It may not be surprising to learn that the rights of grandparents to custody or visitation of their grandchildren are largely secondary to those of the parents who may be married, unmarried or divorced. This rests on the presumption that the decision of the parents has “presumptive validity,” or that the parent is fit to make decisions about the child and will act in the child’s best interests.

In a divorce where only one parent objects to visitation, the grandparent may visit the child during the non-objecting parent’s visitation time with the child only. If both parents object, then you as grandparent will be denied visitation in any case absent a strong showing of cause.

If you are wanting visitation but both parents are objecting, you can still file a request for visitation, though your burden is substantial in overcoming the parents’ wishes and right to act in their child’s best interests. In such cases, retaining an experienced and resourceful family law lawyer is essential if you wish to have a credible opportunity to be granted visitation. Here are a few things to know about your rights when it comes to seeing your grandchildren:

Is a Pre-Existing Relationship Enough?

A pre-existing relationship with your grandchild can form the basis for a grant of visitation. However, it must have been on the level of a de facto parent or where you have been actively, intimately, and regularly engaged with your grandchild over a sufficient period of time. For instance, you have been seeing your grandchild every week for the past 5 years, have taken her to school or her after-school activities or to other events, and have babysat her on a regular basis. In such cases, you could argue that an emotional bond has arisen and that your presence in the child’s life has been a positive and nurturing one.

However, this is likely insufficient to convince a Massachusetts judge that your relationship is essentially that of a de facto parent. According to recent court decisions, you apparently must have resided with the child, and with the consent of the parent or parents performed the same or largely similar caretaking functions as a regular parent. This would include being involved in making decisions about your grandchild’s health, education and even being involved in discipline. If your function as a de facto parent has been ongoing for several years, then your chances of being granted visitation rights are greatly enhanced, though not guaranteed.

Even if you can show that your participation and involvement in your grandchild’s life has been significant, you must make an additional showing that barring visitation will cause significant harm affecting the child’s health, safety or welfare. This additional showing may be even more difficult to meet since you must produce credible evidence of how your grandchild’s safety, health or welfare will be adversely affected without your presence and involvement. The child’s wishes or assertion that he or she will be profoundly upset is likely not enough.

When bringing a petition or request for grandparental visitation, your divorce lawyer must also allege sufficient facts within the petition that shows that denial of visitation will significantly and adversely affect the child’s health, safety and welfare or it will be dismissed. Further, it is not your special attributes that the court will consider in such cases but how the child has been affected. Filing various affidavits and statements from other family members, teachers, coaches, doctors, or religious figures with the petition may be necessary to demonstrate and to convince the court that how your being denied visitation will have a significantly adverse effect on the child’s safety, health and welfare. Consult with your family law lawyer about whether you can meet this burden.

Guardianship of the Grandchild

Under certain desperate circumstances, you may file for guardianship of your grandchild so long as both parents are deemed unfit. This situation may arise where one parent has died, and the other is unfit because of drug or alcohol addiction or has been found to be abusive. Or, there may be circumstances where both parents are addicts and their continuing lack of care for the child endangers her health, safety and welfare. If you are not prepared or willing to be appointed guardian, you can still request visitation rights and assert that your continuing contact with your grandchild is necessary to avert significant harm to the child.

Retain Lovenberg & Associates

Grandparents’ rights regarding visitation of their grandchildren can be a difficult path to maneuver in the face of parental opposition. Consult with a family law lawyer from Lovenberg & Associates if you have questions about your rights as a grandparent or for any other family law issues by calling our office at (617) 973-9950 and scheduling a consultation.