It's not just about the couple; infidelity can cause lasting damage to children
Such proof might be that an A student had dropped to a D student, or that a child is regressing to things like wetting the bed or temper tantrums after learning about a parent's extramarital affair. Often such evidence requires expensive expert witnesses like child psychologists — whom the non-offending spouse must provide at high costs. Family members, friends or schoolteachers could offer testimony as well.
"We have tolerated for much too long the fiction that adultery generally does not harm children," Wardle wrote in a 2002 article in Catholic University Law Review. "Although our law and our courts may not be able to protect children from the tragic pain and long-term suffering caused by parental infidelity, the least the courts can do is recognize and speak the truth that children do suffer from parental infidelity."
Yet others argue that there are enough protections in the law to ensure that children are protected, even in cases of infidelity.
"There's no question in my mind that (adultery) is going to have negative ramifications, but from a legal standpoint, (the court is) just going to go down the (list of) factors," said Provo-based attorney Eric Paulson, who handles domestic-relation issues. He believes that if there are serious issues with a parent they'll almost always be addressed under one of the other factors.
"I think it's a quantum leap to say because the spouse isn't meeting the other spouse's needs, or because they betrayed their spouse, that therefore they're a horrible parent," he said. "I don't think any court is going to draw that conclusion."
What the court is most concerned about is conflict, no matter how that occurs.
"It's difficult for me to envision a situation," Evans said, "where one parent could be having an affair and that not be suggestive of heightened parental conflict."
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