A.J. asks from Norristown, PA
19 answers

OK, I'm trying this again, the answers I received for my last post illustrated I did not ask the right question (but thanks to those with helpful input).

My friend is considering divorce. I'm mentioning this only in case it would matter to her her case: He majorly cheated, she tried to salvage things, but due to his continuing bad behavior, the marriage has not been repaired in the years since. MY QUESTION IS NOT WHETHER SHE SHOULD LEAVE HIM OR NOT.

Her biggest fear is that she will go from being a full time SAHM to having the kids only half the time if she decides to file for divorce.

Does she have any hope at full time custody of the kids? He is the only salary at this time. He is an OK dad. A bit detached and usually gone for work, but OK. The kids love him and she does want him to see them, but not live with him 50% of the time.

This question is for ladies who have been through this and have custody arrangements after a similar situation. She will talk to a lawyer, but since she's not a mamapedia member, I thought I'd take a survey for her form experienced people. If she would likely lose the kids half the time, I'm thinking she would probably stay with him which is why I'm asking.

Judgements are free speech, but I am not asking for people to judge her character for thinking of divorce, and I am not asking people to judge her character for staying and trying to work it out, or staying because she doesn't want to lose the kids, or to be told to mind my own business regarding my friend, but go for it if you must. Mostly, I'm wondering what her chances of full custody are, if any.

ADDED: She doesn't mind working, and doesn't care about money as long as the kids have some support form dad, she just wants the kids as much as possible. She's not focusing on "staying home."

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answers from Austin on

It depends more on his care of the children rather than the cheating on his marriage.

In reality, it is more common now, for parents to share custody, depending on the age of the children. If she is breastfeeding for instance this would make a difference.

They should go to mediation if he wants to have 50/50 and she does not feel it it in the best interest of the children. Or she can have the judge make the choice.

She also needs to remember he is just as much their parent as she is. IF the children want to be with him 50% of the time, that is what needs to be considered also. And if they do not, that can also be brought up to the judge.

My sister and her husband were in the same situation and they do the 50% and it has worked out very well for all of them. They live close by so that also helps.

5 moms found this helpful


answers from Washington DC on

marital fidelity doesn't reflect on his ability to parent. if she wants full custody she'll have to get dirty and try to prove that he's a bad dad. it'll get ugly.

2 moms found this helpful

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answers from Kansas City on

Crappy husband doesn't mean crappy dad--he's still entitled to custody. My sister is going through this right now. They have actually worked out a custody agreement and will have a lawyer sign off on it---saves lots of money when you can agree on something rather than go back and forth.

5 moms found this helpful


answers from St. Louis on

Affairs have no bearing on custody. To be blunt she needs to suck it up, she will no longer be a stay at home mom.

I had to go through that, it wasn't easy but it was for the best. Staying just to be a stay at home mom is the worst example she can set for the kids. I tried but in the end it was my older two becoming teens and saying stop taking it and divorce him already. Actually my older daughter's exact words were if you ever loved me you will divorce dad.

So to answer your question clearly, there is no chance she will get full custody unless he agrees to it. He won't because it is too expensive. She also will not get enough child support and maybe spousal support to stay at home, she will have to get a job.

The glory days of divorce for women is long gone. Apparently the courts found out we really can earn money outside the home. :(

4 moms found this helpful


answers from Dover on

I had joint custody but with primary placement. My ex had visitation every other weekend, one evning during the week, and a week each month of the summer. We split the holidays. He often didn't get him when he was scheduled but he was allowed to.

More recently, an arrangement like that is less common because the courts have started to do a few forms of 50/50 shared custody. Not sure what is the norm where she is.

3 moms found this helpful


answers from Washington DC on

She needs to get informed about the standards in her area. She also needs to recognize that cheating on HER doesn't necessarily make him an unfit father, so if standard is 50/50, then it's likely that unless there are other circumstances (like distance - my sks' mom lives too far for her and DH to do week on/week off because the kids are in school) she is at least looking at joint legal if not joint physical custody. Similarly, child support, and whether or not he or she pays is separate from the visitation schedule.

In our case, DH has physical custody during the school year with his ex having EOWE and long breaks and then they swap in the summer and she has the minor child during the week and we have EOWE and a week or two for summer vacation. The summer vacation thing is discussed with her Dec/Jan of the winter prior so no one is surprised in the summer. Similarly, if she has out of town plans with the kids, she lets DH know that, too. Most of the time pickup and drop off is on the parent doing the picking up (so DH in the summer and his ex the rest of the year).

