Modification of Grandparent Visitation in New Jersey
April 17, 2017
In the unpublished opinion of Slawinski v. Nicholas, a New Jersey appellate court considered a motion to change a consent order that granted a grandparent visitation. The lower court held that the mother could terminate the consent order without agreement from the grandmother, since the grandmother hadn’t proved that visitation was necessary to avoid hurting the child.
The mother had sole residential and legal custody of her daughter Lilly. Grandparent visitation with the child’s paternal grandmother was ordered in 2015 when the child was six years old. It happened on the first weekend of every month, starting in 2015 and ending the following year. The visitation could happen in New Jersey or in the Poconos. The paternal grandmother also had a week of vacation with her granddaughter in July 2015.
The defendant claimed she consented, thinking that her daughter would like to visit with the grandmother and that it would be positive. She claimed that after four visits, she realized that the daughter came back from visits very upset and seemed traumatized. She also claimed that the daughter asked not to go again and that she’d told her pediatrician she didn’t want to see her grandmother.
The mother criticized the grandmother’s care of the daughter, claiming that she ignored her hygiene, that the daughter didn’t bathe over the weekend, and that her hair was not combed. She also complained that the child’s father was there, even though his visitation was suspended. She asked for the visits to be terminated.
The judge who heard her request was different from the one who’d ordered visitation. The grandparent’s attorney argued that there wasn’t enough evidence to establish that there was a case of changed circumstances. He also argued that expert psychological testimony was needed to support her allegations. The mother’s attorney argued she shouldn’t have the burden to show the visits should terminate, since the first order was entered without judicial findings that the visits benefited the child.
The judge agreed, saying that the mother could terminate visits unless the grandmother could show that the denial of visits would harm the grandchild, which she hadn’t done. The court terminated the visits.
The appellate court explained that if a parent agrees to a consent order that allows a grandparent to have visitation, any future requests that this consent order be modified need to be considered within a specific framework. Parents need to make an initial showing that circumstances have changed, such that the requested relief is appropriate. Even when the custody dispute is between parents who’d agreed to a particular arrangement, this showing must be made.
The trial court is required to hold a hearing and permit the parties to have reasonable discovery if there were factual issues. Meanwhile, the parent moving for a modification has the burden of proving that changing the order wouldn’t harm the child. The appellate court explained that once a parent enters into an agreement, they waive the autonomy to remove visitation. The parent can no longer unilaterally terminate the visitation or require the grandparent to establish the right to visit as if the order hadn’t existed.
The appellate court reversed and asked the lower court to reconsider.
If you are a parent or grandparent concerned about grandparents’ rights in Bergen County, it is important to retain an experienced and aggressive child custody attorney to seek an appropriate outcome. Contact the lawyers of Leopold Law at (201) 345-5907 or through our online form. We have attorneys available who can handle all aspects of a divorce.