GRANDPARENT VISITATION RIGHTS IN
MASSACHUSETTS AFTER TROXEL: BLIXT
V. BLIXT
Three years of war and four years of depression will straighten you
right out.1
I.
INTRODUCTION
In September 2002, the Massachusetts Supreme Judicial Court (SJC)
found the Massachusetts grandparent visitation statute constitutional2 in the
court’s first opportunity to review the statute3 (Section 39D) since the
United States Supreme Court’s decision in Troxel v. Granville.4 The SJC
upheld the statute because it found that it did not violate the mother’s due
process or equal protection rights under the Federal or State Constitutions
despite Section 39D’s lack of specific language as prescribed by Troxel.5
This Comment, after outlining the rationale behind the SJC’s decision in
Blixt v. Blixt, and the dissent offered by Justice Sosman, will argue that the
SJC did not adequately protect a parent’s fundamental right to care for his
or her child as created by numerous United States Supreme Court decisions
and reaffirmed in Troxel. Therefore, this Comment will assert that the SJC
left parents, like Kristin Blixt, subject to frivolous lawsuits which a proper
interpretation of their substantive due process rights would safeguard
against. Also, this Comment will maintain that the Massachusetts’
legislature6 created a statute based on assumptions that classified Ms. Blixt
in violation of her equal protection rights. Additionally, this Comment
contends that, in the very least, the SJC should have sent the Section 39D
1.
2.
3.
4.
5.
6.
Costanzio J. Trapani (1921-1995), grandfather of the author.
See Blixt v. Blixt, 774 N.E.2d 1052, 1056 (Mass. 2002).
MASS. GEN. LAWS ch. 119, § 39D (2002).
530 U.S. 57 (2000).
See discussion infra Part I.B.
The legislature for the Commonwealth of Massachusetts is officially known as the
General Court. For purposes of this Comment, this Comment will refer to the General Court
as the Legislature.
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back to the Legislature for revision. The request for revision should have
included guidance consistent with Troxel and a clarification of what factors
may constitute the best interests of the child when weighed against the
parental fundamental right.7 Finally, this Comment offers a proposed
replacement for the Massachusetts Grandparent Visitation Statute that
considers all the factors discussed below, especially the rights of a parent.8
A. Visitation in General
In the 1960s, state legislatures across the United States began enacting
third party or grandparent visitation statutes in response to the changing
American family.9 With no remedy at common law, these statutes created a
remedy for grandparents and other third parties when parents declined them
visitation.10 Grandparent visitation statutes reflected several changes in
American culture, including changes in life expectancy and the
7.
Interaction between the Legislature and the SJC is common in Massachusetts. For
example, in December 2003, State Senate President Robert E. Travaglini sent a proposed
bill regarding civil unions to the SJC for an advisory opinion in lieu of the SJC’s decision in
Goodridge v. Department of Public Health, 798 N.E.2d 941 (Mass. 2003). See Frank
Phillips, SJC Solicits Briefs on Civil Unions, Mulls Request by Senate for Advisory Opinion,
BOSTON GLOBE, Dec. 17, 2003, at A1; Frank Phillips, Senate Eyes Civil Union for SJC,
Would Ask Justices for ‘Clarification,’ BOSTON GLOBE, Dec. 11, 2003, at A1.
8.
See discussion infra Part IV.
9.
See Mary E. O’Connell, The Riddle of Troxel: Is Grandma the State, 41 FAM. CT.
REV. 77, 78 (2003). For a one-sided history of grandparent statutes, see AARP Urges Court
to Uphold Massachusetts Grandparent Visitation Law at http://www.aarp.org/litigation/
releases/2002/ blixtann.html (last visited Jan. 20, 2004) [hereinafter AARP Blixt Website]:
Prior to 1965, American grandparents had no statutory right to visit with their
grandchildren. From the mid-1960s through the end of the century, state
legislatures have been troubled by the effect on children of the increasing rates of
divorce, out-of-wedlock births, teen pregnancy, drugs, AIDS, and child abuse and
neglect.
Id.
10.
See John DeWitt Gregory, Defining the Family in the Millenium: The Troxel
Follies, 32 U. MEM. L. REV. 687, 687-88 (2002).
The common law neither countenanced nor contemplated intervention in parentchild relationships by persons who were not related to the child by blood. Even
grandparents, who not only are blood relatives, but also are often considered to be
members of the extended family, were considered legal strangers who enjoyed no
rights under the common law with respect to their grandchildren.
Id. Prior to the enactment of grandparent visitation statutes, if a parent restricted or denied
the grandparent visitation with the grandchild, the grandparent had no recourse. See King v.
King, 828 S.W.2d 630, 636 (Ky. 1992) (Wintersheimer, J., dissenting). An earlier decision
noted “that the obligation ordinarily to visit grandparents is moral, and not legal.”
Succession of Reis, 15 So. 151, 152 (La. 1894).
2004]
BLIXT V. BLIXT
761
composition of the nuclear family.11 Americans began living longer
through advances in medicine and the overall quality of living.12 In 1930,
the average life expectancy for an American was 59.7 years.13 Today, the
average life expectancy in the United States is 77.1 years, an increase of
17.4 years.14 Over the same period of time, the median age of an American
increased from 26.5 years to 35.3 years.15 Also, the number of people aged
sixty-five and over increased from 6.6 million to 35 million.16 Thus, the
population of persons aged sixty-five years and older increased from 5.37
percent of the total population to 12.44 percent.17 Americans also divorced
at a greater rate,18 more children were born outside of wedlock, and
families became increasingly mobile.19
Similarly, and as another result of these demographic changes, more
American grandparents assumed the role of provider for their
grandchildren.20 Passage of the Grandparent Visitation Statute in the
11.
See Joan C. Bohl, The “Unprecedented Intrusion”: A Survey and Analysis of
Selected Grandparent Visitation Cases, 49 OKLA. L. REV. 29, 29-30 (1996) [hereinafter
Bohl, The Unprecedented Intrusion]; see also Joan Catherine Bohl, Grandparent Visitation
Law Grows Up: The Trend Toward Awarding Visitation Only When the Child Would Suffer
Harm, 48 DRAKE L. REV. 279, 308-09 (2000) [hereinafter Bohl, Grandparent Visitation
Law] (notes courts’ openness to redefine the intact family to include those formerly
considered non-traditional).
12.
See Bohl, The Unprecedented Intrusion, supra note 11, at 29-30.
13.
See U.S. Census Bureau, How the Nation Has Changed Since the 1930 Census, at
http://www.census.gov/pubinfo/www/1930_factsheet.html (last visited Jan. 19, 2004). This
information presents a comparison of census statistics in 1930 and 2000. Id.
14.
See id.
15.
See id.
16.
See id.
17.
See id.
18.
