Edward R. Weinstein, Esq.

New Jersey Divorce Laws, The Best Interests of Children and a Parent’s Ability to “Move On.”

In my vast experience practicing as a divorce and family law attorney here in New Jersey, I have watched the law develop consistent with changes in our culture. Today we shall discuss the issue of one parent having their new “significant other” in the presence of the children.

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The first significant case in this regard, DeVita v. DeVita, dates back to the 1970s. This case upheld a term in the parents’ divorce settlement that the father’s new girlfriend could not spend the night while he had parenting time with his children based upon unproven worries about the “moral welfare” of the children. It is important to note that, at that time, the divorce rate was significantly less than today. Therefore, the Court’s decision reflected our society’s “norms and mores” of that generation.

Ten years later, the case of Kelly v. Kelly exhibited that the New Jersey Family Courts were keeping up with the times, so to speak.

In this case, the parties were married in October 1972. Two boys were born of the marriage. In June of 1982, the husband filed for a divorce after already being separated from the wife for eighteen months. He had begun seeing a new woman throughout the time he and his wife were apart. A few months after the husband filed for a divorce, he decided to introduce his children to his new girlfriend and her son and by October 1983 they had moved in to his home.

In December of 1983, the parties entered into a settlement agreement. Among other things, the agreement specifically provided that neither party would do anything that could adversely impact the safety, or physical, mental and moral welfare of the children. Furthermore, the agreement stated that neither party would do anything to cause the children to lose affection for the other parent.

In February 1984, the husband took his children to Vermont on a ski trip. Their dad’s new girlfriend and her son accompanied them as well. Outraged by the fact that this new woman and her child had slept overnight in the same home as her sons, she moved to modify the final judgment for divorce seeking restraints. In particular, the wife sought restraints under the case of DeVita v. DeVita claiming that her sons were put at risk by being exposed to their dad’s new girlfriend in an overnight setting.

However, the Chancery Division found that there was no reason to prohibit the overnight parenting time. The court looked to the settlement agreement as its main source of evidence to come to its conclusion. Although the settlement agreement did state that neither party could do anything that could adversely impact the moral welfare of the children, the wife was trying to have the word “moral” interpreted in a different way. It was not morally wrong for her ex-husband to have his new girlfriend sleep overnight while he had his boys with him on vacation. There was no evidence that anything improper occurred or that the boys were put in danger by the situation.

The Court emphasized the fact that the children were not put in a dangerous situation. It distinguished the facts of the case from the case of Mishlen v. Mishlen (1997), where a mother was prohibited from exposing her children to her new boyfriend, who had been abusive to the children of his two prior wives. In that case, the boyfriend’s past was enough to believe that the children would be in danger. However, in the case at hand the new girlfriend did not demonstrate any alarming behavior. She and the husband had a stable, long-term relationship and set a good example for the children. There was no reason why the court should intervene and prevent her from sleeping overnight while the boys were visiting too.

The main takeaway from the Kelly case is that unless the children are being exposed to danger or harm, a court will not intervene. Moreover, this case demonstrates that New Jersey Family Courts strive to stay “in touch” with our ever changing society and culture. For more questions, please contact my divorce and family law firm today.