Grandparent Visitation Redux

Slawinski v. Nicholas, 448 N.J. Super. 25 (App. Div. 2016).  There are a surprising number of published New Jersey cases in the family context regarding grandparent visitation of grandchildren.  Examples are here, here, and here.  This latest decision, by Judge Ostrer, deals with whether a parent can modify or terminate a grandparent’s visitation rights.

As Judge Ostrer summarized, once a parent enters into a consent order that allows for grandparent visitation, as occurred here, the parent can modify that consent order only by making a prima facie showing of changed circumstances.  “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.”

Because the Family Part had mistakenly placed the burden on the grandparent, the decision of that court to allow the mother to terminate the consent order unilaterally required reversal.  This was despite the fact that, as Judge Ostrer acknowledged, there is “general deference to Family Part decisions.”  Legal determinations by the Family Part receive no deference, and reversal is compelled when the lower court “does not apply the governing legal standards.”

Several different policies were at play here.  Judge Ostrer noted that the law favors consensual resolutions of disputes, such as settlements and consent orders.  Additionally, he recognized that, ordinarily, “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.  Yet, that autonomy gives way to the need to protect the child from harm.”

Judge Ostrer concluded that parental child-raising autonomy cannot allow a parent to terminate unilaterally a consent order regarding grandparent visitation.  Entry into a consent order waives parental autonomy in this regard, and a parent who seeks to terminate such a consent order must therefore show changed circumstances.  Not just any change suffices.  The change must be “such as would warrant relief,” the standard of Lepis v. Lepis, 83 N.J. 139 (1980).  Judge Ostrer cited decisions in other states that likewise 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.”

Judge Ostrer went on to explain how proof of harm differs from the “best interests of the child” test that obtains in some other areas of family law.  Proving the absence of harm, he stated, is less onerous than the best interests test.  “Once the parent establishes changed circumstances and the absence of harm, the court must grant the parent’s requested modification.”

The Family Part misplaced the burden of proof, and did not have the benefit of the analysis explicated in this opinion.  Accordingly, the case was remanded for the Family Part to apply the proper standards and the correct burden of proof.