Challenges Faced by Grandparents Seeking Custody or Visitation

Forget the sappy Hallmark ads depicting grandparental bliss. Forget the press about the important relationship forged between grandparents and grandchildren. When it comes to visitation, grandparents using the courts to assert their rights to see their grandkids face an uphill battle. Count Massachusetts among roughly 20 states with restrictive visitation statutes.

The notion that parents have the right to custody, control and care of their offspring is well-established in law. In a 2000 case[1], the U.S. Supreme Court found a “presumption that a fit parent will act in the best interest of his or her child” regarding whether grandparent visitation should occur.

Under Massachusetts law[2], grandparents may petition a probate court for visitation rights with their unmarried minor grandchild if that minor child’s parents:

  • are divorced;
  • married but living apart;
  • under a temporary order or judgment of separate support;
  • are one or both deceased; or
  • bore the child out of wedlock and paternity has been adjudicated or acknowledged in writing and the parents do not reside together.

The probate court may grant “reasonable visitation rights” to the grandparents, even if the minor child’s parent(s) object, if the court deems, in writing, that doing so serves the minor child’s “best interest.” The statute, however, offers no insights into gauging “best interest.” Moreover, adoption of the minor child by anyone other than a stepparent precludes granting grandparent visitation rights or terminates any such rights that were in effect pre-adoption.

The seminal Massachusetts case[3] on this subject involved a maternal grandfather who sought visitation of the minor child of unmarried parents where paternity had been adjudicated. The mother successfully argued in probate court that the visitation statute unconstitutionally violated her due process rights. The Supreme Judicial Court reversed the judge’s dismissal of the grandfather’s claim and upheld the statute’s validity, but imposed on grandparents the burden of proving “failure to grant visitation will cause the child significant harm by adversely affecting the child’s health, safety, or welfare.”

The high degree of risk to a minor necessary to rebut the presumption favoring parents deciding their child’s best interest was demonstrated in another Massachusetts case.[4] In that case, the Appeals Court reversed the dismissal of a maternal grandmother’s visitation complaint where the parents didn’t cohabit. The parents had cut off contact between the child and the grandmother, who had previously obtained a restraining order against the father for alleged abusive and harassing phone calls. Grandparent visitation was warranted, the Appeals Court concluded, to deter the possibility of the minor facing isolation from family and physical abuse.

A parent’s death or incarceration often underlies visitation disputes. Courts weighing visitation examine factors, including the preexisting relationship between the petitioner and grandchild, the child’s emotional needs, and the danger of physical or emotional abuse to determine whether the grandparent’s absence would significantly affect the child.

A visitation petition[5] should detail the nature of the grandparent’s relationship with the minor, describe present access to the grandchild, how curbing or denying access significantly harms the minor, and propose a visitation schedule. The minor’s parents must be informed of the petition, which often triggers a court appointment of a guardian ad litem to investigate and offer a recommendation to the court.

If parents abdicate their child-rearing obligations, a grandparent may seek legal custody. No specific statute provides for grandparents to sue for custody. Unless the parents consent, are deemed unfit, or are otherwise unavailable to provide care, grandparents will be hard-pressed to obtain guardianship of their minor grandchildren. Besides foster care and adoption, the Commonwealth does permit a parent to sign a revocable Caregiver Authorization Affidavit that gives a grandparent a concurrent voice with the parent regarding decisions affecting the minor’s health care and education.


[1] Troxel v. Granville, 530 U.S. 57 (2000).

[2] M.G.L. c. 119, §39D

[3] Blixt v. Blixt, 437 Mass. 649 (2002)

[4] Sher v. Desmond, 70 Mass. App. Ct. 270 (2007)

[5] Affidavit of Care and Custody

Custody Disagreements Regarding Religious Upbringing

As the divorce rate of interfaith couples increases, judges are forced to address the issue of “spiritual custody,” determining custody disagreements regarding religious upbringing. Often, religion is something a person holds near and dear, especially during the emotional time of divorce. As such, determining which faith one’s child will be raised is extremely important.

During the divorce or custody process, a judge will award each party with rights based on equitable distribution and a fairness to each party. In custody disputes, the judge has broad discretion to decide what is appropriate for the minor child by applying the “best interest of the child” standard. This standard has been expanded and is now being applied to a spiritual custody disputes.

Under the best interest of the child standard, a judge can use his or her discretion to grant physical custody of the child to one parent, but may find it is in the best interest of the child the non-custodial to be awarded spiritual custody. A child will live primarily with a parent who is awarded physical custody, and thus is the custodial parent. However, if a judge decides the child’s interest is best served by being raised in the non-custodial parent’s faith, this would bar the custodial parent from raising the child in his or her faith.

The notion of “spiritual custody” refers to a parent’s right to direct the religious upbringing and education of the child. As we noted in a previous blog post, the Court does not look at the interests of the parents, the “rights” of the parents, the preferences of the parents, or even the relative morality or lifestyles of the parents—unless it affects the welfare and best interests of the child.  It is important to note that resolving the issue of spiritual custody may directly affect the custodial parents’ rights to the free exercise of religion.

In one Massachusetts case, the Supreme Judicial Court held that the party who sought to restrict the other parents from exposing their children to their religious practices and beliefs has the burden to “demonstrate in detail that exposer to the [mother’s] religion would cause the children ‘substantial injury, physical or emotional, and [would] have a like harmful tendency for the future.’” Kendall v. Kendall, 426 Mass. 238, (1997). The court has added that for the parent looking to restrict the other parent’s religious rights, there must be “an affirmative showing of harm caused by exposure to the conflicting religious teachings.” Id. at 243-244.

