L.S. v. F.S.
Annotate this CaseRECORD IMPOUNDED
NOT FOR PUBLICATION WITHOUT THE
APPROVAL OF THE APPELLATE DIVISION
This opinion shall not "constitute precedent or be binding upon any court." Although it is posted on the
internet, this opinion is binding only on the parties in the case and its use in other cases is limited. R. 1:36-3.
SUPERIOR COURT OF NEW JERSEY
APPELLATE DIVISION
DOCKET NOS. A-2127-17T4
A-2128-17T4
L.S. and L.V.,
Plaintiffs-Appellants,
v.
F.S. and S.P.M.,
Defendants-Respondents.
__________________________
L.S. and L.V.,
Plaintiffs-Appellants,
v.
F.S. and A.K.,
Defendants-Respondents.
____________________________
Argued December 18, 2018 – Decided May 1, 2019
Before Judges Rothstadt and Gilson.
On appeal from Superior Court of New Jersey, Chancery
Division, Family Part, Sussex County, Docket Nos. FD-
19-0084-18 and FD-19-0085-18.
Paris P. Eliades argued the cause for appellants (Paris P.
Eliades Law Firm, LLC, attorneys; Paris P. Eliades and
Adrianna Altamirano Jones, on the brief).
Respondents have not filed briefs.
PER CURIAM
These two appeals that we considered back to back, and have consolidated for
the purpose of writing a single opinion, address claims by a paternal grandmother
and great-grandmother for grandparent visitation under the Grandparent Visitation
Act (the Act), N.J.S.A. 9:2-7.1, and pursuant to a written agreement between the
children's father and plaintiffs. Plaintiff L.S. (Lisa)1 is defendant F.S.'s (Fred)
mother, and plaintiff L.V. (Lana) is Lisa's mother and Fred's grandmother. In A-
2127-17, plaintiffs appeal from the Family Part's order denying their application for
grandparent visitation with Fred's and defendant S.P.M.'s (Sally) child, E.S. (Ellen).
In A-2128-17, they appeal from a similar order as to Fred's children with defendant
A.K. (Allison), F.S. Jr. (Freddie), and J.S. (Jerry), and with Allison's child K.S.,
(Kevin), who Fred was in the process of adopting at the time of the court's orders.
1
We use initials or pseudonyms to protect the privacy of the parties. R. 1:38-3(d)(3)
and (13).
A-2127-17T4
2
In both appeals, plaintiffs argue that in denying their applications, the Family
Part judge abused his discretion by not ordering a plenary hearing and erred by
failing to enforce the visitation agreement between plaintiffs and Fred, and by not
requiring defendants to establish a change in circumstances if they wished to modify
or terminate that agreement. They also contend that the judge's conclusion that "one
parent cannot enter a visitation agreement with a third party during his parenting
time" was legally incorrect. We disagree and affirm.
In August 2017, plaintiffs filed verified complaints for grandparent visitation
of Fred's children, including the enforcement of the visitation agreement that
plaintiffs and Fred signed earlier that year. Specifically, their complaints sought
visitation with Ellen, who was born in 2011; Kevin, who was born in 2014; Freddie,
who was born in 2015; and Jerry, who was born in 2017. In support of their
complaint, each of the plaintiffs filed certifications setting forth the parties'
relationship and the history of the visitation agreement. Sally responded with her
own certification and filed one from Allison as well. We derive the following facts
from the record.
According to plaintiffs, before Fred met Sally, he lived with them in a house
owned by Lana. After Ellen was born in 2011, she lived with plaintiffs, Fred, and
Sally in Lana's home for a short time until Sally and Fred obtained their own home
A-2127-17T4
3
near Lana's house. According to Sally, she only resided in plaintiffs' home on
weekends.
Before Fred and Sally moved, plaintiffs brought both of them into the family
business so that they could support their child. Groceries and supplies were
purchased by Lisa, who also provided Ellen with anything she needed. Lisa also
paid for Sally's and Fred's cell phones and for Sally's car insurance and student loan.
After Fred, Sally, and Ellen moved, "[t]he three of them ate most of their
dinners at [plaintiffs'] home and spent ample [time]" with plaintiffs. Lisa was
responsible for providing day care services four days a week for Ellen while Fred
and Sally were working. Ellen also "spent at least one overnight per week in
[plaintiffs'] home so her parents could have a night to themselves."
