Could my husband end up with the children?

[moscow]

Been married for 13 years, things not great for about five/six. Two children 8 and 11. Short version is that three years I had an affair and fell in love with someone else. Don't shoot me down. I had tried for a few years before then to address major issues in our marriage, was always completely stonewalled, lots of bad rows, slapped once while pregnant with second child.

I started to talk to my husband about separation, he would have none of it, and several months later, feeling a million miles from this man I had once loved and respected, I met someone and the affair started. After three months, I knew I couldn't live like that and I told my husband, and we separated. There then followed a weird period where I honestly thought we were heading for what I felt could have been a reasonably grown-up agreement, and I felt the happiest I had felt in a long time, until he stung me with two things: one, he threatened to kill himself, and two: he asked if he could have custody of the children.

Both terrified me. I ended up agreeing to give things another go, mainly because of these two things ( I was never prepared to lose my children, and always prepared to share custody and each of us help the other to continue to be a good parent... I really believed we were both capable of this, until he did those two things) and also 'spurred on'... not the right phrase here.. because the other man I had fallen in love with ended it. I was devastated and shamed to admit a part of me stayed because of that.

Jump forward three years, and we are still together, still discussing issue about our marriage, occasionally rows, and crucially nothing changes. Bizarre thought it might seem, I am angry for him appearing to 'accept' my affair... I think it makes him weak. I don't want to be with him for the rest of my life and if I am honest, dream ahead to being by myself and shared-parenting.

My question is this: if I instigated separation again, and he asked for, or went for, full custody, could he use my affair against me, and could he ever get it? If I thought there was a fair chance he would, I would stay with him for the long term, just to avoid losing my children, even if I am pretty misreable a lot of the time, and I think I make him miserable too. Any views, please? I am really worried about this.

[countydurhamlass]

your affair is irrelevant.

any court considering an application for residence by someone has to consider the following:

1. the ascertainable wishes and feelings of the child concerned in the light of his age and understanding
   
2. the child?s physical, emotional and educational needs
   
3. the likely affect on the child of any change in circumstances
   
4. his age, sex, background and any characteristic of the child which the court considers relevant
   
5. any harm that the child has suffered or is at risk of suffering
   
6. how capable each of the parents are any other person in relation to whom the court considers the question relevant is of meeting the child?s needs
   
7. the range of powers available to the court under this Act in the proceedings in question.
   
   
   your husband would need to show that he has been the primary carer, ie cared for them day to day and that you have not been. He would need a really good reason why he should have them and not you and unless you ran off with the man you had an affair with leaving him looking after the children for days/months on end then your adultery is not a good enough reason!! he would also have to show you are an unfit mother who neglects your children.
   
   i would arrange an initial appointment with a solicitor who gives you half and hour free advice (many do this) who will be able to give you some basic advice and assess whether you would be eligible for legal aid to help with divorce and contact matters.

[moscow]

Thankyou CountyDurhamLass, this is really really helpful. Something else that bothers me is that, although I am the 'main carer', as in I chose to leave my job to be there for the children, and have worked part-time ever since the eldest was born, that is what they are used to. I think my husband knew that things would lean that way, that I would continue to be the main carer and he would have plenty of contact (I hate the word 'contact'... I would have helped him continue to be their dad in a very active way, not just have 'contact') he said something about giving up his job so that the automatic assumption that I would be the main carer, because I was at home and he was out at work, would no longer apply... I told him how ridiculous that would be and how the children would suffer more if he did that, and he had a responsibilty to put them first and help me manage the fact that our marriage had broken down. I suppose he was emotionally very shaken and hitting out in any way he thought he could.

But what would happen if a father did that? Would all your points below still apply? I suspect, if asked, our children would say they wanted to spend time with us equally and we could have one that, and I still would do that.

[moscow]

I suppose another thing I think about is from his point of view: couldn't he argue that he couldn't be the main carer over the last 11 years or so because he has been the main breadwinner, so he shouldn't be penalised for that? Overall, I am getting the impression that a court looks at what the children are used and what would cause them least stress, and if that means one parent has been the main carer... and not been neglectful or 'bad parent' in any way... and that is what the children are used to, then that is what should probably continue?

[ninja]

I was told by a solicitor that if a Dad did change circumstances like that it would be frowned upon.

Honestly - go and get a couple of free half hours with solicitors and feel confident of your rights

[Scaryprospects]

Moscow just wanted to ask whether you have any advice to share ? I’m in very similar (minus the affair)

[user765]

Your husband threatened to kill himself?
That would be a risk to the children.
Like others have said, your affair is irrelevant where the children are concerned. My ex has written in court documents that I had loads of affairs (I didn’t - he did) but this was never brought up, but in one hearing it was briefly touched upon as the fact that he tried to make this relevant (albeit untrue) showed that he was jealous and preoccupied with me! So if your husband goes on about your affair, it will most likely be detrimental to him