For many years in New Jersey, there has been a moral/legal debate on whether and to what extent children of a marriage should be exposed to the new romantic partner of one of the parents once the parents are separated or divorced.
The first decision dealing with this was at the time of our country’s bicentennial, DeVita v. DeVita, 145 N.J. Super. 120 (App. Div. 1976). The DeVita decision held that one party could request that the children be precluded from being in the presence of a new romantic partner of one of the parties overnight or in some cases, anytime at all.
There were a few decisions on this issue in 1980’s and 1990’s, but obviously the country is in a far different place from a cultural and technological standpoint now than it was 40 years ago. For example, in 1976 telephone’s had a dial and a cord, MTV did not exist, gay marriage was not national social justice discussion and now our entire lives are contained in a hand-held device that we cannot imagine living without.
Judge Larry Jones who sits in the Superior Court Family Division in Ocean County rendered the unreported decision of L. Mantle v. C. Mantle; this decision was issued on March 9, 2015 and distributed on August 4, 2015. Judge Jones, in a very lengthy and well-thought out decision, held that “a Court has equitable discretion to either grant or deny, enforce, or strike down DeVita restraints in a given case depending upon the circumstances.” The Court suggested six non-exclusive and certainly not limiting questions that a Court may ask in determining whether a DeVita restraint is reasonable or to what extent an existing restraint needs to be modified. Those questions are:
(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?
The authors of this article suggest various reasons as to why the Mantle decision is one that will result in positive or negative changes on this very issue.
THE MANTLE DECISION, WHILE WELL-REASONED, PUTS TOO MUCH WEIGHT ON THE
OPINIONS OF THE CHILDREN AND TOO MUCH ONUS ON THE PARENT SEEKING RESTRAINTS
While clearly the law regarding DeVita restraints needed to be modified in light of the changes in societal norms and many of the changes and rationales suggested by Judge Jones are not only bona fide but beneficial, the Court’s decision has a danger of putting too much reliance on the opinions of children and also too much onus on the parent who is seeking the DeVita restraints in the best interests of the child.
Judge Jones opined that:
“The Court further notes that there may be in fact instances where a specific dating partner does in fact pose a specific threat of harm through inappropriate actions and/or comments. For example, if one’s new dating partner has a history of child abuse, or is violent, or harasses a child, or actively misuses and chronically abuses drugs, engages in other specific behavior which subjects the child to an unreasonable risk of physical or emotional harm, the Court may exercise parens patriae jurisdiction and potentially grant an application restricting the parent from permitting that specific person around the child, in unsupervised or even supervised fashion, when appropriate. ”
While the Court distinguishes such a restraint from the traditional “DeVita restraints” the problem which may arise in relying upon this language is that the parent who is not in the new dating relationship has to make an inquiry of their ex-spouse or soon to be ex-spouse regarding that individual’s paramour.
Certainly, it would not be uncommon if a party who is divorced or divorcing responded to questions from the other party regarding a new boyfriend or girlfriend’s history of child abuse, violence, harassment or abuses drugs with an emphatic “no.”
The Court goes on to indicate that applications challenging DeVita restraints or seeking DeVita restraints “must contain more than a general discussion about a parent’s subjective beliefs, but must specifically address how and why the foregoing schedule is contrary to the health, safety or welfare of the specific child at issue.”
More description instructions are given. Judge Jones states “If either party contends that a specific dating partner of a spouse is in some manner physically, verbally or emotionally hurting the child, he or she may file an application, by way of motion or order to show cause as applicable, for further relief.”
While the suggestions, at first blush are not only reasonable but sensible, it begs the question of how the parent who is not in the relationship knows or would know of anything going on in the other party’s home. It is axiomatic that most information in this vein would be provided by the child who is in the house.
This unfortunately puts the child in the unenviable position of not disclosing anything to the other parent out of fear that it will “get back to them,” or alternatively disclosing information to the other parent and requiring that parent to agree not to disclose it to any third-parties; i.e. “sworn to secrecy.”