Sally and Fred were married in 2013, when Sally was eighteen years old. A
short time later in 2014, they separated and in 2015, Sally filed an action in the
Family Part for divorce, seeking support and the resolution of her and Fred's
parenting issues. Sally originally planned on moving in with her parents, but
because she understood that plaintiffs would seek to remove Ellen from her custody,
she moved in nearby with Fred's aunt and uncle, Lisa's sister and her husband.
During that period, she learned that Fred entered into a dating relationship with
Allison.
A-2127-17T4
4
Due to Fred's addiction issues, his contact with Ellen was limited and his
parenting time with her was required to be supervised. Lana was selected as the
supervisor and all of Fred's parenting time with Ellen was located at plaintiffs' home,
with Sally also being present.
Even after they separated, Lisa continued to support Sally while she and Ellen
lived in the home owned by Lisa's sister and her husband, with whom Sally began a
new romantic relationship. According to Lisa, the relationship between Sally and
Lisa's brother-in-law caused emotional harm to Fred and led to his drug abuse.
During the period that Fred was dealing with substance abuse issues, plaintiffs
claimed they "took primary care of [Ellen]." Despite her separation from Fred,
however, Sally remained "as much of a daughter to [Lisa] as [Fred] was [her] son."
Significantly, Lisa's "involvement in [Ellen's] life was constant," as the child
continued to visit with Lisa "at least three or four days per week and not a day went
by that [Lisa] did not speak to her on the phone."
After Fred met Allison, they lived in plaintiffs' home until shortly after
Freddie's birth in 2015. Fred continued to exercise his supervised parenting time
with Ellen at plaintiffs' home "until [Ellen] was approximately three" years old.
During the visits, Allison, Freddie, and Kevin would have "dinner with [plaintiffs]
and often spent the night."
A-2127-17T4
5
When the grandchildren were not living at plaintiffs' home, other than Jerry,
they all "spent countless hours [at plaintiffs'] and enjoyed innumerable sleepovers in
[their] home." When they were not spending overnights there, they still enjoyed
many hours of family time together. In addition, plaintiffs provided financial
support to Fred and "regularly purchased clothes, toys and necessities for his
children." Their support was especially needed when Fred was suffering from "a
struggle with drugs and alcohol."
According to plaintiffs, in 2016, problems developed in their relationship with
Fred and Allison when the two began to use "the children as pawns in order to get
money from" plaintiffs, which interfered with the "constant and enduring"
relationship that plaintiffs had with the children "since birth." According to Lisa,
Fred and Allison would refuse to allow her to have visitation with her grandchildren
if they had a disagreement. For example, if they needed money, there would be no
visitation unless Lisa agreed to pay them. Their problems led to "over a year of
[Lisa] being deprived of a meaningful relationship" with the grandchildren.
Plaintiffs believed that any interference with their relationship with Fred's
children would cause the children emotional harm as they "know nothing else but
regularly coming to [their] home for dinner, visits and sleepovers." Their concern
for the children's welfare led to the plaintiffs entering into the visitation agreement
A-2127-17T4
6
with Fred to bring "structure for the children" and to prevent the parties from having
to go to court to seek visitation rights. According to Lisa, the agreement was "crafted
to ensure that [Fred] could not continue using the children as leverage and to allow
[plaintiffs to have the same relationship they] once had with" Fred's children.
At the time the agreement was entered into in May 2017, Fred was no longer
living with plaintiffs. He lived with Allison and his children other than Ellen. His
parenting time with Ellen was governed by orders entered in his and Sally's pending
divorce. Fred's visitation agreement with plaintiffs did not refer to the court's orders
or the pending divorce.2 Neither of the children's mothers signed the agreement nor
consented to its terms and the agreement did not refer to either of them.
The agreement acknowledged that Fred's children had "spent substantial
amounts of regular, recurring time with [plaintiffs] on an overnight basis and during
the weekday" and that the children had "profound, substantial and enduring
relationships with" plaintiffs. It defined a visitation schedule for plaintiffs that was
effective February 17, 2017.3 The schedule granted plaintiffs visitation "with the
2 In 2015, Sally filed for a divorce from Fred in the Family Part and the court
thereafter issued orders regarding custody and parenting time relating to Ellen.
