A common question I get is whether a party going through a divorce or custody dispute can get “sole custody” because the other party is a “cheater.” Although an act of adultery under Guam law gives courts the discretion to award community property and debt as the court sees fit, the affect of an affair or affairs on an award of child custody is more complex.
In Flores v. Cruz, the Supreme Court of Guam addressed the role that “sexual behaviour” can play in child custody disputes. In that case, the trial court held a trial on custody and awarded one party sole legal custody over a minor child. The trial court relied somewhat on the fact that the father had “several” sexual relationships with other resulting in “several” pregnancies.
The Supreme Court held that trial courts could consider such behaviour. “However, in order for such behavior to be relevant to a custody determination, it must be shown tohave directly affected the child in an adverse manner.” The court characterized the party’s behaviour as “both immature and egregious,” but observed that “[d]uring the period of temporary joint legal custody, nothing presented shows that he has made decisionsendangering his child, placing him at risk or otherwise making inappropriate choices adverselyaffecting Tyler’s welfare. More importantly, the record reveals that Ms. Flores admits Mr. Cruz is a good father.” Therefore, the Supreme Court reversed the trial court’s decision and sent it back to the trial court for another hearing.
The Supreme Court’s decision in Flores essentially distinguished between a person’s abilities as a partner and their abilities as a parent. Trial courts will only consider “immature” behaviour if you can demonstrate that it has an impact on that person’s ability to rear a child. Parties who are considering filing an action for custody must remember that there is a legal preference for joint custody, but that courts will always look for what is in the child’s best interests rather than the parents’ best interests.
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