Sometimes, parents and grandparents simply don't get along. Maybe there was a falling out, or maybe there was never a civil relationship. Either way, grandparents that find themselves in this situation can sometimes look to the court to grant them visitation with their grandchildren. Parents have a constitutional right to be free from interference in raising their children

In 1999, the Supreme Court decided Troxel v. Granville which left it up to each state to enact laws regarding grandparent visitation.

The Massachusetts Legislature created a law (M.G.L. c. 119 § 39D) that provides a starting point for determining under what circumstances grandparents' may have court-ordered visitation with their grandchildren if the parents are divorced, one parent has died, or the child was born out of wedlock. It also states that in the event that paternal grandparents are filing for visitation of grandchildren born out of wedlock, it is required that the father's paternity has first been established by a court.

This law was interpreted in 2002 by the Massachusetts Supreme Judicial Court in the case of Blixt v. Blixt, in which it considered the constitutionality of the Massachusetts grandparent visitation statute for the first time. The Court recognized that parents have the constitutional right to raise their children without undue interference from the state. Applying this to grandparents' rights, the court found that the statute can only be used to protect a significant pre-existing relationship between the grandparent and the child and that intervention by the state is necessary if to prevent harm to the children.

So … what does this even mean? We will try to break this down in more detail below and hopefully explain when and how grandparents can request court-ordered visitation with their grandchildren in Massachusetts.

What Must I Prove in Court?

In Massachusetts, there is a presumption that a parent is acting in their child's best interest and are qualified to decide how their children spend their time. Therefore, in order to obtain court-ordered grandparent visitation over a parent's objection, you must demonstrate that visits would be necessary for the child's health, safety, or welfare.

The grandparents requesting visitation has the “burden of proof” [the duty to provide sufficient evidence] to show that spending time with the child will prevent actual or potential harm. How do I show this? By demonstrating to the court that:

• Visiting with the grandparent is in their grandchild's best interest;
• they had a significant pre-existing relationship with their grandchild before their visitation was denied; and
• it will be harmful to their grandchild's health, safety, or welfare if their grandparent(s) cannot see them.

In the event that the grandparent did not have a significant relationship with the child before the case began, the court can still grant visitation rights.  They will do so if the grandparent can prove that visitation is still necessary to protect the child from “significant harm”. Some factors that will weigh heavily in a decision to award grandparent visitation is the child's need for emotional support after the parents separate or one parent dies, or the child's exposure to physical or emotional abuse by the parents.

How do I Start the Process?

The first step for grandparents who want to ask the court to grant them visitation rights with their grandchildren is to complete a Petition for Grandparent Visitation form, available online or at any Massachusetts Probate and Family Court location. In addition, an Affidavit Disclosing Care or Custody Proceeding form must be filed. Also, if the child was born out of wedlock and you are the paternal grandparents, you also need to file a copy of the court order that established the father's paternity.

Finally, the most important document that has to be filed is an “affidavit” (a written statement that you sign, swearing that what you wrote in the statement is the truth). The affidavit should describe in detail:

• the involvement and relationship between the grandparent(s) and grandchild(ren);
• why contact between the grandparent(s) and grandchild(ren) was reduced or ended;
• the current level of contact, if any; and
• the significant harm to the child(ren)'s health, safety, or welfare that would likely occur if visitation is not ordered.

Once these documents are filed, the court will issue a summons, which must be served on the parent(s) of the grandchildren.

What can I do as a Parent if I do not want the Court to grant Grandparent Visitation?

The first step for a parent would be to file a Motion to Dismiss, along with an Affidavit which tells your side of the story and why visitation with grandparents would NOT be in your child's best interests. Also, make sure you attend all court hearings so that a judgment isn't entered for the grandparents by default. 

What will the Court decide?

As with almost every case, the answer is “it depends”. Our firm has been on both sides of these cases and we have represented grandparents who desperately want visitation with their grandchildren, as well as parents who wanted to keep their children away from toxic relationships. Every case is different, and there is no black and white answer.

If you are considering filing a petition for grandparent visitation you should meet with an attorney to make sure your petition meets the minimum standards, and to ensure that you have a realistic chance of having the court grant visitation. If it doesn't seem like a case in which the grandparent can succeed, it may only lead to further estranging yourself from the child's parents by causing an unnecessary legal battle.

If you are a parent who has been served with a petition, it would be a good idea to meet with an attorney to get an objective opinion of whether the Court is likely to agree with your decision to refuse your kids to see their grandparents. Not to judge or second-guess you as a parent, but we can give you a legal opinion as to whether you are standing on solid footing with your position, or if it may just be a matter of time before the grandparents get the visitation they are seeking.

If you are a grandparent seeking visitation, or a parent seeking to prevent visitation, you can contact our office and we would be happy to discuss the case with you.