Donna Slawinski v. Mary E. Nicholas
150 A.3d 409
| N.J. Super. Ct. App. Div. | 2016Background
- Plaintiff (paternal grandmother) obtained a January 13, 2015 consent order granting monthly weekend visitation and a week of vacation with her then-six-year-old granddaughter, Lilly.
- Defendant (mother) has sole legal and residential custody and consented to the order initially believing visitation would benefit the child.
- After four visits, mother moved to terminate the consent visitation order, alleging the child returned upset, emotionally traumatized, and exhibited hygiene problems after visits.
- At the August 28, 2015 hearing, the trial judge ruled that because the visitation derived from a consent order, the mother could unilaterally terminate it unless the grandmother proved by a preponderance that denial would harm the child.
- The Appellate Division held that the trial court applied the wrong legal standard and remanded for application of the Lepis changed-circumstances framework; the parent-movant must prove changed circumstances and absence of harm from termination.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Standard for modifying a consent order granting grandparent visitation | Grandmother: modification should be subject to a strict proof-of-harm standard (denial causes harm) because visitation involves third-party rights | Mother: because the order was by consent, she may withdraw/unilaterally terminate unless grandmother proves harm | Court: Use Lepis changed-circumstances framework; parent-movant must first show changed circumstances, then court applies grandparent-harm test to modification |
| Who bears the burden to seek modification | Grandmother: (implicit) once order exists, grandmother retains burden to show harm if parent attempts termination | Mother: the movant-parent should not bear the burden; simply asserting it doesn't work should suffice | Court: Burden is on the parent seeking modification to prove changed circumstances and that terminating will not harm the child |
| Proof required to rebut consent order | Grandmother: must prove denial would cause particularized harm to overcome parental presumption | Mother: claims of child distress and neglect of hygiene suffice to end visitation without grandmother proving harm | Court: Parent’s allegations can establish a prima facie changed-circumstances showing and warrant discovery/plenary hearing; grandmother may rebut with competent evidence of no harm |
| Remedy and procedural steps after prima facie showing | Grandmother: if harm shown, visitation continues; otherwise terminated | Mother: immediate termination acceptable absent grandmother’s proof of harm | Court: If parent proves changed circumstances and absence of harm, grant modification; otherwise, after discovery/hearing, maintain order; remand for application of this process |
Key Cases Cited
- Lepis v. Lepis, 83 N.J. 139 (1980) (establishes changed-circumstances framework for modification of custody/visitation agreements)
- Moriarty v. Bradt, 177 N.J. 84 (2003) (grandparent seeking visitation must prove denial would harm the child)
- Mimkon v. Ford, 66 N.J. 426 (1975) (grandparent visitation orders entered after adjudication are subject to modification on showing of changed circumstances)
- Abouzahr v. Matera-Abouzahr, 361 N.J. Super. 135 (App. Div.) (2003) (party seeking modification of custody/visitation bears burden of showing changed circumstances and best interests)
- Major v. Maguire, 224 N.J. 1 (2016) (harm threshold for overcoming parental presumption is a heavy burden)