Every month, I get an email with entitled Case Update from the ABA Family Law section which contains blurbs from interesting decisions throughout the country.  This week, I got the December 2012 update and had to take two steps back when I read the following blurb:

Trial court may, in an initial custody determination, consider a parent’s sexual conduct as it relates to that parent’s character, without a showing that the conduct has been detrimental to the child; court may also consider fact that parent does not regularly attend church.

Wow!!!  Mind you, the case is from Alabama, not New Jersey.  In New Jersey, I doubt very much that conduct which is not detrimental to the child would be considered, whether it is gambling (and I actually had a case where a father, a bookie in his spare time, took his kids when he was meeting his bookie), use of pornography, affairs, an affinity for S&M, etc. 

That said, the blurb appealed to my "prurient interests" and hooked me in so I had to read the case.  I figured that there must be some crazy conduct going on.  I figured. at the very least, I may have a good story to tell.

Wrong!  The parties were divorced in 2007 but the ancillary issues, including custody were bifurcated.  The custody hearing took place in 2010.  What was the crazy sexual conduct that impacted the custody determination, you then ask.  The mother was living with her fiance’,  The relationship, by the way, did not become sexual until 2009.  By the way, part of the reason for the delay in addressing custody was that the issue was put on the back burner in the divorce decree until the conclusion of criminal proceedings against the father for the alleged sexual abuse of the mother’s child from a prior relationship.

You must by now be saying that "you’ve got to be kidding me."  I wish I was.  The reason given by the court was fascinating:

The mother cites authority standing for the proposition that a parent’s sexual misconduct may not serve as a factor that triggers a change in custody when the record lacks any evidence indicating that the misconduct has had a detrimental effect on the child. The cases cited by the mother’s . . . (internal citations omitted) concern actions seeking to modify an initial custody award. Mother cites no authority indicating that a parent’s sexual misconduct may not be considered as a factor in making an initial custody award unless that conduct is shown to have a detrimental effect on the child. In fact, our case law suggests that the trial court may, in an initial custody determination, consider a parent’s sexual conduct as it relates to that parent’s character, without a showing that the conduct has been detrimental to the child. See Headrick v. Headrick, 845 So.2d 823 (Ala. Civ. App. 2002) (holding that evidence supported custody award of three-year-old child to husband, despite the fact that the wife had been the child’s primary caretaker, when wife committed adultery and became pregnant with paramour’s child before she separated from husband); Graham v. Graham, 640 So.2d 963 (Ala. Civ. App. 1994) (indicating that trial court could consider, in making initial custody determination, that the wife had committed adultery during the course of the marriage); and Bates v. Bates, 678 So.2d 1160, 1162 (Ala. Civ. App. 1996) (stating that a trial court may consider, among other things, a parent’s character when deciding the issue of custody).

Similarly, the mother’s testimony that, while she considers herself a Christian, she hadn’t taken the children to church in over a year, was held against her. In New Jersey, the custodial parent gets to determine the children’s religion and level of religious observance.

To sum up what happened here, custody was taken away from a mother who had been the primary caregiver, probably throughout, but certainly in the few years while the husband’s criminal allegations were being dealt with, in large part because, as a divorced woman for a few years, she was living with her fiance’ and didn’t take her kids to church enough.  Put another way, these things so impacted on her character and morality to warrant the change of custody.  Wow!

What is the takeaway from this?  The laws may be very different from state to state.  What a court considers would impact a child’s "morality" (whatever that is) in Alabama, is different from the same review in New Jersey or California or other states.  Aside from each case being different, the laws are different so you should take care in getting advice from others, especially others who live in other states. 


Eric Solotoff is the editor of the New Jersey Family Legal Blog and the Co-Chair of the Family Law Practice Group of Fox Rothschild LLP. Certified by the Supreme Court of New Jersey as a Matrimonial Lawyer and a Fellow of the American Academy of Matrimonial Attorneys, Eric practices in Fox Rothschild’s Roseland, New Jersey office though he practices throughout New Jersey. You can reach Eric at (973)994-7501, or esolotoff@foxrothschild.com