See Divorce Magazine.com, U.S. Divorce Statistics, at http://www.
divorcemag.com/statistics/statsUS.shtml (last visited Jan. 19, 2004). According to statistics
compiled by DivorceMagazine.com, there were 19,400,000 divorced adults in the United
States in 1998. Id. In 1997, the likelihood that a marriage would result in divorce was 43
percent. See id. Moreover, the number of children with newly divorced parents in each year
as of 1997 was one million. See id. The percentage of family households with children with
only one parent in 1998 was 27 percent and the number of children living with their
grandparents in 1998 was four million (about 6 percent). Id. Another source noted that 24.1
percent of children residing in this country are in homes with both biological parents and
that 75 percent of this country’s children reside with a single parent, stepparents, or other
relatives. See Siobhan Morrissey, The New Neighbors: Domestic Relations Law Struggles to
Catch Up with Changes in Family Life, 88 A.B.A. J., March 2002, at 36, 37-41. In contrast,
almost 71 percent of the country’s homes were made of married couples in 1970. See id.
19.
See Bohl, The Unprecedented Intrusion, supra note 11, at 29-30.
20.
See Troxel v. Granville, 530 U.S. 57, 64 (2000); see also Tamar Lewin,
Grandparents Play Big Part in Grandchildren’s Lives, Survey Finds, N.Y. TIMES, Jan. 6,
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Commonwealth of Massachusetts (hereinafter, the Commonwealth or
Massachusetts) reflected the trends experienced across the United States. In
Massachusetts, the number of persons aged sixty-five and older increased
from 819,284 to 860,162 between 1990 and 2000.21 More importantly,
these persons came to represent approximately 13.5 percent of the
Massachusetts population—a sizable portion of the citizenry and one that is
slightly higher than the national average of citizens older than sixty-five
years of age.22 Recent statistics showed that 98,325 Commonwealth
grandparents live in a household with one or more of their grandchildren
under the age of eighteen;23 of these grandparents, 27,915 are responsible
for raising their grandchildren.24
States responded to these familial changes by passing third party
visitation statutes.25 In less than thirty years, every state and the District of
Columbia enacted some sort of third party visitation statute.26
2000, at A16.
21.
Compare U.S. Census Bureau, Table DP-1, Profile of General Demographic
Characteristics for Massachusetts: 1990, at http://www.census.gov/PressRelease/
www/2001/tables/dp_ma_1990.xls (last visited on Jan. 19, 2004), with U.S. Census Bureau,
Table DP-1, Profile of General Demographic Characteristics: 2000 (Massachusetts), at
http://censtats.census.gov/data/MA/04025.pdf (last visited Jan. 19, 2004) [hereinafter DP-1
Tables].
22.
Compare DP-1 Tables, supra note 21, with U.S. Census Bureau, How the Nation
Has Changed Since the 1930 Census, at http://www.census.gov/pubinfo/www/
1930_factsheet.html (last visited Jan. 19, 2004).
23.
See U.S. Census Bureau, Table DP-2, Profile of Selected Social Characteristics:
2000 (Massachusetts), at http://censtats.census.gov/data/MA/04025.pdf (last visited Jan. 19,
2004).
24.
See id.
25.
See Bohl, The Unprecedented Intrusion, supra note 11, at 29-30; see also Jennifer
Kovalcik, Troxel v. Granville: In the Battle Between Grandparent Visitation Rights, “The
Best Interest of the Child” Standard Needs Reform, 40 BRANDEIS L.J. 803, 804 (2002).
26.
See ALA. CODE § 30-3-4.1 (2003); ALASKA STAT. § 25.20.065 (Michie 2003); ARIZ.
REV. STAT. § 25-409 (2003); ARK. CODE ANN. § 9-13-103 (Michie 2002); CAL. FAM. CODE §
3104 (West 2004); COLO. REV. STAT. § 19-1-117 (2003); CONN. GEN. STAT. § 46b-59 (2003);
DEL. CODE ANN. tit. 10, § 1031(7) (1999); FLA. STAT. ch. 752.01 (1997); GA. CODE ANN. §
19-7-3 (1999); HAW. REV. STAT. § 571-46.3 (1993); IDAHO CODE § 32-719 (Michie 1996);
750 ILL. COMP. STAT. 5/607 (2000); IND. CODE ANN. § 31-17-5-1 (Michie 1997); IOWA CODE.
§ 598.35 (2003); KAN. STAT. ANN. § 38-129 (2002); KY. REV. STAT. ANN. § 405.021 (BanksBaldwin 2003); LA. REV. STAT. ANN. § 9:344 (West 2003); ME. REV. STAT. ANN. tit. 19A, §
1803 (West 1998); MD. CODE ANN., FAM. LAW. § 9-102 (1999); MASS. GEN. LAWS ch. 119, §
39D (2004); MICH. COMP. LAWS § 722.27b (2003); MINN. STAT. § 257C.08 (2003); MISS.
CODE ANN. § 93-16-3 (2003); MO. REV. STAT. § 452.402 (2003); MONT. CODE ANN. § 40-9102 (2003); NEB. REV. STAT. § 43-1802 (2003); NEV. REV. STAT. § 125C.050 (1999); N.H.
REV. STAT. ANN. § 458:17-d (1993); N.J. STAT. ANN. § 9:2-7.1(West 2003); N.M. STAT. ANN.
§ 40-9-2 (Michie 1999); N.Y. DOM. REL. LAW § 72 (McKinney 2003); N.C. GEN. STAT. §§
2004]
BLIXT V. BLIXT
763
Consequently, many of these statutes authorized a court to order reasonable
grandparent visitation if the court found the visitation to be in the “best
interest of the child.”27 This standard appealed to proponents of these
visitation statutes, most notably grandparents, because many courts viewed
such continued relationships between close persons, especially
grandparents, to be in the best interests of the child.28
Aging Americans lobbied for these statutes because grandparents had
neither a right of visitation at common law nor any constitutionally
recognized right to visitation.29 Today, hundreds of groups, including the
AARP (formerly known as the American Association of Retired Persons),
provide information to grandparents regarding visitation statutes in each
state.30 The AARP also provides information concerning attorneys, fees,
recent case law, and counseling for grandparents about the possible effects
on the entire family.31 In sum, the pro-grandparent visitation statute lobby
possesses extremely sophisticated resources, notably those of the AARP
50-13.2, 50-13.2A (2003); N.D. CENT. CODE § 14-09-05.1 (2003); OHIO REV. CODE ANN. §§
3109.051, 3109.11 (West 2003); OKLA. STAT. tit. 10, § 5 (2003); OR. REV. STAT. § 109.119
(2001); 23 PA. CONS. STAT. §§ 5311-5313 (2003); R.I. GEN. LAWS §§ 15-5-24 to 15-5-24.3
(2002); S.C. CODE ANN. § 20-7-420(33) (Law. Co-op. 2003); S.D. CODIFIED LAWS § 25-4-52
(Michie 2003); TENN. CODE ANN. §§ 36-6-306, 36-6-307 (2003); TEX. FAM. CODE ANN. §
153.433 (Vernon 2003); UTAH CODE ANN. § 30-5-2 (2003); VT. STAT. ANN. tit. 15, §§ 10111013 (2003); VA. CODE ANN. § 20-124.2 (Michie 2003); WASH. REV. CODE § 26.10.160(3)
(2004); W. VA. CODE §§ 48-10-101 to 48-10-1201 (2003); WIS. STAT. §§ 767.245, 880.155
(2003); WYO. STAT. ANN. § 20-7-101 (Michie 2002); see also AARP Blixt Website, supra
note 9.
