NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-0710-15T1

DONNA SLAWINSKI,

Plaintiff-Appellant,

v.

MARY E. NICHOLAS, 

Defendant-Respondent.

___________________________________

Submitted October 17, 2016 – Decided 

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 plaintiffAPPROVED FOR PUBLICATION

December 6, 2016

APPELLATE DIVISION

December 6, 2016
2 A-0710-15T1

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, 

83 N.J. 139, 157-59 (1980), and applied to custody and 

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

361 N.J. Super. 135, 152 (App. Div.), certif. denied, 178 N.J.

34 (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.
3 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 
4 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. 
5 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, 154 N.J. 394, 413 (1998), we 

are compelled to reverse when the court does not apply the 

governing legal standards. Gotlib v. Gotlib, 399 N.J. Super.

295, 309 (App. Div. 2008). We owe no special deference to the 

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

Twp. Comm. of Manalapan, 140 N.J. 366, 378 (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, 195 N.J. 575, 601 (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, 158 N.J. 185, 

193 (1999) ("New Jersey has long espoused a policy favoring the 
6 A-0710-15T1

use of consensual agreements to resolve marital 

controversies."); Bisbing v. Bisbing, 445 N.J. Super. 207, 218 

(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, 225 N.J. 34, 45-47 

(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. Lepis, 

supra, 83 N.J. at 145-46; see also Quinn, supra, 225 N.J. at 46. 

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." Abouzahr, supra, 361 N.J. Super. at 152; 

see also Hand v. Hand, 391 N.J. Super. 102, 103 (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, 66 N.J. 426, 

437-38 (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 
7 A-0710-15T1

v. Sheridan, 268 N.J. Super. 387, 398 (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, 177 N.J. 84, 114-15 (2003), cert. denied, 

540 U.S. 1177, 124 S. Ct. 1408, 158 L. Ed. 2d 78 (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 
8 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, 224 N.J. 1, 18 (2016); cf. Fawzy v. 

Fawzy, 199 N.J. 456, 479 (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, 375 N.J. 

Super. 221, 234 (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, 381 N.J. Super. 286, 294 

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

creating "happy memories" do not suffice. Mizrahi, supra, 375 

N.J. Super. at 234. Only after the grandparent vaults the 

proof-of-harm threshold will the court apply a best-interests 

analysis to resolve disputes over visitation details. Moriarty, 

supra, 177 N.J. at 117. 

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 
9 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, 72 

P.3d 17, 22 (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, 418 S.W.3d 1, 29 

(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 
10 A-0710-15T1

prima facie case of changed circumstances relating to the 

visitation. Lepis, supra, 83 N.J. at 157; R.K. v. F.K., 437 

N.J. Super. 58, 61-62 (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. Lepis, supra, 83 N.J. at 157. Upon this initial 

showing, appropriate discovery shall proceed if warranted. 

Ibid. Our courts have long emphasized the need for a thorough 

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

v. Sheehan, 51 N.J. Super. 276 (App. Div.), certif. denied, 28 

N.J. 147 (1958). Moreover, the court shall hold a plenary 

hearing if genuine issues of material fact remain. Lepis, 

supra, 83 N.J. at 159. 

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, 160 N.J. 408, 420 (1999) (considering alimony 

modification); see also Lepis, supra, 83 N.J. at 157-58 (stating 

that once a supported spouse demonstrates an increase in need, 
11 A-0710-15T1

the court reviews the supporting spouse's ability to pay); 

Gonzalez-Posse v. Ricciardulli, 410 N.J. Super. 340, 352 (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, 167 N.J. 91, 116 

(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, 86 

N.J. 480, 496 n.8 (1981) ("[W]hen seeking joint custody after an 

 

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

supra, 72 P.3d at 22, and Lovlace, supra, 418 S.W.3d at 23, that 

a change in circumstances would trigger a best interests 

analysis. 
12 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."); 

Abouzahr, supra, 361 N.J. Super. at 152 (assigning burden to 

show change of circumstances and child's best interests to 

"party seeking a modification"); Sheehan, supra, 51 N.J. Super.

at 287 (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 Mizrahi, supra, 375 N.J. Super. at 234, 

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 Moriarty, supra, 177 

N.J. at 113 (noting that a best interests test can be satisfied 

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

163 N.J. 235, 248 (2000)); cf. Morgan v. Morgan, 205 N.J. 50, 

63-65 (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 
13 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 
14 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.