Grandparent visitation is a unique area of family law that presents interesting case law every few years and seems to be growing with time and modern families.  We have blogged about this issue, including the requirement to show harm to the child if the grandparent doesn’t have visitation and procedure for grandparent visitation applications, as well as impact of Consent Orders between parents and grandparents for visitation with the child.   The Appellate Division just released an unpublished (non-precedential) decision in a consolidated appeal that touches upon both the harm requirement for cases reviewed under the Grandparent Visitation Act, as well as issues with consent agreements for grandparent visitation: L.S. and L.V. v. F.S. and S.P.M./L.S. and L.V. v. F.S. and A.K.

The case answered two unique questions:

1. Whether a grandparent visitation claim can be dismissed without a plenary hearing.
   • Yes. “Where a grandparent cannot make a threshold showing of harm, the complaint should be dismissed.”
2. Whether a change in circumstances is required in order to modify the agreement between one parent and the grandparents when the agreement is not incorporated into an enforceable judgment or Court Order.
   • No. “…[G]randparent 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 of a consent order governing grandparent visitation”‘.

While those answers may seem simple, the facts of this case are nothing short of intriguing.  The plaintiffs in both matters are paternal grandma and great grandma.  The defendants in both matters are dad (F.S.) and former wife (S.P.M.), and dad (F.S.) and current wife (A.K.).  In both matters, plaintiffs sought parenting time with F.S.’ children/their grand and great grandchildren (1 child in the S.P.M. matter and 3 children in the A.K. matter, 1 of whom is A.K.’s child from another relationship who F.S. was adopting).

F.S. and S.P.M.

F.S. and S.P.M. had their daughter, Ellen, at young ages as she was born in 2011 and S.P.M. turned 18 in 2013.  Plaintiffs claim that Ellen, F.S. and S.P.M. lived with plaintiffs until they moved to a home near great grandma’s house.  However, S.P.M. claims she only lived with plaintiffs on the weekends.  Regardless, it appears undisputed that Plaintiffs brought F.S. and S.P.M. into the family business and paid the majority of their expenses.  Plaintiffs also claim that when the F.S. and S.P.M. moved into their own home, plaintiffs provided daycare services, the family had most dinners in plaintiffs’ home and Ellen spent a weekly overnight in plaintiffs’ home.  Eventually, F.S. and S.P.M. separated and got divorced.  F.S. had supervised parenting time with Ellen in plaintiffs’ home with great grandma as the selected supervisor and S.P.M. also present.  S.P.M. moved in with F.S.’ aunt and uncle and engaged in a relationship with the uncle (i.e.: grandma’s brother-in-law).  F.S. was abusing drugs (which was blamed on this relationship).  In any event, S.P.M. remained close with F.S.’ family and Ellen visited with grandma at least 3-4 days per week and they had daily telephone contact.  F.S.’ parenting time with Ellen continued at plaintiffs’ home until she was three years old.

F.S. and A.K.

Meanwhile, F.S. started a relationship with A.K.  and they lived together in plaintiffs’ home with A.K.’s child from a prior relationship.  They moved out after the birth of their first child together.  When F.S. had parenting time with Ellen, A.K. and their child, as well as A.K.’s child from another relationship, would all have dinner together with plaintiffs and the children spent overnights there. Plaintiffs continued to provide financial support to F.S. and the children.

Breakdown with Plaintiffs

It seems like every party has a different reason for the breakdown between Plaintiffs and each Defendant; however, they all agree the a significant breakdown occurred.  Plaintiffs claim that problems started in 2016, which they blame on F.S. and A.K. extorting money from plaintiffs in order to have visitation, leading to over a year of grandma not having a meaningful relationship with her grandchildren.  In her cross motion, S.P.M. claimed that problems began before then and were primarily related to plaintiffs fueling disagreements between F.S. and S.P.M., instigating child welfare complaints against S.P.M. (that did not result in any findings against S.P.M.) and exposing Ellen to screaming arguments between F.S. and plaintiffs.  At oral argument, F.S. blamed the period of no contact on an argument between F.S. and plaintiffs that then resulted in him being fired from the family business and in a homeless shelter.S.P.M. also explained that once F.S. was estranged from plaintiffs, he and S.P.M. successfully co-parented and Ellen improved in school and in her personal life.  In the year without contact, Ellen spent parenting time with F.S. on weekends and weekdays without incident.  A.K. claimed that during the year of no visitation, grandma refused to visit Ellen in their home even though other family members visited, and that the children were experiencing “peacefulness” during this no contact period.

