Jankovich v. Jankovich

FACTS:
1.  The Parties separated on or about December 8, 2012.  The Father left the house and did not return.
2.  The Father had an ongoing relation with a live-in au pair the parties had hired in December 2010.  The au pair left the parties' employment in August of 2012.
3.  The children do not know that their father and the au pair are involved in a relationship, and do not know that the relationship was the cause of their parents separation.
4.  The children have had certain adverse reactions to the separation of their parents, most notably that the three children insist on sleeping in their mother's bed.
5.  The mother contends that if the children are permitted to interact with the au pair they will realize the cause of the breakup of the parties' marriage.  Therefore, she seeks to have an order that the father not allow the children to have any contact with the au pair, with whom he has a long-term relationship.

PROCEDURAL HISTORY:
1.  The Mother appealed from a judgment of divorce nisi dated July 8, 2014.  The sole issue on appeal is the judge's failure to order that, in the event a judgment of divorce enters, the plaintiff (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.

ISSUE:
1.  Can the court prohibit a parent from permitting the children access to a third party?

HOLDING:
1.  Yes, but only if the children's access to the third party would affect the well-being of the child or children whose custody is under consideration.

RULE:  
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 v. Fort, 12 Mass.App.Ct. 411 (1981).   The court will only impose a limitation on the award of physical custody if there is evidence of a "direct and articulable adverse impact on the children." B.B.V. v. B.S.V., 68 Mass.App.Ct. 12 2006).   

ANALYSIS:
1.  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 which began following the separation.
2.  In effect, the mother seeks the court's moral condemnation of the father's lifestyle.
3.  In Fort v. Fort, 12 Mass.App.Ct. 411, 415 (1981), the court states "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 the 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).  
4.  Instead, the judge's responsibility is to evaluate the "interpersonal relations of the persons involved as they affect the well-being of the child or children whose custody is under consideration."  Fort, supra at 418.

COMPARISON TO OTHER CASES:
1.  In Doe v. Doe, 16 Mass.App.Ct. 499 (1983), the court affirmed an award of joint custody, concluding that no evidence had been presented to show that what was described as the wife's homosexual lifestyle would adversely affect the child.  Id. at 504.  In the present case, there was a similar lack of evidence to support the mother's contention.
2.  In B.B.V. v. B.S.V., 68 Mass.App.Ct. 12 (2006), the court imposed a limitation on the award of physical custody in favor of the wife by requiring that she not allow or permit the children to be in the presence of her father, with whom she was in an incestuous relationship.  In B.B.V., there was expert witness testimony at trial about the risks the children would face if exposed to the relationship between the mother and grandfather, and we acknowledged that such exposure "would be a direct and articulable adverse impact on the children."  Id. at 20.  In this case, 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.

CONCLUSION:
1.  Appellate court affirmed the Trial Court's decision to allow the Father to have his children in the company of the former au pair who he is involved with in a long-term relationship.