Edward R. Weinstein, Esq.

Divorce, New Relationships and Children: Issues That Arise When One Party Wants To Move On And Children Are Involved

Back when I first became a divorce lawyer in 1995, most judges sitting in New Jersey Family Courts were still quite conservative regarding children being in the presence of a parent’s new significant other. However, over the years I have observed a change in this regard, which I find consistent with a similar shift of how this issue is viewed in today’s American culture. As an attorney who has handled this issue in countless divorce and child custody cases here in New Jersey, I also feel that as the judges of the Family Part of the Superior Court of New Jersey have become younger and therefore grew up in a more “liberalized” American philosophy, their view of this issue has resulted in a transition as to how these cases are being decided. Earlier this week, Judge Jones handed down a new decision that reflects how the law has evolved. Please enjoy Edward A. Wojciechoski’s explanation of the evolution of this area of New Jersey divorce and child custody law. Mr. Wojciechoski is the most senior associate at the Law Offices of Edward R. Weinstein as well as an up and coming leader in New Jersey divorce and family law.

OLYMPUS DIGITAL CAMERA

OLYMPUS DIGITAL CAMERA

It should be obvious to most people that the family court system in New Jersey is geared towards and should always have the children’s best interest at the forefront of all decisions. This is especially true in divorce actions when children are involved. It can become very difficult when one party is ready to move on and start a new relationship, but the other party does not believe, for various reasons, that the children are ready to deal with having this third party around. One may also be skeptical of this scenario as the other party may be asserting that this will negatively impact the children, even though they are really doing the same simply out of spite. The court must look at this issue with the children’s best interests in mind when deciding if it should prohibit someone’s new boyfriend or girlfriend from being around the children.

Surprisingly, although you would think that this issue has come up countless times in family court, there are not a lot of published cases on the subject. The topic has recently heated up due to the issuance of a new opinion in the trial court out of Ocean County. Prior to that, it has been years since a published opinion. The topic is an interesting one and I will discuss the recent case more fully below, however, a brief history on the subject is necessary.

The most popular case on the subject came from the appellate division and was rendered almost forty (40) years ago in DeVita v. DeVita, 145 N.J.Super 120 (App. Div. 1976). In that decision, the appellate court held that the trial court did not abuse its discretion in granting the mother’s request for restraints on the father from permitting his girlfriend from staying overnight at his home while the children were present. This was issued while the divorce was still pending. It must be noted that the court did not establish a rule that having a partner stay overnight was automatically harmful to a child in every case nor did it create any presumption mandating a blanket prohibition against a parent having their partner stay overnight while the child is present.

Following DeVita, there was not another published case until the matter of Kelly v. Kelly, 217 N.J. Super 147 (Ch. Div. 1986). In this post-judgment matter, which means after the parties were divorced, the trial court permitted the father to have overnight parenting time with the children in the presence of his girlfriend. It was not until over ten (10) years later that another trial court published an opinion on the issue in Giangeruso v. Giangeruso, 310 N.J.Super 476 (Ch. Div. 1997). This was another post-judgment matter wherein the parties had entered into a consent agreement that the children would not have contact with any future partners of either party, if the children expressed reluctance do to so. The court held that the agreement was invalid and unenforceable since it placed too heavy of a burden upon the children contrary to their own welfare.

In the most recent unpublished trial court opinion entitled Mantle v. Mantle, the Honorable Lawrence R. Jones, J.S.C., took a deeper look at this issue and performed his own detailed analysis on this topic. The focus in these types of cases is the protection of a child’s best interest, which requires more than a general and indefinite prohibition against a parent bringing any partner around a child. Bringing a new boyfriend or girlfriend around the child is not necessarily a presumptive threat to a child’s best interest. The enforceability of any restraints depends on the reasonableness of same as to the scope and duration of the restraints, given the particular elements of the case and the child.

Just because parties have entered into a consent agreement concerning restraints on bringing a new partner around the children that does not mean that the court will enforce same. Matrimonial agreements are enforceable to the extent that they are just and equitable. When any such agreement involves the welfare of a child, the court is never automatically bound by same as the child was not a party to the agreement and the court can always exercise jurisdiction over the child. An individual needs to remember that facts rather than principles of law ultimately decide cases. Each case has a unique set of facts which may or may not warrant certain types of restraints.

Judge Jones recognized that both the mother and the father in these situations will have competing concerns, which the court will need to balance. Shortly after parties separate and file for divorce, it may be appropriate for a balanced short-term restraint against introducing a new boyfriend or girlfriend to a child. These restraints must be reasonable and sensible as to their nature and duration.

There are six (6) questions that the trial court may ask in order to determine the reasonableness of restraints, including (i) how long the parties have been living separately; (ii) how old the child is; (iii) how long the parent and new partner have been dating; (iv) is the new partner already known to the child; (v) has the child been introduced to other dating partners in the past; and (vi) has the child been diagnosed with any psychiatric, psychological or emotional issues that would require special consideration.

A child can slowly adjust to the situation when provided with a reasonable period of transition and adjustment. The court in Mantle reasoned that the best interests of the child in that case supported a gentle and logical progression in introducing the child to the father’s new girlfriend. This case provided more insight into this issue and can certainly be used as a backdrop for anyone in dealing with this scenario.

In the event you are going through a divorce or are already divorced and the other party is bringing someone new around your children, you may be able to put restraints and stipulations on the same. In addition, if the other party is attempting to place unreasonable restraints upon you from bringing your new partner around the children, you may be able to get this dismissed. As practicing New Jersey family law attorneys we can assess your case and get the appropriate relief for you and your children. Please do not hesitate to contact our firm today to discuss your rights and how we can help you.