Legal Blog
50 Ways to Leave Your Lover: Part III – The Impact on Custody
In December of 1975 singer/songwriter Paul Simon wrote and released “50 Ways to Leave Your Lover.”
In the first of my prior two blogs based off of Paul Simon’s song “50 Ways to Leave Your Lover” I considered the impact on a Virginia fault based divorce of desertion where one of the parties decides to “…Just slip out the back, Jack, make a new plan, Stan…Don’t need to be coy, Roy…Hop on the bus, Gus, don’t need to discuss much… Just drop off the key, Lee, and get yourself free.” In the second blog I considered the impact on divorce if adultery is alleged where the party wanting out of the marriage has a helping hand out of his troubles. In this scenario, there is a third party who advises our unhappily married spouse “…why don’t we both just sleep on it tonight. And I believe, in the morning you’ll begin to see the light. And then she kissed me and I realized she probably was right…. there must be 50 ways to leave your lover”
In this third blog I take a look at the consequence of desertion and adultery’s impact on children of the marriage. What happens when one of the parties decides to take the emergency exit and leaves the marriage either by desertion or commits adultery during the marriage? Has the spouse jeopardized his or her custodial rights? Very likely so in either case because the unexpected and sudden departure of the deserting spouse leaves the remaining parent as the immediate and sole source of security for the children. The children will be understandably upset as their world has just been turned upside down. The Court’s mandate is to look out for the best interests of the children first and foremost. If the spouse departs the marriage, either on his or her own, through the loving arms of his or her paramour, the Court often takes a very dim view of this conduct. In desertion cases, the Virginia courts have held, where the facts warrant, that the spouse who voluntarily left the marriage has to later prove himself or herself fit to reassert his or her rights to be a co-custodial of the children. Sometimes this can start out with supervised visitation or visitation of short duration. The departing spouse has certainly made it easier for the remaining parent to claim that he or she is and should be the primary custodial parent in the best interests of the children.
In an adultery case if the children are exposed to the new love interest, it can result in a loss of custodial rights due to the illicit nature of the new relationship that is evolving while still legally married. Virginia courts have held that a parent’s misconduct that adversely affects the children, or creates an immoral climate, are important factors for the court to consider in making a custody determination. The more open and notorious the relationship, the more likely it is that the court will grant primary custody to the non-offending parent. This may happen even if he or she is less equipped or capable to be the primary custodian on the basis that adultery equates to even greater unfitness. Quite often the Court will order that no romantic overnight guests be permitted while the children are present.
The fallout of desertion or an adulterous relationship are just some of the more significant and potentially severe consequences on the parents’ ability to successfully co-parent their children, to have shared physical custodial arrangements and to act in the children’s best interests.
So taking the advice of Paul Simon to simply “slip out the back, Jack, make a new plan, Stan …” is not the wisest decision.
Planning for divorce requires you to consider the consequences of your actions. Consulting with a knowledgeable divorce lawyer, preferably one in the American Academy of Matrimonial Lawyers (found at www.AAML.org) is a good first step in the process of getting yourself free without finding yourself in legal jeopardy.
If you have any questions about divorce or other family law matters, please contact Richard Gray at rgray@offitkurman.com or 703.745.1851
ABOUT RICHARD A. GRAY
Richard A. Gray focuses his practice on Family Law. Drawing on his undergraduate and graduate degrees in psychology, Richard is sensitive to how these feelings can affect important decisions that a client is trying to make. Knowing that divorce cannot change the past he directs his clients to the future and helps families rebuild their lives with dignity and emotional stability. Rather than spending unnecessary resources prolonging conflict, Richard works with clients to find solutions for moving forward and maintaining civility with each other, especially for the sake of children.
Richard is an experienced litigator, yet he always looks for ways of reaching an agreement outside the courtroom. By educating his clients on the full continuum of divorce options, including collaborative law, mediation and litigation, he enables them to be in control of their decisions. Clients appreciate his one-on-one involvement with their cases and the direct access he provides. Richard listens carefully to clients’ goals and strives to achieve them. As a voice of reason he will also advise his clients if their goals are unreasonable or will cause great harm to the parties’ relationship.
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