The Real Deal on Grandparent Visitation in Massachusetts
I’m guessing every parent imagines the day when their children will have children. I know I do.
I picture fun play dates and sleep-overs where I can ignore curfews, load the little chickens up with sugar and then send them home once they start bouncing off the walls. Donuts for supper anyone? Why not? (You think I’m kidding. My dad actually once took my kids to Dunkin’ for supper — they loved it.)
When we think about becoming grandparents, however, we generally do not imagine the Probate and Family Court having to order Grandparent Visitation. Unfortunately, some grandparents don’t have to imagine it.
When parents are not living together in an intact relationship, and especially when one of the parents has little to no contact with their child, the grandparents on one side are often (intentionally or not) denied consistent and ongoing contact with their grandchild. The scenario leaves grandparents wondering what, if any, legal alternatives they have.
In Massachusetts, we have a legal procedure that allows grandparents to petition the Probate and Family Court for court-ordered visitation with their grandchildren. It is important to understand, however, that prevailing on a Petition for Grandparent Visitation in Massachusetts is no simple task. I’m not saying impossible, but I am saying not simple. So, before you head to Court, let me keep it real with you (I like to say transparency is my thing), and explain what every grandparent needs to know about Grandparent Visitation in Massachusetts.
You do not have an automatic “right” to see your grandchildren. I’m not talking about a moral right, or what your son or daughter-in-law “should” do, or comparing what is happening now to the number of times you brought your kids to visit your parents. What I am saying is that the law does not automatically entitle you to court-ordered time with your grandchildren.
What this means is that the Probate and Family Court will not force your grandchild’s parent into a visitation schedule with you just because you ask for one. There is a process that you must follow (which may take many months) — and facts that you must prove to the Judge — before the Judge will order visitation.
A Petition for Grandparent Visitation, once filed with the Probate and Family Court, will generally follow the same procedure as any other contested divorce, custody or support matter. If you would like to learn more about that process,click here to access my free online course.
If you are the paternal grandparent, your son must be listed as the child’s father on the birth certificate or have already been adjudicated the child’s father by a Probate and Family Court. No matter how certain you and the rest of the world are that your son is the child’s father, if he is not on the birth certificate, or a Court has not adjudicated paternity, then you cannot file a Petition for Grandparent Visitation. If this is your situation, then your son needs to file a Complaint to Establish Paternity.
If your grandchild’s parents reside together, you cannot file a Petition for Grandparent Visitation. You must name both parents in the Petition, and they must reside separately. If the parents are residing together, then you cannot file the Petition.
If your grandchild’s parent(s) have denied you contact, the Judge will presume that decision was valid. As I mentioned above, simply filing the Petition for Grandparent Visitation does not mean the Court will grant what you have requested.
This is where we get into a little bit of constitutional law, so stay with me. The constitution guarantees each citizen certain fundamental rights on which a branch of government (including the judiciary — that is, a Judge in the Probate and Family Court) cannot easily intrude. One of those fundamental rights is the right of fit parents to make decisions about their children.
If a mother decides paternal grandmother is not going to see junior this month, or next month, or she can see him but only at certain times and upon certain conditions, then the Court cannot easily intrude upon the mother’s fundamental right to make that decision about her child. This means that, regardless of how we feel (or a Judge feels) about mother’s decision — and even if we (or a Judge) would have made a different or “better” decision under the circumstances — the mother’s fundamental right to decide prevails unless certain evidence is offered to the Court.
A grandparent must show that the failure to grant visitation will cause the child significant harm. Because the parent’s decision-making right is constitutionally protected, the grandparent must meet a pretty high threshold in order to convince a Judge to order visitation. Specifically, the grandparent must prove “that the failure to grant visitation will cause the child significant harm by adversely affecting the child’s health, safety, or welfare.”
When a grandparent has a “significant preexisting relationship” with a child, then the grandparent certainly has a better chance of obtaining court-ordered visitation. This phrase means more than you might think, however. A typical grandparent-grandchild relationship — even one in which contact occurs several times weekly — is not enough. Rather, a “significant preexisting relationship” will generally be found only when the grandparent was a caretaker for the grandchild for a period of time (that is, where the grandparent was acting as a “de facto” parent.)
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 — a much, much more difficult task.
A grandparent must file an affidavit at the beginning of the case explaining the significant harm. The process of bringing a Complaint or Petition (those terms are somewhat interchangeable) to trial usually takes months, and requires a great deal of time, effort and expense. Because the constitution protects a parent’s right to make decisions about his/her child, the Probate and Family Court will not force parents to endure that process in a case where the grandparent cannot show the required “significant harm.”
So, a grandparent must, at the beginning of the case, file an Affidavit along with the Petition for Grandparent Visitation. The Affidavit must explain in detail the significant harm that will come to the child in the absence of court-ordered visitation. If the Affidavit is not sufficient, then the Probate and Family Court is required to dismiss the Petition, before any discovery is even conducted.
So, where does that leave a grandparent? I have received many calls from grandparents over the years asking about their legal right to visitation with their grandchildren. For many, I must simply tell them that their petition will not be successful. I always urge them to consider all other alternatives before filing a Petition for Grandparent Visitation. For the reasons explained above, these cases are extremely difficult to win. If you file and your Petition is not successful, you are left with at least one parent who is now even less willing to cooperate in allowing you contact with your grandchild.
As a former grandchild and future grandmother (hopefully), I sometimes wish the legal alternatives for grandparents were more encouraging. As a lawyer, I get it. In the absence of extreme circumstances, the law must allow parents to make decisions about where and when their children will spend time without interference from the judicial system.
So, what are your options? Consider the ways in which you can have healthy contact with your grandchild without alienating the custodial parent. If your child has lost contact with your grandchild, consider the ways that you can support that child in reunifying with your grandchild (which will, in turn, give you contact with the grandchild.) Your options will always depend on the unique circumstances of your case, but remember that asking a Judge — a stranger to your family — to decide a family dispute should always be viewed as a last resort.
