Question #47: My wife has been having an affair for many months now. It came out into the open in early December. When that happened, we agreed to try and work on our relationship rather than face the alternative of divorce. During our reconciliation period, she continued to see her lover, and their love has grown stronger. She cut short our reconciliation and said she wanted a divorce. We have 2 boys, aged 8 and 5. She wants to use mediation/arbitration instead of the traditional adversarial divorce route. Continuing to today, se continues to be promiscuous. I have numerous documented occasions where she has dropped off our kids with someone else (a grandparent, a friend, me) in order to get her sexual appetite filled. Recreational drug use is well-documented on paper with her lover, even discussions of using XTC. She is using very poor judgment on a daily basis. She continues to deny her involvement with her lover, saying it is a “friend” and a platonic relationship. I have documentation that shows otherwise. She is also a recovering alcoholic, but never and not currently regularly attending AA meetings. Broken childhood home, and she has been in therapy for 15 yrs. She is now scared of losing the kids to me. I do not want to have my children feel that they are in a position where they have to choose between her or me, so mediation is a promising alternative. But I am hesitant that mediation would be slanted towards granting custody to the mother no matter what. I do not want my children put into a living situation where there are drugs present (pot & who knows what else, as my wife’s lover indulges more frequently than my wife), and I want them to be in a stable environment. In a traditional divorce, I know that it would be rough, but my evidence would prevail. I’m not so sure about mediation though. Comments? Advice?

You are absolutely right about the response of the courts to a parent using drugs who is seeking custody of the children. The courts would not want the children exposed to such behavior.
Mediation, unlike arbitration, requires that you and your spouse agree to which parent will have custody, and you can insist that as long as she continues to abuse herself with drugs, you will not allow the children to reside with her or for her to have custody over them. Even if you agreed to arbitrate the matter of residency and custody, an impartial arbitrator should have serious problems with agreeing to grant resident custody to a parent who is using drugs.
You should not fear the mediation process, but should seek and experienced attorney-mediator in your jurisdiction who can assist both of you in this divorce.
If you are located in the New York City metropolitan area, please call me at 212-370-1660 to discuss mediation.
Leonard M. Weiner, Esq./Divorce Solutions