Without clear evidence that exposing children to a religion would lead to substantial injury of the child, courts have been reluctant in restricting a parent’s religious liberties. See Lapat v. Lapat, 83 Mass. App. Ct. 1123 (2013). In general, Massachusetts state courts follow the actual or substantial harm standard when ruling in child custody cases involving religious disputes. When applying this standard, the court will only restrict a parent’s First Amendment right to raise their child under the religion of their choosing only if that parent’s religious practice causes actual or substantial harm to the child.

If you have any questions about issues of child custody or support, you may schedule a free consultation with our office. Call 978-225-9030 during regular business hours or complete our contact form online, and we will get back to you at our earliest opportunity.

Open Adoption Agreements and Enforceability: New Case Law

In a recent case, the Massachusetts Appeals Court discussed open adoption agreements, specifically the enforcement of clauses in those agreements which were at the sole discretion of the adoptive parents.

In the case at hand, the adoptive parents adopted two children who were both born to the biological parents. The first child was born in 2008 and placed with the adoptive parents at age thirteen months. She had diagnoses of fetal alcohol syndrome, neurosensory hearing loss, and anxiety. The second child, her sister, was born in 2012 with neonatal abstinence syndrome; she was placed in the adoptive parents’ care immediately after her discharge from intensive care.

The parties opted for an open adoption, putting in place open adoption agreements for each child, executed by the biological parents and adoptive parents. The biological parents were allowed visitation with the children.

Regarding the agreement between the parties, the Court explained as follows: “As pertinent here, the agreement provides that, in the event a visit “causes undue stress or anxiety to the Child,” the adoptive parents “have the sole ability to modify visitation to conform to what they believe is in that child’s best interest, including the ability to terminate the visit.” Further, “[t]he visits will be considered unduly stressful if either as a result of a visit, or in anticipation of one, the Child demonstrates, either verbally or behaviorally, that the visit is detrimental to the [child’s] welfare.” 2

In addition, the agreement provided that the biological parents were to provide the adoptive parents with a working phone number at all times. It also provided that either side may seek specific performance from the other.

In June 2014, the adoptive mother sent a letter to the biological parents, notifying them that visitations were terminated. As reasons, she listed that the biological parents failed to provide a working phone number, and that they refused to stop referring to themselves as “mom and dad,” thereby causing the children stress and anxiety.

At a hearing regarding the biological parents’ rights to visitation, the judge issued an order reinstating visitation. She found that the failure to provide a working phone number was not a material breach of the agreement, and that there was no evidence that using the term “mom and dad” was detrimental to the children’s welfare.

The adoptive parents appealed. They argued that the hearing judge erred in not following the law regarding enforcement of open adoption agreements, abrogating their statutory and contractual rights. They also argued that they had exercised their explicit right to terminate visitation based on the biological parents’ breach of the agreement.

The Appeals Court vacated the judge’s order, siding with the adoptive parents, and holding that the judge overstepped her bounds. “The fact that the judge did not follow the requirements of the statute or the agreement when she modified the agreement suggests that she believed that she was exercising her general equitable powers,” the Appeals Court explained. “As we have already observed however, the court’s general equitable powers are not available for use in matters controlled by the provisions of [the applicable law], or in contradiction of the applicable and specific contract provisions. Equity cannot be used when there is a prescribed and adequate remedy at law…Instead, the judge must follow the requirements of the statute and the agreement.” 3

The Appeals Court also explained that the biological parents were granted sole discretionary powers as to the occurrence of a condition—in this case, provision of a working phone number, among others. When this is the case, the court explained, the standard to review is whether the parties acted honestly and in good faith.

“The judge must follow the requirements of the relevant statutes, applicable provisions of the agreement, and our common law as related to contract interpretation and enforcement,” The Court noted. “[T}he judge should consider whatever evidence is probative, and necessary, to determine whether the adoptive parents acted honestly and in good faith in terminating the agreement. Pending final disposition, the judge may make such temporary orders for continued visitation as she may deem appropriate.”


1 S.M. & another v. M.P. & another, No. 15-P-1047 (April 12, 2017-July 14, 2017).

2 Id., at 4.

3 Id., at 8.

Parents Have Standing to Attend Post-Termination Hearing on Visitation Rights

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. [1]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[.]” [2]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.

[1] Adoption of Zak, No. 16-P-393 (October 7, 2016-January 9, 2017).

[2] Id., quoting Adoption of Douglas, 473 Mass. 1024, at 1025 (2016).

De Facto Parents and Visitation Rights

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,[1] 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,[2] 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.”[3]

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.[4]

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.

[1] E.N.O. v. L.M.M., 429 Mass. 824 (1999).

[2] Youmans v. Ramos, 429 Mass. 774 (1999).

[3] Id., at 783-784

[4] R.D. v. A.H., 454 Mass. 706 (2009).

In What Instances Would a Judge Require that Visitation Be Supervised or Restricted?

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. [1] 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. [2]

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.[3]
  • 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.[4]
  • 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.[5]
  • 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.

[1] Mass. Gen. Laws, ch. 208 s. 31A

[2] Mass. Gen. Laws ch. 208, s. 28.

[3] Rolde v. Rolde, 12 Mass. App. Ct. 398 (1981).

[4] Felton v. Felton, 383 Mass. 232 (1981).

[5] Handrahan v. Handrahan, 28 Mass. App. Ct. 167 (1989).