Important Considerations When Co-Parenting the Family Vacation

• Your Parenting-time Schedule

The first thing you should do is to check your current parenting time agreement. During the divorce or separation proceedings, hopefully, you and your ex have negotiated and agreed upon a summer vacation parenting time plan that outlines the summer break time, including special holidays like the Fourth of July and Labor Day weekend.

If you did not have a Holiday parenting-time schedule, the court offers the default court Holiday parenting time schedule. Alternatively putting together an interim agreement before your vacation in written will protect you for the uncertainty of possible criminal consequences related to removing a minor out of state without permission. See 2C:13-4 Interference with Custody. According to 2C:13-4 taking a child out of the State of New Jersey could be charged as a second degree crime, where an individual could face up to ten years in jail.

Without an interim agreement, stuck with plans, or locked in to flight tickets, without authorization by a court to go outside of the state, unfortunately you run the risk of being hailed back during an emergent application. The best practice is to file to modify your court order at least four to eight weeks prior to your scheduled vacation. Usually if the request is reasonable, does not interfere with education or extracurricular activities, the court will grant the request. Check the State Department travel advisory as well to determine the level of caution of the destination if you are unsure.

• Travel Itinerary

A key component of Holiday schedules is the exchange of information via an itinerary exchange, i.e., the Who, What, When, Where, and How of your vacation.  Best practice is to exchange your itinerary before leaving with thirty days written notice.

One issue people often confront in new co-parenting arrangements are their control of who their child is around during the vacation. Allowing a new boyfriend/girlfriend/partner around your child(ren), especially during a vacation can pose complicated and emotionally charged problems. You may  consider having a “paramour clause” in your custody and parenting-time agreement.  A paramour clause is a part of an order that restricts the parties’ ability to expose the children to new romantic partners.  In New Jersey, these are called “DeVita” restraints, named after DeVita v. Devita, 145 N.J. Super. 120 (1976). https://law.justia.com/cases/new-jersey/appellate-division-published/1976/145-n-j-super-120-0.html.  In DeVita, the trial court, over the husband’s objection, restrained him from having overnight contact with his girlfriend in the presence of his children, based on his former wife’s moral outrage. The Appellate Division affirmed the trial court’s decision, reasoning that the mother’s moral outrage was likely shared by the broader community.

However, recent case law indicates that the attitude of the court is changing with the times.  The issue of whether a DeVita restraint should be enforced came before the court again in Mantle v. Mantle, Docket No. FM-15-656-15 (March 9, 2015).  In that case, a divorcing couple came to an agreement that they would have an indefinite ban on exposing their child to a new boyfriend or girlfriend.  After a few months, the mother alleged that the father was allowing his new girlfriend to have contact with the child during his parenting time, but she did not allege that the girlfriend was doing anything inappropriate or endangering to the child.  

The court ultimately refused to enforce the DeVita clause, even though it was something the parties had agreed on. The court noted that the DeVita case was old, and that societal norms had changed such that it was no longer unusual for new romantic partners to spend the night, even in the absence of marriage. The court determined that any DeVita clause or restriction must be reasonable, based on the best interest of the child.  The court then suggested some important factors a trial court should consider:

1. How long have the parties been living separately?
2. How old is the child?
3. How long is the dating relationship?
4. Does the child know the dating partner?
5. Has the child been introduced to other dating partners of either party?
6. Does the child have a previously specified diagnosis of a psychiatric, psychological or emotional nature which may require special consideration and attention under the circumstances of the case?

• Technology is Your Friend

While you are enjoying the well-deserved and wonderful vacation with your child(ren), remember to permit your child(ren) to call the other parent the vacation (if possible).  Use Facetime, Google Duo, Skype, Zoom, there are so many options available and consequently few excuses why the other parent cannot have contact. Even on a cruise ship with Wi-Fi video chat is always available.  Remember, Facetime is usually coordinated based on your time zone, so last minute adjustments need to be noted before leaving. 

Lastly, have fun!

If you need to make an agreement, an adjustment, or simply to memorialize last minute changes based on your destination, we are here to help.  Please feel free to contact us for a consultation on what to consider when co-parenting your family vacation.