Parental Infidelity and the 'No-Harm' Rule in Custody Litigation
52 Pages Posted: 24 Apr 2003 Last revised: 10 Jun 2015
This article reviews the emergence of the prevailing contemporary rule in custody and visitation cases that evidence of parental infidelity (adultery) is irrelevant and inadmissible unless direct connection to a specific harm suffered by the child can be produced. After reviewing the history of this rule, the article criticize it because it violates the basic principles upon which sound evidentiary presumptions are based and is inconsistent with public policy favoring fidelity in marriage. Reviewing the reasons offered for the emergence the "no-harm" rule the article conclude that they are inadequate and based on false assumptions. The author asserts that the new "no-harm" custody assumption disproportionately penalizes mothers as compared to fathers, and offers evidence that parental infidelity does generally cause serious and long-lasting harm to children of the marriage that is violated. The article concludes that the current "no-harm" assumption which turns a blind eye to the pain and suffering of children be replaced with a rule that reflects realities of harm to children, access to evidence, and that is fair.
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