Can I Get Child Custody Even Though the Divorce Was Proven My Fault?

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In many states, to get a judge to sign a divorce decree, the plaintiff must prove grounds for divorce. Grounds for divorce range from general allegations like “irreconcilable differences” or “general indignities,” to more serious problems like adultery and habitual drunkenness.

Many people, who have been served with divorce papers or who are contemplating filing for divorce, wonder how much they will see their children when the divorce is finalized. They also wonder whether or not they will have a chance to gain custody of their children if they are proven to be at fault for the divorce.

Generally speaking, marital fault and the determination of child custody are separate matters. A determination of child custody is made based on the “best interests of the child.” Judges will focus on the relationship that each parent has with a child, how much time each parent spends with the child, a child’s wishes if the child is old enough to express them, and the ability of each parent to raise the child if granted custody.


In some cases, grounds for divorce and issues that concern the children are overlapping. For example, if there was domestic violence in the relationship that led to the divorce, judges will recognize the profound effect that witnessing domestic violence can have on minor children and will award custody to the non-abusive parent – unless there are convincing reasons not to do so. Substance abuse is another serious issue that can lead to a divorce and would raise serious concerns for any judge who is considering whether or not to award a parent custody of the children. If substance abuse is a concern, either side may request urine or hair follicle testing. A hair follicle test can test for substance use from several months back.

Some lawyers prefer to state a general reason for grounds for the divorce in the complaint (such as “general indignities”), unless there is a good reason to do otherwise. Putting details about a spouse’s affair in the initial divorce paperwork can ruin the chances of negotiating a settlement agreement and can fuel the flames for toxic arguments when emotions are already running high.

Many states are now moving toward no-fault divorces and enacting legislation which does not require a plaintiff in a divorce case to state grounds for divorce in their pleadings or prove grounds in court to get a divorce. In states that still require a plaintiff to prove grounds for divorce, many judges view this as a formality.

Another trend, that is becoming more common in many states, is joint custody. Many judges recognize that it is best for children to spend as much time with each parent as possible. Joint custody is not practical in all cases. If the parents cannot get along and agree on basic things like visitation schedules and plans for the child’s education and extracurricular activities, joint custody probably will not work. Some marriages become so toxic that one spouse must file a restraining order, and it is impossible to communicate without an argument. This would obviously make joint custody extremely difficult – if not impossible. If the parents live far apart, joint custody will also be an impossibility. Joint custody works best when both parents are willing to work together and try to co-parent with each other.

For parents who want to fight for full custody, the best thing that they can do is to speak with their attorney about all of their concerns. For an initial custody determination, a spouse will be judged more by how he or she acts as a parent than the reasons the marriage is ending. It is important for parents who are fighting for custody to tell their attorney every relevant fact, including anything that could be seen as unfavorable. For example, if a client is unsure whether or not he or she would pass a drug test, this is important information that an attorney needs to know in order to avoid being ambushed with this information later in court. While it can be embarrassing to share personal details with someone who does not know you personally, keep in mind that attorneys have dealt with many of the same issues many times before and must keep anything you tell them in strict confidence.

In some cases, it may be a good idea to contest the grounds for divorce. Many people who are served with divorce papers file a counterclaim and deny that they have done anything wrong to cause the other party to file for divorce. For example, if the other party alleges “general indignities,” this is usually based on arguments or insults that rise above the level of incompatibility. If the defendant denies this conduct, a judge must decide who to believe.

It is important to remember that a judge will typically place much less weight on conduct that was not in the presence of the children and which has nothing to do with parenting than any facts in the divorce case, which directly affect the wellbeing of the children. Just because a parent wasn’t a perfect spouse does not mean that he or she should not be awarded primary custody of the children.

Parents who want full custody of their children should consider, first, whether it will be possible to work out a custody and visitation agreement with the other parent or not. The advantage of reaching a settlement agreement is so that everyone knows what is going to happen. When the determination is left up to a judge, the decision can be much less predictable. Parents know more about their family than a judge who only has limited time to hear the case due to congested court dockets.

If an agreement is out of the question, it is a good idea to take an honest look at your strengths and weaknesses as a parent and prepare to discuss all these facts with your lawyer. An attorney can prepare you for cross-examination, which is when you are put on the witness stand and you may be asked about facts that are unfavorable. It is a good idea to spend as much time with your children as possible. When children are accustomed to spending most of their time with one parent, many judges are more likely to award custody to that parent since they are already the primary caretaker.

Regardless of why the marriage ended, it is a good idea to think about the future when children are involved. Just because the marriage did not work out doesn’t mean that parents cannot work together for the best interests of the children. Even in cases where parents simply cannot get along, judges recognize when a parent is doing their best (under the circumstances) to be a good parent for their children. Being deemed at fault for a divorce will usually not cause a parent to lose custody of their children – and in many cases, the defendant in a divorce case is awarded full custody.

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