Grandparent Visitation in Massachusetts

The nuclear family with a father who is the primary wage earner, the stay-at-home mom and 2.5 kids is no longer attainable for many families. It’s an ideal that for the majority of families does not fit their lifestyle or their needs. The economy as well as changing views on women’s roles, families, divorce, and having children outside of marriage has caused many single and married parents alike to enter the work force.

With more parents working many families are in desperate need of childcare.  A study released in 2012 by Childcare Aware of America estimated that the cost of child care for one child in Massachusetts was $14,980.00 per year, which for many can be way too expensive, especially if they have more than one child. To cover the gap many parents are turning to grandparents for help

Grandparents have been playing a much larger role in their grandchildren’s lives, with approximate 60% of grandparents reporting that they provide regular childcare for their grandchildren. This rise in grandparent participation has created some interesting family law issues.

Grandparents who have a falling out with one or both of their grandchildren’s parents who as a result are denied access to their grandchildren may file a claim for grandparent visitation with the child(ren) under M.G.L. c. 119, §39D, which states the following:

“If the parents of an unmarried minor child are divorced, married but living apart, under a temporary order or judgment of separate support, or if either or both parents are deceased, or if said unmarried minor child was born out of wedlock whose paternity has been adjudicated by a court of competent jurisdiction or whose father has signed an acknowledgement of paternity, and the parents do not reside together, the grandparents of such minor child may be granted reasonable visitation rights to the minor child during his minority by the probate and family court department of the trial court upon a written finding that such visitation rights would be in the best interest of the said minor child; provided, however, that such adjudication of paternity or acknowledgment of paternity shall not be required in order to proceed under this section where maternal grandparents are seeking such visitation rights. No such visitation rights shall be granted if said minor child has been adopted by a person other than a stepparent of such child and any visitation rights granted pursuant to this section prior to such adoption of the said minor child shall be terminated upon such adoption without any further action of the court.”

The legal standard for awarding a grandparent visitation with their grandchild is that it is if visitation were not awarded it would cause the child significant harm by adversely affecting the child’s health, safety or welfare. This might sound like a relatively easy thing to show, but it is not.

There is actually a presumption against awarding a grandparent visitation over the objection of the child’s parent. The court assumes that a parent is acting in their child’s best interest when they refuse a grandparent visitation with their children, and will only go against the parent’s wishes in extreme circumstance.

To meet this burden the court is usually looking for either a significant pre-existing relationship between the grandparent and the child, or  if there is no significant relationship that denying visits would somehow jeopardize the child’s health, safety or welfare.

Not just any pre-existing relationship will be good enough to obtain court ordered visitation. In these situations the court is looking for a relationship similar to that of a de facto parent. This maybe satisfied if the child has lived with the grandparent for a length of time and the grandparent regularly contributed to the child’s care.

There are also rare circumstances where although there is no pre-existing relationship, but denying visitation would harm the child. There was a case in 2007 SHER vs. DESMOND in which the court awarded visitation to a grandmother that had never met her grandchild. In that case there was evidence that the father was incredibly abusive to the mother and that he may have had something to do with her disappearance. In that case the court felt that the grandmother needed to be in the child’s life to make sure the father was not also abusing the child.

In addition to the high burden of proof required to win visitation with grandchildren there is also a high burden of information that must be contained in the original petition for visitation. The petition requires a significant amount of detail explaining the factual basis for a petition.

If you are considering filing a petition for grandparent visitation you should meet with an attorney to at least make sure your petition meets the minimum standards, and make sure you have a decent case, because if you are not going to win you may only succeed in estranging yourself further from the child’s parents by causing an unnecessary legal battle.

 

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