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 grandparent 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.
In Massachusetts:
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”. Also, 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.
Case law:
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. However, it 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 occurred 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; the grandmother had previously obtained a restraining order against the father for alleged abusive and harassing phone calls. This therefore warranted grandparent visitation, the Appeals Court concluded; visitation maybe would deter the possibility of the minor facing isolation from family and physical abuse.
Other considerations:
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. Furthermore, the minor’s parents must be informed of the petition; this 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 also 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. This consequently gives a grandparent a concurrent voice with the parent regarding decisions affecting the minor’s health care and education.
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[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