27.
See generally Kovalcik, supra note 25, at 805 (noting that “[t]he touchstone in all
recent cases has been the ‘best interest of the child’”).
28.
See King v. King, 828 S.W.2d 630, 632 (Ky. 1992). The majority opinion
emphasized the rationale that a relationship with one’s grandparent is in the best interest of
the child. See id.; see also Kovalcik, supra note 25, at 805; AARP Blixt Website, supra note
9. “Despite the differences, all the statutes share one important characteristic: the
requirement that the court determines whether grandparent visitation is in the child’s best
interest”; a “best interest” test rather than a “harm” standard is a lower burden of proof for
grandparents to meet. Id.
29.
See King, 828 S.W.2d at 636 (Wintersheimer, J., dissenting); see also Bohl, The
Unprecedented Intrusion, supra note 11, at 29-31.
30.
See AARP, Grandparent Visitation Rights, at http://www.aarp.org/confacts/
grandparents/visitation.html (last visited Jan. 15, 2004) [hereinafter AARP Visitation
Rights]; AARP, Comparison of Grandparent Visitation Statutes Nationwide, at
http://www.aarp.org/litigation/table.html (last visited Jan. 15, 2004) [hereinafter AARP
Statute Chart].
31.
See AARP Visitation Rights, supra note 30; AARP Statute Chart, supra note 30.
See generally Loma Davies Silcott, Grandparent Visitation Rights: Know Your Options,
Choose a Plan of Action, at http://www.grandtimes.com/visit.html (last visited Jan. 15,
2004); Grandparents Resource Center, U.S. Supreme Court Ruling, at
http://www.grc4usa.org/supreme.htm (last visited Jan. 15, 2004).
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and other senior groups, despite the lobby’s relatively short existence in the
political and legal world.32 The persistence of the pro-grandparent
visitation statute lobby helped achieve success over the past forty years in
currying favorable statutes and court decisions.33
These statutes enjoyed early affirmation in courts based on the belief
that a relationship between young and old was in the best interest of the
child.34 Yet even the King opinion, the seminal case for grandparent rights,
32.
See Kristine L. Roberts, State Supreme Court Applications of Troxel v. Granville
and the Courts’ Reluctance to Declare Grandparent Visitation Statutes Unconstitutional, 41
FAM. CT. REV. 14, 16 (2002); see also Catherine Bostock, Does the Expansion of
Grandparent Visitation Rights Promote the Best Interests of the Child?: A Survey of
Grandparent Visitation Laws in the Fifty States, 27 COLUM. J. L. SOC. PROBS. 319, 325
(1994) (“The expansion of grandparent visitation rights reflects not only a concern for
children, but also the might of the senior lobby.”); Edward M. Burns, Grandparent
Visitation Rights: Is It Time for the Pendulum to Fall?, 25 FAM. L. Q. 59, 59 (1991) (“These
united grandparents have besieged their legislators with requests to pass laws giving them
the right to visit with their grandchildren.”); Beth Sherman, Third Party Visitation Statutes:
Society’s Changing Views About What Constitutes a Family Must Be Formally Recognized
by Statute, 4 CARDOZO ONLINE J. CONFLICT RESOL. 3 (2002), at http://www.cardozojcr.com/
vol4no1/notes03.html (last visited Jan. 15, 2004). Professor Sherman stated:
The recent trend to expand nonparental visitation statutes for grandparents is
motivated by several factors. First, as part of a strong political lobby, grandparents
have their interests taken quite seriously by the legislature. Second, grandparents
are living longer today than ever before, thus creating a larger number of
individuals interested in this issue. Third, today’s grandparents frequently take
over what has traditionally been the role of parents. As a result, grandparents may
legitimately have a greater interest in maintaining a relationship with their
grandchildren than ever before.
Id.
33.
See generally O’Connell, supra note 9, at 78. “State legislators who worked for
grandparents’ rights undoubtedly were motivated by the increasing proportion of older
voters . . . . Voting against grand-parents is political suicide.” Id. (quoting ANDREW J.
CHERLIN & FRANK FURSTENBERG, THE NEW AMERICAN GRANDPARENT 5 (1986)).
34.
See King, 828 S.W.2d at 632. The opinion stated:
This statute seeks to balance the fundamental rights of the parents, grandparents
and the child. At common law, grandparents had no legal right to visitation.
However, the General Assembly determined that, in modern day society, it was
essential that some semblance of family and generational contact be preserved. If
a grandparent is physically, mentally and morally fit, then a grandchild will
ordinarily benefit from contact with the grandparent. That grandparents and
grandchildren normally have a special bond cannot be denied. Each benefits from
contact with the other. The child can learn respect, a sense of responsibility and
love. The grandparent can be invigorated by exposure to youth, can gain an
insight into our changing society, and can avoid the loneliness which is so often a
part of an aging parent’s life. These considerations by the state do not go too far in
intruding into the fundamental rights of the parents.
2004]
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765
was met by a strong dissent, which maintained that grandparents possessed
no such right, but rather, any visitation should be premised on the best
interests of the child.35
B. The Supreme Court’s Opinion in Troxel v. Granville
In 2000, the United States Supreme Court addressed the State of
Washington’s third party visitation statute in Troxel v. Granville.36 This
case involved a visitation dispute between a mother, Tommie Granville,
and her daughters’ paternal grandparents. Tommie and Brad Troxel had a
relationship together but never married.37 The relationship, however, did
bear two daughters.38 After their relationship ended in 1991, Brad lived
with his parents, Gary and Jenifer Troxel;39 Brad regularly brought the girls
over to his parents’ house on the weekends.40 Tragically, Brad committed
suicide in May 1993, yet Tommie continued the daughters’ visits with
Brad’s parents for several months on a similar basis.41 In October 1993,
Tommie informed the Troxels that she would be limiting the visitations
with the daughters.42 Consequently, the Troxels filed a petition for
visitation in state court under Washington’s third party visitation statute.43
A plurality consisting of six Justices of the Court held that the
Washington statute, “as applied to [Tommie] and her family in this case,
unconstitutionally infringe[d] on the fundamental parental right”44 because
it was “breathtakingly broad.”45 Justice O’Connor, writing for the plurality,
opined that the language of the Washington statute “effectively permits any
third party seeking visitation to subject any decision by a parent concerning
visitation of the parent’s children to state-court review.”46 Furthermore,
Id. (citations omitted). This dissent clearly explained how the law must consider the best
interests of the child and not those of the grandparent. See id.; see also Roberts, supra note
32, at 16. “Still, on the whole, most courts responded to the early suits by upholding the
statutes as constitutional.” Id. at 17.
