Questions often arise upon divorce regarding whether having a new significant other in the presence of the child is appropriate. Over the past four decades New Jersey courts have evolved on this issue. The leading cases are discussed below.
DeVita is a 1976 New Jersey case that discusses the contact that a child may have with a parent’s new significant other.In DeVita, a father appealed his divorce judgment that prevented him from having a female companion stay overnight in the same home as his children when they visited him. The evidence presented showed that the two adults slept in separate bedrooms with their respective children and that nothing improper occurred during the overnight visit. Still, the court found that the restriction on overnight companions was enforceable in this case, based on the “moral welfare” of the children possibly being compromised.
Kelly v. Kelly is a more recent case from 1986 that addresses a similar factual situation as DeVita. The New Jersey divorce judgment in that case contained the following provision:
“Neither party will do anything which might have an adverse effect upon the safety, physical, mental or moral welfare of the children.”
After the parents divorce, the husband eventually began living with his girlfriend and her child. After that, the father and his children, along with his girlfriend and her child went on a vacation in which they all shared a home overnight. The mother sought to stop the husband from having overnight visits with the children when the girlfriend and her son were present.
The court found that the overnight visits in the presence of the girlfriend were not improper. The court stated that while the parties agreed to the language in question, the language was ambiguous, specifically in terms of what the “moral welfare” provision included. Since the parties did not agree on what they intended this term to mean, the court said “Without clear language in the agreement and in light of the dramatically opposed testimony, this court is not prepared to interpret the agreement as imposing DeVita restraints.” Kelly.
A decade after the Kelly decision, the court in Giangeruso was tasked with determining if the following language in a property settlement agreement was enforceable:
“The parties agree that the children shall not have any contact with any girlfriend/boyfriend or love interest of the other if the children express reluctance to do so.”
The policy of the courts is to encourage settlements and enforce agreements whenever it is fair and equitable to do so. In the case of reviewing an agreement dealing with the welfare of children, however, the court must take into account what is “in the best interest of the child.”Here, the court found that this provision was not enforceable as it was not in the best interest of the child. The court found that the language in question placed an undue burden on the children to determine when and how they wanted to visit with their non-custodial parent.
The most current case on this issue is Mantle v. Mantle, from March 2015. This case presents a shift from the DeVita era of cases significantly. In Mantle, the court stated that neither DeVita nor any New Jersey cases after it, stand for the proposition that allowing a new significant other to be exposed to the child or stay overnight when the child is present is per se inappropriate and contrary to the best interest of the child. Going forward, it is possible that Mantle will be used to guide the outcome of these types of cases.If you have any questions about New Jersey divorce and child visitation with a parent’s significant other, call the Law Offices of Peter Van Aulen at (201) 845-7400 for a free consultation.
DeVita v. DeVita, 145 N.J. Super. 120 (1976)
Kelly v. Kelly, 217 N.J. Super 147 (Ch. Div. 1986)
Giangeruso v. Giangeruso, 310 N.J.Super 476 (Ch. Div. 1997)
Mantle v. Mantle, Docket No. FM-15-656-15 (2015)