"My wife has been cheating on me. I want to leave her, but I'm worried that I won't get custody of our kids. Are the courts still reluctant to grant custody to fathers?"

Adultery, in Texas, is a "ground" on which a divorce may be granted. While this painful experience allows a court, upon a finding of adultery, to grant the non-offending spouse a disproportionate share of the marital estate, it does not necessarily have anything to do with the issue of custody. What makes one a bad spouse does not necessarily make one a bad parent. The test, in a custody case, is the "best interest" test: with which parent would it be in the child's best interest to live? Of course, a spouse who chooses to spend time with a lover over time with the children may be one of the considerations that makes a court choose the non-offending spouse as the custodial parent.

Gender of the parent is not necessarily the deciding factor. However, it could be that a judge chooses a same-gender parent for a child for many reasons. My personal belief is that gender is irrelevant, as I've represented plenty of fathers who are wonderful parents even with infants and little girls. While they may not be equipped with the same gender experiences as their child, there are books, support groups, and many other resources to assist a parent with raising a child, no matter what the gender is. Too often, some judges dismiss a parent solely due to gender differences from the child, especially in cases with small children, but I believe that our judiciary is becoming more open and forward-thinking about that issue.

Tuesday, May 15
at 8 pm to 8:30 EST
Out With the Tragedy: Turning Divorce into a meaningful experience
with Allison Pescosolido and Andra Brosh, founders of Divorce Detox
Learn More

Listen to podcasts of previous TeleSeminars.