One of the most difficult issues that can occur in divorce cases involves the exposure of the child or children to a parent’s new girlfriend or boyfriend. In legal parlance, limitations on such contact are known as “DeVita” restraints, named after a 1976 decision which held that exposure of the parties’ child to Mr. DeVita’s new girlfriend on an overnight basis endangered the child’s moral welfare. Since this decision, the DeVita case has been routinely cited by family law attorneys.

This landscape was recently altered by the Hon. Lawrence R. Jones, J.S.C., in the case of Mantle v. Mantle, where Judge Jones was faced with the enforceability of a consent agreement between divorced parents which prohibited contact between their child and the dating partner of either parent. Significantly, the agreement contained no expiration or review date. When Ms. Mantle sought to enforce the agreement, Mr. Mantle objected on the basis that she was trying to alienate the child from him and denied the allegation that he had ever “slept” with his girlfriend in the child’s presence. He did not deny, however, that he was allowing contact between the child and his girlfriend.

In denying Ms. Mantle’s application, Judge Jones revisited DeVita and determined that the rationale employed by the court in 1976 –i.e., that having one’s dating partner stay overnight was “contrary to a substantial body of the community”—was no longer applicable today.

In place of this premise, Judge Jones held that while a court should always remain cautious concerning the motives of the parents in such cases, the controlling principle must be the impact on the child in question. In other words, some cases may warrant restraints while others may not. Moreover, even if restraints are ordered, they should be periodically reviewed to determine if they should be continued, relaxed or vacated. Judge Jones’ well-reasoned opinion will prove invaluable to judges, family law attorneys and divorcing parents going forward.