3
The effective date preceded Jerry's date of birth, which was recited in the
agreement as being two months afterwards. No explanation was provided for how
Jerry's birth date would have been known upon the agreement's effective date or
earlier, if the agreement was signed on its effective date.
A-2127-17T4
7
children every Friday from the time [Fred] is available to transport the children until
8:30 [p.m.] during the school year." It also addressed summer visitation and picking
up and dropping off the children at a state police barracks. It required the parties to
be on time for the exchange and for rescheduling the visitation if it had to be
cancelled due to weather conditions or illness. In that regard, the agreement required
that plaintiffs would "be offered make-up time within [fourteen] days of the missed
date." The visitation agreement also contained an anti-alienation clause that
prevented the parties from doing anything that would "alienate the children from the
other party." It also obligated Fred to "not unreasonably withhold consent" to
plaintiffs having summer vacation time with the children.
Lisa believed that the agreement provided solace to Ellen, who suffered when
she was exposed to only "sporadic visits and extended periods of no contact" with
plaintiffs. The agreement "alleviated all that stress that a six-year-old should never
have endured to begin with."
Beginning shortly after the agreement was reached, Fred did not live up to its
terms, bringing the children to only four out of the first scheduled eleven visits.
According to Lisa, Fred's signing of the visitation agreement was a result of his
linking the agreement with his and Allison's requests for money. After the
agreement was signed, Fred continued to demand money in exchange for plaintiffs
A-2127-17T4
8
seeing the children. It was only after Lisa denied his request that regular contact
ended. Lisa explained that the excuse for Fred "willfully" violating the agreement
was that Lisa's sister "posted on social media a picture of herself, sitting on the couch
with her niece and nephews" and Fred, Allison, and Sally did not want their
children's pictures posted on social media.
Plaintiffs explained that they have developed physical problems due to their
not seeing the children and that in the visitation agreement, Fred acknowledged
seeing the children was in their best interests. In fact, just after plaintiffs filed their
complaints in this action, Fred allowed them to spend some time with the children.
Lisa claimed to know that "the children are suffering" by not being allowed to spend
time with plaintiffs. She stated that it is "logical" that the children have a "strong
bond" with her and Lana.
In response to plaintiffs' complaint, Sally filed a cross-motion seeking the
denial of grandparent visitation and a determination that plaintiffs' action was
frivolous, entitling Sally to an award of counsel fees.4 Her supporting certification
described her view of the dispute, explaining that problems developed between her
4
Simultaneous with the filing of her cross application, Sally filed a motion in her
and Fred's divorce action. Her motion there sought an order from the court allowing
her "the right of first refusal if [Fred] is unable to exercise his scheduled parenting
time" and "[p]rohibiting [Fred] from permitting his family to spend any time with . . .
[Ellen] unless and until they have submitted to the proper mental health evaluations."
A-2127-17T4
9
and plaintiffs even prior to 2015. She cited to a January 2015 incident where the
state police had to provide her with assistance in retrieving Ellen from plaintiffs'
home. Prior to 2015, she and Fred did not have an arrangement regarding visitation,
but during the pendency of their divorce, she and Fred were involved in numerous
disagreements that resulted in litigation about Ellen's preschool, vacations, and other
issues. According to Sally, she subsequently learned that plaintiffs were fueling
those disputes. The actions that they instigated included filing complaints with state
child welfare agencies on more than one occasion that did not result in any
determination that Ellen was being harmed by Sally or Fred in any manner.
Sally expressed concern about the impact on Ellen that exposure to plaintiffs
had been causing. She explained that on numerous occasions, Ellen came home
from spending time with plaintiffs, telling Sally she cried the entire time because
Lisa was "screaming at her daddy."
According to Sally, since Fred became estranged from plaintiffs, she and Fred
have been successfully co-parenting their daughter. She noted that because Fred had
steady employment and a place to live away from plaintiffs, he has been able to
maintain his support obligation for Ellen and their relationship as parents has greatly
improved. It also has had a positive impact on Ellen "in school and in her personal
life." Sally attributed Fred's and Ellen's overall improvements to the fact that
A-2127-17T4
10
plaintiffs have not had contact with Ellen for over a year. Since that time, Ellen
spends weekends with Fred and a few hours during the week with him without
incident. According to Sally, it was in Ellen's best interest to maintain no contact
with plaintiffs.
