Grandparent Visitation More Challenging Than Ever in Massachusetts

Hingham Divorce Lawyer Nicole K. Levy reviews a recent Appeals Court decision that reveals the challenges faced by grandparents seeking visitation in Massachusetts.

A recent grandparent visitation decision by the Massachusetts Appeals Court continues a trend towards making it increasingly difficult for grandparents to obtain visitation rights with grandchildren when the children’s parents are unmarried or divorced. While the Court’s decision seems to rely simply on a heightened pleading standard, implicit in this decision is the weight that Massachusetts courts are giving to a parent’s right to make decisions for their child—a right that exceeds a grandparent’s right to visit.

Dismissal of Grandparent’s Request for Visitation

The Martinez v. Martinez-Cintron (2018) case involved a mother and a father who were divorced when their only child was about six months old. The divorce judgment resulted in the mother being granted sole legal and physical custody of the child and the father having supervised parenting time.

Shortly after the divorce, the child’s paternal grandmother filed a petition with the court for grandparent visitation rights. In its factual summary, the Appeals Court noted that the petition was poorly written and had serious drafting problems. At first, the child’s mother did not oppose the paternal grandmother’s request for time with the child; however, the mother eventually changed her mind and asked the court to dismiss the grandmother’s petition.

When the judge hearing the case in the Worcester Probate and Family Court, Hon. Leilah A. Keamy, declined to dismiss the grandmother’s petition, the mother appealed. Pointing to the defective petition, the Appeals Court reversed the Probate Court decision and dismissed the grandmother’s request for visitation rights. The Appeals Court decision included the following cautionary instruction illustrating the difficult burden grandparents face in cases where biological parents object to visitation between a child and grandparent:

While we are sympathetic to the grandmother's efforts to establish a relationship with her grandchild, we are similarly mindful that, absent a showing to the contrary, we presume a fit parent will act in her child's best interest. …With that presumption in mind, we further emphasize the need to protect parents from unnecessary litigation and "all the attendant stress and expense" that comes with it. … Without proper cause, a parent's ability to make choices for her children is not to be intruded on. (Internal citations omitted.)

When Are Grandparent Visitation Petitions Typically Filed?

It is important to note that in cases where only one parent objects to a grandparent having visitation, it is usually permissible for the grandparent to spend time with the children during the non-objecting parent’s regular parenting time. Court orders specifically prohibiting contact between a grandparent and children are rare, unless the parents have agreed to prohibit contact between the child and grandparent, or unless there is specific evidence of abuse or neglect by the grandparent.

Most grandparents who petition a court for visitation with a grandchild, do so because the child’s parents do not agree with the grandparent seeing the grandchildren. This occasionally occurs when the parents are married – i.e. when both parent/spouses disagree with a grandparent seeing a child. However, grandparent visitation cases most often arise in the context of parents who are either unmarried or divorced, or when one parent is absent or deceased. In cases involving divorced or unmarried parents, grandparent visitation is most often an issue when one parent has very little or highly restricted parenting time. Tight restrictions on one parent’s visitation often means that the related grandparents face the same restrictions, since a grandparent’s contact with a child generally occurs during the related parent’s ordinary parenting time.

In grandparent visitation cases, Probate and Family Courts are tasked with the difficult job of balancing the rights of parents to make decisions regarding their children versus the preservation of important relationships between children and grandparents. Because the fundamental rights of parents arise out of the U.S. Constitution, grandparents seeking visitation face a high burden in court.

In ordinary custody cases involving two biological parents, Probate and Family Courts make decisions based on a straight-forward “best interest of the child” standard. Under this standard, the judge has broad discretion to determine which parenting schedule best fits the needs of the child.

Pre-Existing Relationship and the De Facto Parent Standard

As I noted in my 2016 blog on grandparent visitation, a significant factor in grandparent visitation cases is whether the grandparent had a pre-existing relationship with the child that resembles the definition of a de facto parent:

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.

Despite this close relationship, the Court in Dearborn found that the grandfather’s pre-existing relationship did not amount to that of de facto parent, which is defined as:

A de facto parent is [a non-parent who 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.

If a grandparent can show that he or she has acted as a de facto parent for a substantial portion of the child’s life, his or her chances of receiving grandparent visitation greatly increase. The biggest hurdle of proof is often demonstrating that the grandparent and child lived together for an extended period of time. In short, it is almost impossible for an individual to meet the de facto parentage standard if he or she did not live with a child for much of the child’s life. (The appellate decisions suggest that establishing a “pre-existing relationship” between the grandparent and child does not require a complete satisfaction of the de facto parent standard, but we know that the standards are quite close.

