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So You Think You Have a Slam Dunk Custody Case? How Adultery and Pornography Impact the Court’s Decision

As a family law practitioner, there have been numerous occasions when a client or potential new client contacts me and says that they think they have an easy case – that they “have this one in the bag.”  However, slam dunk cases are hard to come by.

Family law, in the State of Maryland, is established by statute (the Maryland Code Annotated, Family Law Article) and case law. And while a specific act, conduct or behavior on the part of one spouse (or opposing party) may appear morally reprehensible or repugnant to the point that you may feel you “have it in the bag”, the Maryland legislature and the judicial system are not always in alignment with that thought.

Take, for instance, the case of pornography addiction and adultery in the context of a custody case.  Dick and Jane have two children.  One evening, while browsing the history on the home computer shared by Dick and Jane, Jane discovers that Dick has been visiting hundreds of pornography websites on a daily basis for the past year.  To add insult to injury, prior to her latest discovery, Dick and Jane were experiencing significant marital difficulties which Jane attributed to the affair that Dick was having with her sister.  Jane is distraught by her discoveries and immediately wants to take steps to end the marriage and feels that based on the combination of Dick’s addiction and his affair, she should easily be able to walk away with sole physical custody of her two minor children – with little or no visitation by Dick.  Do you blame her? What he is doing is morally reprehensible!

From the Court’s perspective, allegations regarding adultery and pornography are a part of their daily docket.  In fact, I would feel comfortable wagering that a majority of the contested cases that are heard by the Court revolve around at least one of these behaviors, if not a combination of the two.

So what does the Court take into account when determining an award of custody? And what weight is given to Dick’s pornography addiction and committing of adultery within the analysis?

The Court’s jurisdiction is based on statute, but the factors that it considers have been refined by the pronouncements of the appellate courts over the years.  Case law has established that custody disputes be resolved by a judge based on a determination of “what is in the child’s best interest.” This is a somewhat amorphous notion and there have been numerous cases in Maryland that have served to define and clarify what this means. (i.e. Montgomery County Dept. of Social Services v. Sanders, 38 Md. App. 406, 381 A.2d 1154 (1977); Taylor v. Taylor, 306 Md. 290, 508 A.2d 964 (1986); and Petrini v. Petrini, 336 Md. 453, 648 A.2d 1016 (1994)).

Pursuant to case law, when a Maryland judge determines who custody should be awarded to, the following factors are to be considered in determining what will be in the bests interests of the child: (1) fitness of the parents; (2) character and reputation of the parties; (3) desire of the natural parents and agreements between the parties; (4) potentiality of maintaining natural family relations; (5) preference of the child; (6) material opportunities affecting the future life of the child; (7) age, health and sex of the child: (8) residences of parents and opportunity for visitation; (9) length of separation from the natural parents: and (10) prior voluntary abandonment or surrender.  However, it is important to note that this is not an exhaustive list and the judge is given broad discretion and can consider any evidence that relates to the child’s physical or emotional well-being.  Furthermore, a custody determination is fact-driven and the judge is required to carefully examine the facts before him or her on a case-by-case basis.

So where does pornography addiction and adultery fit into the Court’s analysis and custody determination?  Both behaviors would fall within the Court’s analysis of the “fitness of the parents” and “character of the parties” but case law has made it clear that the Courts are not permitted to weigh one individual factor more heavily than any other in determining custody.

In fact, in 1977, the Maryland Court of Appeals abolished the presumption that an adulterous parent is unfit.  (Davis v. Davis, 280 Md. 119, 372 A.2d 231 (1977)).  And just because the custodial parent committed adultery does not mean that the scales will tip in favor of the noncustodial parent unless there is a showing that the adulterous relationship has had a detrimental effect on the minor child.  (Swain v. Swain, 43 Md. App. 622, 406 A.2d 680, cert. denied, 286 Md. 754 (1979)).  However, there have been minimal cases in Maryland describing at what level adultery would be considered a detriment to the minor child.  Similarly, there is no presumption that a parent who views or collects pornography is unfit. (Andrews v. Andrews, 242 Md. 143, 218 A.2d 194 (1966)).  Thus, at what level, if any, does a pornography addiction arise to the level of being detrimental to the child?  It is ultimately up to the Court to decide.

The client must also be counseled that the judge who decides their case is a human being, in every essence of the word, and that their decisions are often effected by their human experiences.  Just as all human beings are biased in some manner or another, judges often come into their jobs with biases.  The judge hearing your case may have lost custody of their children or had their access restricted.  They may be paying alimony or had their judicial pension divided.  The judge’s spouse may have committed adultery and they are still hurt by the betrayal.  Or, the judge may be the adulterer and may have completely rationalized their behavior.  They may even have had a close friend or family member who is suffering from the devastation caused by an adulterous spouse.  To think that these experiences do not cloud the lens through which the judge must weigh and consider the factors is shortsighted.

The bottom line is that just because a party behaves in a morally reprehensible manner that does not exclude them from being awarded custody of their child – or winning their case.  Often times, it’s a crapshoot if you go to trial and the client should be aware of this.

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