Parental rights block grandparent visits.


            Posted on Feb 23,2014          

            Parental rights block grandparent's visits.

Q.  My daughter and her husband have three children.  They have totally prevented me from seeing or having any relationship with my grandchildren. 

 Is there anything I can do to get visitation with these grandchildren?


B.T., Lincoln


A.    Parents have a "liberty"� interest in raising their children without interference from the state or grandparents.  The US Constitution grants parents that fundamental right, a right protected by the due process clause in the U.S. Constitution.         

 The leading Supreme Court of the United States grandparent visitation case is Troxel v. Granville, 530 U.S. 57 (2000).  Troxel held: 1.  there is a presumption that a fit parent will act in the best interest of his or her child; 2.the "decision of a fit parent concerning grandparent visitation is entitled to considerable deference;"�  and 3. the grandparent visitation ordered by the Washington state court unconstitutionally infringed on the mother's parental rights. 

G. L. chapter 119, § 39D is the Massachusetts so-called grandparent visitation law. But it only applies to minor children who were born of unmarried parents, or whose parents are living apart, or have an order of separate support, or who have a deceased parent.  Your grandchildren are not in any of these categories, but if they were, Section 39 D only lets the probate court order reasonable visitations to a grandparent if it would be in the best interest of the minor child.

The leading MA case is the 2002 Supreme Judicial Court's decision in Blixt v. Blixt, 427 Mass. 649. The SJC had to interpret Section 39D in order to meet Troxel's constitutional mandate.  Blixt holds that court-ordered visitation can only be granted to a grandparent who also proves he or she had of a "significant preexisting relationship"� with  the child.  Such can be proven, for example, if you acted as a de facto parent by caring for the children each day because their parents went to work.  Then you'd also need to prove that a disruption of that relationship can be potentially harmful to the child.

These high standards must be met before a court can order your visitation against your daughter's fundamental right to not permit such visits. Because you never had any contact with them you cannot possibly meet the required tests.  .  .