In Martinez, the grandmother could not show that she had a pre-existing relationship like the one described above with the child. Accordingly, the Appeals Court noted:

In situations like the one before us where a grandparent does not assert “a significant preexisting relationship” with the grandchild, “the grandparent must prove that visitation between grandparent and child is nevertheless necessary to protect the child from significant harm.” (Internal citations omitted.)

This stands in contrast to Dearborn v. Deausault (2004), the Appeals Court noted that a court could assume that a failure to order visits would cause significant harm to a child if the grandparent showed he or she had acted as a de facto parent:

In imposing the requirement of harm in the context of “a significant preexisting relationship,” the court meant the kind of relationship, such as de facto parents or other relationships of close bonding, where significant harm may be readily inferred from and is inherent in the disruption of that relationship. Where such a close relationship is absent, there must be proof that visitation is “nevertheless necessary to protect the child from significant harm.”

Grandparent Visitation: Necessary to Prevent Significant Harm to Child?

Even when a grandparent can show a pre-existing relationship with the child, the grandparent must prove that a failure to order visitation will result in significant harm to a child. In an unpublished decision, Burke v. Errichetto (2015), 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.)

When a grandparent files a petition under G. L. c. 119, s. 39D for visitation rights, the judge cannot simply assign visitation to the grandparent based on a “best interest of the child” analysis. Instead, the judge must overcome the very significant weight that courts must give biological parents when it comes to making decisions regarding their children. In this context, determining that grandparent visitation is in the best interest of the child often requires a finding that visitation with the grandparent is required to “prevent significant harm” to the child. This is a high and difficult standard to prove, where 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.”

Defining what constitutes “significant harm” is challenging. As I noted in my 2016 blog:

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.

Blixt and Pleading Requirements: Grandparent Visitation Petitions Often Face Early Dismissal

When a grandparent requests visitation rights under G. L. c. 119, s. 39D, the leading case that dictates the process is Blixt v. Blixt (2002). According to Blixt, “to succeed, the grandparents 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.”

Grandparents now must demonstrate the alleged “significant harm” in the pleading petition at the outset of their demand for visitation rights. According to a subsequent Massachusetts appellate court case, Sher v. Desmond, grandparents demanding visitation rights need to include in their initial pleading, “averments of significant harm that are (1) facially sufficient to rebut the presumption of parental fitness; (2) based on information and belief; and (3) made with particularity and indicating the source of the information.”

In Martinez, the Appeals Court explained the difficult pleading standard as follows:

We consider the pleading requirements presented in Blixt to be clear: “any complaint filed under the statute should be detailed and verified or be accompanied by a detailed and verified affidavit setting out the factual basis relied on by the plaintiffs to justify relief.” In denying the motion to dismiss, the judge noted that “the Court is unable to determine with certainty that the Grandmother is entitled to no relief under any state of facts which could be proved in support of the claim.” While we understand the judge's emphasis on the court's use in Blixt of the word “should,” which has long been recognized to mean recommended rather than mandatory, we consider her decision to be in conflict with the directive of Blixt. Absent some extreme circumstance, the proper consideration is whether the grandmother made adequate factual allegations to plausibly suggest, beyond mere speculation, “that visitation between grandparent and child is . . . necessary to protect the child from significant harm.” The grandmother's affidavit in no way indicated that a failure to order visitation would subject the child to any harm, much less significant harm. (Internal citations omitted.)

In plain English, what the Appeals Court is saying is this: a Petition for Grandparent Visitation should be dismissed unless the grandparent files an affidavit that, if true, would absolutely demonstrate that the child will suffer significant harm without grandparent visitation. It is not enough for the grandparent to simply claim that harm will result. The affidavit should contain specific facts – the type of facts the grandparent would need to prove at trial – in order to survive dismissal. The grandparent should have personal knowledge of the alleged facts, which should not be based on speculation.

Focus is on Child and Parental Rights Before Grandparent

Importantly, the guidelines put forward in Sher and other cases focus on the interests of the child, not the interests of the grandparent. In these cases, Courts have found that when a biological parent is fit, the court presumes that the parents decisions are in the child’s best interests. It is difficult for grandparents to believe that a child’s interest is not served by allowing grandparent visitation, but again, courts tends to defer to parental autonomy to make this decision.

This was a part of the issues in the Martinez case, where the grandparent’s pleading focused on herself, rather than the child. In the requisite affidavit supporting her request for visitation, she merely stated that she was the child’s grandmother, that she and the child’s father had only seen the child in the hospital after he was born, that she wanted to see the child weekly, and that the mother was preventing it from happening.