35.
See King, 828 S.W.2d at 636 (Wintersheimer, J., dissenting).
36.
530 U.S. 57, 57 (2000).
37.
See id. at 60.
38.
See id.
39.
See id.
40.
See id.
41.
See Troxel, 530 U.S. at 60-61. It is important to note that Tommie Granville
merely limited the visitation between the Troxels and their grandchildren. See id. at 61.
42.
See id. at 60-61. Again, Tommie Granville was not terminating the visitation, but
only limiting it. See id.
43.
See id. at 61; see also WASH. REV. CODE § 26.10.160(3) (1997).
44.
Troxel, 530 U.S. at 67 (emphasis added).
45.
Id. at 67.
46.
Id.
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Justice O’Connor stated that the “Due Process Clause does not permit a
State to infringe on the fundamental right of parents to make child rearing
decisions simply because a state judge believes a ‘better’ decision could be
made.”47 Essentially, the Supreme Court reaffirmed principles espoused in
past cases concerning a parent’s right to raise his or her children free from
governmental intrusion.48 The Court hinted that a visitation statute would
fail without language presuming that a fit parent acts in the best interests of
the child.49 A visitation statute based solely on the best interest standard
would be an unconstitutional infringement on a parent’s fundamental
rights.50 The Supreme Court, however, declined to decide whether a nonparental visitation statute “violate[d] the Due Process Clause as a per se
matter.”51 The limited ruling of Troxel created uncertainty regarding what
factors must be present to permit a state’s grandparent visitation statute to
survive a constitutional attack.52 Since Troxel, state decisions reflect the
plurality’s instruction to “bestow greater deference on parents”53 and yet
differ on exactly what to do with the statute.54 Each state-court decision
47.
48.
Id. at 72-73.
See id. at 65. “[W]e have recognized the fundamental right of parents to make
decisions concerning the care, custody, and control of their children.” Id. at 66. The
fundamental right of parents is based on a long list of Supreme Court cases. See generally
Santosky v. Kramer, 455 U.S. 745, 753 (1982) (holding that the Fourteenth Amendment
requires a high standard of proof for the state to satisfy when petitioning to terminate a
parent’s rights); Moore v. City of East Cleveland, 431 U.S. 494, 504 (1977) (extending
Fourteenth Amendment protections regarding personal choice in matters of family and
marriage to non-nuclear family); Stanley v. Illinois, 405 U.S. 645, 657-58 (1972) (holding
that the Due Process Clause required a finding that a parent is unfit before parental rights
can be terminated); Wisconsin v. Yoder, 406 U.S. 205, 234 (1972) (striking down a state
law requiring school attendance after age sixteen); Griswold v. Connecticut, 381 U.S. 479,
495-96 (1965) (Goldberg, J., concurring) (recognizing Fourteenth Amendment protection of
one’s personal choice regarding matters of marriage and family life); Prince v.
Massachusetts, 321 U.S. 158, 168-69 (1944) (holding that the state was acting within its
parens patriae power to regulate child labor); Pierce v. Soc’y of Sisters, 268 U.S. 510, 53435 (1925) (holding unconstitutional a statute which compelled children to attend public
school because it denied parents the option of sending their children to parochial schools);
Meyer v. Nebraska, 262 U.S. 390, 403 (1923) (holding that a statute prohibiting education
of children in languages other than English violated the constitution).
49.
See Troxel, 530 U.S. at 70.
50.
See id.
51.
Id. at 73.
52.
See Roberts, supra note 32, at 22 (citing Troxel, 530 U.S. at 70) (noting that the
Supreme Court appeared to require that a fit parent’s decision should be presumed correct
and that “some special weight” be given to a parent’s decision).
53.
Id.
54.
See id. Roberts notes that in the cases decided at the time of publication, eight
states declared the grandparent visitation statutes unconstitutional as applied, one
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767
represents an opportunity to add to the nationwide dialogue—and
perplexity—created by Troxel.
C. The Massachusetts Grandparents Visitation Statute
The Legislature originally passed its grandparents visitation statute on
July 10, 1972.55 The statute’s original language differed from today’s
version in that it limited standing to grandparents of children where “either
the father or mother . . . is deceased.”56 Ten years later, the Legislature
revised the statute and extended standing to grandparents of children with
divorced parents with one or no living parents.57 Finally, the Legislature
amended the statute to expand its reach to homes where only one parent
resided—whether the parents were married, separated, divorced, or
deceased.58
determined its statute to be facially unconstitutional; three found their statutes facially
constitutional; and one limited constitutionality to cases of divorce and one was found to be
constitutional as applied in one case. See id. Furthermore, “some courts have construed the
statutes to be stricter than written. Other courts have emphasized the ways in which their
states’ laws are distinguishable from the broadly sweeping Washington statute.” Id. at 15.
55.
See MASS. GEN. LAWS ch. 119, § 39D (2002); see also MASS. GEN. LAWS ANN. ch.
119, § 39D (West 2003) (providing the original statute and its amendment history).
56.
See MASS. GEN. LAWS ANN. ch. 119, § 39D (West 2003).
57.
See id.
58.
See id. Section 39D states:
If the parents of an unmarried minor child are divorced, married but living
apart, under a temporary order or judgment of separate support, or if either or both
parents are deceased, or if said unmarried minor child was born out of wedlock
whose paternity has been adjudicated by a court of competent jurisdiction or
whose father has signed an acknowledgement of paternity, and the parents do not
reside together, the grandparents of such minor child may be granted reasonable
visitation rights to the minor child during his minority by the probate and family
court department of the trial court upon a written finding that such visitation rights
would be in the best interest of the said minor child; provided, however, that such
adjudication of paternity or acknowledgement of paternity shall not be required in
order to proceed under this section where maternal grandparents are seeking such
visitation rights. No such visitation rights shall be granted if said minor child has
been adopted by a person other than a stepparent of such child and any visitation
rights granted pursuant to this section prior to such adoption of the said minor
child shall be terminated upon such adoption without any further action of the
court.
A petition for grandparents visitation authorized under this section shall,
where applicable, be filed in the county within the commonwealth in which the
divorce or separate support complaint or the complaint to establish paternity was
filed. If the divorce, separate support or paternity judgment was entered without
the commonwealth but the child presently resides within the commonwealth, said
petition may be filed in the county where the child resides.
