According to Virginia state law, “the court shall give primary consideration to the best interests of the child”[1] in any case pertaining to child custody and visitation. As long as these interests are given the appropriate level of influence, the law also requires the court to give each parent as much access to the child as possible unless there is “clear and convincing evidence”[2] that access should be restricted. The Central Virginia Legal Aid Society, Inc. has compiled a list of factors that can impede a parent’s attempt to gain single or joint custody. In a list primarily composed of offenses such as alcohol and drug abuse and Child Protective Services complaints, one item stands out: “adultery and/or living with a person of the opposite sex to whom not married.”[3] While there are certainly many potential factors that could negatively impact the wellbeing of a child and should therefore be considered in a custody case, this item is not inherently harmful enough that judges should be able to cite it as a justification for preventing a parent from gaining custody of his or her child.

The law clearly states that children must be assured “frequent and continuing contact with both parents”[4] unless there is a compelling reason to withhold it. Accordingly, almost every factor considered “extremely harmful in a party’s petition for custody[5] clearly presents direct physical risk to the child. For instance, a child’s safety will be objectively less assured if he or she is in the custody of a parent who has demonstrated repeated patterns of alcohol or drug abuse, so judges are obligated to account for such habits. Similarly, founded complaints to Child Protective Services markedly indicate that a child has been exposed to an unsafe environment and should also be taken into consideration. A parent who has committed adultery or who is living with a partner without being married, however, presents no inherent physical danger to his or her child. If primary consideration is given to the child’s best interest—and by law, it must be—then adultery alone is not a valid reason to withhold custody. Although adultery is still a Class 4 misdemeanor in Virginia,[6] without the presence of other factors that do create danger for the child, it does not necessarily compromise his or her best interests.

Despite the lack of likely physical harm a parent’s adultery causes a child, it could be argued that living in such circumstances might cause the child emotional damage. This claim, however, falls apart in light of the practical role an adultery conviction would play in a custody case. Although knowledge of a parent’s infidelity might be upsetting to a child, this does not by definition diminish that parent’s ability to provide a safe home. Adultery might be grounds for divorce in Virginia, but in a custody case, a party’s merit should be measured by his or her ability to be a competent parent, not by his or her history as a spouse. Moreover, the notion that a petition for custody might be harmed by “living with a person of the opposite sex to whom [the petitioner is] not married”[7] is based on logical inconsistencies. According to this line of reasoning, a parent’s remarriage would not hinder his or her attempt to gain custody, though this could arguably be more emotionally difficult for a child than just a divorce or separation. A parent’s ability to raise a child is not dependent on marital status; a marriage license alone would not have a great impact on that ability if he or she were already living with someone else.

Ultimately, the idea that these factors are “extremely harmful”[8] to parents attempting to gain custody of their children is a reflection of the undue influence subjective moral beliefs have over interpretation of Virginia’s child custody laws. A parent who commits adultery or lives with another person without being married is not by definition incapable of providing a safe and nurturing environment for his or her child; neither of these are compelling reasons to separate them, especially when the law claims to “give due regard to the primacy of the parent-child relationship”[9] whenever possible. They are far more pertinent to maintaining ideas of moral tradition than they are to ensuring the wellbeing of the child in question. Virginia’s criminalization of adultery has been said to “[force] the state’s legal system to commit time and resources to enforcing morality,”[10] but the impacts of this statute affect more than just the divorce proceedings to which this quotation refers. The practice of considering adultery in child custody cases allows judges’ personal moral beliefs to influence their decision of whether to allow a parent to see his or her child, and this certainly qualifies as a violation of the law’s mandate to give primary consideration to the child’s wellbeing, not to subjective ideas of morality.

[1]. “Court-Ordered Custody and Visitation Arrangements.” Virginia’s Legislative Information System, accessed January 2, 2017, http://law.lis.virginia.gov/vacode/title20/chapter6.1/section20-124.2/.

[2]. “Court-Ordered Custody and Visitation Arrangements.”

[3]. “Child Custody and Child Visitation.” Virginia Legal Aid Society, Inc., accessed January 2, 2017, http://www.valegalaid.org/files/E095B726-FCD8-81C1-17DC-A16C7ED73FFF/attachments/B15E3342-01DA-7A49-955E-828A78FE15E6/85051childcustody%20mdw.pdf.

 

[4]. “Court-Ordered Custody and Visitation Arrangements.”

[5]. “Child Custody and Child Visitation.”

[6]. Wolfe, Liz. “Effort to Remove Outdated Adultery Law Fails in Virginia.” Reason.com, updated January 27, 2016, http://reason.com/blog/2016/01/27/removing-outdated-adultery-law-fails-in.

[7]. “Child Custody and Child Visitation.”

[8]. “Child Custody and Child Visitation.”

[9]. “Court-Ordered Custody and Visitation Arrangements.”

[10]. Wolfe, “Effort to Remove Outdated Adultery Law Fails in Virginia.”