Even if she gets primary custody, I think it is important for the kids' sakes to keep the ex informed of their school functions and things that are important to them. Sometimes it can be hard for kids to remember and if the school is lax in sending out info, then the kid may feel hurt that dad never comes to his games. I'm not suggesting that she babysit him, but at least copy the football schedule and put it in the overnight bag so the other household has an idea.

3 moms found this helpful


answers from Provo on

I really don't think that cheating would have any bearing on the custody. To the best of my knowledge, most dads who are workaholics will not give up the workaholics lifestyle for the kids. I have custody of my kids and my ex gets standard visitation (which is one afternoon during the week and every other weekend.) I still get the child support. I hope this answers your question. The visitation is not 50% for the father and 50% for the mother unless it is agreed upon and put into the papers that way. I usually let my ex have him if he has something important going on.

3 moms found this helpful


answers from Portland on

Whether or not custody is shared is dependent on several things based on what is best for the children. I doubt the fact that he cheated would be one of them.

And there are different arrangements surrounding custody. Parents can have joint legal custody with only one parent having physical custody or they can share custody 50/50 or 80/20 or any combination that works for the kids.

It does still seem to be the norm to award the mother full physical custody if she's been the primary care taker.

3 moms found this helpful


answers from Boston on

A good friend is a mediator and an attorney. In Massachusetts at least, it doesn't matter if someone cheated. A husband or wife could have had 10 boyfriend or girlfriends on the side and had kids with them, etc. and it will have no bearing on custody or anything else. What will matter for custody is what is in the best interests of the children and nothing else. Unfortunately, how a wayward spouse treats their children's other parent is not, in the eyes of the court, a reflection on how he or she treats the children.

3 moms found this helpful


answers from San Francisco on

Don't know the legal ins and outs of it all, and I know it's gauche to quote Dr. Laura, but I remember her once saying that children who lived in joint custody situations had "Mommy's house" and "Daddy's house," but never "my house."

And that made sense to me. So maybe your friend can tell that to her husband and make him understand that while his children need to have ample time with him, it's not good for them not to have a place they can call home.

3 moms found this helpful


answers from Iowa City on

It really depends on the ages of the children (the younger they are the more likely it is they will stay with mom) and whether the father will pursue equally shared custody. The fact that he cheated probably won't come into play as far as custody is concerned. What will come into play is that she has been the primary caretaker for the entire lives of the children. She really should meet with an attorney to discuss these issues because a family law attorney will know how local judges generally rule under her circumstances.

2 moms found this helpful


answers from Indianapolis on

Most states are "no-fault" meaning...the reason for the divorce (i.e.cheating) has nothing to do with how custody or any financial matters are figured into the outcome. Only if you can prove one parent or the other is "unfit", is about the only way to get full custody. I would think if parents are both wanting the kids and no one is proven unfit, it will result in 50/50.

2 moms found this helpful


answers from Honolulu on

There are different types, of child custody.

Thus, your friend needs to know about this and research it.
Here are some links for example:

So, again, custody is not just custody. There are different types, and it would behoove her to know about it and research it.
And get a darn good Attorney.

2 moms found this helpful


answers from Tucson on

I am going through this exact same thing right now. I am a SAHM with no income. My divorce is still in the process. He cheated asked for 50/50 custody and i am asking for physical custody with him getting only visitation. I dont wanted 50/50. My lawyer seems to think i have a good chance at it since he works full time and would have to pay for daycare if he had custody of kids. Doesnt make sense for me to work and put kids in daycare. My income would cancel out childcare costs. I dont think the cheating will come into play with the custody situation. I think i have been the sole caregiver to my kids since they were born and should get custody. I hope your friend is ok. It sucks. I just had a baby 2 weeks ago and i am so stressed about the same thing.
I don't mind my ex seeing kids in the evenings or weekends either. I just think they are better off at home with me than in a daycare. He takes my girls 3 times a week and visits with baby in home, since i am breastfeeding. Its very hard though.

