CHILD CUSTODY AND ADULTERY

In all child custody cases, judges are tasked with figuring out what custody arrangement is in the best interests of the child. In making this determination, Mississippi judges are required to look at 11 factors (known as the Albright factors).

When considering evidence of sexual misconduct and adultery, the Mississippi Supreme Court (in the case of Borden vs. Borden) has reaffirmed that “[d]eterminations of child custody, however, are not an opportunity to punish a parent for misconduct.” In this case the Mississippi Supreme Court found, among other things, that the judge gave undue weight to the evidence of sexual misconduct by the mother when it awarded custody to the husband.

Specifically, the trial judge found that evidence that the mother sent sexual communications, went out of town and partied with men, and met a man at a hotel could not be used to support the conclusion that the moral fitness, parenting skills and stable home environment favored the husband. In reversing the judge’s decision to award the father custody, the Mississippi Supreme Court reiterated that while evidence of adultery by one parent does weigh on that parent’s moral fitness, the same evidence could not be used as a basis for findings on other Albright factors. This decision serves as a reminder in custody disputes to present specific evidence on each of the Albright factors as opposed to simply relying on marital misconduct.

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