Donna Slawinski v. Mary E. Nicholas , 448 N.J. Super. 25 ( 2016 )

NOT FOR PUBLICATION WITHOUT THE
APPROVAL OF THE APPELLATE DIVISION
SUPERIOR COURT OF NEW JERSEY
APPELLATE DIVISION
DOCKET NO. A-0710-15T1
DONNA SLAWINSKI, APPROVED FOR PUBLICATION
Plaintiff-Appellant, December 6, 2016
v. APPELLATE DIVISION
MARY E. NICHOLAS,
Defendant-Respondent.
___________________________________
Submitted October 17, 2016 – Decided December 6, 2016
Before Judges Fisher, Ostrer and Leone.
On appeal from the Superior Court of New
Jersey, Chancery Division, Family Part,
Hudson County, Docket No. FD-09-2217-12.
Donna Slawinski, appellant pro se (Michael
J. Evans, on the brief).
Respondent has not filed a brief.
The opinion of the court was delivered by
OSTRER, J.A.D.
In this appeal, we must identify the appropriate standard
for reviewing a motion to modify a consent order granting
grandparent visitation. The trial court held that the
defendant-mother was empowered to terminate such a consent order
unilaterally since there was no proof by the plaintiff-
grandmother that visitation was necessary to avoid harm to the
child. We conclude the trial court erred.
Once a parent enters into a consent order allowing
grandparent visitation, a request to modify must be considered
in accordance with the framework established in Lepis v. Lepis,
83 N.J. 139, 157-59 (1980), and applied to custody and
visitation disputes. See, e.g., Abouzahr v. Matera-Abouzahr,
361 N.J. Super. 135, 152 (App. Div.), certif. denied, 178 N.J.
34 (2003). That is, the parent must make a prima facie showing
of changed circumstances as would warrant relief. Once made,
the court should allow reasonable discovery if warranted and
conduct a plenary hearing if genuine issues of material fact
remain. The moving parent, not the non-moving grandparent,
bears the burden to prove that there has been a change of
circumstances and that modifying the order would not cause harm
to the child. Consequently, we reverse and remand for the court
to consider defendant's modification motion in light of that
standard.
Defendant apparently exercises sole legal and residential
custody of her daughter, L.K. (Lilly).1 The grandparent
visitation order was entered on January 13, 2015. In
1
Although the order granting sole custody is not in the record,
the court described it at the hearing on the motion. Also, we
use a pseudonym to protect the child's privacy.
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defendant's certification supporting her motion, she contended
the order was entered with her consent. It provided that
plaintiff, the paternal grandmother, would enjoy visitation with
Lilly, then six years old, on the first weekend of every month
beginning February 2015 and ending January 2016. Pickup would
occur on Friday, 6:00 p.m., and drop-off on Sunday, 5:00 p.m.
Visitation could occur in New Jersey or at plaintiff's timeshare
in the Poconos, but not in Ohio where plaintiff resided.
Plaintiff was also granted a week of vacation with Lilly in July
2015.
Defendant contended she consented because she thought Lilly
"would like to have contact with the grandmother and that it
would be a positive experience for her." However, she asserted
that, after four visits, it became clear this was not so. She
said: "The child returns very upset from the visits. It takes
her days to return to her regular mood. The child starts to cry
at the mere mention of the grandmother. . . . She seems
traumatized from the contact." Defendant contended Lilly asked
her not to make her go again. Defendant stated that Lilly also
told her pediatrician she did not want to see plaintiff.
Defendant criticized plaintiff's care of Lilly, alleging
plaintiff ignored Lilly's hygiene. Plaintiff claimed that Lilly
did not bathe during her weekend visits; her hair was not
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combed; and she once returned without underwear, despite having
been sent with "a weekend's worth of clothing." Defendant also
complained that Lilly's father was present during the May 2015
visit, even though, allegedly, his "visitation was suspended
pursuant to prior court order."2 Defendant stated she was
concerned that the grandparent visitation was "detrimental to
[Lilly's] mental health" and asked that it be terminated.
