One of the joys of parenthood is seeing your children grow to be adults and have their own children. Reveling in and spoiling your grandchildren is considered a prerogative for many. However, there are circumstances when grandparents are denied visitation by one or both parents, or where one or both parents are deemed unfit. If this is a situation that applies to you, what rights do you have as a grandparent to request custody of your grandchildren or to be granted visitation rights?

Custody Rights of Grandparents

If the parents are married and no court case regarding the marriage or custody of the children has been filed, the grandparents have no standing or right to request custody. There are some situations where this prohibition is not applicable:

  1. The parents can assign temporary rights to the grandparents to become temporary agents for up to 60-days. During this time, they have the right to make material decisions regarding the child’s welfare such as those affecting the child’s education, religious upbringing, medical care, safety, and anything else pertaining to their welfare.
  2. A parent signs a Caregiver Authorization Affidavit that permits a grandparent to have joint custodial rights if the parties live in the same residence. This also allows the grandparent to make those same material decisions about the child’s welfare, health, and safety.
  3. The custodial rights of the parent have been limited or terminated by the state’s child welfare department, usually because the parent abandoned the child, was guilty of neglect, or has seriously abused alcohol or drugs so that the parent is unfit, and it is no longer in the child’s best interests for the parent to retain his or her custodial rights.
  4. The grandparents become the child’s foster parents. This may occur when the parent has been incarcerated or is receiving in-patient treatment for alcohol or drug abuse. This is a temporary arrangement where the parent’s custodial rights may be restored at some time in the future.
  5. The grandparents seek legal guardianship of the child because the parent with sole custody is addicted to opioids or both parents are addicts.
  6. The grandparents adopt the child. Before a grandparent adoption can take place, the court must find that the parents are unavailable or unfit.

Grandparent Visitation Rights

If grandparents are being denied contact with their grandchildren, they can file a petition in the Massachusetts Probate and Family Court so long as the parents have divorced or separated, or a parent has died. If the parents were unmarried, the petition can be filed if the parent or adult child of the grandparents has established paternity. The petition is to be filed in the same department where the parent filed his paternity action or where the parents were divorced. If the parents were divorced in another state, then the petition is filed in the county where the child is living.

A court will only grant visitation rights to the grandparents if it is in the best interests of the child to resume or begin contact with the grandparents. This can be a difficult standard for a grandparent if the parent objects. In a 2018 case, Martinez v. Martinez-Clinton, the state’s Appeals Court ruled that a fit parent’s decision to deny visitation rights to grandparents will be presumed to be in the child’s best interest absent a proper reason to rule otherwise. This suggests that the grandparents must have a compelling reason to overcome the parent’s decision to deny visitation.

To overcome the presumption, you likely must demonstrate:

  • You had a strong or significant preexisting relationship with the child
  • The relationship included a strong emotional bond
  • There is evidence the child enjoyed and benefited from the relationship
  • The grandparent was involved in the early nurturing of the child
  • The grandparent lived in very close proximity to (next door) the child or in the same residence
  • Evidence that the grandparent was a “de facto’ parent in that he, she, or they, were caretakers, provided discipline, made material decisions affecting the child’s health and welfare, helped shape the child’s daily routine, and provided moral guidance
  • That the failure to grant visitation to the grandparent will cause the child to suffer significant harm affecting her health, safety or welfare

This last requirement is probably the most burdensome. Merely alleging that the child will be upset, become depressed, or withdrawn is insufficient. In fact, a grandparent’s petition must be factually specific so that on its face it rebuts the presumption that the parent is fit (e.g., is addicted to opioids), and must include instances of what significant harm the child will suffer, and the source of that information, including personal knowledge of the harm that would occur. If the petition fails to meet this high standard, it will be dismissed.

Retain Boston Divorce Lawyer Heather M. Ward

Heather M. Ward is a Boston divorce lawyer who has been tackling the tough and often emotional issues involved in divorce cases, including those where grandparents have been denied contact with their grandchildren or where the parents are undergoing their own issues that are materially affecting the welfare of the grandchildren. If you are a grandparent seeking advice or representation regarding custody or visitation of your grandchildren, contact Ms. Ward at (617) 903-8955.