Committing adultery can harm a spouse’s chances of getting custody if the spouse who engaged in the act did so in a way that caused a rift between the two spouses. A person who has sexual relations with and or lives with another party outside of a marriage can cause their spouse to become distrustful and angry. This is the way that child custody over minor children can become an issue. 
In its criminal code, Alabama defines adultery as engaging in sexual intercourse with another person who is not their spouse and living in cohabitation with that other person when they or that other person is married. A person does not commit a crime if they reasonably believe that they and the other person are unmarried persons. The burden of injecting this issue is on the Defendant. This does not change the burden of proof.
In its family code, Alabama provides the circuit court has the power to divorce two spouses for the cause of adultery.
Breaking down how adultery can affect child custody requires showing how these statutes play out in the real world. Theoretically, if a district attorney prosecuted a person for adultery, that would affect the person’s custody of their children. If the person was serving time in jail for the offense, they would not be able to care for their children. They could lose custody of their children until their release. Yet district attorneys will rarely, if ever, prosecute a person for adultery. So, this is usually not a concern in most uncontested divorces in Shelby County, Alabama.
As to the family law statute, one spouse can cite the other’s adultery as grounds for a fault divorce. A fault divorce is a divorce in which one party is blamed for the breakdown of the marriage. The spouse who did not commit adultery may argue that the court should award them custody of the children based on the other spouse’s deceptive and hurtful behavior. The court will review the facts and determine how to divide assets and debts, as well as award child custody. The court will look at what is equitable, or fair, and how the spouses behaved.
What matters most is how the spouse who committed adultery communicated with the other spouse and how they treated their minor children. Did the two spouses have an open marriage? Had they discussed this and worked out an arrangement that was practicable and safe, especially for the children? Did the spouse committing adultery put the other spouse and/or minor children at risk of sexually transmitted diseases or COVID-19 through a lack of disclosure and failing to use protection? Did the spouse committing adultery bring the children around a new partner without the knowledge and consent of the other spouse? Did the spouse who committed adultery spend financial resources on their new partner rather than pay bills relating to the minor children, the household, or the other spouse? What evidence can each spouse present that supports their side?
It may matter whether the spouse who committed adultery was legally separated from the other spouse at the time of the act. When the court has issued an order of legal separation, the spouses may live in different residences. Although the spouses remain legally married, adultery may not be as great a concern as if the spouses resided in the same household.
If the spouse committing adultery did so in a manner that protected the children from emotional and physical harm, the court may not penalize them by awarding them less custody over minor children. The spouse accused of committing adultery may also present evidence that the other spouse committed adultery as well. This would affect how the court in a contested divorce sees both parties’ veracity, or ability to tell the truth. However, it would not matter in an uncontested divorce in Limestone County or anywhere else in Alabama.
Attorney Steven A. Harris regularly blogs in the areas of family law, bankruptcy, probate, and real estate closings on this website. Mr. Harris tries to provide informative information to the public in easily digestible formats. Hopefully you enjoyed this article and feel free to supply feedback. We appreciate our readers & love to hear from you!