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D. Background: Viewing Grandparent Visitation Statutes Through
Troxel v. Granville
In Blixt v. Blixt,59 the SJC upheld the Commonwealth’s grandparent
visitation statute in light of the Supreme Court’s plurality opinion in
Troxel.60 Specifically, the SJC upheld a maternal grandfather’s right to
visitation of a child born out-of-wedlock pursuant to the Commonwealth’s
grandparent visitation statute, despite the objections of both, though
unmarried, parents.61 The SJC’s opinion in Blixt overturned the lower
court’s ruling that Section 39D unconstitutionally infringed on the parents’
“fundamental right to make decisions concerning the care, custody, and
control of their child[].”62 Blixt represented the SJC’s first post-Troxel
opportunity to decide the constitutionality of Section 39D.63 The decision
addressed Troxe’sl concerns regarding the scope of the Commonwealth’s
third party visitation statute “as applied,” and whether it infringed upon the
fundamental parental rights.64 Because the Supreme Court did not close the
door on grandparent visitation statutes, the states were left with the task of
weighing the interests of the parties involved.65
In Blixt, the SJC concluded that Section 39D did not violate the parents’
due process or equal protection rights.66 Besides the disagreement over the
constitutionality of grandparent visitation statutes, the SJC’s decision, like
the Troxel decision, left several issues begging for more clarity. First, the
SJC upheld the statute only after interpreting into it the necessary language
to create a presumption in favor of the parental decision.67 Therefore, the
SJC’s construction of Section 39D does not redraft the statute, a task
outside the powers of the SJC, to include the presumption of parental
fitness; rather, one must do research beyond the statutory language to know
MASS. GEN. LAWS ch. 119, § 39D (2002). These revisions appear to correlate with changes
in demographics. See supra Part I.A.
59.
774 N.E.2d 1052 (Mass. 2002). For a description of the facts, see Part II.
60.
530 U.S. 57 (2000).
61.
See Blixt, 774 N.E.2d at 1055-56.
62.
Id. (quoting Blixt v. Blixt, No. 93W0896GP2 (Plymouth Prob. Ct. 2001)).
63.
See supra notes 47-54 and accompanying text regarding parental rights under the
Fourteenth Amendment established by the United States Supreme Court.
64.
See Troxel, 530 U.S. at 67.
65.
See id. at 73. “Because much state-court adjudication in this context occurs on a
case-by-case basis,” the Court decided not to strike down all nonparent visitation statutes,
but to let state courts wrestle with the issue and retain the flexibility their respective statutes
give these judges. Id.
66.
See Blixt, 774 N.E.2d at 1056.
67.
See id. at 1060. Thus, this language still does not exist in the actual statute. See
generally MASS. GEN. LAWS ch. 119, § 39D (2002).
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of the presumption.68 Second, the factors to be used when determining the
best interests of the child are not clearly defined in Section 39D. While
statutes requiring the best interests standard sometimes provide an outline
of what factors to consider,69 the Blixt opinion fails to adequately outline
these factors and neglects to ask the Legislature to do so. Third, though the
decision obligates future petitions by grandparents under Section 39D to
fulfill a heightened pleading requirement, the statute also remains void of
the language creating this obligation.70 These requirements do not
sufficiently protect parents from frivolous lawsuits.
Finally, the SJC’s decision will not appropriately define the guidelines
for lower courts to apply when determining whether to grant visitation to a
grandparent. If the SJC decided to strike down the statute, for example, the
ruling could have forced the Legislature to amend the language of the
statute in accordance with Federal and State constitutions and with the
factors needed for clarity, thus dispelling much of this anticipated
confusion.71
II. BLIXT V. BLIXT
A. Facts and Procedure of Blixt
On June 10, 1993, a boy was born to Paul Sousa and Kristin Blixt.72 The
couple was not married and remained unmarried.73 The child resided with
his mother, but both parents shared legal custody of him.74 John D. Blixt is
68.
See Blixt, 774 N.E.2d at 1060. The court noted that “an appellate court may . . .
construe a statute to render it constitutional.” Id. (internal citations omitted). See generally
Yannas v. Frondistou-Yannas, 481 N.E.2d 1153, 1157-59 (1985) (noting that when judges
apply the “best interests” standard under Massachusetts General Law chapter 208, section
30, they are charged with applying factors that are not specifically enumerated in the
statute).
69.
See MASS. GEN. LAWS ch. 210, § 3(c) (2002):
In determining whether the best interests of the child will be served . . . the court
shall consider the ability, capacity, fitness and readiness of the child’s parents. . . .
In making the determination, the health and safety of the child shall be paramount,
but not exclusive, concern.
Id.
70.
71.
See Blixt, 774 N.E.2d at 1065-66.
For example, in Goodridge v. Dep’t of Public Health, 798 N.E.2d 941 (Mass.
2003), the SJC gave the Legislature 180 days to enact legislation consistent with its opinion.
See id. at 970.
72.
See Blixt, 774 N.E.2d at 1055. A court adjudicated that Paul was the father of the
child. See id.
73.
See id.
74.
See id.
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the child’s maternal grandfather.75 After Kristin and Paul ended their
relationship in late 1994, Kristin and the child resided in her parents’ home
for about five years.76 By the time her own parents separated in September
1998, Kristin had purchased and moved into a condominium in a nearby
town.77 Paul had already moved to Pennsylvania in 1998 and continued to
reside there.78 John felt that his grandson had “no other male role model.
He was [John’s] ‘best friend’ for his first 5 ½ years. [John and his
grandson] used to converse all the time about ‘guy things.’”79 When asked
why a court should order visitation with his grandson, John responded:
“Kristin leaves [the child] with her mother or gets babysitter [sic] to go out
on nights and week-ends. I would be able to share in the babysitting
without my daughter having to hire a babysitter when needed.”80 By the
time the SJC decided Blixt on September 9, 2002, John had not seen his
grandson for nearly three years.81
On June 5, 2000, John filed a civil action in the Plymouth Division of
the Probate and Family Court Department.82 The probate judge granted the
mother’s motion to dismiss the case.83 The SJC intervened and exercised
its power of direct appellate review.84 The SJC vacated the lower court’s
dismissal and remanded the case back to the Probate and Family Court.85
B. The Blixt Court: Section 39D Survives Constitutional Muster
The SJC decided that Section 39D “survive[d] a facial challenge on due
process grounds and also [did] not violate equal protection insofar as
75.
76.
See id.
Brief for John D. Blixt at 1, Blixt v. Blixt, 774 N.E.2d 1052 (Mass. 2002) (No.
SJC-08643) [hereinafter Brief for Appellant].
77.
See id. at 1-2.
78.
Id. at 2.
79.
Appellant Interrog. No. 4 (Aug. 23, 2000).
80.
Id. at No. 5.
81.
Brief for Appellant, supra note 76, at 2.
82.
