VICKI BOCELLE VS. LAUREN K. CALDWELL (FD-01-0150-16, ATLANTIC COUNTY AND STATEWIDE)
A-0245-16T1
| N.J. Super. Ct. App. Div. | Oct 27, 2017Background
- Grandparents Vicki and Randall Bocelle sought visitation with their grandson (born 2008); they had provided regular weekend care from ~age 3½ until ~age 7.
- Parents divorced in 2011; father had increased parenting time in 2015. Grandparents attended school events and sometimes babysat overnight.
- Grandparents filed for custody or, alternatively, visitation in August 2015; parties entered a March 11, 2016 consent order granting grandparents one Saturday per month visitation.
- Mother moved in June 2016 to terminate grandparent visitation and bar them from school events; grandparents cross-moved in August 2016 to increase visitation and preserve school access.
- On August 29, 2016 the Family Part replaced the guaranteed monthly visitation with parental discretion (but allowed school attendance unless both parents objected), concluding grandparents failed to show harm under Moriarty.
- Appellate division reverses and remands because the trial court failed to determine whether changed circumstances warranted modification of the earlier consent order as required by Slawinski.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether trial court could modify a consent order granting grandparent visitation without a showing of changed circumstances | Bocelle: consent order is binding; any modification requires a prima facie showing of changed circumstances before assessing harm | Caldwell: parents can refuse grandparenting time; grandparents haven’t shown harm so discretion is appropriate | Reversed: trial court erred by skipping the threshold changed-circumstances inquiry required to modify a consent order |
| Whether grandparent visitation may be terminated based solely on two fit parents’ objections under Moriarty | Bocelle: Moriarty governs disputes between grandparents and fit parents but does not override the changed-circumstances rule for modifying consent orders | Caldwell: relied on Moriarty to argue grandparents must show harm to obtain mandatory visitation | Court: Moriarty’s harm inquiry applies, but only after a movant first proves changed circumstances to modify a consent order |
| Whether the trial court’s order created an unjust result by allowing parental unilateral revocation of court-ordered visitation | Bocelle: replacing guaranteed visitation with parental discretion permits unilateral termination and risks unjust result | Caldwell: (implicit) parental discretion appropriate given fit parents’ authority | Court: Such discretionary removal of court-ordered visitation without the required inquiry is “clearly capable of producing an unjust result”; remand required |
| Standard/burden for modifying visitation set by prior consent order | Bocelle: burden on moving party to show changed circumstances affecting child welfare before considering harm | Caldwell: argued lack of harm should end inquiry | Court: Agrees burden lies with movant to prove changed circumstances; only then court evaluates harm and other factors |
Key Cases Cited
- Moriarty v. Brandt, 177 N.J. 84 (N.J. 2003) (grandparents must show harm to child to obtain visitation when dispute involves fit parents)
- Slawinski v. Nicholas, 448 N.J. Super. 25 (App. Div. 2016) (consent-order modifications require a prima facie showing of changed circumstances before assessing harm)
- Lepis v. Lepis, 83 N.J. 139 (N.J. 1980) (changed-circumstances principle for modifying parental arrangements)
- Major v. Maguire, 224 N.J. 1 (N.J. 2016) (allocating burden on grandparent-applicant to show visitation is necessary to avoid harm)
- Abouzahr v. Matera-Abouzahr, 361 N.J. Super. 135 (App. Div. 2003) (movant bears burden to show change in circumstances to modify orders)
- Mimkon v. Ford, 66 N.J. 426 (N.J. 1975) (change-in-circumstances requirement discussed)
- Sheehan v. Sheehan, 51 N.J. Super. 276 (App. Div. 1958) (early articulation of burden to show changed circumstances)
- Center for Molecular Med. & Immunology v. Twp. of Belleville, 357 N.J. Super. 41 (App. Div. 2003) (appellate courts may raise unpreserved issues sua sponte when justice requires)