When should a divorce agreement have restrictions on parties having an overnight with a significant other during their parenting time? Judge Jones takes up the mantle of clarifying the appropriate circumstances for DeVita restraints in his recent published decision.
In Mantle v. Mantle, the parties voluntarily agreed to keep their children away from their respective boyfriend or girlfriend. I have encountered a few cases where the parties agree to this kind of restriction. The restraints always seem like a good idea at first, especially when you're in the middle of a divorce and moving onto another relationship is the furthest thing from your mind. But when you move on and your significant other has not, what then? How do you get the restraints lifted?
Seeing as the case law on this subject has not been addressed in detail since 1976 in DeVita v. DeVita, the timing was right for Judge Jones to tackle the issue.
In DeVita, the Husband argued that a restriction on having an overnight visit with his girlfriend in the presence of his children was an impingement on his constitutional right to privacy. The Appellate Division affirmed the trial court’s decision, reasoning that the mother’s concern over the moral welfare of her children being endangered by the presence overnight of a female friend in the father's household was likely shared by the broader community and that it was in the children's best interest to restrict the girlfriend from being in the children's presence overnight. DeVita from that point on somehow became the benchmark for every future attempt of a party to restrict an ex’s girlfriend or boyfriend from being around their kids.
Judge Jones, in reviewing the DeVita decision, said that DeVita did not establish a rule approving such restraints, but that the Appellate Division in DeVita simply confirmed the trial court decision because it had not been wrong in allowing such restraints given the circumstances.
In coming to this conclusion, Judge Jones looked to the reported decisions of other trial courts who have grappled with DeVita. In Kelly v. Kelly, 217 N.J. Super. 147 ( Ch. Div. 1986), Judge Clyne allowed a divorced father in a post-judgment situation to have overnight visitation despite the presence of his girlfriend, using the logic that DeVita was a pre-judgment matter where emotions were still raw and the social circumstances new to the children.
Judge Jones then set down factors a trial court should consider as to whether DeVita restraints should be invoked:
1) How long have the parties been living separately?
2) How old is the child?
3) How long is the dating relationship?
4) Does the child know the dating partner?
5) Has the child been introduced to other dating partners of either party?
6) Does the child have any emotional or psychological problems?
7) Are there any facts about this dating partner that indicates there is a danger of harm?
Judge Jones finally concluded that DeVita gives the trial court authority to decide these matters and that the vague agreement of the parties has to first consider the best interests of the child and then legitimate social needs of the parties. The Judge accordingly expanded the general prohibitions in the parties’ agreement. He called for a six-month moratorium on exposing the child to a new dating partner, beginning with the couple's separation in October 2014. After six months, but before 12 months, the parties may introduce the child to new dating partners, but that person may not stay overnight when the child is present. After 12 months, the parties are free to have a dating partner stay overnight when the child is present, Jones ordered. For more information see the article written in the Law Journal on the decision.
The take-away: a restriction of this nature should consider both the best interests of the child and the needs of the parties.
If you have questions regarding modifying restrictions in your settlement agreement, you can contact me at firstname.lastname@example.org or at 732-545-4717 x3859.