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Thursday, January 21, 2016

Grandparent Visitation Rights v. De Facto Parents - Who is a Legal Parent? Part 9

Our last post discussed the de facto parent standards in Massachusetts.  Grandparent visitation rights in Massachusetts are similar in some ways to de facto parent rights but also different.  They are similar in that the "best interest of the child" is supposed to be the highest priority in the court's determination.  However, there are many differences between these two types of parenting rights:

While de facto parenting rights are created by the equity powers of the court, there is a grandparent visitation statute in Massachusetts (MGL c.119, s.39D).  The statute applies specifically to children living in a separated parent household, which distinction was found to be constitutional by the Massachusetts Supreme Judicial Court in Blixt v. Blixt.   In addition, the statute requires a "written finding that such visitation rights would be in the best interest of the said minor child" and the statute discusses visitation only, not custody.

Blixt and other cases have severely limited the scope of the statute by requiring verified specific allegations by a grandparent regarding the significant harm that a child will experience if they're not granted visitation.  The legal parent's decision is otherwise given "presumptive validity."

Given the recent de facto parent case allowing joint custody, de facto parent status can be more expansive than grandparent visitation rights under the statute.  In fact, in a case where the grandparent had lived with the child a grandparent may actually be better off seeking de facto parent status instead of grandparent visitation because the statute limits the discussion of grandparent rights to visitation only.  However, in order to obtain de facto parent status a grandparent would have to  convince the court to extend de facto parent rights because the definition in E.N.O. v. L.L.M. limited de facto parents to "one who has no biological relation to the child, but has participated in the child’s life as a member of the child’s family.”

It certainly seems counter-intuitive that a person who has "no biological relation to the child" could have greater rights than a grandparent even if all of the other factors were similar.  It's hard to know how that issue would be resolved if someone decided to put that issue before a judge and/or an appellate panel.  Instead of taking that chance, though, many families resolve these types of disputes through other methods of resolution such as mediation.  Mediation can be very effective at helping repair relationships and with grandparent visitation disputes there are numerous family relationships at risk, all worth exploring in a non-adversarial setting.  For more information about mediation click here.

Previous Post: De Facto Parents - Who is a Legal Parent: Part 8

Next Post: Guardianship - Who is a Legal Parent? Part 10

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