When infidelity shatters a marriage, emotions run high, and the fallout can be devastating. A common question that arises in such situations is whether the cheating spouse’s actions will influence the custody arrangements for their children. In Texas, the answer is not as straightforward as many might think. While infidelity can impact certain aspects of a divorce, it does not directly determine who gets primary custody of the children.

Fault in the Breakup and Property Division

If your spouse has cheated, you might be able to plead for fault in the breakup of the marriage. Texas law allows for fault-based grounds for divorce, and adultery is one of them. This can potentially affect the division of the marital estate, possibly entitling you to a larger share of the assets. However, it’s important to understand that this primarily pertains to financial matters and does not necessarily extend to custody decisions.

Infidelity and Custody: The Reality Check

When it comes to custody, the courts are focused on the best interests of the child. The fact that a spouse cheated does not automatically mean they will lose custody rights. Unless the circumstances surrounding the infidelity are particularly egregious—such as engaging in the affair in the presence of the children or neglecting parental responsibilities to pursue the affair—it is unlikely to have a significant impact on custody decisions.

The Practical Approach in Court

In the early stages of a divorce, during temporary orders hearings, both parties present their case to determine initial arrangements for custody and financial matters. If you have solid evidence of your spouse’s infidelity, it might give you a slight advantage in these hearings. Being able to present yourself as the morally upright parent could be beneficial, but it’s not a decisive factor.

Courts look at the entirety of the situation. They consider who has been the primary caregiver, who handles day-to-day responsibilities, and who has been more involved in the children’s lives. If you have not been the primary caregiver—if you haven’t been the one attending school events, taking the kids to their doctor appointments, arranging playdates, and handling bedtime routines—the court is unlikely to award you primary custody based solely on your spouse’s infidelity.

Preparing for Custody Battles

If you want to increase your chances of gaining primary custody, it’s crucial to demonstrate that you are capable and willing to take on the primary caregiver role. This might mean making changes before filing for divorce. Here are some steps to consider:

  1. Increase Your Involvement: Start taking a more active role in your children’s lives. Attend school functions, take them to their appointments, and be present for daily routines.
  2. Document Your Efforts: Keep a record of your involvement. This documentation can be valuable evidence in court to show your commitment and capability as a primary caregiver.
  3. Build a Support System: Ensure you have a reliable support network of family and friends who can help you manage your responsibilities.
  4. Seek Legal Advice: Consult with a family law attorney who can guide you through the process and help you build a strong case.


Infidelity can complicate divorce proceedings, but it is not a determining factor in child custody decisions in Texas. The courts prioritize the best interests of the children and base custody arrangements on who has been the primary caregiver and who can best provide for their well-being moving forward. If you find yourself in this situation, it’s essential to focus on demonstrating your capabilities as a parent rather than relying solely on your spouse’s misconduct. By taking proactive steps and seeking proper legal counsel, you can better position yourself for a favorable custody outcome.

Contact The Hembree Bell Team

If you’re facing a divorce and concerned about custody issues, don’t navigate these challenges alone. Contact Hembree Bell Law in Austin, Texas, or San Antonio, Texas, for legal guidance and support. Our experienced family law attorneys are here to help you understand your rights and options, ensuring the best possible outcome for you and your children. Schedule a consultation today to get started on your path forward.

Contact us for
free case evaluation

    Related Posts

    Join Thousands Of Happy Clients