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CHANGING CUSTODY IS A “DRASTIC LEGAL ACTION.” IF SO, DO WE LOSE SIGHT OF THE BEST INTERESTS OF CHILDREN?

32-year-old Kenneth Sullivan had custody of his young daughter through divorce proceedings. In a later modification, it was proved that Kenneth was having a sexual affair with a 19-year-old and had actually snuck into the 19-year-old’s parent’s home at night to have sex with her. Kenneth also admitted to drinking and driving but denied doing it with his daughter in the car. The daughter, however, told the Guardian Ad Litem that Kenneth did, in fact, drink while driving her in the car. It was also established that Kenneth had friends who used crystal meth. The trial court was “troubled” by Kenneth’s drinking and driving and immoral behavior, but concluded that since there was no proof this behavior had an adverse impact on the daughter, no change in custody was warranted under our law.

This was a correct reasoning on the part of the trial judge according to the Court of Appeals. Sullivan v. Sullivan, No. 2010-CA-01847-COA (Decided May 29, 2012.) The Court concluded that no change was warranted because the four-year-old daughter had not exhibited any harm from this conduct. The question is: Should our law require that a court wait for damage to a child before acting in its best interests? Should a court be required to wait for a child to be injured in a car wreck before it acts in its best interests on drinking and driving? Should the court wait until the child is 16 and pregnant before it acts to protect it from immoral upbringing?