                     NOT FOR PUBLICATION WITHOUT THE
                   APPROVAL OF THE APPELLATE DIVISION

                                              SUPERIOR COURT OF NEW JERSEY
                                              APPELLATE DIVISION
                                              DOCKET NO. A-0710-15T1

DONNA SLAWINSKI,                                  APPROVED FOR PUBLICATION

      Plaintiff-Appellant,                             December 6, 2016

v.                                                     APPELLATE DIVISION


MARY E. NICHOLAS,

     Defendant-Respondent.
___________________________________

           Submitted October 17, 2016 – Decided                    December 6, 2016

           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     plaintiff-
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.



                                                2                                     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




                                             3                                   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.



                                           4                                     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




                                           5                                       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




                                               6                                     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




                                             7                                   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




                                                  8                                      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




                                              9                                       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,




                                                10                                    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.



                                    11                            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




                                       12                                    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




                                         13                                   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.



                                14                          A-0710-15T1
