The Massachusetts Appeals Court recently issued a decision in a divorce case called Jankovich v. Jankovich. It was a Rule 1:28 decision, which is primarily directed to the parties and, therefore, may not fully address the facts of the case or the appellate panel's decisional rationale. Rule 1:28 decisions are not circulated to the entire Appeals Court, and, therefore, represent only the views of the panel that decided the case. Also, such a decision may be cited for its persuasive value but, because of the limitations noted above, not as binding precedent. Still, this particular case addresses the issue of children's access to third parties, which we as family lawyers often encounter in contested divorce cases.
The Jankovich appeal was brought by the defendant, Marija V. Jankovich (mother), from a judgment of divorce nisi. The sole issue raised on appeal is the trial judge's failure to order that, in the event a judgment of divorce enters, the plaintiff, Andrew R. Jankovich (father), would be prohibited from permitting the children to be in the company of a former au pair who is involved in a relationship with the father.
After the mother and father testified at trial, the judge entered various findings of fact, including that the father had been in a long-term relationship with the au pair during the marriage, which began prior to the parties' separation. The judge noted that the parties are in agreement that the children do not know that their father and the au pair are involved in a relationship, and do not know that that relationship was the cause of their parents' separation. The judge also found that there is no evidence that the au pair, who cared for the children for more than one and one-half years, has ever done anything improper in her interaction with the children.
The hot topic in this case deals with children's access to a third person. As the trial judge noted, the mother did not offer any evidence that if the children were in the presence of the au pair it would exacerbate the adverse behaviors demonstrated by the children, including insisting that they sleep in their mother's bed, which began following the parties' separation.
In effect, by asking the judge to order that the father not have the children in the presence of the au pair, the mother was seeking the court's moral condemnation of the father's lifestyle. This is why divorce practitioners often remind their clients that the family court is not a court of morality. In this particular case, the mother relied on a case called Fort v. Fort, 12 Mass.App.Ct. 411, 415 (1981) to support her position, but in that case the court rejected the mother's argument: "Our courts must serve a society comprised of groups that are widely disparate in cultural background and moral and religious outlook. The judges who must ultimately determine disputes over custody have the same disparities of outlook as the society they serve. Obviously the individual judge cannot hold up his own moral and religious views as the standard against which he determines the moral fitness of the proposed custodian, for different judges would make conflicting determinations, and 'the judicial branch of government, with respect to [custody disputes], would become a government of men and not of laws.' " Ibid.,quoting from Reddington v. Reddington, 317 Mass. 760, 765 (1945).
Instead, in a divorce case like this one, the judge's responsibility is to evaluate the "interpersonal relationships of the persons involved as they affect the well-being of the child or children whose custody is under consideration." Fort, supra at 418. In Jankovich, the court did an excellent job rejecting mother's arguments that exposure to the relationship between the father and the au pair would cause the children direct and articulable harm. It did so while simultaneously acknowledging that in some cases (such as incest) exposing children to such a relationship "would [have] a direct and articulable adverse impact on the children." Here, the court stated that "comparable evidence of a 'direct and articulable adverse impact on the children' as a result of the father's relationship with the former au pair is noticeably lacking."
In sum, ongoing contact between a parent and a paramour, even if the adulterous relationship was the cause of the divorce, will not in and of itself provide a court with grounds to prohibit the children's access to the paramour or their exposure to the ongoing relationship after divorce.