Slawinski v. Nicholas and Grandparent Visitation Clauses

Custody and visitation cases are some of the most hard fought battles in family law. Parents will go to great lengths to make sure that the final order entered by the trial court is in their child’s best interest. In the vast majority of these cases, the parties are the two parents. There are, however, some cases involving a parent and a grandparent. New Jersey law does make provisions for grandparent visitation, but the burden is a high one for the grandparents to prove. In a battle between parents, the parents simply need to prove that their parenting plan is in the best interest of the children.  However, when a grandparent is trying to get a court order for visitation, the grandparent must demonstrate that the child will suffer harm if there is not a court order for the child to continue to have contact with the grandparent. However, what happens when a parent and a grandparent come to an agreement about visitation, which is incorporated into a court order, but the parent later changes her mind?  The issue then becomes what a parent must prove to modify that past order. This is the issue in a recent case called Slawinski v. Nicohlas.

In that case, the grandparents and the mother entered into a consent order providing that the grandparents would receive visitation. The mother later changed her mind and sought to modify the previous order. The trial court determined that all the mother had to prove was that she attempted to make the visitation work out, but it was not benefitting the child. The appellate court disagreed. The court determined that the mother first had to prove that there had been a material change in circumstances since the entry of the prior order, just as she would have had to do in the case that the case was between two parents. The appellate court then held that the court’s next inquiry should be whether terminating the visitation between the child and the grandparent would be harmful to the child. The appellate court did point out, however, that the parent’s burden to prove an absence of harm is less onerous than proving what is in the child’s best interest.

Grandparent visitation cases can be difficult and nuanced. You need an experienced team to help you with this situation. We experience helping our clients with these types of cases. Contact us today at 732-529-6937 to make an appointment to talk about your case.