Deaths, separations and divorces can have a huge emotional and psychological toll on the two partners in a marriage or civil partnership, as well as their children, but others are affected, too. Friends and close family, especially grandparents, may find it hard to adjust to the changes that inevitably result from these major changes in relationships. This article explores what rights and options grandparents have in Massachusetts following a separation or divorce in relation to custody and visitation.
The divorce procedure in Massachusetts
In Massachusetts, divorces may be contested or uncontested. Contested divorces may be because one of the spouses does not want to go through with the divorce or disagrees with some aspect of the divorce settlement, usually asset distribution or arrangements for child custody and support. Although it is best for the couple and their children that there is an amicable agreement made about these often challenging decisions, it may be ultimately left to the Probate and Family Law court to make decisions, if mediation does not resolve differences.
Uncontested divorces tend to be more common and easier to arrange. These are typically no-fault divorces in which a marriage is considered to have reached an irretrievable breakdown but is not considered the specific fault of either spouse. As long as the two spouses can come to a practical divorce settlement, these types of divorces will be accepted after the due waiting period without recourse to court help.
In Massachusetts divorces, there are two types of custody arrangements. Legal custody refers to decisions about how the children’s welfare and upbringing are made after the divorce. This can be joint or sole legal custody, but it it is normally unusual for only one parent to have sole legal custody. Physical custody arrangements refer to who the child(ren) actually live with from day to day. Again, this can be sole or joint custody, but practically it tends to end up with mainly one parent providing day to day care and a home, while the other parent has organized visitation and vacation time.
Whatever the arrangements, the court expects a divorce agreement to be worked out between the couple divorcing and this to be signed in front of a notary unless the court makes the custody decisions. Unfortunately, grandparents are often overlooked at this point, especially if there is a degree of acrimony between the two spouses. Grandparents may have to wait until the divorce is over before being able to make any petition for changes.
Grandparents and their right to custody of their grandchildren
It is rare for grandparents to be given custody of their grandchildren over either of the divorcing parents. In Massachusetts, grandparents must be able to present a convincing case that their grandchildren might be unsafe or at risk if left in the care of either of the parents. Grandparents are said to have the “burden of proof” to make a case for custody. If a decision about child custody has been left to the court, and there is convincing evidence that either or both spouses might have a detrimental effect on the children’s welfare, then the court may consider whether either the maternal or paternal grandparents might be suitable for taking over custody responsibilities.
Grandparents and visitation rights
Grandparents have a right to petition the court for visitation time with their grandchildren, but if the parents object, then the grandparents must show some proof that the children would somehow be safer if they had visitation time. Visitation is not the same as custody. It means providing a scheduled time for grandparents to have quality time with their grandchildren. This might just mean visiting the home where the children are living with one of their parents, or having the children stay with them for a weekend or a day or two or more during vacations. The main decisions and financial responsibility remains with the parent(s) whereas custody would mean that the grandchildren live with and are brought up by their grandparents..
Obviously, the best outcome is that grandparents retain a good supportive relationship with their own child who has physical custody of the children so that there is no need to petition for visitation rights. It must be mutually acceptable for this to occur. Separations and divorces are often messy and a parent who suddenly has to look after their children on their own might very well welcome the support of one set of grandparents or another, but this isn’t a given. Either the maternal or paternal grandparents may find that they are less welcome after a divorce or separation depending on the circumstances of the break up.
Grandparent rights if the couple separating are unmarried
Unmarried couples face a different scenario as it applies to child custody compared to married couples. Unmarried mothers are usually given the right to physical custody. The male partner must prove paternity (normally through a DNA test) before they can petition the court for physical custody. This difference affects paternal grandparents as well, as they cannot petition the court for visitation rights (or custody rights) until their son has proven paternity.
The petition process
When grandparents file a petition to the court for custody or visitation rights, this means that they submit a formal, written request to the court regarding custody or visitation of their grandchildren. The request must be specific about a visitation schedule, i.e. times and days that they would like to be able to visit. Because of the burden of proof aspect of a petition, they must also provide written evidence supporting their view that it would not only be in the ‘best interests’ of their grandchild(ren) for them to be in the custody of their grandparents or to retain a relationship with their grandparents through a visitation schedule, but it would reduce potential emotional or psychological harm to their grandchild(ren), too.
Once a petition to the court has been filed, notice to the parent(s) and any other individuals who may have also filed a petition for custody/visitation must be given.
Things can change after a separation or divorce. It is possible sometime in the future that grandparents might want to change a visitation order that might have been given by the court (e.g. increase the amount of time with grandchildren). This can be done by requesting a modification to the original court order. If the parent who has physical custody is resisting or ignoring the visitation order, then grandparents may ask the court to enforce the order to allow visitation time.
For more information, visit our website Mucci Legal or contact us for a free initial legal consultation today.