In further support of her opposition to plaintiffs' action, Sally filed a
certification from Allison. Allison confirmed that "for a short time" in 2015 she
lived with Fred and plaintiffs. During that time, plaintiffs exposed her children and
Ellen to "unhealthy acts," including threats made against Sally and exposing the
children to "arguments and fighting in th[e] house."
Allison stated that she was present in the house during parenting time between
Fred and Ellen and confirmed that neither Ellen nor her own children spent any time
with plaintiffs in approximately a year. During that time, Fred's other maternal
relatives have visited with her and the children. Fred invited Lisa to come to the
home to visit as well, but she refused. According to Allison, she can coordinate with
Sally Fred's parenting time with Ellen without any problems as they "communicate
regularly about visitation schedules, vacations and holidays and make adjustments
as [they] need to." Allison expressed "great[] concern[]" about plaintiffs having
contact with Ellen or her children and stated that any contact would disturb the
A-2127-17T4
11
"peacefulness" that the children were enjoying without such contact and would be
contrary to the children's best interests.
Lisa filed a certification denying Sally's and Allison's contentions. She
attributed Sally's hostility towards her and her family to Sally's affair with her sister's
husband, and attributed Allison's statements to her desire to extort money from
plaintiffs in exchange for contact with the children. Contrary to Sally's assertions,
Lisa explained that Ellen was at her home a few months earlier to celebrate Lana's
seventy-fifth birthday. Lisa also expressed surprise that Allison and Fred supported
Sally in her application because in the past they had conspired against her. It was
her opinion that Sally had "not yet realized . . . that [Fred] and [Allison] are
opportunists with no regard for how they treat others to get what they want" and she
stated that Allison had in fact allowed her time with her children.
The matter came before the court on November 30, 2017. Plaintiffs and Sally
were represented by counsel. Fred and Allison appeared without representation. At
the hearing, the Family Part judge considered the parties' oral arguments. In
addition, the judge placed Fred under oath before having him respond to the judge's
questions about the children's status, their custody and residences and Fred's
parenting time.
A-2127-17T4
12
The judge then considered plaintiffs' counsel's oral argument, in which he
explained that plaintiffs were "not asking for more than what [the visitation]
agreement contemplates." In response, the judge inquired whether plaintiffs were
seeking relief under the Act or the agreement alone. Counsel responded, "I'm asking
for enforcement of the agreement" and confirmed that plaintiffs were "not seeking
grandparent visitation under the statute." However, counsel clarified that he was not
suggesting that the statute should be ignored.
Sally's counsel argued that the agreement was not enforceable because the
children's mothers had not been parties to it. He acknowledged, however, that "if
[Fred] wants to go spend time with his mother and grandmother [with the children],
there's not an awful lot that [his] client can do." Sally did not want the children to
be left alone with plaintiffs.
After considering the attorneys' arguments, the judge asked Fred to explain
the circumstances surrounding entry of the agreement. Fred stated that for
approximately one year before the agreement was signed, plaintiffs had not seen the
children. The termination of contact arose from an argument that Fred had with
plaintiffs, which resulted in his being fired from the family business and led to him
and his family "liv[ing] in a homeless shelter." The visitation agreement was an
attempt to "work it out[ and] go from there." After the agreement was signed,
A-2127-17T4
13
plaintiffs refused to follow his and Sally's wishes by, for example, posting pictures
on social media and allowing the children to go into a swimming pool.
Fred explained that he did not participate in the drafting of the agreement and
did not understand it to include any overnight visits. The judge asked Fred if he
believed "that the children will suffer any harm if they don't have a continuing
relationship with" plaintiffs. Fred responded "[n]ot so much harm."
The judge swore in Allison and confirmed with her that she submitted the
certification included with Sally's papers. In response to the judge's questioning,
Allison stated that she was opposed to plaintiffs having any contact with the children.
It was her opinion that the "children would suffer harm if they were to have
grandparent visitation" and that "it would interfere with the parenting . . .
relationship" that she had with Fred and Sally. Allison also explained how Lisa had
threatened her in the past.
The court then swore in Sally and confirmed that Ellen spent most of her time
with Sally. When asked whether she believed her daughter would suffer any harm
if grandparent visitation was not awarded, Sally explained that although Ellen was
not exposed to physical harm when visiting with plaintiffs, she was "mentally"
harmed. In attempt to clarify her response, the judge asked "do you think your
daughter . . . will suffer any harm if she has visits," to which Sally responded "no."