Grandparent Visitation Agreement

Toward the end of the no contact year, plaintiffs and F.S. entered into an agreement for visitation with the children.  Neither S.P.M. nor A.K. signed the agreement or even knew about the agreement before it was signed.  F.S. thought S.P.M. and A.K. would object to the agreement had he presented it.  The agreement  did not refer to the pending divorce between A. K. and F.S., under which parenting time orders had been entered. The agreement was never entered into an enforceable Court Order or judgment.  Notwithstanding, the agreement had clear terms for regular and summer visitation with plaintiffs, exchange locations, make-up time, anti-alienation clauses and language acknowledging the children’s significant relationship with plaintiffs.

F.S. did not follow the agreement, which plaintiffs claimed was because he still tried to extort them for money in order for them to have visitation under the agreement. F.S. claims he did not cooperate because plaintiffs violated S.P.M.’s wishes, such as posting pictures of the children on social media and letting them in a pool.

Notably, at oral argument, F.S. claimed he did not participate in the drafting or understand that overnights were part of the agreement. Both mothers were opposed to plaintiffs having any contact with their children.

Trial Court Decision

The trial court heard the matter in November 2017 and dismissed plaintiffs action without a plenary hearing after hearing oral argument.  Plaintiffs and S.P.M. had counsel arguing on their behalf and the court took testimony from F.S. and A.K. who did not have counsel, as well as from S.P.M. regarding lack of harm to the children by not having contact with plaintiffs.  A.K. also acknowledged that she knew about the agreement, but not until after it was signed and she objected to plaintiffs having any contact with the children.

The trial court’s decision considered both enforcement of the agreement and the grandparent visitation rights statute.

Regarding the agreement, the trial court  distinguished this matter from Slawinski v. Nicholas, noted in the above prior blog, involving a Consent Order for grandparent visitation.  However, the agreement here was merely a private agreement and it was not signed by both biological parents.  The trial court further noted that the biological mothers who object to the visitation are fit parents.  The mothers also believe that the relationship between the children’s parents would be impacted by the grandparents having visitation.  F.S. is also a fit parent and also objects to the time.

Regarding the act, plaintiffs did not meet their burden to prove by a preponderance of the evidence that the children would be exposed to harm without the grandparent visitation, despite the trial court’s acknowledgment of a close relationship between plaintiffs and the children.  This step is required before a court turns to the statutory factors, as explained in the above prior blogs. The trial court noted that two of the four children were infants when the agreement was signed and, thus, could not have had the “profound, substantial and enduring relationships” with plaintiffs as they had claimed; the plaintiffs were never full-time caregivers; and, the mothers were not parties to the agreement.  The trial court went on to state that even if harm was demonstrated, visitation would not be in the children’s best interests because the mothers were fit parents and it would have negatively impacted the parents’ relationship with each other.

Appellate Decision

The Appellate Division affirmed the trial court’s holding.  The Court acknowledged the “value of a child’s relationship with his or her grandparent”.  However, superior to that value is “…the principle that parents have a fundamental right ‘to make decisions regarding the care and custody of their children'”, citing to the polestar case of Moriarty v. Bradt, also discussed in the above prior blogs.  Pursuant to Moriarty, the grandparents must prove by a preponderance of the evidence that visitation is necessary to perform harm to the child, which the grandparents did not accomplish here.  As the Court explained while relying on case law, the statutory factors are only reviewed after this burden to prove harm is met. Thus, the court held that “Where a grandparent cannot make a threshold showing of harm, the complaint should be dismissed“, which is what happened in this matter.  They further stated that “…no evidence [was] 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” – focusing on the fact that all parents opposed the visitation and are themselves fit parents, the grandparents were never permanent caretakers of the children and they only speak of general suffering in the event of lost contact.

Regarding the agreement, the court found that it is not enforceable/doesn’t require a change in circumstances to modify.

“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 of a consent order governing grandparent visitation

…

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.”

Takeaway

After all of that, it’s important to remember the tough burden of proof in grandparent visitation cases before running into court.  Also, if entering into an agreement for grandparent visitation, make sure it’s filed with the Court and both biological fit parents are parties if you foresee any enforcement issues (and even if you don’t).

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