As we have blogged before, in light of the Constitutional protections given to parents, grandparent visitation is very hard to obtain because the grandparents have to show harm to a child to meet their burden. What happens, however, if parties agree to grandparent visitation and the parent then either changes their mind or reconsiders decides that the grandparents shouldn't have visitation anymore? Must the grandparents then have to prove harm, as if there never was a consent order in the first place because there was no proof that the visitation was necessary to avoid harm to the child. That is exactly what a trial court, in the case of Slawinski v. Nicholas held. Note that that basis for the motion to terminate the visitation was a claim that the child was upset by the visits, was not properly cared for during the visits and further, that the grandparent allowed the child's father to be present at a visit even though his visitation had been suspended by a prior court order. However, in a reported (precedential) opinion, released on December 6, 2016, the Appellate Division reversed and held that a parent could not unilaterally modify a consent order for grandparent visitation.
The parent's attorney argued that she should not have the burden to demonstrate grounds to terminate visitation inasmuch as the original Consent Order was entered by consent without any judicial findings that the visitation was beneficial. The attorney further contended, "[T]here is no burden that my client has to do anything other than say this is not working out, I tried." The trial judge agreed and held that since the order was entered by consent, 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."
In the decision, the Appellate Division provided a concise primer on the state of grandparent visitation, as follows:
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
"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.
The Appellate Division then discussed the impact of a consent order on the above law, and held:
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 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.
The Appellate Division then provided the necessary procedure to follow should a parent wish to modify a Consent Order for Grandparent visitation, as follows:
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 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 establishes changed circumstances and the absence of harm, the court must grant the parent's requested modification.
The Appellate Division was clearly wrestling with the long standing public policy favoring the settlement of disputes as juxtaposed against a parent's constitutional rights as it relates to their children. That said, one wonders whether a parent would be willing to give up their autonomy, especially in questionable circumstances, if they have will have to expend a lot of time and money to terminate the grandparent visitation in the future.
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