Casner & Edwards

Client Alert: Grandparent Visitation


Grandparents are often some of the most important and fun people in a young child’s life. Whether it is spoiling their grandkids with gifts or helping care for them, most grandparents are thrilled to be a part of their grandchild’s life. But what happens when a parent prevents a grandparent from visiting with their grandchild? Do grandparents have a right to visitation? Are parents allowed to simply cut grandparents out of their child’s life? What options do grandparents have if they are prevented from seeing their grandchildren?

In Massachusetts, grandparent visitation is specifically addressed by statute.[1] In order for grandparents to petition the Court for visitation, the child’s parents must be divorced, married but living apart under a temporary order or judgment of separate support, never married and not residing together, or one or both parents are deceased.[2] There are no visitation rights if the minor child was adopted by a person other than a stepparent. In the event that one of the above listed circumstances exists, grandparents can file a Petition for Grandparent Visitation in the Probate and Family Court.

When filing a Petition for Grandparent Visitation, it is imperative that the petitioners consult an attorney. If a petition and the accompanying affidavit are not properly filed, the case may be dismissed before it even begins. Most recently, the Massachusetts Appeals Court determined that Judge’s must dismiss cases when petitions are not “detailed and verified or accompanied by a detailed and verified affidavit setting out the factual basis relied on by the plaintiffs to justify relief.”[3]

Once the petition is properly filed, grandparents must show that visitation would be in the best interests of the child.[4] It is important to note, however, that the Court gives a parental decision concerning grandparent visitation “presumptive validity.”[5] This means that if a parent determines that grandparent visitation is not in the best interests of the child, the Court presumes that this is the appropriate decision. In order rebut this presumption, the grandparent’s must “…prove that the failure to grant visitation will cause the child significant harm by adversely affecting the child's health, safety, or welfare.”[6] Moreover, grandparents are required to show a significant preexisting relationship between the grandparent and the child and that disruption of this relationship would cause the child harm. In Massachusetts, it was determined that a typical grandparent-grandchild relationship, “where the grandparent saw the children ‘several times per month,’ while meaningful and nurturing, is not the kind of relationship from which significant harm to the children may be inferred from disruption alone.”[7] Thus, showing the strength of the grandparents’ relationship with the child is essential. Otherwise, if there is no such “significant preexisting relationship,” the grandparents must prove that visitation between the grandparent and the child is necessary to protect the child from some other significant harm. Unfortunately, if a grandparent is unable to meet these burdens, the Court will be required to follow the parent’s decision concerning visitation.

Grandparent visitation cases are often some of the most challenging cases due to their complexity. In most circumstances, it is essential to have an experienced attorney to help navigate the waters of the Probate and Family Court. Clients seeking to have grandparent visitation should reach out to a member of the Casner & Edwards’ Family Law team for advice on their case.

 

 


[1] M.G.L.A. c. 119, § 39D

[2] Id.

[3] Blixt v. Blixt, 437 Mass. 649, 657-658 (2002)

[4] Id.

[5] Id.

[6] Id.

[7] Dearborn v. Deausault, 61 Mass. App. Ct. 234, 238 (2004)

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