“I Saw Mommy Kissin’ Santa Claus”

Can you keep your ex’s new squeeze from spending time with your children?

Even in an amicable divorce, feelings can be complex when an ex-spouse starts a new relationship. Sometimes, the new boyfriend or girlfriend can have traits that the other ex-spouse finds objectionable, or the new partner may be an acceptable person, but it just does not feel right to have the kids in his or her presence. For any number of reasons, the other ex-spouse may not want this person around the children when they visit their other parent.

What does the divorce decree say?

If the divorce decree or settlement agreement (incorporated into the final divorce order) states that the children may not spend time with the new partner, if the ex with the new partner is not complying with this term, the other partner can consult an attorney about how to get the court order enforced. But such provisions are fairly rare.

Can the ex-spouse request a court order preventing the new partner from being present during visitation?

If the divorce decree is silent, a significant change in circumstances can be the basis to go back to court and request a modification to limit visitation around this new person. However, getting such a restriction commands a high bar: it must be in the best interests of the children. Florida courts have said, however, that they have continuing jurisdiction to enter orders limiting visitation when the children’s welfare is threatened.

When will a Florida court restrict visitation to order a third party not be present?

In the case of Trylko v. Trylko, a Florida appeals court reversed a trial court order that the mother may not have her new partner - with whom she had become involved during the marriage - present during visitation with the children.

The opinion examines some interesting and important policies. It is understandable that the husband was upset about the new partner since the wife’s relationship began before the divorce and that those feelings could cause him to want to keep the kids away from the new partner. Yet, the court said that the judge’s clear disapproval of the wife’s marital misconduct was not enough of a basis to prohibit the new partner’s presence during visits with the mother.

A judge can only order such a restriction if there is “competent and substantial evidence” that it would have a “deleterious” or “detrimental” impact on the children to have him there. The judge’s belief that exposing the children to the new partner would be “morally undesirable” is not enough without evidence it would not be in their best interests.

The court implied that this kind of restriction must be narrowly tailored so as not to overly regulate the “private lives of the children and the mother” when the restriction was not shown to be in the children’s best interests.

These situations are factually unique and any Floridian facing these issues – from either side – should seek advice from an experienced family lawyer.

(Trylko v. Trylko is available on Westlaw at 392 So.2d 1034.)

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  • The Law Office of Daniel E. Forrest represents individuals in Fort Lauderdale in high-asset divorce matters. Daniel Forrest is board-certified family lawyer and mediator serving the South Florida area.
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