Starting Over and Staying Over

I am often contacted by distressed clients who do not want their children exposed to a soon-to-be ex-spouse’s boyfriend or girlfriend during a divorce litigation. It would seem like a no-brainer…wouldn’t it be too confusing and potentially traumatizing for the children to be around mommy or daddy’s new significant other before the divorce is even finalized? Despite that oft-repeated argument, 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.

In the New Jersey case of DeVita v. Devita,145 N.J. Super. 120 (App. Div. 1976), the Appellate Division upheld the trial court’s ruling not allowing husband/father to have overnight visits with his girlfriend in the presence of his children. 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. A prohibition on one or both parties exposing the children to a new significant other is commonly referred to as a “DeVita restraint.”

The DeVita decision, turning 40 years old on November 19, 2016, is still the main case cited in support of the argument that children should not be exposed to new significant others, 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. The Mantle Court noted that a trial court has still has the ability to determine whether to grant or deny a parent’s request for DeVita restraints and whether to enforce, modify, or terminate restraints. But, it questioned whether the nearly 40-year old DeVita decision was still socially viable-have we outgrown the DeVita decision? Much like the DeVita children grew up, have we as society (and the Courts), 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 and the answer is always case-specific. Judges may still impose DeVita restraints and parties may agree to them. The Mantle case suggested the following factors be analyzed by a trial 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?

Emotional and legal issues abound regarding the legally and factually sensitive issue of introducing new partners to the children of a formerly intact family. While the courts still can and do impose DeVita restraints, in 2016, it is simply not as common as it was 40 years ago when the DeVitas were litigating. While the Mantle decision is not binding precedent, it may still be used by courts looking for guidance in addressing a DeVita restraint. Time will tell whether, in the absence of special circumstances, DeVita restraints become a thing of the past. Hopefully it doesn’t take another 40 years to find out.

Alexandra Rigden, Esq.

Date Published: April 4, 2017

Written by: Alexandra Rigden

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