Blixt v. Blixt, 774 N.E.2d 1052, 1052 (Mass. 2002). The Legislature conferred
equity jurisdiction on Probate Courts through MASS. GEN. LAWS ch. 215, § 6 (2002): “The
probate and family court department shall have original and concurrent jurisdiction with the
supreme judicial court and the superior court department of all cases and matters of equity
cognizable under the general principles of equity jurisprudence and, with reference thereto,
shall be courts of general equity jurisdiction . . . .” Id.
83.
See Blixt, 774 N.E.2d at 1052. Without a trial, the SJC’s opinion only discusses
the following facts: (1) the relationship of the plaintiff with the child; (2) the relationship of
the parents of the child; and (3) the statute. See id. at 1055.
84.
See id. at 1057.
85.
See id.
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771
[Kristin Blixt was] concerned.”86 In future petitions, the justices found that
Section 39D required a heightened pleading because “[n]otice pleading
does not safeguard these concerns,” despite the absence of such language in
the statute.87
1.
The Rights of the Mother Under a Due Process Analysis
Were Not Violated Because of the Compelling Interest
Involved
Kristin Blixt first alleged that Section 39D violated her due process
rights under the Federal and State constitutions.88 The SJC only addressed
a facial challenge of Section 39D because the case had not gone through
any trial.89 Therefore, the court would not be able to decide the case on the
merits of the facts “as applied,”90 making this opinion more limited in
scope than the decision in Troxel.91 Because a facial constitutional
challenge is believed to be the weakest form of a statutory challenge, the
SJC reaffirmed the principle that a “statute so questioned is presumed
constitutional.”92
The SJC applied the “strict scrutiny” analysis for examining the
constitutionality of Section 39D’s intrusion into family life because of the
fundamental right at issue.93 This analysis required a court to identify a
“legitimate and compelling state interest to justify”94 the Commonwealth’s
intrusion into the familial sphere, and then apply a “careful examination to
ascertain whether the action taken was ‘narrowly tailored to further [that]
interest.’”95 Because it involves fundamental parental rights, a grandparent
86.
87.
88.
Id. at 1056.
Id. at 1066.
See Blixt, 774 N.E.2d at 1056. The Fourteenth Amendment of the United States
Constitution declares that “[n]o state shall . . . deprive any person of life, liberty, or
property, without due process of law.” U.S. CONST. amend. XIV, § 1.
89.
See Blixt, 774 N.E.2d at 1056. The SJC granted Kristin Blixt’s application for
direct appeal from the Probate Court’s conclusion that Section 39D violated the
constitutional rights of Kristin Blixt. See id.
90.
Troxel v. Granville, 530 U.S. 57, 67 (2000) (emphasis added).
91.
Because the case was never tried, there was never a determination of what course
of action was in the best interest of the child, what previous relationship existed, and what
deference was given to the mother’s decision. See Blixt, 774 N.E.2d at 1056.
92.
Id.; see also Landry v. Attorney Gen., 709 N.E.2d 1085, 1090 (Mass. 1999), cert.
denied, 528 U.S. 1073 (2000) (“We consider as well that the Act is to be presumed
constitutional.”).
93.
See Blixt, 774 N.E.2d at 1059; see supra notes 47-54 and accompanying text.
94.
See Blixt, 774 N.E.2d at 1059.
95.
Id. (quoting Aime v. Commonwealth, 611 N.E.2d 204, 414 Mass. 667, 673
(1993)).
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visitation statute can only be valid if the decision-maker was given
“sufficient objective criteria to make reasonable decisions based on facts,
not idiosyncratic choices based on undefined amorphous standards.”96
Using this analysis, the justices concluded that “a compelling state interest
to protect children from actual or potential harm” existed.97 More
importantly, the justices wrote that Section 39D also required a showing
that the child may be harmed if the court prohibited visitation with the
grandparent despite the lack of any language in the statute detailing that
requirement.98
Finally, the justices decided that Section 39D, unlike the statute
reviewed in Troxel, was not “breathtakingly broad.” Consistent with
Troxel, the justices agreed that in order to comply with due process
standards, “an evaluation of the best interests of the child under [Section
39D] require[d] that a parental decision concerning grandparent visitation
be given presumptive validity.”99 The justices used precedent established in
Yannas v. Frondistou-Yannas;100 there, the court enumerated the relevant
factors to consider when determining the best interests of the child despite
the absence of such factors in the statute.101 The justices resolved to do the
96.
Id. Based on the plurality opinion of Troxel, the SJC outlined four due process
principles:
(i) reaffirmation that a parent’s liberty interest in child rearing is indeed
fundamental, and is certainly in this context;
(ii) “any third party” should not be permitted to seek visitation;
(iii) in determining whether grandparents visitation should occur, there exists a
“presumption that a fit parent will act in the best interest of his or her child . . .
and the decision of a fit parent concerning grandparent visitation is entitled to
considerable deference; and
(iv) in determining whether grandparent visitation should occur, the potential
impact to the parent-child relationship should be considered.
Id. at 1058-59 (citations omitted).
97.
Id. (citing Prince v. Massachusetts, 321 U.S. 158, 167 (1944); Matter of
McCauley, 565 N.E.2d 411, 413 (Mass. 1991)).
98.
Blixt, 774 N.E.2d at 1059.
99.
Id. at 1060.
100.
481 N.E.2d 1153, 1157-59 (Mass. 1985).
101.
Id. MASS. GEN. LAWS ch. 208, § 30 (2002) states:
A minor child of divorced parents who is a native of or has resided five years
within this commonwealth and over whose custody and maintenance a probate
court has jurisdiction shall not, if of suitable age to signify his consent, be
removed out of this commonwealth without such consent, or, if under that age,
without the consent of both parents, unless the court upon cause shown otherwise
orders. The court, upon application of any person in behalf of such child, may
require security and issue writs and processes to effect the purposes of this and the
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773
same for Section 39D.102
Therefore, for a grandparent to procure visitation under Section 39D in
Massachusetts, he or she must rebut this presumption that a parent acts in
the best interests of his or her child by showing actual or potential harm if
visitation is denied.103
The justices sought to balance two matters: the protection of parental
autonomy and the best interests of the child.104 They also tried to delineate
the specifics regarding the burden of proof to be met by a petitioning
grandparent. The grandparents must convince a judge, “by a preponderance
of credible evidence, that a decision by a judge to deny visitation is not in
the best interests of the child.”105 Furthermore, a successful pleading by a
grandparent “must allege and prove that the failure to grant visitation will
cause the child significant harm by adversely affecting the child’s health,
safety, or welfare.”106 Consequently, significant harm in this instance
requires a “preexisting relationship between the grandparent and the
child.”107 Nevertheless, the SJC seemed to affirm the rationale that a
relationship with a grandparent is per se beneficial.108 Under Blixt, a
grandparent may be awarded visitation, despite a lesser relationship,
because the grandparent must only prove, by a preponderance of credible
evidence, that visitation between the two is “necessary to protect the child
two preceding sections.
Id.
102.