2 moms found this helpful


answers from Eugene on

Here's my experience. I was a SAHM for many years. When my ex and I separated, he agreed to move out but threatened me saying he was going to get the house and full custody of our 2 boys still living at home. At the same time, he was trying to get me to work out our divorce on our own, without attorneys. I found a good attorney and quit talking to my ex. He continued to send me long rants and threats. It was cumbersome communicating only through my attorney but it was the best thing I ever did. It took over a year for us to agree on a settlement, mostly because my ex was representing himself and made things difficult to try to wear me down. But the end result is that I got the house and my boys live with me. My ex and I have joint custody, (mostly affects decisions on school and medical stuff) but I'm the residential parent. The boys spend Saturday night with their dad, and alternate Friday nights. In addition, he also gets them 3 1/2 weeks in the summer.

I get child suppport til the boys are finished with college, plus spousal support. For now, I'm able to stay at home and be a mom, although I've been taking classes, volunteering in my field and hope to find work eventually.

Regarding full custody, if my boys were younger, I would have put the extra effort into seeking it. The custodial parent gets to make the decisions for the children. But my boys are teenagers, so I was mostly wanted them to continue to live with me since they are old enough to have a say in decisions. I was told that if our divorce had gone to court that I probably would be awarded custody of my boys because I had been the one at home taking care of them as a SAHM. The other thing that turned out to be in my favor was that my ex moved out and the boys lived with me during the year we worked out the divorce. The judge wouldn't change the children's living situation unless that parent is unfit.

No one can say whether your friend will get full custody of her kids, but in my case, our parenting plan ended up pretty close to what I requested.

2 moms found this helpful


answers from Chicago on

as long as the husband wants 50% custody & he isn't abusing them or doing anything like drugs, alcohol, etc, then I wouldn't see why he shouldn't have the same amount of time with his kids as the mom

is she sure he wants 50% custody? how far will they live from eachother? are the kids in school/preschool because that will make a difference too.

divorce is real sticky but the kids should get to see each parent equally if it's possible

2 moms found this helpful


answers from Hartford on

Cheating is a divorce issue, not necessarily a parenting issue. So the cheating part of it will not affect custody. What would affect custody is a number of things between the parents including what they're willing to work out together. A judge will always rule as fairly as possible between both parents but always, always what's in the best interest of the children.

Many parents agree to 50/50 custody because it's the right thing to do for the children and they often have an apartment that the children live in full time. The parent that has custody that week or for whatever days are assigned live in the apartment with the children and at the end of that time they go back to their own home separate from their ex-spouse. They can then arrange childcare as needed that never changes, etc.

Even if he hasn't been a good husband, that doesn't mean he doesn't deserve to continue to be a good father to his children, and it doesn't mean that he doesn't deserve equal custody in a divorce. Divorce and custody are two separate issues.

But if they can't agree on a situation like I suggested, and they each want the kids to shuttle back and forth between homes, they could very well have 50/50 custody. Or your friend could probably file to be the custodial parent where the children's technical home is hers and the father has free and open visitation or whatever is established by the court or whatever they can agree on and have the court approve. But if they can't agree on something, the court will decide for them.

1 mom found this helpful


answers from Phoenix on

custody and parenting time are 2 different issues. its likely they will have "joint custody" which allows them to "jointly" make decisions for the kids (school, medical, etc). Parenting time is the schedule that each parent will have with the kid(s). Some people have one week on, one week off, some dads have every other weekend with maybe a day or 2 during the week, some dads have only every other weekend, etc. Child support comes into play on how much time each parent has with the kid. for example, my ex pays me quite a bit because I basically have them full time and he only has them every other weekend. So I "pay" way more (their daily expenses) for them than he does so he pays me to make up for that. I hope this make sense. So your friend needs to look at all 3 things: custody, parenting time and child support. If you need more info, just message me, I feel like a freaking expert going thru 3 court hearings in 1.5 years with my hubby and his crappy ex. Good luck!

1 mom found this helpful


answers from Modesto on

Usually the mom keeps the kids and the dad gets them on the weekends or every other wknd. that's how it is in my stepsons arrangement.
If the two of them can mediate about it, I'm sure a plan that works best for the kids can be found. Judges wont make the kids have two households in most cases. One custodial and one that has visitation. If your friend can prove she can take care of the kids she should have no problems. I know several young women that are on welfare and have their kids, the dad works but would have to have the kids babysat, so the judge awards the mom custody.

1 mom found this helpful
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