Impact of Parental Conduct And Misconduct

Section 602(b) states that “The court shall not consider the conduct of a present or proposed custodian that does not affect his relationship to the child.”  For example, a parent who has a sexual relationship with another person is not necessarily disqualified as a custodian, so long as the conduct does not take place in the presence of the children and does not otherwise affect the parent’s ability to be an appropriate custodian (In re Marriage of Radae, 208 Ill.App.3d 1027, 1030, 567 N.E.2d 760, 762, 153 Ill.Dec. 802, 804 (5th Dist. 1991).

A parent’s use of drugs is relevant to custody disputes only if the conduct “can be shown to affect his mental or physical health and his relationship with the child”, In re Custody of Gonzalez, 204 Ill.App.3d 28, 34, 561 N.E.2d 1276 1279, 149 Ill.Dec. 580, 583 (3d Dist. 1990).

The misconduct rule was expounded in Nye v. Nye, 411 Ill. 408, 105 N.E.2d 300, 303-304 (1952):
Where the mother is able to care for her minor daughter and is not shown to lack the proper attributes of good motherhood, past misconduct, where the evidence indicated no probable future misconduct, should not be a basis for denying custody to the mother.  To do so would be not only to punish the mother for her past misconduct, but, more important, would punish the child by denying her a mother’s care and guidance.  It is not the purpose of this court, nor of any court, to so punish an innocent child.

Thus, many types of misconduct will not by themselves prevent an award of custody.

For additional information see Temporary Custody Orders Back to the Custody Hearings page