The marriage between Megan Fox (aka my doppelganger— ok, wishful thinking) and Brian Austin Green (of Beverly Hills 90210 fame) is over. Potential suitors shouldn’t get too excited—she’s already off the market. Fox is reportedly dating Machine Gun Kelly (wild guess, that’s not his real name). Pictures have emerged of the pair and tmz.com even reported, after posting pictures of the couple leaving Machine Gun’s house, that they have reached the “sleepover stage” of their relationship.
It is unknown if Green and Fox’s three children have met Machine Gun. But, assuming they have or soon will, Green may feel the way many clients do, not wanting the children exposed to the new boyfriend or girlfriend during a divorce. Green may argue it’s too confusing and potentially harmful for the kids to be around a new partner (perhaps especially one named Machine Gun). But, despite that very common concern, Courts in New Jersey are less and less inclined to forbid a new significant other from being around the children unless that individual is a sex offender, a drug addict, a child abuser, or in some way could be or is a danger to the children.
New Jersey courts can restrict one or both parties from exposing the children to a new significant, a scenario commonly referred to as a “DeVita restraint.” In the New Jersey case of DeVita v. Devita, 145 N.J. Super. 120 (App. Div. 1976), the Appellate Division agreed with the trial court when it did not allow husband/father to have overnight visits with his girlfriend in the presence of his children after the mother/wife argued that the children’s moral welfare could be endangered if the kids were to witness overnights with dad and his new girlfriend. While the Court did not actually rule on whether it was morally wrong for the children and dad’s new girlfriend to be under the same roof at night, it found that the trial court was not wrong in forbidding it.
The DeVita decision is now nearly 44 years old (about 4 years younger than Brian Austin Green and 14 years older than Machine Gun, for those of you keeping track). It is still the main case cited in support of the argument that children should not be exposed to new significant others during a divorce, especially on an overnight basis. But, in 2015, the non-binding case of Mantle v. Mantle, 2015 N.J. Super. Unpub. LEXIS 1858 (Ch. Div. 2015) was decided and the court noted that while a trial court has still has the ability to determine whether to grant or deny a parent’s request for DeVita restraints, it questioned whether the decades-old DeVita decision was still socially viable. Have we outgrown the DeVita decision? Much like the DeVita children themselves grew up, have we as a society grown past the notion that children being exposed to a parent’s new relationship is morally wrong?
Of course, there is no easy yes or no answer; it depends on the facts of the case. Judges may still impose DeVita restraints and parties may agree to them, but the Mantle case suggested the following factors be analyzed by a court confronted with the question of imposing or continuing a DeVita restraint:
1) How long have the parties been living separately?
2) How old is the child at issue?
3) How long have the parent and partner been dating?
4) Is the new dating partner already known to the child?
5) Has the child previously been introduced to other dating partners of either party?
6) Does the child have a previously specified diagnosis of a psychiatric, psychological or emotional nature which may require special consideration and attention under the circumstances of the case?
So, while the courts still can and do impose DeVita restraints, it is simply not as common as it was 44 years ago when Brian Austin Green was about 4 years old and not thinking about his future divorce. While the Mantle decision is not binding precedent, it may still be used by New Jersey courts looking for guidance in addressing a DeVita restraint.