Changing Times - Divorce, Children and the New Relationship

Family Law Alert

August 19, 2015



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Can divorcing (or divorced) parents indefinitely restrain the other from introducing their child to a new significant other? That was exactly the question presented in the recent decision Mantle v. Mantle. Making the best interest of the child the critical factor, Ocean County Family Part Judge Lawrence Jones determined that a consent agreement providing for an indefinite ban on contact between a child and the parent’s new significant other is unenforceable, unless there is evidence of inappropriate conduct. The restraint at issue, commonly known as a “DeVita” restraint (based on a decision from 1976), is commonly used in divorce agreements to prevent or otherwise limit the amount of exposure a child of divorcing parents may have with a parent’s new significant other. Balancing the equities, the court recognized that, while children should not be raised in a vacuum, they also should not be thrust into an emotionally charged situation overnight. Therefore, Judge Jones determined that while the restraint itself was not per se unenforceable, the duration of any restraint should relate to the best interest of the child. Short-term restraints will likely be enforceable, but a court may carefully review a longer restraint. The best interest evaluation should invite a “gentle and logical progression, rather than a sudden and abrupt one...” Factors to consider include how long the parties have been living apart, the age of the child, how long the parent and new partner have been dating, whether the new partner is already known to the child and whether the child has an issue that might require special consideration. In the Mantle case, the court determined that a 6 month moratorium on exposing the child to a new dating partner was appropriate, beginning with the date the parties separated (in this case, October 2014). After the 6 month period, but before 12 months, the parties may introduce the child to a new significant other, but that person should not stay overnight in the presence of the child. After the 12 month period, the court directed that the significant other may stay overnight. While not dispositive, the Mantle decision is significant because it recognizes that the social landscape has changed dramatically since the DeVita decision from 1976, and that an indefinite bar on overnight visits by the new dating partner is not necessarily harmful to a child’s “moral welfare.” Nevertheless, there may be instances where a longer term ban is appropriate, particularly where there is evidence of inappropriate behavior by the new significant other toward the child.