Can my husband get custody based on my adultery?

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Can my husband get custody based on my adultery?

My husband and I have been separated 6 months. He moved to TN. He is not helping with the kids and has only seen them once since. Our son is disabled and needs a lot of attention. I have a boyfriend whom we are moving in with. This will allow me to quit my 40 hour a week job and be with my son. Since we are separated and he is living in another state, is this adultery?

Asked on July 22, 2011 North Carolina

Answers:

M.T.G., Member, New York Bar / FreeAdvice Contributing Attorney

Answered 10 years ago | Contributor

If you are sleeping with him and do not have a formal separation agreement then yes, it is.  And North Carolina is one of the states that still has a fault based divorce ground of adultery on the books.  But generally speaking the courts do not look at adultery as one of the factors or criteria in desciding child custody.  The court looks at what is the "best interests of the child" and within that look to availability of parents to the child, parenting skills of each, evidence of child abuse or neglect, the physical and emotional health of each parent, environments of each parents home, willingness of a parent to encourage the child's relationship with the other parent, preferences of a mature child, who has been the child's primary caretaker or any agreement between the parents. Get legal help now. He needs to be stepping up to the plate with your son. Good luck. 


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