Are a Parent's Sexual Practices a Basis for Finding Them to be Unfit as a Parent?

Divorce can be an extremely emotionally charged period of a person's life, complete with feelings of uncertainty, betrayal and mistrust. One of the most important issues that must be dealt with during a divorce is custody and visitation of the parties' children.

The emotional level of the divorce may be heightend when a party discovers that their partner is involved in an affair, regularly pays for sex, has engaged in non-traditional sex such as S&M (sadomasochistic sex), or frequently views pornography whether it is traditional pornography or non-traditional. These issues add fuel to the fire and produce an even more emotional reason to demonize the other parent not only as a bad spouse but also as a bad person and a bad parent. These types of issues may prompt one parent to seek to restrict the other parent's access to the children and/or require supervision of the other parent's visitation with the children in order to protect the children from a potential "deviant behavior."

On the other hand, the parent who is being accused of "deviant behavior" feels that much more is being made of these issues than is warranted, and that they are only being raised to embarrass, hurt, punish and/or exact revenge, and that these issues have little to do with his/her parenting abilities.

In dealing with these situations, the important question is, should a party's sexual practices be given substantial consideration in determining the party's fitness as a parent? This is a very complex question, and the answer depends on all of the circumstances and may require an expert such as a psychologist to analyze the issues relating to a party's behavior as it affects their fitness as a parent. Ultimately, the court will have to determine the children's best interest and not apply moral judgment about a parent's sexual practices.

The following are some examples of how these issues can be analyzed. A husband may be involved in an affair which causes the wife to feel that the immorality of the affair should in itself disqualify the other parent from being a custodial parent. However, a court will try to remove the moral judgment of the affair from the situation and focus more on how the affair has affected his or her parenting abilities. For example, if a wife carries on an affair during hours the children are in school, but otherwise fulfills all of the responsibilities as a parent, the affair may have little affect on the custody outcome. However, if the wife frequently leaves the children with others in order to carry on an affair and ignores her other responsibilities as a parent, the affair will have a more substantial impact on the custody outcome.

Some issues are more complex and do not merely involve the morality of a parent's behavior, but their actions may bring into question their psychological stability and their ability to exercise good judgmen. In one case, a client was engaging in sadomasochistic sex, which involved some very violent acts. Even though the acts were between two consenting adults, some of the acts were shockingly violent. Putting aside the morality judgment, the focus should be whether the psychological state of someone who likes to engage in extremely violent behavior is a potential danger to children or others. It is a complex question which even experienced psychologists might have differing opinions on.

It takes experienced matrimonial lawyers and psychologists to sort out some of these complex issues in order to determine ultimately what would be in the best interest of the children regarding custody and visitation.