My wife has been cheating on me. I want to leave her, but I’m worried that I …

“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.

The point to remember is that our judges are only human; they come to the bench with all their own experiences and issues, which sometimes get in the way of making the correct decision. Still, I’d much rather have the judicial system this way, rather than systematically plugging the information into a computer and having results print out in an uncompassionate manner. For the most part, when it comes to custody, (at least in the counties in which I practice) the judges strive to listen to all the evidence and make the most appropriate decisions in custody cases.

Sondra Kaighen practices all aspects of family law — including divorce, child custody, modification, and adoption — in Houston.