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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Original Message:
Sent: 01-23-2015 14:24
From: Francis Grather
Subject: weekend parenting
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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