GRANDPARENT VISITATION
Frazier v. Frazier, No. 19-P-178
Do grandparents have the “right” to see their grandchildren?
The interest of parents in the care, custody, and control of their children is one of the oldest fundamental liberty interests, which courts recognize. While the courts prioritize a parent’s interests in child-rearing over the interests of the state and third parties, some states have created statutes allowing third parties to petition the court to authorize the third party’s visitation with a child. However, some questions remain as to whether or not such statutes infringe upon the constitutional rights of the biological parent to care for his or her children.
The first case in Massachusetts to address grandparent visitation was Blixt v. Blixt , 437 Mass. 649 (2002), which interprets M.G.L. c. 119 §39D, the so-called “grandparent visitation” statute. The statute allows grandparents to file a petition with the court to allow them visitation with their grandchildren. Once the case is filed, a judge must find that visitation is in the best interest for the child. If the Court makes such finding, that finding could obviously impact the parent’s care of his/her own child. For this reason, the grandparent must allege and prove in their petition that “failure to grant visitation will cause the children significant harm by adversely affecting the child’s health, safety, or welfare.” Id. At 658. The Blixt Court stated that significant harm may arise in two contexts: (1) where there is a significant pre-existing relationship, or (2) in the absence of such relationship, visitation is nevertheless necessary to protect the child from significant harm.
This standard was recently questioned in the recent Massachusetts Appeals Court decision, Frazier v. Frazier , NO. 19-P-178 (2019), where grandparents filed petitions to allow visitation with their three grandchildren. The grandparents stated they had a significant relationship with the children, they had meals together, that the children would take classes and lessons at their golf club in Nantucket and would come visit them in Florida during the winter.
The Frazier Court considered the grandparent’s complaint to determine whether or not they were entitled to relief from the court. Put another way, the grandparents needed to prove “harm to the children,” and that as such, they were entitled to the visitation they requested. Although the petitioners were able to show a pre-existing relationship with the children, they were unable to prove that the children would be harmed if the grandparents were denied visitation. The Frazier Court found that there were insufficient allegations in the complaint to meet the standard.
While the Frazier court was sympathetic to the grandparents and the relationship they had with the grandchildren, there was nothing in their complaint to show that the grandparents were de facto parents, or that the grandparents had such a close bond with the children that significant harm would ensure from the disruption of that relationship. A nurturing and enriching relationship between grandparents and grandchildren is not enough to override a parent’s fundamental right to decide who gets visitation with their children. Thus, Frazier affirms Blixt in that grandparent visitation remains a privilege, not a legal right.
