NJSBA Family Law Section

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  • 1.  weekend parenting

    Posted 01-23-2015 02:24 PM
    Can anyone cite me to the 2-1 App.Div. decision holding it is ok for a non-custodial divorced parent to have a member of the opposite sex sleeping over at the same time he has his children for parenting? There was a vigorous dissent by Judge Lynch, now deceased, oppossing such conduct. . I think the case went up on appeal and affirmed on the majority decision below. Thanks 

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    Francis Grather Esq.
    Morristown NJ
    (973)292-9222
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  • 2.  RE: weekend parenting

    Posted 01-23-2015 02:52 PM

    From the great new NJ Family Law book:

    23:2-3. Factors that Focus on the Parents 

    Requests for a restriction on the presence of a third party during periods of custody or parenting time are governed by the best interest standard, with a general focus on the extent to which the third party's presence will cause harm or potential harm to the child. See Kelly v. Kelly, 217 N.J. Super. 147, 155 (Ch. Div. 1986) (finding in that case that the children's best interests would be served by allowing the father to have overnight visitation with his sons in the presence of his girlfriend and her son, with whom he resided). In Kelly, the court distinguished DeVita v. DeVita, 145 N.J. Super. 120, 128-129 (App. Div. 1976), in which the Appellate Division upheld a provision in the divorce judgment prohibiting a father's female companion from spending the night during periods of visitation that was based solely on the mother's unsubstantiated concerns that the moral welfare of the children would be endangered. At the time, those concerns were considered to be "not contrary to those of a substantial body of the community."

    Given the dramatic changes in societal norms and the significant increase in the number of single-parent households and blended families since DeVita was decided, the outcome in DeVita would be different today absent a showing that the child would suffer harm or potential harm as a result of the third party's presence. See DeVita v. DeVita, 145 N.J. Super. at 131 (Antell, J., dissenting) (cautioning that "[t]oday's innovations have a way of becoming tomorrow's conventional wisdom, and ... signs exist that the particular orthodoxy being forced upon this defendant may be starting to lose ground"). Clearly, however, courts may restrain the parent from exposing the child to third parties or third party activities deemed to present a danger to the child. See, e.g., Mishlen v. Mishlen, 305 N.J. Super. 643, 646 (App. Div. 1997) (upholding award of physical custody to mother on the condition that she not expose the children to her paramour, who had been abusive to the children of his two prior wives and with respect to whom there was "sufficient evidence in the record to support the trial judge's finding that the ... children would be in danger").
     

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    Jenny Berse Esq.
    Cranford NJ
    (855) FAM-LAW1
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  • 3.  RE: weekend parenting

    Posted 01-28-2015 01:49 PM
    Thanks to all who responded to my query on overnight parenting especially Jenny Berse whose below response hit the nail on the head 

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    Francis Grather Esq.
    Morristown NJ
    (973)292-9222
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  • 4.  RE: weekend parenting

    Posted 01-23-2015 02:59 PM
    DeVITA v. DeVITA
    145 N.J. Super. 120 (1976)
    366 A.2d 1350
    MARIE DeVITA, PLAINTIFF-RESPONDENT, v. MICHAEL DeVITA, DEFENDANT-APPELLANT.
    Superior Court of New Jersey, Appellate Division.
    Decided November 19, 1976.




  • 5.  RE: weekend parenting

    Posted 01-23-2015 03:07 PM

    DeVita [145 NJS 120] was a 2-1 App Div decision AGAINST NCP having overnight guests.

    There was a later reported decision Kelly v. Kelly [217 NJS 147] that gave the okey dokey for sleepovers at the home of NCP  but that was a chancery division case. 

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    Lisa M. Radell, Esq.
    207 South Main Street
    Cape May Court House, NJ 08210
    Phone (609) 465-9910
    Fax (609) 465-9920
    E-Mail [email protected]
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