Massachusetts divorce lawyer Nicole K. Levy examines when Probate and Family Court judge prohibit contact between children and new “significant others”.
Here’s the scenario: your husband left you for the babysitter, causing you to file for divorce. You want the judge in your divorce case to forbid your husband from bringing your children around the babysitter for obvious reasons. Will the judge agree? A recent Appeals Court case suggests the answer is: no.
In the recently decided Jankovich v. Jankovich, the Massachusetts Appeals Court addressed the exact scenario described above. The Court upheld a probate court judge ruling that did not restrict the Husband from exposing the children to the babysitter after the parties’ divorce, despite the Wife’s insistence that the children would suffer emotional harm from interacting with the babysitter.
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The Jankovichs separated on December 8, 2012. Almost exactly two years before, the parties had hired a live-in au pair to care for their three children. One thing led to another (namely, Mr. Jankovich’s romantic relationship with said au pair), and Mrs. Jankovich was soon filing for divorce in Probate and Family Court.
The Appeals Court opinion suggests that the children had no contact with the au pair during the two-year period from when she left the Jankovichs’ household, in August 2012, until the probate court judge entered judgment on July 8, 2014. During the trial, Mrs. Jankovich presented several arguments against contact between the children and the au pair. She argued that the children would suffer emotionally from interacting with the woman she blamed for ending her marriage. She argued that the au pair’s undocumented immigration status (she was in the U.S. on an expired visa) could cause the au pair’s deportation, causing confusion for the children. She argued that anxiety and difficulty the children had experienced following the divorce with the au pair’s fault. The probate court judge rejected these arguments. And the Appeals Court agreed.
The probate court judge found that the Mrs. Jankovich’s specific concerns about the children were “speculative”. The judge found no evidence that the au pair had ever acted inappropriately in the 18 months she cared for children. In addition, there was no evidence the children knew of their father’s extramarital affair involving the au pair, or that the anxiety experienced by the children during the divorce was specifically connected to the au pair in any way, or that being in the presence of the au pair would exacerbate the children’s adverse behaviors.
The court also rejected Mrs. Jankovich’s attempt to prohibit contact with the au pair as a form of “moral condemnation” for the husband and au pair’s adulterous behavior. Mrs. Jankovich cited multiple cases in which a parent’s morality was a factor in determining custody, and argued that if the children are exposed to a relationship that began on immoral grounds, this would be detrimental to the children’s development. She cited case law suggesting that the judge had a duty to examine the interpersonal relationships of the parties to determine if they might adversely affect the well-being of the children.
In reviewing the case, the Appeals Court dismissed Mrs. Jankovich’s specific concerns about the children’s reaction to the au pair as speculative, and then focused its attention on the “moral condemnation” element of her argument. The Court correctly noted that case law suggesting a judge should examine the interpersonal relationships of the parties when determining custody tended to arise out of cases in which a parent held a close relationship with third party criminal, child abuser or incestuous family member.
More surprisingly, the Court analogized the case to Doe v. Doe, 16 Mass. App. Ct. 499 (1983), in which the Court declined to decide custody on the basis of a mother’s “homosexual lifestyle”. Putting aside the legal relevance of Doe to the case, the Court’s decision to compare the morality of a same sex relationship with an adulterous affair between a husband and a babysitter seems a bit…problematic. Poor word-choice aside, the Court’s overarching point was that it would not prohibit contact between the au pair and the children on the basis of morality alone. Contact can only be prohibited in such cases if there is evidence of a “direct and articulable adverse impact on the children” resulting from the third party contact. It was impossible for Mrs. Jankovich to meet this standard when the children were unaware of either the adulterous affair or Mr. Jankovich’s ongoing relationship with the au pair.
In rejecting Mrs. Jankovich’s argument, the Appeals Court endorsed the probate court judge’s reasoning:
The judge characterized as speculation the mother’s testimony that if the children are permitted to interact with the au pair they will realize the cause of the breakup of the parties’ marriage. Furthermore, the judge noted that even if the children do learn of this, it does not constitute grounds to order the father not to permit the children to have any access to the au pair, with whom he has a long-term relationship. The judge observed that “[w]hile the court is not condoning an extramarital relationship, the assertion that the children’s problems are the result of the separation and the separation is the result of the au pair’s actions, therefor[e] the au pair is responsible for the children’s problems is not a leap I am willing to make. The Court is concerned that the wishes of the adults are being conveyed in such a manner as advocacy for the best interest of the children.”
As a family law practitioner, it is hard not to feel some sympathy for Mrs. Jankovich, who appears to have done the right thing by shielding her children from the damaging knowledge of the relationship between their father and former babysitter. Indeed, I wonder if the outcome of the case would have been different if Mrs. Jankovich had told the children about the affair. While such disclosures to children are frowned upon, with good reason, the children’s negative reaction to the news may have evidenced of just the sort of “direct and articulable adverse impact on the children” that would have justified an order prohibiting contact between the children and au pair. In this regard, Mrs. Jankovich should be applauded for placing her children’s well-being ahead of her legal goals in her divorce.
A final but important note is this: in Massachusetts, probate and family court judges have broad discretion to determine custody issues under the flexible and amorphous “best interest of the child” standard. As such, an Appeals Court decision affirming a probate court judge, such as in Jankovich, does not mean that every probate court judge must decide similar cases in the same way. If, for example, the judge in Jankovich had found that the wife’s fears about the au pair constituted a “direct and articulable adverse impact on the children” justifying an order barring contact, there is no guarantee that the Appeals Court would have reversed such a decision on appeal – even if the facts of the case were identical.
The Appeals Court will only reverse a probate court judge’s factual findings if they are “plainly wrong or clearly erroneous”, and will only reverse a decision based on said findings if there was “a clear error of judgment in weighing” the evidence. In a case like Jankovich, the Appeals Court views its job as reviewing the judge’s basic logic and reasoning for “clear errors”, regardless of the particular outcome reached. In the vast majority of cases, the probate court judge’s custody decision will be affirmed.
About the Author: Nicole K. Levy is a Massachusetts divorce lawyer and Massachusetts family law attorney for Lynch & Owens, located in Hingham, Massachusetts.
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