A-2127-17T4
14
However, Sally explained that the relationship she had with Fred and Allison would
be harmed if visitation was granted. Sally confirmed that Ellen had seen plaintiffs
as recently as September of that year.
Sally's counsel then clarified Sally's understanding of the judge's questions,
asking "if [Ellen] doesn't go to see the [plaintiffs] would she be okay" to which Sally
responded "yes." Sally repeated that she believed that visits with plaintiffs were
harmful "mentally" for Ellen. When asked whether she consented to "providing
grandparent time . . . to the [p]laintiffs," Sally stated she did not and that she was
unaware that Fred signed the agreement with them.
The judge also discussed the agreement with Allison. She explained that she
did not consent to the agreement, although she was aware of it. She objected to
plaintiffs "getting their own time or even being there" and confirmed that she "had
no idea that [the visitation agreement] was signed until afterwards." Finally, the
judge asked Fred whether he signed the agreement knowing that Sally and Allison
did not agree to its terms. Fred stated that he signed it "without their consent."5
5
At the conclusion of the questioning of the parties by the judge and Sally's counsel,
plaintiffs' counsel interposed an objection that he was not being permitted an
opportunity to cross-examine any of the parties. He also attempted to explain to the
court that he had emails that reflected that Fred or someone else objected to certain
language in the agreement and it was changed, indicating that the agreement had
been negotiated.
A-2127-17T4
15
The judge placed his findings and conclusion on the record before denying
plaintiffs' complaints for grandparent visitation. He framed the issue in terms of
plaintiffs attempting to seek enforcement of the agreement or to establish
grandparent visitation under the Act. After quoting from the Supreme Court's
opinion in Moriarty v. Bradt, 177 N.J. 84, 114-15 (2003), the judge stated that he
would
not unduly impose upon a parent's right to raise their
children and award grandparent visitation unless the
grandparents can establish the harm that would come to
the child. Once a prima facie case has been established,
the [judge] must the[n] determine whether grandparents
have proven by preponderance of the evidence that
visitation is necessary to avoid harm to the child.
The judge distinguished the facts of the present matter from those in Slawinski
v. Nicholas, 448 N.J. Super. 25 (App. Div. 2016), a case relied upon by plaintiffs.
According to the judge, the distinguishing factor was that the case before him
involved a "private agreement and not a court order" as in Slawinski. Also, because
the agreement in this case was not signed by the biological parents of the children
other than Fred, the judge concluded he could not enforce it as it represented a
"significant infringement upon . . . parental rights" because the two mothers opposed
Fred signing the agreement and despite their objections, "he did so without their
consent."
A-2127-17T4
16
Turning to plaintiffs' rights under the Act, the judge indicated he was satisfied
that they failed to meet their burden to establish that any of the children would be
exposed to any harm if grandparent visitation was denied. The court cited to Major
v. Maguire, 224 N.J. 1, 18 (2016) and noted that there was no claim that any of the
children's parents were unfit. He found that plaintiffs' allegation about providing
day care and allowing the children to have periodic overnight visits at their home
did not satisfy plaintiffs' burden of proof. Reviewing the factors under the Act, the
judge acknowledged that while there was a close relationship between plaintiffs and
the children, plaintiffs failed to satisfy their burden under the Act.
In rejecting plaintiffs' arguments that the visitation agreement satisfied their
burden of proof, the judge observed that Fred's acknowledgment of the "profound,
substantial and enduring relationships" that plaintiffs had with the four children was
belied by the fact that two of the children were infants and could not have had such
an experience at the time the agreement was signed. The judge also observed that
plaintiffs never alleged or asserted that they were full-time primary caregivers for
any of the children on a regular basis. He also expressed his "concerns about the
good faith" of the agreement and the absence of the mothers as parties to it.
The judge concluded by stating that even if plaintiffs established that the
children would suffer some harm if grandparent visitation was not awarded, he was
A-2127-17T4
17
satisfied that it was not in the children's best interests to order visitation because
there was no allegation that the mothers were unfit and the mothers objected to the
visitation and believed that it would "cause strife in the relationship between" the
children's parents. The judge entered orders denying the applications and these
appeals followed.
