Does Adultery Affect Child Custody in California?

Does Adultery Affect Child Custody in California

If you’re like many people going through divorce, you have a lot of questions – and one of them is Does adultery affect child custody in California?

Adultery – what it’s called when one person “steps out” of a marriage by being unfaithful – isn’t supposed to affect your divorce. In fact, California is a no-fault divorce state. That means you don’t have to have a reason for divorcing, and the courts can’t use fault to determine things like child custody in most cases. (We’ll get to those exceptions later.)

Here’s what you need to know.

Related: Should you divorce a cheating spouse?

Does Adultery Affect Child Custody in California?

Does Adultery Affect Child Custody California The state of California recognizes that it’s in kids’ best interests to have healthy relationships with both parents. (That’s true even if you have a low opinion of your spouse because he or she cheated on you.) The courts won’t say, “Well, you cheated, so you can only see your kids every other weekend.”

Here’s the deal, though. If one spouse’s infidelity during the marriage changed his or her fitness as a parent, the courts can use it to rule on child custody. But being an “unfit” parent is a big deal, and courts don’t throw that around lightly. The fact that he or she cheated – while it did destroy your marriage – doesn’t mean that the courts will see your spouse as an unfit parent.

Related: Is adultery illegal in California?

Your spouse would have to do something that seriously changed his or her ability to parent, like engage in sexual acts with the other party in front of the kids. The adultery could also affect custody if the new partner abuses the children, for example. If the affair changes your spouse’s living arrangements in a way that wouldn’t be good for the kids (like if he or she moved into a studio apartment with the paramour, and there aren’t any beds or sofas for the children to sleep on), the courts would rule based on what’s best for the kids.

Your Kids’ Best Interests

It’s important to remember that the courts will always put the kids’ best interests first. In cases like those, there’s no way to predict how a judge will rule – but the courts definitely have options. A judge might:

  • Restrict one parent from seeing the kids except when he or she is supervised
  • Say that the kids can’t have overnight visits with one parent
  • Come up with any remedy that puts the kids’ needs first

Related: How does adultery affect divorce in California?

Does Adultery Affect Child Custody California The bottom line is that even though adultery may have destroyed your marriage, it won’t affect child custody unless it has changed your soon-to-be ex-spouse’s fitness as a parent.

It can, however, affect other aspects of your divorce.

Adultery and Divorce: What Does it Affect?

Adultery can have a minimal impact on other aspects of your divorce, but only in limited circumstances. For example, it may affect property distribution and alimony.

How Adultery Can Affect Property Division

When one spouse spends marital money – which is community property – on an affair partner, and when the other spouse can prove it, the courts may order the big spender to repay half of what he or she spent. This can be very difficult to prove, so without a paper trail, you may not be able to show the court how much your spouse spent on the affair partner. Even if you just suspect that your spouse spent money on the affair partner, though, you should let your Stockton divorce attorney know. Your spouse could be hiding money or accounts, which he or she is legally required to disclose during divorce.

Does Adultery Affect Custody California How Adultery Can Affect Alimony

In some cases, the courts order one spouse to pay the other alimony. Known as spousal support, this money is supposed to help a lower-earning spouse get back on his or her feet. Several factors go into a judge’s alimony decision, and one of them is the lower-earning spouse’s living arrangements. If your spouse cheated on you and is now living with the affair partner, you may not owe him or her as much alimony as you ordinarily would – after all, there’s someone else living there that can help pay the bills and provide support.

Who Pays for Divorce if Adultery is the Cause?

You can ask the court to order your spouse to pay your legal fees related to divorce, but not because he or she cheated on you. Section 271 of the California Family Code allows the court to order one person to pay another person’s legal fees if that person doesn’t have enough money to pay his or her own legal fees. Sometimes judges can order one spouse to pay the other’s legal fees without need, too, such as when one party keeps trying to drag the other back to court needlessly.

How Do You Prove Infidelity During Divorce?

In California, there’s typically no need to prove infidelity. It won’t impact the outcome of your case (unless your spouse spent all your family’s savings on his or her affair partner, or your spouse engaged in lewd behavior with a paramour in front of your children, that is).

If you believe that your spouse’s cheating will have an impact on your divorce, you’ll need to provide the court with evidence. That could include credit card statements or bank statements that show how much money your spouse spent on the other party, or proof that your spouse (or the affair partner) behaved improperly in front of your children. The behavior has to be extreme, though – as upset as you may be that your children stayed the night with your ex at the same time his or her affair partner did, that alone probably isn’t enough for the adultery to affect your divorce.

Is Adultery Punishable by Law in California?


While adultery is against the law in some states , it’s not illegal in California. As a result, someone can’t go to jail for cheating on a spouse. However, there are other ways that adultery can affect a person going through a divorce, such as property division and spousal support (both of which are discussed above). But remember: California is a no-fault divorce state, which means that a judge is unlikely to consider a person’s infidelity unless he or she spent family money on a paramour (and the jilted spouse can prove it) or if it directly affected the children in a negative way.

So is cheating a crime in California? No, it’s not. However, it can affect divorce in multiple ways.

In What States Can You Sue Your Spouse for Cheating?

Alienation of affection is recognized in a handful of states:

  • Hawaii
  • Mississippi
  • New Mexico
  • North Carolina
  • South Dakota
  • Utah

How Do You Salvage a Relationship After Cheating?

There are many people who believe you can’t salvage a relationship after cheating – but on the other side of the coin, there are people who believe you can. If you’re interested in saving your marriage, you may want to talk to a divorce therapist near you about what to do next. Unfortunately, there’s no one-size-fits-all solution for everyone. Even more, both of you must be willing to salvage your relationship and commit to the idea that you need to create a “new normal.”

Can I Sue My Wife’s Lover in California? (Or My Husband’s Lover?)

Some states do allow you to sue your spouse’s paramour for alienation of affection… but California isn’t one of them. There aren’t any “homewrecker” laws in our state. Although you’re heartbroken over what happened, you’re not going to find justice for your spouse’s moral issue in the court system.

This might really work out in your favor, though. To sue your wife’s lover (or your husband’s lover), you’d have to have concrete proof that he or she cheated on you. Finding that proof can cause more heartbreak than it’s worth.

Remember: You don’t need to prove that someone is at-fault for your divorce in California. You just need to let the court know that your marriage cannot continue because you have irreconcilable differences.

Do You Need to Talk to an Attorney About How Adultery Affects Child Custody in California?

If you’re going through a divorce, or if you need to talk to a lawyer about how adultery affects child custody in California, we may be able to help you. Call us right away at (209) 546-6870 or get in touch with a Stockton divorce attorney online to schedule a consultation today.