Blixt, 774 N.E.2d at 1060. The SJC stated:
We conclude that, operating with the guidance of the Troxel case and our case law
in related areas, and law from other jurisdictions, the traditional best interests
considerations (of which the Legislature is presumed to have been aware when it
enacted the statute) can, and should, be construed to fit [Section 39D’s] context
and, thereby, satisfy due process.
Id.
103.
104.
105.
106.
107.
108.
Id.
Id.
Id. (emphasis added).
Id.
Blixt, 774 N.E.2d at 1060.
King v. King, 828 S.W.2d 630, 632 (Ky. 1992). The court did not impose the
higher standard required for third parties seeking to establish a de facto parent relationship.
See Blixt, 774 N.E.2d at 1061; Youmans v. Ramos, 711 N.E.2d 165, 171-72 (Mass. 1999)
(ordering visitation to an aunt who acted as a de facto parent of the child for many years);
E.N.O. v. L.M.M., 711 N.E.2d 886, 894 (Mass. 1999) (ordering visitation for non-biological
“parent” of child because the relationship sufficiently created a de facto parental status).
Such a standard would have protected a parent’s ability to make decisions for his or her
child while being considerate of situations where children are raised by non-biological
parents. See generally infra Part II.A.2.a and accompanying notes.
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from significant harm.”109 Thus, the justices’ due process analysis
concluded that Section 39D “satisfie[d] strict scrutiny because our
construction narrowly tailors it to further the compelling State interest in
protecting the welfare of a child who has experienced a disruption in the
family unit from harm.”110
2.
The Equal Protection Analysis: The SJC Believed the
Legislature Created a Narrowly Defined Category of Parents
that Appropriately Addressed a Compelling State Interest
Kristin Blixt also asserted that Section 39D violated the equal protection
clause of the federal and state constitutions because the statutes awarded
standing to grandparents of children from non-traditional families and
families that lost a parent.111 She claimed that Section 39D was both
“underinclusive” and “overinclusive.”112 First, the statute does not affect
biological parents who currently live together.113 Second, she claimed that
Section 39D only placed the burden of defending a grandparent visitation
suit on single parents or parents living separately, despite the parent or
parents being “fully capable of making decisions in their child’s best
interest.”114 The SJC again applied the strict scrutiny formula in assessing
the constitutional validity of Section 39D because of the fundamental right
the state sought to infringe.115
The SJC limited this review to the circumstances of Kristin’s status and
therefore did not take into account situations where a person may be
divorced, married or widowed yet still affected by Section 39D.116 It also
held that Section 39D did not violate Kristin’s equal protection rights
because the Legislature effectively “narrow[ed] the impact of [Section
39D], while furthering a compelling State interest.”117 The SJC found that
the Troxel118 plurality “instruct[ed state courts] that it may be
109.
110.
111.
Blixt, 774 N.E.2d at 1060.
Id. at 1062.
See id. “No state shall . . . deny to any person within its jurisdiction the equal
protection of the laws.” U.S. CONST. amend. XIV, § 1.
112.
Blixt, 774 N.E.2d at 1062.
113.
See id.
114.
Id.
115.
See id.
116.
See id. at 1062-63. But see Wilde v. Wilde, 775 A.2d 535, 544 (N.J. Super. Ct.
App. Div. 2001) (quoting United States v. Salerno, 481 U.S. 739, 745 (1987) (“Moreover, to
succeed on a facial challenge, a party ‘must establish that no set of circumstances exists
under which the Act would be valid.’”)).
117.
Blixt, 774 N.E.2d at 1065.
118.
Troxel v. Granville, 530 U.S. 57, 67 (2000).
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BLIXT V. BLIXT
775
constitutionally permissible for a State to authorize court-ordered visitation
in some situations, and not in others, as long as the visitation is ordered in
carefully limited circumstances.”119 The SJC agreed with the Legislature’s
desire to safeguard the child and accomplished that goal without penalizing
the parents by limiting the circumstances in which the government can step
into the familial sphere.120 It felt that the Legislature aptly recognized the
need to protect children of unmarried parents more than children born to
intact families; that the Legislature’s conclusion that these children are
more vulnerable to harm without the presence of a grandparent is
reasonable.121 By determining that the Legislature’s conclusions were
appropriate and the circumstances for such intrusion were limited, Section
39D survived the strict scrutiny test for constitutional validity.122
3.
The SJC Created a Heightened Pleading Requirement to
Protect the Parent and Child from a Frivolous Lawsuit
The SJC installed a heightened pleading requirement to address concerns
about the effects of this litigation on the parent and child.123 The court
recognized the heavy burden on a parent forced to defend against a Section
39D petition and thereby concluded that such a pleading requirement
119.
120.
Blixt, 774 N.E.2d at 1063.
See id. at 1064-65; MASS. GEN. LAWS ch. 119, § 1 (2002):
It is hereby declared to be the policy of this commonwealth to direct its
efforts, first, to the strengthening and encouragement of family life for the
protection and care of children; to assist and encourage the use by any family of
all available resources to this end; and to provide substitute care of children only
when the family itself or the resources available to the family are unable to
provide the necessary care and protection to insure the rights of any child to sound
health and normal physical, mental, spiritual and moral development.
The purpose of this chapter is to insure that the children of the
commonwealth are protected against the harmful effects resulting from the
absence, inability, inadequacy or destructive behavior of parents or parent
substitutes, and to assure good substitute parental care in the event of the absence,
temporary or permanent inability or unfitness of parents to provide care and
protection for their children.
The health and safety of the child shall be of paramount concern and shall
include the long-term well-being of the child.
Id. Cf. Custody of a Minor, 452 N.E.2d 483, 490-91 (Mass. 1983) (holding that the purpose
of the court is to protect the child from actual harm and not to penalize the parents for their
chosen lifestyle).
121.
See Blixt, 774 N.E.2d at 1064.
122.
See id. at 1065.
123.
See id. at 1065-66.
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would curb frivolous lawsuits.124 In Troxel, both Justice O’Connor and
Justice Kennedy acknowledged that third party visitation litigation might
be “so disruptive of the parent-child relationship that the constitutional
right of a custodial parent to make certain basic determinations for the
child’s welfare becomes implicated.”125 Respective of the Supreme Court
Justices’ concerns, the SJC held that “any complaint filed . . . should be
detailed and verified or be accompanied by a detailed and verified affidavit
setting out the factual basis relied on by the [grandparent] to justify
relief.”126 A complaint that does not comply with these prerequisites would
be subject to dismissal or summary judgment.127 The SJC then ordered the
standard form used by the probate and family courts to be revised to reflect
this threshold.128
C. The Dissenting Justice: Section 39D Violates Due Process and
Equal Protection Rights; Any Redrafting of Section 39D Should
be Undertaken by the Legislature, Not the Court
Justice Sosman, joined by Justice Ireland,129 argued in the dissent that
Section 39D cannot survive strict scrutiny because: (1) it infringed on a
parent’s right to make child-rearing decisions; (2) it created a classification
of parents that enable the state to interfere with parental decision-making
depending on the class of the parent; and (3) Section 39D, as drafted,
violated a parent’s due process and equal protection guarantees because
“neither its substantive provisions nor its classifications satisfy the
requirement that they be narrowly tailored to serve a compelling State
interest.”130
1.
