Grandparent And Third Party Custody Visitation In Massachusetts
Under Massachusetts law MGL 119 § 39D grandparents can request the Probate Court to order visitations with their minor grandchildren if the parents do not live together and 1) are divorced, married but living apart or under a temporary order of judgment of separate support; or 2) one or both parents have died; or 3) the child was born out of wedlock and the paternity of the father has been adjudicated or acknowledged.
Grandparents begin the process by filing a Complaint for Grandparents Visitation with the Probate Court. Attach an affidavit describing the nature of the involvement and relationship between the grandparent(s) and the grandchildren; the circumstances surrounding either the curtailment or termination of contact; a description of current level of contact, if any; and a statement describing the significant harm to the child(ren)’s health, safety, or welfare likely to be suffered by the child(ren) if visitation is not ordered.
To obtain visitation, the grandparents must bear the burden of proof to establish, by a preponderance of the credible evidence, that a decision by the judge to deny visitation is not in the best interests of the child. More specifically, to succeed, the grandparents 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 the 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.
Grandparents may seek custody (temporary or permanent) of their grandchild if they believe that the child is at risk living with their parents. In order to gain custody, the grandparents need to: get permission from the parents to take custody; or prove to a court that the parents are not fit to care for their child.
Note: The foregoing information is provided as general family law guidelines in Massachusetts and should not be considered as legal advice specific to your case. After reviewing the above material, you will be presented with the opportunity to submit more details specific to your case directly to About The Children.
Submitted by Linda O’Marie, Paralegal