Can a parent unilaterally terminate a grandparent’s visitation rights after entering into a mutual agreement allowing for such visitation rights? Not so, according to a recent decision from the Appellate Division of the State of New Jersey.
In Slawinksi v. Nicholas, a custody dispute arose between the mother of a small child and the child’s paternal grandmother. The mother had obtained sole custody of the child after the child’s father had his visitation rights suspended by a court order. Despite having sole custody of the child, the mother entered into an agreement through the court allowing the child’s paternal grandmother to have visitation rights. After several weeks, the mother changed her mind and petitioned the court to have the grandmother’s visitation rights revoked. The mother argued that the grandmother had not properly cared for the child, that the child no longer wished to see the grandmother, and that the grandmother had allowed the child’s father to see her, in spite of the fact that his visitation rights had been revoked by a court order.
The trial court agreed with the mother that a parent’s wishes are entitled to a great deal of deference by a court as against the rights of a non-parent, and allowed the mother to unilaterally terminate the grandmother’s visitation rights, subject only to a showing by the grandmother that harm would result to the child if her visitation rights were discontinued.
The Appellate Division reversed. While it agreed with the trial court that a parent has a “fundamental right to raise a child as he or she sees fit,” and that such right “encompasses the authority to determine visitation by third parties, including grandparents,” the court believed that the mother had essentially waived this authority by way of the prior agreement allowing for the grandmother’s visitation rights. The court held that “nothing about a parent’s right to autonomy warrants allowing a parent to unilaterally modify or terminate a [mutual agreement] on grandparent visitation. The parent effectively waives that autonomy by entering into the [agreement allowing for visitation], just as a parent waives rights when entering into any other [agreement] governing custody or visitation.” The court concluded that any parent requesting a modification of a prior mutual agreement for grandparent visitation rights will be required to show that there have been “changed circumstances,” and that such changes warrant a revision of the original agreement.
This case places a significant qualification on the autonomy of parents in regard to their children, and is a major victory for family members, such as grandparents, interested in obtaining visitation rights. However, this case will likely only apply where a parent has entered into a mutual agreement regarding visitation with another family member, such as a grandparent. Parents and grandparents alike would be wise to keep this case in mind before entering into any such agreement.