An Open Letter to the Family Courts

 by Rinaldo Del Gallo III  

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A mother lives openly with her boyfriend while still married to her husband. Guess who gets awarded custody of their children?

I will never forget one particular case that opened my eyes to the reality of the family court. It happened when I first started practicing family law in Massachusetts. A mother wanted to divorce the father, who was a practicing Catholic. While still married to the father, the mother openly lived with a boyfriend with the children present, including an impressionable teenage girl. In pursuit of the free exercise of his religion, and making full use of his right to free expression, the father told his daughter that what his mother was doing was wrong and that adultery was a sin under the Catholic faith. During the course of litigation, the judge became especially angry when it was argued on the father's behalf that the environment created by the adulterous mother was not a good environment for children. New in the field, I was shocked that the father was lambasted for telling the child that adultery was bad, and that although the child should love and respect her mother, the daughter should understand that adultery was bad and a sin. To my shock and amazement the argument put forth was that father was "alienating" his daughter from the mother by making the daughter think less of the mother.

As a newly practicing family law attorney the lesson I learned was quite clear: not only was the setting of a bad moral example for the child not a factor in determining the ‘fitness" of a parent and accordingly the "best interests of a child", but that the good-faith efforts of the other parent to morally instruct the child will be inevitably turned into an argument to be used against that parent under a theory of alienation.

I have many fathers as clients in cases where the mother had children by three different men, is openly adulterous, openly lives with other men that have sex with her in her apartment where the children live, or where the mother exposes the child to lifestyles of swinging, homosexuality, or cross-dressing. I never bring these issues to the attention to the court because not only will the court view them as irrelevant, but will consider the considerations to be an attempt to embarrass the mother, rather than to be legitimate considerations in custody determinations. As to the areas of homosexuality or cross-dressing, the courts will turn such concerns into a beacon of the father's "intolerance." The culture wars have long since ended in the northeast courts of Massachusetts. The secular side that rejects traditional Judaic-Christian has clearly emerged victorious and attorneys that champion traditional values had best sheath their swords, lest they waste their clients' money and run the risk of upsetting the court.

This "rule" works hard on practicing conservative Christians and other people of faith who are wont to provide moral instruction for the child in an effort to counteract bad moral examples of the other parent. Consider: whether it is an effort to provide moral instruction when the child has been given the example of a not so secretive adulterous mother; or a stepfather that cross-dresses in front of the child; or a mother living with a man outside of marriage in the home of the child; or a swinging mom who constantly has new men in her bedroom in the same home where the child lives,.. a Massachusetts judge will forcefully address the father with a stern lecture about not saying anything to the child that will diminish the child's esteem of the other parent. The father then not only has the impression that the courts are gender biased, but that they have embraced a moral universe that is not only at add odds with fundamental Judeo-Christian moral precepts regarding family life and sexual conduct, but is even hostile to the teaching of such values. When the father is already paying large amounts of child support and handing over a great amount of property in a marriage that was broken up in a large measure due to a mother's adulterous conduct, this last insult of assaulting the father's promotion of religious principles to the child in full view of the mother's misbehavior often causes the father, already put in the mood to the think the worst of the courts and judges, to believe that the court's anti-father bigotry is compounded by moral bankruptcy and hostility to conservative Judeo-Christian principles.

Consider the evolution of adultery and our moral standards: One hundred years ago, the act of adultery, unbeknownst to the child, would have resulted in custody going to the non-offending parent because it was thought that as a matter of social policy, children should be raised by the parent better able to provide "moral values" and that the offended parent should not have the disgrace of adultery compounded with loss of the child. Fifty years ago, this trend seemed to change and when the mother committed adultery she would lose custody, if the child knew about the adultery. About twenty-five years ago, it did not matter that the children knew about the adultery, as long as it was not in front of the child. Today, adultery is given little weight, if any, unless there is actual sexual behavior in front of the child. Actually living together as man and women in an adulterous relationship, openly and notoriously, right in front of the children is not only ignored, the mere argument that such conduct should be considered as a grounds of unfitness has prompted angry oral commentary from the judges. As a practicing family law attorney in Massachusetts, a socially very liberal state, I seldom discuss the mother's ability to be a moral example for her children because there appears to be an unstated policy that "the mother's sex life" is not relevant, even if the child is well aware of it.

Older cases, early 20th century cases, routinely spoke of "temporal, mental and moral welfare," of the child. Some Mississippi cases speak of "adultery's unwholesome influence and impairment of the child's best interest," but it is perhaps the last hold out state to even allow adultery to be considered, and Mississippi case law is clear that the court need not consider adultery in child custody cases.

The change in the role of adultery in divorce, or sexual conduct in general, cannot possibly be understated. In the 18th and 19th centuries, a wife could lose dower (right to property) and the right to maintenance if she were the party that committed the divorce. Some cases had held since divorced voided the marriage as if it didn't happen, it bastardized the children. In some states (and some have argued under the common law) those convicted of adultery were barred from marrying again. The concept that an adulterous parent, father or mother, could obtain custody of children was thought preposterous. As for one parent actually saying the other parent's adultery is bad being used as a tool against them, such a concept was so unthinkable that it quite literally was beyond their imagination.

Politics: General, Family Issues, Homosexuality, Feminism, Abortion, Euthanasia, The Courts, Legal, Criminal Justice, Death Penalty

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