NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION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,

(1980), and applied to custody and

visitation disputes. See, e.g., Abouzahr v. Matera-Abouzahr,

(App. Div.), certif. denied,

(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.

2 A-0710-15T1 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

3 A-0710-15T1 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,

(1998), we

are compelled to reverse when the court does not apply the

governing legal standards. Gotlib v. Gotlib,

(App. Div. 2008). We owe no special deference to the

trial judge's legal determinations. Manalapan Realty, L.P. v.

Twp. Comm. of Manalapan,

(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,

(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,

(1999) ("New Jersey has long espoused a policy favoring the

5 A-0710-15T1 use of consensual agreements to resolve marital

controversies."); Bisbing v. Bisbing,

(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,

(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.

; see also

.

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."

;

see also Hand v. Hand,

(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,

(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

6 A-0710-15T1 v. Sheridan,

(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,

(2003), cert. denied,

,

,

(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

7 A-0710-15T1 "the best interest standard, which is the tiebreaker between fit

parents, is inapplicable"). Substantively, it is a "heavy

burden." Major v. Maguire,

(2016); cf. Fawzy v.

Fawzy,

(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,

(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,

(App. Div. 2005). By contrast, missed opportunities for

creating "happy memories" do not suffice.

. 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 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

8 A-0710-15T1 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,

(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,

(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

9 A-0710-15T1 prima facie case of changed circumstances relating to the

visitation.

; R.K. v. F.K.,

(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.

. Upon this initial

showing, appropriate discovery shall proceed if warranted.

Our courts have long emphasized the need for a thorough

examination of the merits of the movant's showing. See Sheehan

v. Sheehan,

(App. Div.), certif. denied,

(1958). Moreover, the court shall hold a plenary

hearing if genuine issues of material fact remain.

.

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,

(1999) (considering alimony

modification); see also

(stating

that once a supported spouse demonstrates an increase in need,

10 A-0710-15T1 the court reviews the supporting spouse's ability to pay);

Gonzalez-Posse v. Ricciardulli,

(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,

(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,

, 496 n.8 (1981) ("[W]hen seeking joint custody after an

3 In this respect, we part company with the conclusion in

, and Lovlace, supra,

, that a change in circumstances would trigger a best interests analysis.

11 A-0710-15T1 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.");

(assigning burden to

show change of circumstances and child's best interests to

"party seeking a modification");

(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

,

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

(noting that a best interests test can be satisfied

although the child suffers no harm) (citing Watkins v. Nelson,

(2000)); cf. Morgan v. Morgan,

(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

12 A-0710-15T1 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

13 A-0710-15T1 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.

14 A-0710-15T1