Written by attorney Philip W. Mason

Grandparents Visitation Rights in Massachusetts

Under Massachusetts law MGL 119 § 39D grandparents can request the Probate Court to order visitations with their minor grandchildren if the parents do not live together and 1) are divorced, married but living apart or under a temporary order of judgment of separate support; or 2) one or both parents have died; or 3) the child was born out of wedlock and the paternity of the father has been adjudicated or acknowledged.

Grandparents begin the process by filing a Complaint for Grandparents Visitation with the Probate Court. Attach an affidavit describing the nature of the involvement and relationship between the grandparent(s) and the grandchild/ren; the circumstances surrounding either the curtailment or termination of contact; a description of current level of contact, if any; and a statement describing the significant harm to the child(ren)'s health, safety, or welfare likely to be suffered by the child(ren) if visitation is not ordered.

Complete the affidavit truthfully, but address each element very carefully. If you don’t establish a prima facie(on its face) the complaint is susceptible to a Motion to Dismiss.

Once your Complaint comes before the court, it will be viewed under Blixt v. Blixt, 437 Mass. 649 (Mass. 2002)

Under Blixt v. Blixt the court essentially said that for a petition for grandparents visitation to be successful, over the custodial parent’s objection, it must be argued under one of two distinct criteria: 1) the grandparent must show a significant, pre-existing relationship and that the court’s failure to grant visitation will cause the child significant harm, or 2) in the absence of an established relationship with the grandparent, visits are still necessary to protect the child from significant harm. This is a high standard and obviously is very protective of the custodial parent’s right to determine the best interest of the child. To understand the complexity, evidentiary requirements, and inherent standard of review, it is best to read the language of the case.

Case Law: Blixt v. Blixt (Supreme Judicial Court of Massachusetts)

"The law's concept of the family rests on a presumption that parents possess what a child lacks in maturity, experience, and capacity for judgment required for making life's difficult decisions. More important, historically it has recognized that natural bonds of affection lead parents to act in the best interests of their children." Troxel, supra at 68.

To obtain visitation, the grandparents must rebut the presumption. The burden of proof will lie with them to establish, by a preponderance of the credible evidence, that a decision by the judge to deny visitation is not in the best interests of the child. More specifically, to succeed, the grandparents must allege and prove that the failure to grant visitation will cause the child significant harm by adversely affecting the child's health, safety, or welfare. The requirement of significant harm presupposes proof of a showing of a significant preexisting relationship between the grandparent and the child. In the absence of such a relationship, the grandparent must prove that visitation between grandparent and child is nevertheless necessary to protect the child from significant harm. Imposition of the standards just stated, as explained in specific written findings by the judge, see Guardianship ofNorman, 41 Mass.App.Ct. 402, 407, 670 N.E.2d 414 (1996), ensures a careful balance between the possibly conflicting rights of parents in securing their parental autonomy, and the best interests of children in avoiding actual harm to their well-being.

These standards do not require de facto parental status on the part of the grandparents, but the standards are consistent with our cases concerning de facto parents. These cases recognize that disruption of a child's preexisting relationship with a nonbiological parent can be potentially harmful to the child, and they hold that such a relationship may be protected by court-ordered visitation with a nonparent over a fit parent's objection. See E.N.O. v. L.M.M., supra at 834, 830 (concluding that judge properly allowed de facto parent's motion for temporary visitation with child and, in considering the motion, properly considered whether such visitation would be in the child's best interests); Youmans v. Ramos, 429 Mass. 774, 782-783, 711 N.E.2d 165 (1999) (concluding that judge may order visitation between child and maternal aunt who was child's de facto parent after considering the best interests of the child). 15 The standards we have established are also consistent with considerable authority elsewhere concerning the issue of grandparent visitation.

This is not legal advice and is not intended to create an attorney-client relationship. You should speak to an attorney for further information.

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