In a recently published Appellate decision, a court considered this question. In Slawinski v. Nicholas, the court set forth the appropriate standard for reviewing a motion to modify a Consent Order granting grandparent visitation and which party has the burden of proof. The court also stated that this standard would be the same whether it was by agreement (i.e. a consent order) or by adjudication.
The court in Slawinski ruled that 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. That is, the parent must make a prima facie showing of changed circumstances that 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, would bear the burden to prove that there has been (1) a change of circumstances, and that (2) modifying the order would not cause harm to the child.
While Slawinski involved a previously entered Consent Order between the parent and grandparents, the court ruled that even though it was a Consent Order, it did not give the parent the unilateral right to modify the Order or withhold the visitation. Generally, 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. Thus, the standard for grandparents initially seeking visitation is that they “must prove by a preponderance of the evidence that denial of the visitation they seek would result in harm to the child." "If the court agrees that the potential for harm has been shown, the presumption in favor of parental decision making will be deemed overcome."
Proof of harm involves a greater showing than simply the best interests of the child. It is a heavy burden. Our courts have dictated that the harm to the grandchild must be a particular identifiable harm, specific to the child. 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. Only after the grandparent vaults the proof-of-harm threshold will the court apply a best-interests analysis to resolve disputes over visitation details.
But according to Slawinski nothing about a parent's right to autonomy warrants allowing a parent to unilaterally modify or terminate a Consent Order on grandparent visitation. In Slawinski, the parent effectively waived 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 courts’ respect for the consensual resolution of family-related disputes and the stability such agreements achieve, the Slawinski court ruled that modification of a Consent Order governing grandparent visitation must be considered the same whether the prior arrangement was forged through adjudication or agreement.
The moving party'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.
Consistent with this approach, the court will 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. 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.
In grandparent visitation cases, the parent seeking modification bears the burden to prove changed circumstances and that the child would not suffer a particular, identifiable, child-specific harm. 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. Once a parent establishes changed circumstances and the absence of harm, the court must grant the parent's requested modification.
Sandra C. Fava is the editor of the Riker Danzig Family Law Blog and heads the Family Law Practice Group of Riker Danzig Scherer Hyland & Perretti LLP. Sandra is resident in Riker Danzig's Morristown, New Jersey office though she practices throughout New Jersey. You can reach Sandra at (973) 451-8453, or firstname.lastname@example.org.