Therefore, since information under the factors as suggested by the Court would generally only come from the child rather than a third-party, whether it is obtained from the child (which is not preferred) or general allegations are plead that would lead the reader to determine that the information must have come from the child at some point, the child is left as the source of the information.
As such, while the DeVita decision was in need of re-evaluation, the Mantle decision potentially puts the children in the middle
THE MANTLE DECISION PROVIDES A NEW AND CLEARER VISION FOR A PARENT SEEKING RESTRAINTS WITHOUT NECESSARILY INVOLVING THE CHILDREN
Putting a child in the middle does not have to occur under a Mantle analysis. The parties should obviously be instructed not to involve their children in the divorce cases and the information necessary can be accessed elsewhere.
If a child is having an issue with the parent’s new paramour it would likely come up with the school, the pediatrician or a therapist that the child sees. Depending on the age of the child, it may come up through a sports coach or a parent of a friend. If there is a true danger to the child many children speak up or if a child is acting unusually there may be a need to have a therapist meet with the child. In this modern time, when the internet tells many of our stories, this information may be available on the internet in the form of social media.
An application for restraints may even be avoided if the children have a quick turn-around and limited review by a therapist who meets with each of the parties, the children and the third-party. That is a price some people may not be willing to pay for a new relationship. Once there is a request for an evaluation this may have the effect of the third-party leaving the new relationship if they are not committed to it or allowing them to change the problematic behavior. Either way, the result is probably in the children’s best interests. The quick turn-around review will provide some level of comfort and would be able to be requested by the party who has become aware of the presence of the third-party.
The goal is to have children flow effortlessly from one residence to the other without any negative impact from those new to the family unit. This approach must be a common sense realistic approach. No one wants a child to feel that they have to keep a secret or that the parties have to be worried about big brother detectives or spies from the neighborhood.
As adults, the parties need to understand that they need to move forward with their lives and accept the fact that each party is going to have relationships. The need for an assessment or an evaluation of any sort should be limited to extreme situations where the child is so upset that they disclose to either the other parent, a school person, baby sitter or a pediatrician and not in every situation where the child may feel a minor level of discomfort. The parents need to know that they cannot question their children to the point of becoming intrusive or putting the child in an uncomfortable position. The overall tone to children needs to be one of acceptance, not one of interrogation. If it becomes clear that a child has been interrogated then that work should against the parent attempting to impose restrictions on the other parent. There has to be a strong presumption in favor of allowing people to act in a reasonable fashion and to be able to live consistent with the moral climate or the age we live in. A true issue should only arise in an unusual situation. It is best if clients realize that each party is entitled to privacy behind the closed doors of their household unless it is very clear that the child is having a problem.
Timing is very important. A party should think about how the child will react to the third-party. The introduction of the dating partner should be done in a way that will be most comfortable for the child or children. Children must be reassured the new person is not replacing the other parent.
Do not underestimate the need for the exercise of good judgement. Without this, issues for the children are certain to arise and if this is the case, the Mantle decision provides us a valid roadmap and recourse.
At any time a parent has a legitimate concern a request for a quick turn-around evaluation can be made. If the third-party refuses to participate then they should be precluded from being present during parenting time. Part of the evaluation will have to include recommendations for making the integration of the third party as smooth as possible.
No one want the Courts unnecessarily intruding into the privacy of homes and of the behaviors of adults. However, as always the best interests of children must trump all else. If there is a concern, a non-overly invasive quick turn-around analysis should at least provide the party raising the issue with some peace of mind. A party must understand if they raise an objection or concern it must be in good faith or they may be subject to sanctions. The evaluation cannot be judgmental, only protective.
Mantle requires more than the general opposition to third parties; there must be some legitimate basis to seek the restraints. It cannot be a permanent no contact rule when there is no genuine basis of danger or harm to a child. The parties going through a divorce cannot be precluded from having relationships. If necessary, reasonable graduated plan should provide the child with a reasonable structure to get used to the presence of the third party.