Saturday, January 27, 2007
GOOD CHRISTIANS BEWARE: SAY NOTHING WHEN MOM IS BEHAVING BADLY
I will never forget one particular eye opening case when I first started practicing family law in Massachusetts when the mother wanted to divorce the father, 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. The judge became especially angry when it was argued that this is 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 though the child should love and respect her mother, the daughter should understand that adultery was bad and a sin. ÂÂÂ
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So what is wrong with telling a child that adultery is bad and what the mother was doing was wrong? The theory was that the father was “alienating†his daughter from the mother by making the daughter think less of the mother. The lesson I learned was quite clear: not only was the setting of a bad moral example for the child not a factor in the custody dispute, but the good-faith efforts of the other parent to morally instruct the child will be inevitably turned into an alienation argument to be used against them. I have many fathers as clients where the mother had children by three different men, had openly adulterous relationships that were not kept from the child, openly lived with other men that have sex with her in her apartment where the children live, or that have dated one person and then dated their brother. I have even had clients whose ex-spouse had exposed the child to lifestyles of swinging, homosexuality, or cross-dressing.ÂÂÂ
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What do I do as a practicing family law attorney? I never bring these issues to the attention of 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 in court. They certainly will not be considered 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.â€Â The culture wars have long since ended in the northeast courts: one side has clearly emerged victorious and with the carnage of the traditionalist all over the battlefield; those that champion traditional values best sheath their swords.
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. Whether it is an effort to provide moral instruction when the child has been given the example of a not so secretive adulterous mother, a stepfather that cross-dresses in front of the child, a mother living with a man outside of marriage in the home of the child, or a even 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 fault is not with the poor moral example, but those that want to criticize the behavior. ÂÂÂ
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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 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 his property in a marriage that was broken up in a large measure due to the 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 teaching of conservative Christian principles.
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 ought to go to 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. Parenthood was considered a right. Fifty years ago, this trend seemed to change and when the mother committed adultery so that the children knew about it, she would lose custody. About twenty-five years ago, it did not matter that the children knew about the adultery, as long as the sex did not occur in the same house or apartment the child was living. Today, adultery is given little weight, unless there is actual sexual behavior in front of the child, and it matters little the sex is performed in a house where the children are staying, so long as the children are not in the room. It matters little that the children are exposed intimately to a promiscuous life-style.
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 holdout state to even allow adultery to be considered, and Mississippi case law is clear that the court need not consider adultery in all child custody cases.
The change in the role of adultery in divorce cannot possibly be understated. In the 19th and 18th centuries, a wife could lose dower (right to property) and the right to maintenance if she were the party that committed the divorce. Some of the 19th century cases had held since divorce 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 openly adulterous relationship is bad to the child in an effort to bring moral instruction being used as a tool against them, such a concept was so unthinkable that it quite literally was beyond their imagination.
Rinaldo Del Gallo, III
Mr. Del Gallo is an attorney specializing in family law, is spokesperson of the Berkshire Fatherhood Coalition (berkshirefatherhood.com), and may be reached at 413-445-6789.
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