Massachusetts family law lawyer Nicole K. Levy reviews if and when grandparents receive visitation rights in Massachusetts.
Massachusetts specifically defines the rights of grandparents to visit with their grandchildren in limited situations. When this custody-related issue arises, it can be extremely painful for all parties involved to have to navigate through the court process. Grandparent visitation can arise after a divorce, or in other cases in which the parents were never married; regardless of the family background, without an agreement, the litigation can be messy, painful, and confusing.
The statute governing grandparent rights specifies a preliminary requirement for the grandparents to be able to file a petition for visitation: the children’s parents of must be (i.) divorced, (ii.) married but living apart, (iii.) never married and not residing together, or (iv.) one or both parents are deceased. If a parent or parents fall into one of the these categories, a probate and family court judge has the right to intervene and possibly impose grandparent visitation, even over the objection of a parents.
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It should be noted that “grandparent visitation” is easily accomplished when one or both parents disagree whether children should spend time with a grandparent. Disputes over grandparent visitation most commonly occur when one parent dies, is incarcerated or simply disappears “off the grid” – and the parent who is left raising the children does not want contact between the kids and the grandparent on the “missing” parent’s side. However, disputes can also occur between parents and grandparents on the same side of the family tree. Regardless, the unifying feature of most grandparent visitation cases is this: the grandparent is blocked from seeing the children by one or both parents, and the grandparent seeks visitation through the court.
Assuming that mom and dad were never married and do not live together, the grandparents are not automatically granted visitation. The court will first ask if there is a significant preexisting relationship between the grandchildren and the grandparents – one that is so significant that it can overcome the presumed correctness of a parent’s authority to make decisions about a child. This standard may not seem difficult to meet; perhaps the grandparents saw the grandchildren almost every weekend, took them ice skating, babysat, and even had sleepovers. However, the court looks for more.
While the court does not necessarily expect the grandparents to have previously taken on the role of a “parental figure”, or to have been a so called de facto parent, the judge will look at the defining characteristics of a de facto parent when determining significance of the grandparent/grandchild relationship. The SJC defined de facto parents as follows in E.N.O. v. L.M.M. (1999):
A de facto parent is 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. . . . The de-facto parent shapes the child’s daily routine, addresses his developmental needs, disciplines the child, provides for his education and medical care, and serves as a moral guide.
This burden is high, and ice skating and sleepovers do not fit the bill.
In 2004, in Dearborn v. Deausault, the Appeals Court considered a case in which the grandfather saw the children several times per month, took them to events, and on two occasions went on camping trips. The court noted that the grandfather’s contact with the children was a hybrid of ‘grandparenting’ and babysitting for the children while their mother was involved in other activities. The court acknowledged that the grandfather provided emotional support to the children and exposed them to nurturing experiences. It was clear that the children enjoyed a strong bond with their grandfather and that he played a positive role in their lives. Similarly, in 2015, the court heard a case in which the grandparent lived with the grandchild and parent, assisted with the child’s daily routine, and when the parent was busy, the grandparent stepped in to aid with the child’s needs. In both cases, these relationships were not significant enough.
It is important to be aware of the types of relationships the court requires before allowing grandparent visitation. In the 2015 case, the Appeals Court explained:
Even where, as here, the grandparent and the child have a significant preexisting relationship, to obtain an order of visitation, the grandparent 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 circumstances must establish close bonding between the grandparent and the child, where significant harm may be readily inferred from and is inherent in the disruption of that relationship. (Citations omitted.)
This is a very steep burden. Assuming a “significant preexisting relationship” is found, a grandparent will still need to establish that visitation is necessary to “protect the children from significant harm”. Indeed, even if a grandparent fails to demonstrate the existence of a significant preexisting relationship, they may still be granted visits by showing there is a risk of significant harm without visitation. (This is most common in cases involving a deceased parent, where the remaining/living parent has questionable child-rearing skills – but whose parenting is not so poor that a guardianship is justified. In these situations, the grandparent can monitor the children through court-ordered visitation.) However, demonstrating “significant harm” is not easy.
What courts consider “significant harm” is narrow, and showing harm does not simply mean that the children will be upset or saddened by the loss of their grandparent. The grandparent must prove that the harm would be clear, concrete, and specific. Vague generalizations about the positive influence a grandparent might have upon a grandchild is simply not enough to warrant the court intervening with a parent’s decision. Nor is the grandparent’s ability to improve the quality of the child’s life compelling enough to overwhelm a parent’s fundamental right to make decisions about their children. The grandparent must prove that the child will suffer a profound and serious loss without the grandparent in his or her life.
Although it may be easy for a grandparent to file a petition for visits, the hurdles they face include difficult legal standards that require clear evidence of harm. This type of evidence is difficult to obtain – particularly if the grandparent has little or no contact with the child while the case is pending – and even more difficult to prove at trial. The court recognizes the importance of a parent’s right to make decisions, and relies on these tough burdens to preserve parents’ fundamental rights, even when the grandparent plays a positive, loving role in a child’s life. The lesson being: when it is parental rights vs. grandparent rights, the grandparents usually face an uphill climb.
About the Author: Nicole K. Levy is a Massachusetts divorce lawyer and Massachusetts family law attorney for Lynch & Owens, located in Hingham, Massachusetts.
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