We review the trial court's dismissal of a complaint seeking grandparent
visitation de novo. R.K. v. D.L., 434 N.J. Super. 113, 142 (App. Div. 2014). In
doing so, we owe no deference to the "trial court's interpretation of the law and the
legal consequences that flow from established facts." Ibid. (citing Manalapan
Realty, LP v. Twp. Comm. of Manalapan, 140 N.J. 366, 378 (1995)).
At the outset, we acknowledge the value of a child's relationship with his or
her grandparent. As the late Justice Pashman observed many years ago,
[i]t is biological fact that grandparents are bound to their
grandchildren by the unbreakable links of heredity. It is
common human experience that the concern and interest
grandparents take in the welfare of their grandchildren far
exceeds anything explicable in purely biological terms. A
very special relationship often arises and continues
between grandparents and grandchildren. The tensions
and conflicts which commonly mar relations between
parents and children are often absent between those very
same parents and their grandchildren. Visits with a
grandparent are often a precious part of a child's
experience and there are benefits which devolve upon the
grandchild from the relationship with his grandparents
which he cannot derive from any other relationship.
A-2127-17T4
18
Neither the Legislature nor this Court is blind to human
truths which grandparents and grandchildren have always
known.
[Mimkon v. Ford, 66 N.J. 426, 437 (1975).]
However, although we are mindful of the special relationship that can exist
between grandparent and grandchild, our review is guided by the principle that
parents have a fundamental right "to make decisions regarding the care and custody
of their children." Moriarty, 177 N.J. at 88. Parental autonomy in decisions
regarding the "care, custody, and control of their children" is a fundamental right
that will only yield to a compelling state interest. Id. at 103-04. "[T]he need to avoid
harm to the child is 'the only state interest warranting the invocation of the State's
parens patriae jurisdiction to overcome the presumption in favor of a parent's
decision and to force grandparent visitation over the wishes of a fit parent[.]'" Major,
224 N.J. at 16 (second alteration in original) (quoting Moriarty, 177 N.J. at 115).
Consequently, courts ordinarily refrain from interfering with a fit parent's decision
to prevent contact between his or her child and the child's grandparents. Rente v.
Rente, 390 N.J. Super. 487, 493-94 (App. Div. 2007).
The Act "confers on a child's grandparent . . . standing to file an action for an
order compelling visitation." Major, 224 N.J. at 13. Grandparents may "force
grandparent visitation over the wishes of a fit parent" if they can prove by a
A-2127-17T4
19
preponderance of the evidence that visitation is necessary to avoid harm to the child.
Moriarty, 177 N.J. at 115, 117. The probability that a child will suffer serious
psychological or physical harm provides grounds for interference with parental
autonomy under the doctrine of parens patriae. Id. at 102-03; see also Major, 224 N.J. at 7 (reaffirming the Court's holding in Moriarty).
In a grandparent's complaint seeking visitation, he or she must first make "a
clear and specific allegation of concrete harm to the children." Daniels v. Daniels,
381 N.J. Super. 286, 294 (App. Div. 2005). Such harm must be "significant" enough
to "justify[] State intervention in the parent-child relationship." Id. at 293. "Mere
general and conclusory allegations of harm . . . are insufficient." Id. at 294. The
purpose behind this heightened pleading requirement is "to avoid imposing an
unnecessary and unconstitutional burden on fit parents who are exercising their
judgment concerning the raising of their children." Ibid. Otherwise, "any
grandparent could impose the economic and emotional burden of litigation on fit
parents, and on the children themselves, merely by alleging an ordinary grandparent-
child relationship and its unwanted termination." Id. at 293.
Under the Act, a "grandparent seeking . . . visitation must prove by a
preponderance of the evidence that denial of [the visitation they seek] would result
in harm to the child." Major, 224 N.J. at 7 (quoting Moriarty, 177 N.J. at 88).
A-2127-17T4
20
"Substantively, it is a 'heavy burden.'" Slawinski, 448 N.J. Super. at 34 (quoting
Major, 224 N.J. at 18). Only "[i]f . . . the potential for harm has been shown[ can]
the presumption in favor of parental decision making . . . be deemed overcome." Id.
at 33 (quoting Moriarty, 177 N.J. at 117). The Act is only applicable once "the
potential for harm has been shown," and a court considers a visitation schedule.
