I often receive inquiries from grandparents wondering what options they have to see their grandchildren. It’s not uncommon for a custodial parent to deny the grandparents (on the other side) time with the grandkids. I often hear things like, “If his parents want to see the kids, it can happen during his visitation!” However, this scenario places the non-custodial parent in the position of having to forfeit some of their [limited] time with the children in order for the grandparents to see the kids. Sometimes parents attempt to establish times the child(ren) can see the grandparents in an Agreement that is filed with the Court under a Complaint for Divorce or Custody-Support-Parenting Time. Unfortunately, as the grandparents are not parties to these types of actions, the Court will not approve such provisions.

Thankfully, there is a statute and case law in Massachusetts that does provide grandparents some rights to visitation in certain circumstances. A grandparent can petition the Probate & Family Court under M.G.L. ch. 119, sec. 39D only if the parents of the minor child(ren) are:

• Married, but living apart under a Temporary Order or Judgment of Separate Support;
• Either or both deceased;
• Unmarried and paternity has been acknowledged and the parents do not live together.

The statute very clearly excludes children of parents who live together.

Upon a Petition for Grandparent Visitation, the Court is guided by the overarching principle of what is in the best interest of the child(ren). There is a presumption that parental decisions regarding grandparent visitation are valid and should be honored. Grandparents seeking visitation must overcome this presumption by alleging and proving that failure to grant visitation rights to the grandparents would result in significant harm to the child(ren)’s health, safety or welfare. The grandparents must also prove that there was a significant preexisting relationship with the child(ren) that should be continued.

If the grandparents are able to establish the preexisting relationship and successfully rebut the presumption, the Court will enter an Order setting out when the grandparents can see the child(ren). The Court will use its best judgment in establishing a fair schedule that serves the best interest of the child(ren) without significantly impeding either parent’s time with the child(ren).

Considering filing a Petition for Grandparent Visitation? Call Broadbent & Taylor for a free consultation today!

THIS POST WAS WRITTEN BY ATTORNEY CATHERINE TAYLOR AND IS FOR INFORMATIONAL PURPOSES ONLY. THIS DOES NOT CONSTITUTE LEGAL ADVICE OR CREATE AN ATTORNEY-CLIENT RELATIONSHIP OF ANY SORT.