On August 28, 2015, the motion was heard by a judge other
than the one who entered the January 2015 order. Plaintiff did
not file written opposition to the motion according to our
record, but counsel appeared on her behalf. He contended that
defendant's motion should be considered under the Lepis
framework and there was insufficient evidence to establish a
prima facie case of changed circumstances. He argued expert
psychological testimony was required to support defendant's
allegations.
Defense counsel argued defendant should not bear the burden
to demonstrate grounds to terminate visitation inasmuch as the
January 2015 order was entered by consent without any judicial
findings that the visitation was beneficial. Counsel argued,
2
The record does not include such an order. Moreover, defendant
admitted at the hearing that Lilly's father had been granted
parenting time in New Jersey, but chose not to exercise it.
Defendant's counsel contended a child support warrant had been
issued for his arrest.
4 A-0710-15T1
"[T]here is no burden that my client has to do anything other
than say this is not working out, I tried."
The judge agreed. Since the order was entered by consent,
the judge declared that defendant was entitled to terminate
visitation unless plaintiff could demonstrate, by a
preponderance of the evidence, "that denial of visitation would
result in harm to the child." As plaintiff had not done so, the
court entered an order terminating grandparent visitation.
Notwithstanding our general deference to Family Part
decisions, see Cesare v. Cesare, 154 N.J. 394, 413 (1998), we
are compelled to reverse when the court does not apply the
governing legal standards. Gotlib v. Gotlib, 399 N.J. Super.
295, 309 (App. Div. 2008). We owe no special deference to the
trial judge's legal determinations. Manalapan Realty, L.P. v.
Twp. Comm. of Manalapan, 140 N.J. 366, 378 (1995).
Our courts highly value the settlement of litigation,
recognizing that parties to a dispute are usually best
positioned to discern the most mutually advantageous outcome.
Brundage v. Estate of Carambio, 195 N.J. 575, 601 (2008). This
policy applies with great force to family disputes, given the
inter-personal strife and myriad factual issues that complicate
judicial resolution. See Konzelman v. Konzelman, 158 N.J. 185,
193 (1999) ("New Jersey has long espoused a policy favoring the
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use of consensual agreements to resolve marital
controversies."); Bisbing v. Bisbing, 445 N.J. Super. 207, 218
(App. Div.) (agreement regarding custody), certif. granted, ___
N.J. ___ (2016). Absent fraud or unconscionability, our courts
will enforce family-related agreements as they would any
contractual agreement. Quinn v. Quinn, 225 N.J. 34, 45-47
(2016).
But our courts' commitment to enforce such agreements is
tempered by its equitable power to review and modify support and
custody orders upon a showing of changed circumstances. Lepis,
supra, 83 N.J. at 145-46; see also Quinn, supra, 225 N.J. at 46.
Specifically, with respect to agreements between parents
regarding custody or parenting time, "[a] party seeking
modification . . . must meet the burden of showing changed
circumstances and that the agreement is now not in the best
interests of a child." Abouzahr, supra, 361 N.J. Super. at 152;
see also Hand v. Hand, 391 N.J. Super. 102, 103 (App. Div.
2007). Similarly, a grandparent visitation order entered after
an adjudication is "subject to modification at any time on
showing of changed circumstances." Mimkon v. Ford, 66 N.J. 426,
437-38 (1975). We have found in child custody disputes between
parents that this showing remains the same whether the prior
arrangement was forged through adjudication or agreement. Todd
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v. Sheridan, 268 N.J. Super. 387, 398 (App. Div. 1993) ("A
judgment, whether reached by consent or adjudication, embodies a
best interests determination. . . . [A] moving party must bear
the threshold burden of showing changed circumstances which
would affect the welfare of the children."). Whether the same
uniformity of treatment should apply to grandparent visitation
orders appears to be a matter of first impression.
We recognize that a parent's fundamental right to raise a
child as he or she sees fit encompasses the authority to
determine visitation by third parties, including grandparents.
See Moriarty v. Bradt, 177 N.J. 84, 114-15 (2003), cert. denied,
540 U.S. 1177, 124 S. Ct. 1408, 158 L. Ed. 2d 78 (2004). Yet,
that autonomy gives way to the need to protect the child from
harm. Id. at 115. Thus, "grandparents seeking visitation . . .
must prove by a preponderance of the evidence that denial of the
visitation they seek would result in harm to the child." Id. at
88. "If the court agrees that the potential for harm has been
shown, the presumption in favor of parental decision making will
be deemed overcome." Id. at 117.
