If you are preparing to litigate custody, pursuing legal action against her may impact custody. If she is arrested, she will have a criminal conviction on her record and the court can consider it as evidence. You should remember though that a large number of people who end up litigating custody issues have been involved in affairs. Unless there is something concerning about the specific person she was involved with, (for example, she cheated on you with a convicted child molester), it is unlikely the court will give a conviction for adultery much weight.
On the other hand, if you bring this to the attention of a prosecutor and they do pursue her for it, you run the risk of making the judge angry at you. There is a chance that a Judge will see your actions as retaliatory and will think negatively of you because of that.
I would consider your options very carefully before you decide what to do. In the meantime, you can improve you chances at obtaining custody by spending as much time as possible with your children.
Helena M. Nevicosi
Attorney with Rosen Law Firm
4101 Lake Boone Trail, Suite 500
Raleigh, North Carolina 27607
919.787.6668 main phone
919.787.6361 main fax
The response posted above is based upon the limited factual information made available and is not intended as a full and complete response to the question. The only reliable manner to obtain complete and adequate legal advice is to consult with an attorney, fully explain your situation, and allow the attorney sufficient opportunity to research the applicable law and facts required to render an accurate opinion. The basic information provided above is intended as a public service only, a full discussion with an attorney should be undertaken before taking any action. The information posted on this forum is available for public viewing and is not intended to create an attorney client relationship with any individual. These answers are provided for informational purposes only, a person should consult with their own individual legal counsel before taking any action that could affect their legal rights or obligations.