Moriarty, 177 N.J. at 117; accord R.K., 434 N.J. Super. at 150. When a trial court
correctly concludes that no legally sufficient harm has been shown, it must decline
to consider the statutory factors.
In Slawinski, we described the level of harm that a grandparent must
demonstrate before a court is required to determine whether visitation is in a child's
best interest. We stated:
[P]roof of harm involves a greater showing than simply
the best interests of the child. [Moriarty], 177 N.J. at 116
(stating that a dispute between a "fit custodial parent and
the child's grandparent is not a contest between equals[,]"
consequently "the best interest standard, which is the
tiebreaker between fit parents, is inapplicable"). . . . 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, 381 N.J.
Super. at 294]. By contrast, missed opportunities for
creating "happy memories" do not suffice. Mizrahi, 375
N.J. Super. at 234. Only after the grandparent vaults the
proof-of-harm threshold will the court apply a best-
A-2127-17T4
21
interests analysis to resolve disputes over visitation
details. Moriarty, 177 N.J. at 117.
[Slawinski, 448 N.J. Super. at 34 (second alteration in
original).]
The Court in Moriarty provided the following examples of the type of
supporting evidence that grandparents can produce in an attempt to establish harm
to a child:
The grandparents' evidence can be expert or factual. For
example, they may rely on the death of a parent or the
breakup of the child's home through divorce or
separation. . . . In addition, the termination of a long-
standing relationship between the grandparents and the
child, with expert testimony assessing the effect of those
circumstances, could form the basis for a finding of harm.
[Moriarty, 177 N.J. at 117.]
Where a grandparent cannot make a threshold showing of harm, the complaint
should be dismissed. A trial court "should not hesitate to dismiss an action without
conducting a full trial if the grandparents cannot sustain their burden to make the
required showing of harm." Major, 224 N.J. at 25. Under those circumstances, "a
court may dismiss . . . by summary judgment under Rule 4:46-2(c) . . . [so as] not
[to] prolong litigation that is clearly meritless." Ibid.
In Daniels, for example, a grandmother seeking contact with her
grandchildren alleged that she previously had "significant visitation" and a "strong
A-2127-17T4
22
and loving relationship" with the children. Daniels, 381 N.J. Super. at 288. But the
complaint did not "allege any unusual circumstances that would likely give rise to
particular harm from denial of visitation." Ibid. On appeal from the trial court's
denial of her application, the grandmother argued she was entitled to discovery and
an evidentiary hearing. Id. at 292. We rejected that argument, concluding that more
significant alleged harm was necessary before subjecting the defendants to a hearing
and discovery. Id. at 293.
Such harm was present in R.K., where the grandparents lived in the same
house with their granddaughter for six years while the girl's mother battled drug
addiction and during which time the child's younger sibling tragically died. R.K.,
434 N.J. Super. at 123. After the child's mother died, her father obtained full custody
and attempted to limit her contact with the grandparents. Id. at 127-28. When the
grandparents brought suit, the trial court dismissed their complaint on the basis that
the proofs "establish[ed] no more than a general, unsubstantiated allegation of
harm." Id. at 142. We reversed and remanded for the creation of a visitation
schedule, reasoning the granddaughter "not only had a long and close relationship
with her grandparents during her formative years, but she actually resided with her
grandparents for an extensive period of time after her parents divorced and after the
tragic death of her younger sibling." Id. at 146, 150. Additionally, her "association
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with her grandparents came to an abrupt end as a result of her mother's death." Id.
at 146.
Applying these guiding principles here, and turning first to the denial of relief
under the Act, we conclude that the judge correctly determined there was no
evidence presented by plaintiffs that established the requisite showing of particular
"concrete harm" to any of the children that would support a finding that plaintiffs
overcame the presumption against interference with the parents' fundamental rights.
Daniels, 381 N.J. Super. at 294. Plaintiffs have not alleged facts demonstrating that
the parental decision to prohibit contact will cause significant harm to their children.
Importantly, Fred, Sally, and Allison all oppose visitation and are
undisputedly fit parents. In their complaint, plaintiffs admit they were never
permanent caretakers of the children and merely allege that the prohibition on
visitation will cause the children to suffer generally if they were to lose their contact
with plaintiffs. This justification is insufficient. Id. at 288.