Still, proof of harm involves a greater showing than simply
the best interests of the child. Id. at 116 (stating that a
dispute between a "fit custodial parent and the child's
grandparent is not a contest between equals[,]" consequently
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"the best interest standard, which is the tiebreaker between fit
parents, is inapplicable"). Substantively, it is a "heavy
burden." Major v. Maguire, 224 N.J. 1, 18 (2016); cf. Fawzy v.
Fawzy, 199 N.J. 456, 479 (2009) ("The threat of harm is a
significantly higher burden than a best-interests analysis.").
The harm to the grandchild must be "a particular identifiable
harm, specific to the child." Mizrahi v. Cannon, 375 N.J.
Super. 221, 234 (App. Div. 2005). It "generally rests on the
existence of an unusually close relationship between the
grandparent and the child, or on traumatic circumstances such as
a parent's death." Daniels v. Daniels, 381 N.J. Super. 286, 294
(App. Div. 2005). By contrast, missed opportunities for
creating "happy memories" do not suffice. Mizrahi, supra, 375
N.J. Super. at 234. Only after the grandparent vaults the
proof-of-harm threshold will the court apply a best-interests
analysis to resolve disputes over visitation details. Moriarty,
supra, 177 N.J. at 117.
But nothing about a parent's right to autonomy warrants
allowing a parent to unilaterally modify or terminate a consent
order on grandparent visitation. The parent effectively waives
that autonomy by entering into the order, just as a parent
waives rights when entering into any other consent order
governing custody or visitation. Given our respect for the
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consensual resolution of family-related disputes and the
stability such agreements achieve, modification of a consent
order governing grandparent visitation must be considered
according to the same Lepis changed circumstances framework
applicable to other custody and visitation orders.
Other courts that have considered the issue have recognized
that, once a parent enters into a consent order governing
grandparent visitation, the parent may not unilaterally withdraw
or require the grandparent to establish a right to visitation as
if there had been no order at all. See Ingram v. Knipper, 72
P.3d 17, 22 (Okla. 2003) ("Having agreed to the initial grant of
visitation with Grandfather, Mother cannot in this subsequent
proceeding litigate the issue of harm without showing a change
in circumstances . . . ."); Lovlace v. Copley, 418 S.W.3d 1, 29
(Tenn. 2013) ("Having once afforded parents the opportunity to
rely upon the protection of the presumption of superior rights
to the care, custody, and control of their children in the
initial grandparent visitation proceeding, no constitutional
principle demands that parents again be afforded a presumption
of superior rights in a subsequent grandparent visitation
modification proceeding.").
Following the procedural guidance set forth in Lepis, a
party seeking modification must present evidence to establish a
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prima facie case of changed circumstances relating to the
visitation. Lepis, supra, 83 N.J. at 157; R.K. v. F.K., 437
N.J. Super. 58, 61-62 (App. Div. 2014). But not any change in
circumstance will suffice; rather, the changed circumstances
must be such "as would warrant relief" from the provisions
involved. Lepis, supra, 83 N.J. at 157. Upon this initial
showing, appropriate discovery shall proceed if warranted.
Ibid. Our courts have long emphasized the need for a thorough
examination of the merits of the movant's showing. See Sheehan
v. Sheehan, 51 N.J. Super. 276 (App. Div.), certif. denied, 28
N.J. 147 (1958). Moreover, the court shall hold a plenary
hearing if genuine issues of material fact remain. Lepis,
supra, 83 N.J. at 159.
The movant's burden within this procedural framework is to
prove that there has been a change of circumstances and that
this change warrants revision of the original resolution of the
matter based on the factors and standards that otherwise govern.
"The standard that governs an application for modification of a
property settlement agreement is the same standard that applies
at the time of the original judgment of divorce." Miller v.
