136 / 264
GAZETTE
JULY
Custody, Adultery and the
Welfare Principle
Paper delivered by Alan J. Shatter, at the Summer Meeting of the
Incorporated Law Society of Ireland, May, 1977 in Wexford.
The law as to Guardianship and Custody of Children is
governed by the Guardianship of Infants Act, 1964. The
Act gives statutory expression to the equitable rule that all
matters concerning guardianship and custody of children
should be decided on the basis of the welfare of the child,
and to the constitutional principle that parents have equal
rights to and are the joint guardians of their children.
Section 3. of the 1964 Act provides that :
"Where in any proceedings before any Court the custody,
guardianship or upbringing of an infant... is in question,
the Court in deciding that question shall regard the
welfare of the infant as the first and paramount
consideration".
Welfare in relation to an infant is said to comprise its
religious and moral, intellectual, physical and social
welfare.
Giving judgment in the Supreme Court in
MJi.O'S v.
P.O.O.'S
(1974) Walsh, J. stated that:
"All the ingredients which the Act stipulates . . .
namely the religious, moral, intellectual, physical and
social welfare of the child are to be considered globally".
The matter is not "to be decided by the simple method
of totting up the marks which may be awarded under
each of the five headings. It is the totality of the picture
presented which must be considered".
In viewing this picture the Courts since the coming into
force of the 1964 Act have constantly reiterated that
"An award of custody is not a prize for good
matrimonial behaviour".
Evidence tending to prove that the behaviour of one or
other parent contributed to or caused the breakdown of
the parents marriage "is relevant only to the character of
the respective parents with a view to deciding whether the
welfare of a particular child would be best served by being
left in the custody of one parent rather than the other"
(Fitzgerald J. In
B.
v.
B. [1975] I.R. 54, (S.C.-
1970).
Thus the fact that one parent must bear the bigger
share of the blame for the collapse of his or her marriage
does not mean that he has by his conduct forfeited the
right to be awarded the custody of his children. However,
Kenny, J. has pointed out that where a marriage has
broken down
"It may be possible to show that the welfare of the
children requires that one or other parent should by
reason of character of conduct be excluded from
consideration as being a person unfit to have custody"
(Kenny J. In
B. v. B.
July 1972 unreported H.C.)
In determining a parent's fitness the danger of the moral
corruption of the child in respect of whom the award of
custody is sought has been given considerable weight by
the Courts and it seems that a parent engaging in an
adulterous liaison will have considerable difficulty in
securing an Order of custody. It is in this area that
members of the judiciary, both in the High Court and the
Supreme Court have produced a variety of conflicting
opinions and approaches in the application of the welfare
principle.
Custody not reward for good matrimonial
behaviour
In January 1971 Kenny, j. in the High Court
delivered Judgment in the case of
M.O.'B. vJ*M.O'B.,
the facts of which are as follows.
The father sought the custody of his four children, two
girls aged 9j and 7 years and two boys aged 8 and 5
years. The parties had married in April of 1960, but by
September of 1965 their marriage had totally broken
down. In March of 1966 the High Court granted custody
of the four children to the wife. In 1970 the wife
struck up a relationship with another man (a Mr. G.) and
at the date of these proceedings Mr. G. was living with the
wife. Kenny, J. described the husband as "unfeeling,
insensitive, unemotional and very self centred", and
further stated that "he wants to get custody of the
children now primarily because he does not want his wife
to have them and because he knows that she is
passionately attached to them". Further there was
evidence that all four children were fond of G.
Emphasising that "custody is not a reward for good
matrimonial behaviour" Kenny J., continued,
"Nor should the Court deprive a parent of it, as a way of
showing its disapproval of conduct, which most people in
a community regard as being immoral"
Although stating that the children's
"Religious and moral welfare is not promoted by Mrs.
O'B's living with G. as his wife, although not married to
him", he continued
"I do not accept the proposition that a parent who has
been guilty of matrimonial misconduct is necessarily unfit
to have custody or that the "Innocent" party is in every
case the one who will best promote the welfare of the
child".
With regard to the age of the children, the fact that
they had remained in the mother's custody for five years
and in view of their need of stability and affection he felt
the children should remain with the mother. In a final
reference to her relationship with G. Kenny, J. stated that
"From the standpoint of the moral welfare of the children
it was deplorable, but in considering its effects . . . it is
relevant to point out that Mr. and Mrs. O'B. had not lived
together since September 1965, and that the association
with G. began in March of 1970".
A few months later the Supreme Court delivered
Judgment in the case of
JJ.W. v. BJM. W.,
in which a
similar problem arose. In this case the husband and the
wife had been living in England and in 1969 the wife left
her husband and went to live with a Mr. L. There were
three children of the marriage, all girls, aged
9, 7 and 3 years. When the wife left home she took
the two youngest girls with her, but the husband regained
custody of the children. The husband returned to Dublin
105