Are Grandparents Entitled to Visitation in Massachusetts?
by Renée M. Hawk

Not infrequently, grandparents are finding themselves in situations where they want to have legal visitation rights with their grandchild. The grandparent may have been denied visitation by the parent(s) and is now seeking legal recourse, or they may simply feel that legal visitation would be in the best interest of the child. But, how easy is it for a grandparent to obtain such rights in Massachusetts?
 

In Massachusetts a grandparent may seek reasonable visitation with a minor grandchild so long as the parents’ of the minor child are:

• Legally separated or divorced;
• At least one parent has died; or
• If the child was born out of wedlock, paternity of the child has been established and the parents are no longer living together.

If the parents of the minor child are married and living together, a grandparent has no right to seek visitation. In addition, a grandparent has no right to visitation of a minor child that has been adopted (unless the child was adopted by a step-parent). Even if the grandparent was granted visitation with the grandchild prior to the adoption, such visitation is legally terminated upon adoption.
 

Just because a grandparent has a right to seek visitation does not mean the Court will grant them the right to see their grandchild. The due process clause of the Fourteenth Amendment to the United States Constitution protects “the fundamental right of parents to make decisions concerning the care, custody, and control of their children.” Therefore, the Court favors the priority of parental rights over those of non-parents. If a fit parent objects to grandparent visitation with their child, the grandparent then has the difficult burden of proving to the Court that the denial of visitation will cause significant harm to the child by affecting his or her health, safety or welfare adversely. If the parent is fit, then the grandparent must establish something more than that the child would benefit from spending more time with the grandparent, this alone does not justify interference with parental decision to restrict visitation.
 

In order to establish grounds for grandparent visitation, the grandparent is required to prove one of the following:
 

A showing of a significant pre-existing relationship between the grandparent and the child.

For example, if in the past the grandparent had a special role in caring for the child, or had custody of the child, or if the child is suffering trauma due to termination of grandparent visitation, this may be enough to show a significant pre-existing relationship. However, even if such a relationship does in fact exist, a grandparent must still prove that failure to award visitation will cause significant harm to the child.
 

or

In the absence of such a relationship, the visitation between the grandparent and child is necessary to protect the child from significant harm.

Significant harm does not include the disruption of the pre-existing relationship with the grandparent, but rather some other source of harm, such as the child’s witness to domestic violence. For example, in a case where a child has witnessed domestic violence or where there is an ongoing pattern of isolating the child from family and neighbors, regular contact with a grandparent may be necessary to ensure that the child is not being abused or exposed to new domestic violence. Visitation allows monitoring of the child’s emotional stability and development.
 

If the grandparent is unable to prove one of the above circumstances, then the Court is likely to uphold the decision of a fit parent to restrict or deny grandparent visitation.
 

If you have questions regarding grandparent visitation or other family law matters, please contact Renée M. Hawk at rmh@barronstad.com or 617-531-6570.