In Jankovich v Jankovich (14-P-1703), the Massachusetts Court of Appeals refused to morally condemn a father’s decision to have an extra-marital affair with the parties’ live-in au pair.
Two years prior to their separation in 2012, the parties Jankovich hired a live in au pair, to assist with the needs their children. For the years leading up to the separation, the father explored the limits of a romantic relationship with the au pair. Ultimately, one night, the father left home while the children were sleeping and did not return.
At the divorce trial, the father refused to testify about his ongoing relationship with the live-in au pair. Notwithstanding this absence of testimony, the trial judge concluded that the father had been involved in a long-term relationship with the au pair prior to separation. The mother testified that as a result of the separation, the children began experiencing trauma such as bed wetting, outbursts, and sleeping in the mother’s bed. It was also revealed at trial that the children were unaware of the extramarital affair.
The trial judge also found that the au pair had done nothing to adversely affect the children.
The central issue in Jankovich was not whether – but under what circumstances – it may limit a child’s access to third-persons after divorce.
On appeal, the mother asked the Massachusetts Court of Appeals (in effect) for a moral condemnation of the father’s lifestyle, by preventing the children to be exposed to the au pair.
The Appeals Court refused.
In this particular case, the mother relied on a case called Fort v. Fort, 12 Mass.App.Ct. 411, 415 (1981). However, in that case, the court rejected the mother’s argument, stating: “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).
Rather, in a divorce case like Jankovich, 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.
The mother continued her argument by citing “compelling parallels” between her case and the case of B.B.V. v. B.S.V., 68 Mass.App.Ct. 12 (2006), where the Court of Appeals 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. The appeals court rejected the wife’s exhortation that there were “compelling parallels”, and refused to extend the rule of B.B.V. to Jankovich.
Factually, the bar remains high for parties seeking to enjoin children’s exposure to third parties. The foreseeable threshold remains B.B.V., or at least something as extraordinary.
Litigants are thusly cautioned by Jankovich, and cautioned against assuming the responsibility of the judiciary is issue findings of moral condemnation.
Jankovich v. Jankovich
14-P-1703 (November 5, 2015) Anthony J. Low, Esq. is a Managing Partner at the Shapiro Law Group, who focuses his practice in highly charged custody disputes, complex divorce litigation, and general defense litigation. Anthony may be reached at [email protected]