Miller, 160 N.J. 408, 420 (1999) (considering alimony
modification); see also Lepis, supra, 83 N.J. at 157-58 (stating
that once a supported spouse demonstrates an increase in need,
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the court reviews the supporting spouse's ability to pay);
Gonzalez-Posse v. Ricciardulli, 410 N.J. Super. 340, 352 (App.
Div. 2009). In a case of visitation or custody involving two
parents, the court revisits the issue of what is in the best
interests of the child. Baures v. Lewis, 167 N.J. 91, 116
(2001) ("A motion for a change in custody . . . will be governed
initially by a changed circumstances inquiry and ultimately by a
simple best interests analysis.").
Consistent with this approach, the court should apply the
standard governing grandparent visitation if the movant-parent
also succeeds in establishing changed circumstances. That is to
say, the court must consider whether or not the modification of
a grandparent's visitation will cause harm to the child, as
distinct from considering the best interests of the child.3 If
the modification will not cause harm, the court must grant the
modification even if the grandparent could show doing so was
contrary to the child's best interests.
When the parent is the movant, the parent bears the burden
to establish grounds for modification. See Beck v. Beck, 86
N.J. 480, 496 n.8 (1981) ("[W]hen seeking joint custody after an
3
In this respect, we part company with the conclusion in Ingram,
supra, 72 P.3d at 22, and Lovlace, supra, 418 S.W.3d at 23, that
a change in circumstances would trigger a best interests
analysis.
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initial custody determination has been made, even a parent
enjoying such a relationship must satisfy the same burden of
proof as applies to anyone seeking to change a custody decree,
namely, a change of circumstances warranting modification.");
Abouzahr, supra, 361 N.J. Super. at 152 (assigning burden to
show change of circumstances and child's best interests to
"party seeking a modification"); Sheehan, supra, 51 N.J. Super.
at 287 (stating "the party seeking a modification bears the
burden of proof").
Thus, in a grandparent visitation case, the parent seeking
modification bears the burden to prove changed circumstances and
that the child would not suffer a particular, identifiable,
child-specific harm, see Mizrahi, supra, 375 N.J. Super. at 234,
if modification were ordered. Given that a grandparent's burden
to prove harm is more onerous than satisfying a best interests
test, the parent's burden to prove the absence of harm is less
onerous than the best interests test. See Moriarty, supra, 177
N.J. at 113 (noting that a best interests test can be satisfied
although the child suffers no harm) (citing Watkins v. Nelson,
163 N.J. 235, 248 (2000)); cf. Morgan v. Morgan, 205 N.J. 50,
63-65 (2011) (noting that a custodial parent's burden to prove
good faith and lack of harm in order to remove the child is less
onerous than a showing of best interests). Once the parent
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establishes changed circumstances and the absence of harm, the
court must grant the parent's requested modification.
We have no difficulty finding that defendant's allegations
supporting the termination of visitation — that plaintiff
neglected Lilly's hygiene, and Lilly's visits caused great
emotional distress — suffice as a prima facie showing of changed
circumstances and suggest the child would not be harmed should
visitation terminate. But plaintiff should be afforded the
opportunity to rebut defendant's claims through competent
evidence. For example, plaintiff may counter defendant's claim
of changed circumstances with evidence, if it exists, that the
child enjoyed the visits, displayed no signs of discomfort or
emotional turmoil, and her hygiene was appropriately addressed.
If the court ultimately finds, upon the conclusion of discovery
or after a plenary hearing, that defendant has not proved both
changed circumstances and the absence of harm to the child from
terminating visitation, then termination is unwarranted, and the
prior order must remain intact. On the other hand, if defendant
satisfies her burden to prove changed circumstances and absence
of harm, then the court must grant defendant her requested
relief.
In conclusion, the trial court erred in granting defendant
the power to unilaterally terminate the visitation that the
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consent order granted. The court also erred in imposing on
plaintiff the burden to present the same proofs required if
there had been no consent order at all. We therefore remand the
motion to the trial court to apply the standard we have set
forth.4 We express no views as to the ultimate outcome.
Reversed and remanded.
4
We recognize that the consent order permitted visitation only
through January 2016. However, we do not deem the dispute moot,
as the court is empowered to award plaintiff compensatory time
if it ultimately determines that defendant has not met her
burden to terminate visitation.
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