Frequently, clients come to me complaining that their spouse or partner is exposing their children to dating relationships or conversely ask what should be their response to a spouses objection. Generally I advise that one should follow a common sense approach, meaning one should look at the effect on the children and not rush to judgment automatically, contrary to the position of one’s spouse. I think it is fair to say in general that children should not be exposed to serial partners who are all introduced as mom’s or dad’s new best friend. One needs to be sensitive to the children’s needs and the reality that divorce interjects significant change into their lives. With change there is stress and prudent parents will balance their own personal needs to go on with their lives with their child’s natural desire for stability. Alternatively, it is important that children are integrated and acclimated into the new lives of their parents, and significant others are certainly part of that integration.
Recently Judge L.R. Jones, J.S.C., when faced with an application to enforce an agreement prohibiting contact of children with the parents’ dating relationships, reflected upon the status of the law on this topic in his well thought out unreported decision of Mantle v. Mantle, FM-15- 656-15 .
The seminal case on this issue is DeVita v. DeVita, 145 N.J. Super. 120 (App. Div. 1976). In this matter the trial court, over the husbands objection, restrained him from having overnight contact with his girlfriend in the presence of his children, based on his former wife’s moral outrage. The Appellate Division affirmed the trial court’s decision, reasoning that the mother’s moral outrage was likely shared by the broader community.
In the Mantle matter, the parties had voluntarily agreed to what has come to be known as Devita restraints and, in fact, they broadened those restraints to bar any contact of their children with the
dating relationships of either of the parents. Judge Jones, in looking at the DeVita decision, opined that DeVita did not establish a per se rule approving such restraints, but that the Appellate Division in DeVita rather simply found that the trial court had not been wrong in allowing such restraints in the circumstances of that matter.
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. In Giangeruso v. Giangeruso, 310 N.J. Super. 476 ( Ch Div. 1997), a trial court declined to enforce a provision that gave the children the power to determine if a parent could have an overnight guest during visitation, finding that children should not be so empowered.
Judge Jones then set down a decision paradigm designed to allow for rational decision making as to whether DeVita restraints should be invoked indicating a trial court should consider:
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 give way to legitimate social needs of the parties and the best interest of the child. The Judge accordingly engrafted into the general prohibitions in the parties’ agreement provisions for a one-year transitional schedule to allow the child to acclimate to new parental boyfriends or girlfriends.