Grandparents, take note. I expect that you will readily nod your head when reading: parents have a Constitutional right “to make decisions concerning the care, custody, and control of their child[ren]” Blix v. Blixt, 437 Mass. 649, 651, 655 (2002), and yet not fully grasp the legal and practical implications of the Blixt holding.
If tragedy befalls your family and your grandchildren have lost a parent, that parent being your child, whether the relationship you may have had with your grandchildren remains intact is contingent upon the surviving parent. Nor, does your child’s death bequeath you with the “parental” rights your child had with your grandchildren.
In practice, the Blixt decision stands for the premise that a custodial parent’s decision not to allow grandparent visitation is presumed binding. Confronted with this difficulty, there are several factors the grandparent must overcome.
As a preliminary, if the child’s parents were not married to each other and/or the deceased parent’s name is not on the birth certificate, maternity/paternity must be established, or the deceased parent must be determined to be a de facto parent. I use the phrases, maternity/paternity, and de facto parent because the law recognizes more than one way to create a family: the old fashioned way; in the back of Daddy’s Lincoln; a turkey baster; sperm cocktail; egg/ sperm donation; gestational carrier agreements; and personal commitment. There are many parts to the parental puzzle: DNA, names on the birth certificate, and court orders.

Having satisfied the legal parent challenge, if there is one, the next hurdle is the surviving parent’s decision that the denial of grandparent visitation is in the best interests of the grandchild. The grandparent’s burden is proving the negative: the failure to grant visitation will cause the child significant harm by adversely affecting the child’s health, safety, or welfare.

The “significant harm” requirement is overcome by the grandparent demonstrating “a significant preexisting relationship” with the child or evidencing visitation is “necessary to protect the child from significant harm.” Id at 658. However, the “significant preexisting relationship” standard requires more than a nurturing, meaningful and close relationship between the grandparent and the child. See id. at 658; Dearborn v. Deausault, 61 Mass. App. Ct. 234, 238 (2004).

In the Dearborn case, indeed, the grandfather saw the children “regularly ‘several times per month’…, ‘provided emotional support to the children and exposed them to nurturing experiences”, and had a “substantial, meaningful relationship with the children” which “took on particular importance to the children given their father’s exclusion from their lives.” Dearborn, 61 Mass. App. Ct. at 235, 236. Nonetheless, the grandfather’s relationship with the children was not enough to infer the harm necessary to overcome the presumption that the mother’s decision not to allow visitation was in the children’s best interests. Id. at 238. The children were not harmed by not seeing their grandfather; rather it was noted that the children were “doing extremely well [and were] happy, smart and healthy.” Id. According to Dearborn, a grandparent’s weekly visits and good faith effort to establish consistency with the grandchildren through various communications may fall short of a “significant preexisting relationship.”

Undoubtedly, exceptionally hard to accept by the grieving grandparent is the court’s deference to the surviving parent’s decision that visitation with the grandparent is not in the children’s best interests. As in every situation, there are always more than two sides to the controversy. The appointment of a guardian ad litem to assess the relationship between the grandparent and the grandchildren by may serve the children well. Nevertheless, it is understandable for a court to err on the side of caution, give due regard to the custodial parent’s expertise as the child’s protector, and allow the parent to define the grandchild-grandparent relationship, absent evidence to the contrary.