1. My ex-wife has committed adultery during our marriage. Can I use this type of marital misconduct against her in a custody battle?
One of the most common misconception in any custody case is that if one spouse commits adultery then this act of marital misconduct be used as overwhelming evidence in any type of custody battle. Under current New Jersey law this assumption is just plain wrong. There is a long litany of New Jersey case law that holds that marital misconduct does not preclude an award of custody, if the proofs clearly establish that the child’s best interests are best served by such a decision. See, Carson v. Carson, 54 A. 149 (Ch. 1903), Fantony v. Fantony, 21 N.J. 525 (1956), Matflerd v. Matflerd, 10 N.J. Super. 132 (App. Div. 1950). All of these cases have emphatically held that adultery does not make a bad parent. Instead, the judicial focus has been on a parental character.
In summary, marital fault has fallen into disfavor by the courts to use it as a basis for the award of any type of relief in a divorce court. Marital fault is also excluded as a consideration with respect to equitable distribution. See, Chalmers v. Chalmers, 65 N.J. 186 (1974).
2. Is there any use for using marital fault in a custody case?
Despite the above case law, marital fault can still be relevant in a custody case. Parental character is certainly still an important factor in any custody case. Therefore, a slick lawyer can make adultery or marital misconduct relevant by arguing that this is important because it goes to the legal issue of parental character. It is also important to emphasize that judges are also human. Some judges may still be swayed by evidence of marital misconduct, and it could impact their ultimate ruling on custody issues. Nonetheless, until current New Jersey law a custody decision can”t be based on the grounds of marital misconduct of adultery. If a judge makes this type of mistake, then odds are the case will be reversed at the Appellate Division.