One of the most misunderstood areas of Massachusetts family law concerns the rights of grandparents. Many people are surprised to learn that grandparents do not have the inherent legal right to visit their grandchildren. In very limited circumstances, state law authorizes courts to order visitations between grandparents and grandchildren, but only when those visits are deemed necessary by a judge to protect a child from harm. This is a very high threshold; a grandparent cannot receive a visitation order as a result of garden-variety disagreements between the parent and the grandparent.
In Massachusetts, when the parents of a child are married and living together, a court cannot order visitations with a grandparent over the objections of the parents. However, when the parents are not married, or are married and living apart, or when one parent is deceased, a court can intervene. Even then, a court can only order visits if the grandparent can show that the child is suffering substantial harm by not having visits with the grandparent.
To begin the process, a grandparent seeking a visitation order files a petition with the court and includes an affidavit (a sworn statement) explaining to the court why they are asking for visitation. The affidavit must be specific and include facts which show that the child is suffering substantial harm from not having visitation with the grandparent. At the beginning of the case, a judge must presume that a parent is fit to make decisions about when grandparents can visit with grandchildren, until the grandparent can prove otherwise.
Once the petition is filed with the court, a hearing will be set and the court will listen to the parent and the grandparent, allow them to conduct discovery, and if a resolution cannot be reached, a trial will be held. If the judge does not find that a child is suffering substantial harm, she cannot order visitation.
Grandparenting actions touch on sensitive areas of family dynamics. The mere fact that parents and grandparents cannot agree on visits is not a sufficient basis to seek a court order. Contact the Davis Law Group for more information on the rights of parents and grandparents.
James H. (Jay) Davis III
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This has to be the most brilliant article ever written on grandparenting.