The grandparent/grandchild relationship can be one of the most valuable relationships in a child's life. Unfortunately, this relationship may be severed after a divorce or adjudication of a paternity case, if the custodial parent does not agree to maintain the relationship. Recognizing the importance of this relationship, as well as a custodial parent's constitutional right to parent his/her child, Massachusetts has developed a mechanism (M.G.L. ch. 119, § 39D) under which grandparents may be granted Grandparents' 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.1
In such an instance, the Probate and Family Court may grant the grandparents of an unmarried, minor child reasonable Grandparents' Visitation Rights with the minor child if the Court finds that such visitation rights would be in the best interest of the child.2 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 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 visitation rights for the grandparents are required to protect the child from significant harm. Blixt v. Blixt, 437 Mass. 649 (Mass. 2002).
It is important to note that the Court will not grant grandparents' visitation rights if the minor child has been adopted by a person (other than a stepparent of such child) and any visitation rights granted pursuant to this section prior to such adoption of the said minor child shall be terminated upon such adoption without any further action of the court.
1 Such adjudication of paternity or acknowledgment of paternity shall not be required in order to proceed under M.G.L. ch. 119 § 39D if the maternal grandparents are seeking such visitation rights.
2 A petition for grandparents visitation authorized under M.G.L. ch. 119, §39A, must be filed in the county in which the divorce or separate support complaint or the complaint to establish paternity was filed. If the divorce, separate support or paternity judgment was entered in another jurisdiction, but the child presently resides within Massachusetts, said petition may be filed in the county where the child resides.
