The battle of child custody 

This article is written to debunk the myth that just because a spouse cheats, the other “innocent” spouse would definitely obtain custody of the children. 

The question that is always asked to us is this – Can adultery alone be used as a leverage in fighting for child custody in a divorce case? The short answer is No. An extramarital affair by itself does not affect your chances of winning your child custody. However, it may have indirect repercussions in the custody case and can be used as evidence against your fitness as a parent (eg. your unfaithful behaviour may have a negative effect in convincing the court that you are a solid, stable and responsible parent).  

In all cases, the court when deciding which parent to award custody of a child does not look solely at whether one parent had committed adultery. Instead, the court will take into account all relevant considerations, including the choice of the child (if the Court is of the view that the child is old enough to be interviewed to make an informed decision), whether the parent is fit / unfit to take care of the child by reason of moral depravity, poverty or habitual drunkenness. 

Under the law, there is a rebuttable presumption that no child under seven (7) years old shall be separated from the mother provided she is a fit and proper person, unless the court finds compelling reasons to order otherwise. The court shall also have regard to the undesirability of disturbing the life of a child by changes of custody. What this simply means is that this presumption that a child under seven (7) years old should be with his / her mother is not cast in stone. Depending on the circumstances and facts of the case, the Court can also choose to award custody of a child under the age of seven (7) to the father.

The law is meant to focus on the child and not the parent 

The mere fact that a husband or wife is unfaithful does not make them a bad parent. It all comes down to the “best interest of the child” and that simply means that the Court will weigh the parent’s past action(s) or inaction(s) in respect of the child’s well-being for the purposes of obtaining your child custody. 

To summarise, the judge will normally favour the parent who will best maintain the stability in the child’s surroundings. However, there is no set standard as to what constitutes ‘stability’, but to the degree possible, the judge will try to maintain the continuity in, for example, a child’s school, community and religious ties.

The law has stated that it is undesirable to disturb the life of a child by changes of custody. Having said that, if you are seeking an order for custody away from your child’s current arrangements, you must show that what you offer better benefits the welfare of your child.

Not only that, the court must also evaluate whether the proposed improvement to the welfare of your child is sufficient to justify disturbing the life of your child by that change of custody. It has to be shown that there will be positive advantages accruing for the welfare of your child by that change. Those advantages must be real and not merely promissory or speculative.

There is a non-exhaustive list as to what the Court considers as it being the ‘best interests of the welfare’ of the child.

With that said, a Divorce (if not concluded amicably by way of joint petition) especially one which involves child custody is exceedingly complicated. Don’t let your emotions take hold and make decisions for you. It is best that you contact an experienced divorce lawyer to assist you in obtaining your desired results.


This article is written by Juslyn Chin of Justin Faye & Partners.

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