In sum, plaintiffs have failed to present a prima facie showing of
particularized harm to the children occasioned by the absence of visitation. Plaintiffs
were therefore not entitled to a plenary hearing, which could have exposed the
children to harm. See Major, 224 N.J. at 22 (stating that grandparent visitation
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"litigation may itself infringe on the parent's due process right to autonomy, and
cause harm to the child whom the [Act] exists to protect").
We find no merit to plaintiffs' contention that they were relieved of the
obligation to establish harm because Fred entered into the visitation agreement.
According to plaintiffs, under our holding in Slawinski, once Fred entered into the
agreement, the burden shifted to the children's parents to demonstrate that there had
been a change in circumstances warranting its termination or modification. We
disagree.
Slawinski dealt with "a motion to modify a consent order granting grandparent
visitation." Slawinski, 448 N.J. Super. at 29. In our opinion, we observed that
"[a]bsent fraud or unconscionability, our courts will enforce family-related
agreements as they would any contractual agreement." Id. at 32. We cited to other
cases where family-related agreements, including grandparent visitation agreements,
were deemed enforceable and subject to a showing of change in circumstances when
a party sought to modify the agreement or be relieved from its obligations. See id.
at 32-33 (citing Quinn v. Quinn, 225 N.J. 34, 45-47 (2016) (dealing with
enforcement of an alimony agreement's anti-cohabitation clause)); Abouzahr v.
Matera-Abouzahr, 361 N.J. Super. 135, 141 (App. Div. 2003) (addressing
modification of custody and parenting provisions in a property settlement
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25
agreement); Hand v. Hand, 391 N.J. Super. 102, 104 (App. Div. 2007) (addressing
a parenting plan incorporated into the parties' "Consent Dual Final Judgment of
Divorce"); Mimkon, 66 N.J. at 437-38 (stating that a grandparent visitation order
entered after an adjudication is "subject to modification at any time on showing of
changed circumstances").
Slawinski and the cases cited therein are therefore distinguishable from the
present dispute because in all of those cases, the family-related agreement was
incorporated into either a judgment or order entered by the court. Quoting from
Todd v. Sheridan, 268 N.J. Super. 387, 398 (App. Div. 1993), we observed in
Slawinski that the change in circumstances standard applies to matters where a
judgment or order has been entered. Slawinski, 448 N.J. Super. at 33. In Todd, we
specifically stated that "[a] judgment, whether reached by consent or adjudication,
embodies a best interests determination. It is only when such a determination has
been made and a judgment entered that a moving party must bear the threshold
burden of showing changed circumstances which would affect the welfare of the
children." Todd, 268 N.J. Super. at 398 (emphasis added).
We concluded in Slawinski that grandparent visitation agreements should be
subject to a change of circumstances standard only if the agreement is incorporated
into an order or judgment and an application to the court is made for "modification
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26
of a consent order governing grandparent visitation." Slawinski, 448 N.J. Super. at
34. We stated that in the absence of an order or judgment, a parent has the sole
"authority to determine visitation by third parties, including grandparents," unless
harm from terminating such visitation is established. Id. at 33. However, we
recognized that a "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." Id. at 34.
Summarizing our holding in Slawinski, we noted the distinction between the
applicable standards in cases where a consent order or judgment exists as compared
to those in which there was no court involvement. We stated that "the trial court
erred in granting [a parent] the power to unilaterally terminate the [grandparent]
visitation that the consent order granted [and by] imposing on [the grandparent] the
burden to present the same proofs required if there had been no consent order at all."
Id. at 38. The proof that was required where there was no order or judgment was the
proof satisfying the "onerous" burden of establishing specific harm to the children.
Id. at 37. Absent a court order, a parent who agrees orally or in writing to allow
grandparent visitation is free to withdraw from that agreement unless the significant
harm required by the Act is established.
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27
Finally, we conclude that plaintiffs' reliance on our opinion in K.A.F. v.
D.L.M., 437 N.J. Super. 123 (App. Div. 2014), which addressed a parent permitting
a third party to become a child's "psychological parent," is inapposite and their
argument that Fred created a right to visit that superseded his own or the two
mothers' parental authority is without sufficient merit to warrant further discussion.
R. 2:11-3(e)(1)(E). Suffice it to say, even if the holding in that case was applicable
here, it too required a showing that "terminating that bond [between a psychological
parent and a child] may cause serious psychological harm to the child." Id. at 135.
Here, there was no demonstration of any harm.
Affirmed.
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