Grandparents undoubtedly have a tough road ahead of them when it comes to visitation rights. While parents have definitive rights to be in their children's lives, grandparents generally cannot go against the wishes of the parent. Even if they appeal to the courts, they will need to show compelling evidence to support a claim of substantial harm to the child should he or she be denied access to the grandparents. Even with the difficulties involved, many grandparents feel that it's worth it to go to court, since it may result in an official consent order. The benefit of a consent order is that it gives the grandparents legal rights to their grandchildren, which cannot be infringed upon solely by the wishes of the parent.
The authority of an existing court order was emphasized in the 2016 case of Slawinski v. Nicolas. In Slawinski, the mother filed a motion to terminate the visitation schedule, alleging that the child was not properly cared for during the visits, and that the grandparents allowed the father to be present at one visit, in spite of a prior order forbidding the father's presence. Her lawyer argued that his client should not be required to have sufficient grounds for termination, since the order was entered into without consent by both parties. In short, the grandparents were not required to demonstrate that lack of contact with them would be detrimental to the child, hence the parent, in turn, was not required to demonstrate grounds showing that the visits were harmful to the child.
The trial judge agreed with the attorney's assessment that the client did not need to “do anything other than say this is not working out, I tried.” The Appellate Division, however, reversed the decision, stating that “nothing about a parent's right to autonomy warrants allowing a parent to unilaterally modify or terminate a consent order on grandparent visitation.” While the court acknowledged that both parties had consensually entered into the existing order, “a modification… must be considered according to the same Lepis changed circumstances framework applicable to other custody and visitation orders.”
This means that if there is an existing grandparent consent order, the parent bears the burden of proving changed circumstances that would necessitate the need to end or modify the current visitation schedule. The parent would also need to prove that limiting or terminating access to the grandparents would not result in irreparable harm to the child. Depending on how long the visits have been going on, and the bond that's been established between the child and grandparents, a judge could very well decide that continued interaction with the grandparents is in the child's best interests. As you can see, changing an existing court order is a complicated process for all the involved parties, which is why it's essential to work with an experienced family law attorney. For more information on modifying or terminating a grandparent visitation order, please speak with the attorneys of Villani & DeLuca, P.C.
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