Massachusetts is generally considered a restrictive state when it comes to grandparents' rights. In other words, grandparents suing to win visitation with their grandchildren face an uphill battle.
In Massachusetts grandparents may not file for visitation of grandchildren living in an intact family. That means that if the parents of the grandchildren are married and living together, they can make any decision they like about contact with grandparents.
Grandparents may, however, petition for visitation rights if the child's parents have divorced or separated, if a parent is deceased, or if the child was born out of wedlock but paternity has been established. Establishment of paternity is not required for visitation by the maternal grandparents. The best interest of the child must be considered, but no factors are given by statute for determining best interest.
Massachusetts is also considered a restrictive state because grandparents must meet the harm standard in order to win visitation. That means that they must not only show that contact with grandparents would be in the best interests of the child, but they must also show that the grandchild would suffer harm if contact were denied. That can be very difficult to prove.
Going to Court in Massachusetts
Grandparents begin the process by filing a complaint and filling out a form called "Affidavit of Care and Custody." In this form the grandparents must describe the nature of the grandparent-grandchild relationship, tell why contact with the grandchild was denied or curtailed, describe current access to the grandchild and describe the "significant harm" to the child's "health, safety or welfare" that could result from lack of contact.
This form can be downloaded from the Massachusetts Court System. The page also contains other information of interest and links to other resources.
Often in Massachusetts the court will appoint a guardian ad litem to investigate the situation and make a recommendation to the court.
Some Significant Massachusetts Cases
Several cases have addressed the issue.
In the 2002 case of Blixt v. Blixt, the justices emphasized that the burden of proof lies with the grandparents. They described two ways in which grandparents can win visitation.
First, they can show a "significant preexisting relationship" that would result in "significant harm" to the child if discontinued. This finding often applies in cases where the grandparents played an active role in raising a grandchild.
Second, in the absence of such a relationship, grandparents may still be awarded visitation if they can prove that it is necessary to protect the child, again from "significant harm." Although few cases fall into the second category, in the 2007 case of Sher v. Desmond, a grandmother who had never known her grandson was granted visitation. She introduced evidence showing that the child's mother had disappeared after being the victim of domestic abuse. The court ruled that the grandmother should be granted contact in order to monitor the child, to be sure that he was not being abused or being subjected to scenes of abuse.
Both Blixt v. Blixt and Sher v. Desmond came after the significant U.S. Supreme Court ruling in Troxel v. Granville, so they represent the current state of grandparents rights in Massachusetts.
Adoption ends grandparents rights unless the adopting party is a stepparent. See Massachusetts statute.