Simply a Piece of a Larger Pie: The Weight of Adultery in Child Custody Determinations

If you are involved in a child custody dispute, it is important to be aware of what Mississippi courts look at when making custody determinations. One important question that often surfaces is whether adultery can disqualify a parent from obtaining custody. Adultery is a factor that can play a part in child custody determinations, but it is not necessarily the deciding factor; and the extent to which adultery affects a custody determination depends on the circumstances. Most importantly, in a child custody dispute between divorcing parents, Mississippi courts consistently award custody of the child (or children) to the parent that will better serve the “best interests and welfare” of the child. This “best interests of the child” standard serves as a guiding light for the courts in all custody cases in Mississippi. Riley v. Doerner, 677 So. 2d 740, 744 (Miss. 1996) (citing Sellers v. Sellers, 638 So.2d 481, 485 (Miss.1994)).

Courts will usually first look at several legal presumptions that have been developed over the years to further the “best interests of the child” standard. Such presumptions include the presumption against a violent parent having custody of the child, or the presumption that natural parents should be favored over an adoptive parent. Beyond these legal presumptions, courts will look at the often-used Albright factors, named after a 1983 Mississippi case. See Albright v. Albright, 437 So. 2d 1003 (Miss. 1983). A brief overview of these Albright factors can be found here.

One of the Albright factors is “moral fitness,” and the Mississippi Supreme Court has held that “moral fitness” does encompass activity such as adultery. So in an Albright analysis, a party committing adultery could very well lose this factor. Ever since the Albright factors were first developed, the Mississippi Supreme Court has been quick to note that adultery should not be used as a sanction in custody disputes. And while adultery would have weighed more heavily in custody determinations many years ago, Mississippi courts in the past three decades have recognized that a thorough factual analysis such as that required under Albright is more appropriate.

The important thing to recognize, however, is that “moral fitness” is merely one of a dozen Albright factors that Mississippi courts consider and evaluate in a custody dispute. Even if a party loses on the “moral fitness” factor because of adultery, the court still will look at the rest of the factors. Losing “moral fitness” does not always mean losing custody. Also, “moral fitness” does not necessarily carry more weight than the other factors. In other words, adultery by itself does not disqualify a parent from custodianship of the child. Carr v. Carr, 480 So. 2d 1120, 1123 (Miss. 1985) (“[T]his Court notes that moral fitness of a parent encompasses the charge of adultery. But moral fitness is but one factor to be considered, and it is a factor worthy of weight in determining the best interest of the child. Adultery of a parent may be an unwholesome influence and an impairment to the child’s best interest, but on the other hand, may have no effect. The trial court should consider this factor along with all others when making original custody determinations.”).

The bottom line: Mississippi courts certainly do look at adultery when making a custody determination, but a finding of adultery does not inherently disqualify a parent from obtaining custody of their child. If you are seeking custody of your child, it is critical that you retain an experienced family law attorney. As an experienced Mississippi divorce and child custody attorney, I have litigated child custody and support cases throughout Mississippi and have the ability to guide you through your dispute should you need professional assistance. If you or a friend need professional representation in a child custody dispute or any other family law matter, please contact the Law Offices of M. Devin Whitt for a free consultation at (601) 607-5055.