“I Saw Mommy Kissing Santa Claus” is one of the most cherished Christmas hits of all time. It’s endearing, and sweet and you’re supposed to think that it’s just Daddy dressed up in a Santa suit to surprise his kids. You’re supposed to think that mommy and daddy are just heating things up for the holidays, but what happens if the story line was really that daddy was working late once again? What if the man dressed as Santa was really Ebenezer from next door or little Timmy’s soccer coach? Normally what happens next is that sweet little Timmy will slip this information over dinner chat thinking it’s funny. Then Daddy figures it all out. Does Daddy automatically get custody just because Timmy stumbled upon a midnight kiss? The answer is, as always, it depends!
- General Rule is the Best Interests Standard regardless of whether or not you’ve been naughty or nice this year. The biggest determination in a custody hearing is the best interests of the children. What primary parent’s home would be in the best interests of the children? There are tons of factors that go into consideration when trying to determine this. The relationship with the child is one. The relationship between the parents is not as important. The adultery issue is between the parents, and shouldn’t involve the children regardless of how angry Daddy, the wounded spouse, may be. However, there are exceptions to this, as always. The next two points show those exceptions where the child’s relationship with the parent does come into play.
- Location, Location, Location! Think about where the affair was happening. Was the child present during all these throws of passion? Was Mommy allowing Timmy to be privy to her “immoral” behavior? (No, that’s not how we always describe the behavior… If we’re representing Mommy, it’d be more along the lines of “Mommy’s brief lapse of judgment after years of emotional neglect.”) There may be consequences if the children were constantly around the affair. Is the child now scarred emotionally because they saw Mommy tickling Santa’s beard? Did the child know that it wasn’t Daddy? Did the child see more than just a few loving gestures? Conversely, if the children have a babysitter and are out of the picture except when Mommy is playing the perfect spouse, then she may not be getting coal this year. Mommy should have watched out for kiddos regardless of where that mistletoe may be!
- Priorities! Is Mommy making her Santa Baby priority over her kiddos and Daddy can prove it? Did she sneak out of the Christmas Pageant thinking it was prime time to meet up with her honey at the Holiday Inn? Children should be priority number one. All judges agree on that. Regardless of Mommy’s new love interest, if the kiddos aren’t her priority, then perhaps custody isn’t necessarily her forte (at least that’s how opposing counsel will portray the issue).If you’re battling with a complicated custody matter due to allegations of adultery, contact us today at 205-582-2832. We’re here to help!