The grandmother failed to allege a pre-existing relationship between herself or the child or to make any assertions regarding what harm would befall the child if these visits were denied.

Blixt Requirements are Generally Mandatory

Despite these problems with the grandmother’s petition, the Probate and Family Court initially refused to dismiss her request because of an interesting passage in Blixt: “the grandparent… should make an initial showing that satisfies a judge that the burden of proof… can be met. To this end any complaint filed under [G. L. c. 119, s. 39D] should be detailed and verified or be accompanied by a detailed and verified affidavit setting out the factual basis relied on… A complaint not so verified… would be subject to dismissal.”

The Probate and Family Court judge interpreted the “should” in Blixt as suggesting the dismissal of the grandmother’s defective petition, but not requiting dismissal. The Appeals Court disagreed, saying that, in light of the requirements set out in the rest of the Blixt decision, “the proper consideration is whether the grandmother made adequate factual allegations to plausibly suggest, beyond mere speculation, that visitation between grandparent and child is… necessary to protect the child from significant harm.”

Impact of Martinez on Future Grandparent Filings

The renewed focus on the heightened pleading requirements in grandparent visitation places even more of a burden on grandparents. First, the initial pleadings must be specific, factually based and sufficient to meet the challenging legal standard for “significant harm”. The Martinez opinion suggests that a petition should almost always be dismissed outright if it does not satisfy the pleading requirements in Blixt. The decision means that grandparents must develop evidence before filing a grandparent visitation petition, and cannot rely on traditional discovery methods to develop evidence of “significant harm” during the course of the litigation.

On the other end of the spectrum, while Martinez allows parents to move to dismiss the case at the outset, caution may still be required. If a judge reviews the pleadings and finds that the grandparent has met the heightened requirements, the case will not be dismissed. Indeed, a grandparent who survives dismissal will be in a stronger position post-Martinez.

Grandparent Visitation vs. Guardianship of a Minor and the Opioid Crisis

One sad consequence of the opioid crisis is a growing number of parents who either overdose and die or become so hopelessly addicted to drugs that grandparents must take over the child-rearing role. In many of these cases, a grandparent will petition a court to be named legal guardian of the minor children. In many cases, however, only one parent becomes deceased or seriously addicted to drugs.

When a parent dies or becomes hopelessly addicted to drugs, the parent who is left behind often feels the need to protect the children from the distressing facts surrounding the death or disappearance of the addict parent. One byproduct of this process is that the surviving parent will often be hesitant to provide access to the children to the grandparent on the addicted parent’s side of the family. Cases like this can be exceedingly difficult for courts and parties to resolve, where the surviving parent’s reluctance to provide contact with the grandparent often has little to do with the grandparent’s own conduct, but rather, is a legacy of the addicted parent’s struggles.

In many cases fitting this fact pattern, the surviving parent will also have a history of addiction. If the surviving parent is using drugs, it often makes sense for a grandparent to petition a court for legal guardianship status. For grandparents who are not prepared to seek guardianship, it may be an option to seek grandparent visitation on the grounds that contact between the child and grandparent is necessary to “prevent significant harm” to the child.

It can be difficult for courts to find clear, black and white answers in cases involving a serious drug addiction or overdose death of one parent. If both parents are drug addicts, then naming a grandparent as guardian of the children is a relatively simple process. However, if the surviving parent is in recovery, or never suffered the same degree of addiction as the deceased/addicted parent, the facts become murkier. Some of the most difficult cases involve scenarios in which a grandparent acted for a time as an informal guardian of the children, while one or both parents struggled with addition, but where one parent seeks to re-assert his or her control over the children during a period of sobriety. In such cases, the court must weight the fundamental rights of a biological parent to make decisions regarding his or her child against the trauma a child may suffer as a result of losing contact with a key grandparent, as well as the potential relapse of a now-sober parent.

One thing is certain: When there is a history of significant parental drug abuse, Probate and Family Court judges will use every statute at their disposal – including the guardianship and grandparent visitation statutes – to try to protect children from the destructive impact of addiction. In such cases, grandparents often have better legal options than in more traditional grandparent visitation cases, in which a clearly fit parent simply objects to contact between the child and grandparent.

About the Author: Nicole K. Levy is a Massachusetts divorce lawyer and Massachusetts family law attorney for Lynch & Owens, located in located in Hingham, Massachusetts and East Sandwich, Massachusetts. She is also a mediator for South Shore Divorce Mediation.

Schedule a free consultation with Nicole K. Levy today at (781) 253-2049 or send her an email.

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