Heightened Requirements For Grandparents Seeking Visitation

Like almost every other state in the nation, Massachusetts law allows grandparents the opportunity to seek visits with their grandchildren, but prevailing under the law can be an uphill battle.

First of all, grandparent claims for visitation are limited to situations in which the child is not living with both parents, either because of death or divorce, or because the child was born outside of a marital relationship and the parents are not living together. Secondly, grandparent claims for visitation always arise in the context of a dispute with the single parent (else there would be no reason to bring the claim at all), and so any grandparent invoking the law can expect to encounter spirited opposition from the parent. Finally, the U.S. Constitution favors parents over any third party seeking visits with a minor child, even grandparents.

In Massachusetts, the source of grandparent visitation rights is M.G.L. c. 119, sec. 39D, which allows grandparents to file a complaint in the Probate and Family Court of the county in which the parents were divorced or in which the paternity complaint was filed. If these proceedings occurred outside of Massachusetts, the grandparent’s complaint should be filed with the Probate and Family Court within the county in which the child lives.

Grandparents are subject to what are known as “heightened pleading requirements,” which means that they must do more than just ask for visits because they want them, or because it would be good for the child to have a relationship with his grandparents. The U.S. Supreme Court has ruled that in most instances, a fit custodial parent has a constitutionally protected right to make decisions about how to rear her child without interference from the courts. The only exception is when the parent is exposing her child to harm.

Thus, the grandparent seeking visits over the objection of a fit parent must prove either (1) that the grandparent has a significant, pre-existing relationship with the child and that the court’s failure to grant visits will cause the child significant harm, or (2) that, even in the absence of an established relationship with the grandparent, visits are still necessary to protect the child from significant harm. This is a high legal standard that could well require the testimony of expert witnesses at a trial. A grandparent who files a complaint seeking visits with a grandchild has taken the first step in what could be a lengthy and costly custody battle.