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Overnight Visits By Boyfriend/Girlfriend During Parenting Time

Sep 2, 2015 | Written by: Diana N. Fredericks, Esq. |

In many divorces, the financial and custody issues will be resolved and, at the eleventh hour, just as everyone is getting ready to sign the final papers, one party asks, “is my girlfriend/boyfriend allowed to stay overnight during my parenting time?” Conversely, in some circumstances, one of the parties takes a position, “my child is not allowed to be present when my ex’s girlfriend/boyfriend is at the home.” In most cases, especially with young children, this is often a hot button issue.

Does a former spouse have a right to regulate his or her ex’s life by limiting the time that he or she may be with a new partner?   Is that protecting the best interests of the child or is it an invasion of privacy and a continued form of control?

In 1976, the New Jersey Appellate Division decided this issue, resulting in what became known as “DeVita”[i] restraints, which limit the amount of contact and exposure a divorcing parent may permit a child to have with the parent’s new girlfriend or boyfriend. However, is what happened nearly 40 years ago still viable in 2015? Does the majority believe there is something immoral or inappropriate about having your dating partner sleeping over at your home or that a child’s “moral welfare” would be comprised? Has what is socially acceptable changed dramatically over the past forty years?

Although it is an unpublished trial court decision, Mantle v. Mantle recently addressed this issue. The Court determined that if the parties contract for such restraints, those restraints must be reasonable as to scope and duration. For example, an infinite ban on having a member of the opposite sex “sleep over” may not be enforceable.

While it is true that parties are free to contract and subject themselves to virtually whatever terms they can agree upon, it is likewise true that the court can exercise jurisdiction over the child and is never permanently bound by the terms of the parents. It is the Court’s job to safeguard the child’s welfare and happiness.   The court is responsible for determining and ensuring that these “protective measures” are truly intended and designed to protect the child’s best interests from a real concern. The rationale for restrictions cannot stem from a former spouse’s agenda, where he/she may not have wanted the divorce in the first place, or where a parent is “ultra-possessive” of a child or feeling jealous and competitiveness over the new relationship. Conversely, children should be permitted a period of adjustment and transition before a new relationship is thrust upon them.

Ultimately the Court held that the situation is a balancing act and may reasonably call for a short-term restraint, reasonable in duration and nature, to protect a child.

 While children should not be suddenly thrust into an emotionally overloading situation overnight, they logically cannot be raised in a vacuum either. Certainly, it is important to try and soften blows for children during separation and divorce. It is quite another, however, to attempt to continue raising them by pretending there was no separation or divorce in the first place. While children may likely experience some degree of pain and stress when parents end their marriage, it is unrealistic to expect to indefinitely shield children from the occurrence of the divorce itself, or the fact that both parents will likely proceed to seek new relationships with new partners. As with many other aspects of raising a child, the most sensitive approach to this subject involves a reasonable dose of parental discipline and temporary self-sacrifice, with an eye towards developing an appropriate gradual phase-in plan for introducing the child to new parental boyfriends and girlfriends in due course.

[i] DeVita v. DeVita, 145 N.J. Super 120 (App. Div. 1976)

 

Diana Fredericks, Esq., is a partner with Gebhardt & Kiefer, PC and has devoted her practice to family-related matters. If you wish to schedule a consultation, contact Ms. Fredericks at 908-735-5161 or via email. In 2015, Ms. Fredericks was named to the NJ Super Lawyers Rising Stars list in the practice of family law by Thomson Reuters, and to the 2015 New Leaders of the Bar list by the New Jersey Law Journal.