Sexual Misconduct and Divorce

Sexual misconduct no longer dictates which parent receives custody. However, it does play a significant role in that determination. Moral fitness of each of the parents is one of 12 factors the Court considers when evaluating custody. Just because one of the parties has committed adultery does not automatically grant the non-offending parent the children. The Court analyzes the suitability of each parent by looking at the situation from the viewpoint of the child. Does the misconduct of the parent negatively affect the child? If so, to what extent? How does this misconduct compare in relation to that parent’s other attributes as a parent? What about the non-offending spouse - is he or she more suitable taking into account all factors? This analysis is generally the same whether the offense is adultery, cohabitation, or homosexuality.

Adultery - Mississippi courts strongly disfavor the children’s exposure to a parent’s extramarital affair. Overnight visits while the children are home can be the deciding factor in a custody battle when all other factors are equal or even slanted slightly in favor of the offending spouse. Allowing the children to be in the presence of the romantic partner will also bring into question the romantic partner's characteristics. If he or she has a criminal history or is otherwise unstable it will be very difficult for the offending spouse to obtain custody. On the other hand, an affair that is kept from the children and does not affect the parenting skills or devotion to the children is not usually pivotal in a custody determination.

Cohabitation - When one parent resides with someone to whom he or she is not married it can weigh against them in two of the 12 custody factors. First, Mississippi courts consider cohabitation to be a negative example of that parent’s moral character. Additionally, it calls into question the stability of the home environment. A parent who is cohabiting will definitely be at a huge disadvantage in any custody dispute.

Same Sex Relationships - Mississippi courts make no differentiation between heterosexual and homosexual relationships. A homosexual relationship does not guarantee the opposing parent custody of the children. The Court will attempt to determine if the relationship has an adverse effect on the children. However, as with adultery and cohabitation, it is considered immoral and indicative of that parent’s values. It will likely weigh heavily against that parent in the custody evaluation.

Regardless of the sexual misconduct, it is not the sole determining factor in a child custody dispute and will be put into context with the overall parenting abilities of each parent.