In accordance with Massachusetts General Laws ch. 119 § 39D, the Commonwealth recognizes the importance of the grandparent/grandchild relationship, while at the same time respecting a custodial parent’s constitutional right to parent his or her child. “The law’s concept of the family rests on a presumption that parents possess what a child lacks in maturity, experience, and capacity for judgment required for making life’s difficult decisions. More important, historically it has recognized that natural bonds of affection lead parents to act in the best interests of their children.” Troxel v. Granville, 530 U.S. 57, 68 (2000).
Under M.G.L. ch. 119, § 39D and if the Court finds that such visitation rights are in the best interest of the child(ren), grandparents may be granted visitation rights with their unmarried, minor grandchildren under the following limited circumstances:
- If the parents of an unmarried, minor child are divorced; or
- If the parents of an unmarried, minor child are married but living apart, under a temporary order or judgment of separate support; or
- If either or both parents of the unmarried, minor child 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.
In order for the Court to determine that the grandparent visitation rights are in the best interest of the child, the grandparents must prove that either (1) there was and is an important and significant relationship in existence between the child and the grandparents and that the Court’s refusal to grant visitation will be harmful to the child’s health, safety, or welfare; or (2) there was no pre-existing relationship, but that visitation rights for the grandparents are required to protect the child from significant harm. Blixt v. Blixt, 437 Mass. 649 (Mass. 2002).
How do I start this process?
A grandparent may begin this process by filing a “Complaint for Grandparents Visitation” with the appropriate Probate and Family Court. The Complaint must be accompanied by an affidavit that describes his/her/their involvement with the grandchild(ren), the circumstances surrounding either the reduction or termination of contact, a description of the current contact, if any, and a statement describing the significant harm to the child(ren)’s health, safety, or welfare likely to be suffered by the child(ren) if visitation is not ordered. For further information regarding this complicated process, please contact an experienced Family Law attorney.
M. Katie Kerr, Esq. may be reached by telephone at (978) 388-1787.
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