Yesterday, the NJ Appellate Division published the case of Donna Slawinski v. Mary E. Nicholas. Slawinski is the parental grandmother of “Lilly” (a pseudonym) and Nicholas is Lilly’s mother who apparently has sole custody. When Lilly’s parents divorced, they reached an agreement to allow Slawinski to have visitation rights consisting of the first weekend each month and a week in the summer. Although Slawinski lives in Ohio, the visitation is to take place in NJ. Nicholas contends that Lilly was poorly taken care of by her grandmother (i.e. not bathed, hair not combed, returned without underwear despite being given a weekend’s worth). Defendant Nicholas also contended that Lilly was so distraught over the visits that she would not eat for several days after each visit and did not want to spend time with Slawinski.
Nicholas filed a motion with the court to terminate Slawinski’s visitation rights, which Slawinski opposed. The question the court had to answer was what legal standard applied in this case. The trial court ruled that since the visitation was by consent, if one side withdraws consent, the deal is terminated unless the non-moving party (grandmother in this case) could show that the termination would bring harm to the child.
Appellate Division Rules
The appellate court disagreed. The court overturned the trial court decision saying that the proper standard to change any aspect of a divorce order is “changed circumstances” (from the seminal case of Lepis v. Lepis). The case was remanded to the family part for hearings on the changed circumstances.
The court also reaffirmed the concept of preference of settlements in cases (my emphasis):
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 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).
The courts want you to settle your own case.