Paternal grandparents of a child (father’s parents) whose parents never married can seek an order from the probate and family court in Massachusetts to obtain visitation time with their grandchildren under the following circumstances: (1) paternity has been established by a voluntary acknowledgement form signed by the parents; or (2) paternity has been established by the court under a paternity action. A voluntary acknowledgement is a document in Massachusetts executed by both parents stating that the father is the biological father of the child. A Voluntary Acknowledgment of Parentage form establishes a child's paternity after both parents have signed it and the State Registry of Vital Records and Statistics has accepted it for legal registration. Also, to obtain visitation the parents must be living apart. However, a court’s adjudication of paternity or acknowledgement of paternity by the parents is not required when maternal grandparents (mother’s parents) seek visitation. Massachusetts General Laws, Chapter 119, Section 39D.
In addition, a parent who has custody has the legal right to make decisions as to whether a grandparent can have visitation with the child if a court order has not been entered allowing visitation. In order to get visitation, a grandparent must establish that it is not in the child’s best interest to deny visitation. A grandparent “must allege and prove that the failure to grant visitation will cause the child significant harm by adversely affecting the child’s health, safety, or welfare. The requirement of significant harm presupposes proof of a showing of a significant preexisting relationship between the grandparent and the child. In absence of such a relationship, the grandparent must prove that visitation between grandparent and child is nevertheless necessary to protect the child from significant harm.” Blixt v. Blixt, 437 Mass. 649, 657-658 (2002).
The court considers the following in making this determination on visitation:
- the relationship between the grandparent and child;
- the emotional and physical health of the grandparent, parent and the child if it affects each adult’s ability to care for the child;
- the length of time and nature of the disagreement between the grandparent and the parent;
- the reason the parent opposes the visitation;
- history of neglect or abuse of the child by any adult;
- the child’s need for free time;
- other relevant factors.
If the court allows the visitation, it must find it is in the child’s best interest. M.G.L, Chapter 119, Section 39D.
A grandparent must also allege how the absence of visitation will cause the child significant harm. “Before a parent or parents are called upon to litigate fully a grandparent visitation complaint, with all the attendant stress and expense, the grandparent or grandparents should make an initial showing that satisfied a judge that the burden of proof, set forth above, can be met. To this end, any complaint filed under the statute should be detailed and verified or be accompanied by a detailed and verified affidavit setting out the factual basis relied on by the plaintiffs to justify relief.” Blixt v. Blixt, 437 Mass. 649 (2002). If a grandparent will protect a child from harm or domestic violence, this strengthens the case.
Lastly, grandparent visitation cannot be granted if the child has been adopted by someone other than the child’s stepparent. Also, a preexisting order for visitation is terminated upon adoption without any further action by the court.