Will a biological parent whose parental rights have been terminated have standing to participate in a post-termination hearing regarding visitation rights?
Yes, according to a recent decision by the Massachusetts Appeals Court. In Adoption of Zak, the biological mother and father of three children (two, in the case of the father) were stripped of their parental rights after the trial judge found that the children had been profoundly affected by domestic violence. During the same trial, the judge also decided a matter of post-termination visitation—in other words, whether the parents would be entitled to visit with the children even thought their parental rights had been terminated. On appeal, the Court affirmed termination of parental rights, but the matter regarding post-termination visits was remanded back to the Juvenile Court.
So, a new hearing was held in the trial court regarding the post-termination visitation issue. The problem? The parents were not notified of this new hearing, and did not participate. The parents appealed, claiming they had the right to be present. The Appeals Court agreed.
The Court quoted another case to say that “[w]here orders involving termination, placement, and visitation are issued as part of the same adjudication of termination proceeding, a parent has standing to press on appeal any challenge that he or she has not expressly waived to that adjudication[.]” Although the hearing in question here was on remand, and not on appeal, the same applied, as the trial judge’s consideration of evidence at the remand hearing served as a continuation of the proceeding to which the parents were originally parties. Therefore, the Appeals Court held, the parents had standing to be present at the hearing.
If you have any questions about custody, support, or visitation issues, you may schedule a free consultation with our office. Call 978-225-9030 during regular business hours or complete a contact form here, and we will get back to you at our earliest opportunity.
 Adoption of Zak, No. 16-P-393 (October 7, 2016-January 9, 2017).
 Id., quoting Adoption of Douglas, 473 Mass. 1024, at 1025 (2016).
Holly and Hannah are going through a divorce. Hannah’s twelve-year-old son, Kyle, has known Holly since he was a toddler. Although Holly never formally adopted Kyle and her name is not on Kyle’s birth certificate, Holly loves Kyle as her own child and has spent considerable time on parental responsibilities. She’s heard of the status “de facto parents” and is curious to know whether she qualifies. Holly would like to keep seeing Kyle and wants to play an active part in his life. What options does she have?
The notion of de facto parents looks at an evolving question in family law: under what circumstances may a non-biological parent of a child (a sort of “parent substitute”) be entitled to visit with the child—sometimes in spite of the express preferences of the biological parent?
It has long been recognized that American parents enjoy the important privacy right of deciding how to parent their own children. This includes the right to direct the education and upbringing of the child, and it also impliedly includes the right to direct with whom the child may socialize and visit. Under what circumstances, then, might that parental right be curbed by the Court in order to allow a de facto parent to visit with the child?
There is no Massachusetts statute which controls regarding whether a de facto parent should be allowed visitation rights, nor any statute which controls non-biological parents’ visitation rights in general. (In fact, the line of cases looking at visitation rights for grandparents has considered some of these same questions.) However, two important cases have reviewed these same questions. A de facto parent has been defined by the Massachusetts courts as “one who has no biological relation to the child but has participated in the child’s life as a member of the child’s family. The de facto parent resides with the child and, with the consent and encouragement of the legal parent, performs a share of caretaking functions at least as great as the legal parent.”
In the case of ENO v. LMM, the Court considered a petition for visitation by the former same-sex partner of a child’s birth mother. The two women made joint decisions regarding artificial insemination of the birth mother, both attended all medical appointments, and the non-biological parent served as the birth mother’s birthing coach. Once the child was born, the two women co-parented; the plaintiff contributed financially to the household; and at one point the plaintiff served as the primary caregiver of the child.
When the parties’ relationship deteriorated, the non-biological parent petitioned the Court for visitation rights, among other things. The Probate and Family Court judge ordered visitation, and the defendant birth mother appealed. The Supreme Judicial Court ultimately decided that the judge had the authority to order visitation rights for a de facto parent.
In the case of Youmans v. Ramos, the Court likewise considered and granted visitation rights for a de facto parent, holding that the grant of visitation did not violate the parental rights of the biological father. In that case, the child lived for most of her life with her maternal aunt, who was appointed the child’s guardian after the child’s mother died. The biological father, who lived in Georgia, successfully sought to terminate guardianship and was granted custody of the child. However, the Court held that the Probate and Family Court judge had the authority to order visitation for the aunt. “In every case in which a court order has the effect of disrupting a relationship between a child and a parent, the question surely will arise whether it is in the child’s best interest to maintain contact with that adult. Whether such contact in any given case is wise is a matter that should be left to the discretion of the judge,” the Court noted. “The evidence of the parent-child relationship and strong emotional ties between Tamika and her aunt fully warrant the judge’s order, more particularly because this young girl was being moved to a new environment to live with a man with whom she had spent precious little time in her life.”
Questions of custody or adoption brought by de facto parents get even trickier. In a 2009 case where a de facto parent brought a claim for guardianship of the child and claimed the biological parent was unfit to care for the child, the Supreme Judicial Court declined to order guardianship to the de facto parent. The Court noted that previous cases had dealt with only visitation, not issues of custody. The consideration of whether the biological parent is unfit, the Court noted, hinges on what is in the best interests of the child—the general standard for all matters of custody.
In dealing with the difficult issues surrounding de facto parents, it is imperative that the parties obtain competent legal advice. If you have questions about these issues in your case, schedule a free consultation with our office. Call 978-225-9030 during regular business hours or complete a contact form here, and we will get back to you at our earliest opportunity.
 E.N.O. v. L.M.M., 429 Mass. 824 (1999).
 Youmans v. Ramos, 429 Mass. 774 (1999).
 Id., at 783-784
 R.D. v. A.H., 454 Mass. 706 (2009).
Generally, it is well established that both parents have the right to visiting and spending time with their children. Absent misconduct or other pressing issues, the Courts will grant each parent visitation rights and order that they may spend time with their children. In some instances, however, the Court might find it appropriate to restrict visitation, to order supervised visitation, or even to order no visitation whatsoever for one parent. As with any other issues concerning custody and visitation of minor children, the Court will consider what is in the best interests of the child to determine how visitation rights should be ordered.
In the case of domestic violence, Massachusetts statutes provide that the Probate and Family Court judge must consider evidence of past domestic violence in weighing issues of visitation.  The statute notes:
If ordering visitation to the abusive parent, the court shall provide for the safety and well-being of the child and the safety of the abused parent. The court may consider:
(a) ordering an exchange of the child to occur in a protected setting or in the presence of an appropriate third party;
(b) ordering visitation supervised by an appropriate third party, visitation center or agency;
(c) ordering the abusive parent to attend and complete, to the satisfaction of the court, a certified batterer’s treatment program as a condition of visitation;
(d) ordering the abusive parent to abstain from possession or consumption of alcohol or controlled substances during the visitation and for 24 hours preceding visitation;
(e) ordering the abusive parent to pay the costs of supervised visitation;
(f) prohibiting overnight visitation;
(g) requiring a bond from the abusive parent for the return and safety of the child;
(h) ordering an investigation or appointment of a guardian ad litem or attorney for the child; and
(i) imposing any other condition that is deemed necessary to provide for the safety and well-being of the child and the safety of the abused parent.
In cases alleging abuse by the non-custodial parent, the Court may interview the child without the parties or their attorneys present. In the most extreme of cases, the Court is prohibited from granting visitation to a parent who has been convicted of the first-degree murder of the other parent, unless the child is old enough to signify assent. 
Under some other circumstances, visitation may be supervised or restricted, if it is in the best interests of the child to restrict it. For example:
- Where the non-custodial parent has proven to be antagonistic and non-cooperative during visitation time. In one case, where the parties had a history of engaging in bitter battles and antagonistic behavior, the Appeals Court upheld a trial judge’s decision to severely restrict the father’s visitation.
- Where the non-custodial parent has sought to “indoctrinate” the child. In one case, the judge forbade visitation unless the father refrained from instructing the children in his religion, and the Supreme Judicial Court upheld the decision. The Court reviewed whether the exposure of the children was disturbing to substantial physical or emotional injury, and would likely have a harmful tendency in the future.
- Where the relationship between the child and the non-custodial parent deteriorated. Note that it is the parent’s relationship with the child which counts here. In fact, in one Massachusetts case, the Appeals Court upheld visitation for a father who had molested his stepdaughter and her friend. The Court noted that the father’s relationship with his biological daughter was good and unmarred by inappropriate conduct.
- Where the non-custodial parent has clearly engaged in some other type of misconduct to be considered by the Court.
One final note deals with the issue of the custodial parent seeking to move outside the jurisdiction and take the minor children with him or her. To what extent does the non-custodial parent’s right to see his or her child(ren) come into play? The Supreme Judicial Court has noted that this, like any other issue dealing with minor children, must be decided in the best interests of the child, but that both parents’ interests are also considered: the interest of the custodial parent in making a move which would be to his or her advantage, and the interest of the non-custodial parent in continued visitation with the child(ren). The fact that the non-custodial parent might be disadvantaged by the move is not the controlling factor, but it is a factor along with these others in the Court’s decision as to whether to grant the custodial parent’s petition to move the children.
If you have questions about visitation rights in your case, schedule a free consultation with our office. Call 978-225-9030 during regular business hours or complete a contact form here, and we will get back to you at our earliest opportunity.
 Mass. Gen. Laws, ch. 208 s. 31A
 Mass. Gen. Laws ch. 208, s. 28.
 Rolde v. Rolde, 12 Mass. App. Ct. 398 (1981).
 Felton v. Felton, 383 Mass. 232 (1981).
 Handrahan v. Handrahan, 28 Mass. App. Ct. 167 (1989).