The Dissent Found that the SJC Failed to Protect a
Fundamental Parental Right Under the Fourteenth
Amendment’s Due Process Clause
Justice Sosman believed that while the Commonwealth is capable of
infringing upon a fundamental parental right to protect the child from harm,
a grandparent’s inability to visit his or her grandchild is not a compelling
124.
125.
See id. at 1066.
Troxel v. Granville, 530 U.S. 57, 101 (2000) (Kennedy, J., dissenting); see id. at
75 (O’Connor, J.) (“In this case, the litigation costs incurred by Granville on her trip through
the Washington court system and to this Court are without a doubt already substantial.”)
126.
Blixt, 774 N.E.2d at 1066.
127.
See id.
128.
See id. at 1066, n.26.
129.
Id. at 1066-67 (Sosman, J., dissenting).
130.
Id. at 1066-67.
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777
interest.131 Rather, in Justice Sosman’s opinion, the SJC erroneously
replaced a fit parent’s judgment with that of its own, based on the belief it
could “do a better job than the child’s parents.”132 The dissent conceded
that a healthy relationship between child and grandparent may be beneficial
to the child, but argued that the benefit does not create a compelling
interest thereby permitting the Commonwealth to force such a
relationship.133 Furthermore, Justice Sosman disagreed with the SJC’s use
of state action to ensure that a child would not be deprived of something or
someone purportedly necessary to a child’s well-being.134 Justice Sosman
opined that: “Children can and do grow up to be healthy, stable, productive
members of society without [grandparents]. Depriving children of
relationships with their grandparents is not the equivalent of depriving
them of health care, food, shelter, security, or a basic education.”135
Therefore, Justice Sosman believed the SJC should have held, absent a
showing of parental unfitness or significant harm to the child, a parent’s
decision-making ability cannot be infringed upon by the state.136 Justice
Sosman’s dissent admitted that while the SJC’s decision “appropriately
recognize[d] that visitation orders would be unconstitutional absent a
showing of significant harm to the child,”137 Section 39D, “as drafted,
allow[ed] a judge to order visitation, over a fit parent’s objection, whenever
the judge conclude[d] that such visitation would be in the best interest of
the child.”138 Because Troxel expressly denied that a grandparent visitation
statute could survive constitutional scrutiny on a “best interest” standard,
Justice Sosman wrote that Section 39D failed under a strict scrutiny
analysis.139
Justice Sosman expressed her distress over the SJC’s use of appellate
review; she felt the SJC did not interpret Section 39D, but acted outside its
proper judicial role;140 the majority’s opinion was “legislation
131.
132.
See Blixt, 774 N.E.2d at 1067-68 (Sosman, J., dissenting).
Id. at 1068 (Sosman, J., dissenting); see Troxel, 530 U.S. at 72-73. Justice
O’Connor stated that “the Due Process Clause does not permit a State to infringe on the
fundamental right of parents to make child rearing decisions simply because a state judge
believes a ‘better’ decision could be made.” Id.
133.
See Blixt, 774 N.E.2d at 1068 (Sosman, J., dissenting).
134.
See id.; see also Custody of a Minor (No. 3), 393 N.E.2d 836 (1979) (holding that
the court could replace the judgment of the parents by ordering medical treatment for a
child’s leukemia).
135.
Blixt, 774 N.E.2d at 1069 (Sosman, J., dissenting).
136.
See id.
137.
Id.
138.
Id. at 1070 (quoting MASS. GEN. LAWS ch. 119, § 39D (2002)).
139.
See id.; see also Troxel v. Granville, 530 U.S. 57, 76-78 (2000).
140.
Blixt, 774 N.E.2d at 1071; see also MASS. CONST. art. XXX. “In the government
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masquerading as interpretation in order to salvage an admittedly
unconstitutional statute.”141 Justice Sosman’s dissent found that because
Section 39D uses the best interest standard as the only clear basis for a
visitation decision in its language, it would be more appropriate to send the
statute back to the Legislature for revision.142 The Legislature is in the best
position to explain their intent and to flesh out the meaning of “best
interests” by drafting a revised statute. 143
The addition of a new heightened pleading requirement is not
interpretation, but legislation appended to Section 39D by the SJC and not
the Legislature.144 Justice Sosman believed that it “will do little (if
anything) to relieve parents of the burdens of this kind of litigation.”145 The
Justice anticipated that a parent would still need to hire a lawyer and
expend too much money in his or her defense against a petition for
grandparent visitation despite the safeguards implemented in the
decision.146 The heightened pleading created by the SJC requires an
allegation of “any disruption of a prior relationship with the child”;
therefore, a motion to dismiss will not be readily granted in practice as this
burden is a low bar to prove facially.147
2.
The Dissent Would Have Argued that the Legislature Failed
to Offer a Compelling Interest Before Infringing on a Single
Mother’s Equal Protection Rights
Justice Sosman also concluded that Section 39D failed to survive a strict
scrutiny analysis because the statue unconstitutionally infringed on a
parent’s equal protection rights.148 Section 39D determines standing for
grandparents by using the status of the parents for classifications.149 Justice
Sosman analyzed each of the categories created by Section 39D and
concluded that each are either overinclusive or underinclusive because the
statute unfairly burdened some classifications while subjecting others to no
governmental intrusion.150 Justice Sosman concluded that the Legislature’s
of this commonwealth . . . the judicial shall never exercise the legislative and executive
powers, or either of them: to the end it may be a government of laws and not of men.” Id.
141.
Blixt, 774 N.E.2d at 1071 (Sosman, J., dissenting).
142.
See id. at 1072.
143.
See id. at 1072-73.
144.
See id. at 1074.
145.
Id.
146.
Blixt, 774 N.E.2d at 1074 (Sosman, J., dissenting).
147.
Id.
148.
See id. at 1075.
149.
See MASS. GEN. LAWS ch. 119, § 39D (2002).
150.
See Blixt, 774 N.E.2d at 1077-84 (Sosman, J., dissenting).
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779
desire to embrace the relationships between a grandparent and grandchild
could not survive strict scrutiny.151
III. THE MASSACHUSETTS GRANDPARENT VISITATION STATUTE: AN
INADEQUATE AND UNCONSTITUTIONAL LAW
The SJC should have struck down the Massachusetts grandparent
visitation statute. Its decision was flawed on several grounds: (A) Section
39D infringed on Kristin Blixt’s parental autonomy as protected under the
Fourteenth Amendment’s Due Process Clause; (B) The Commonwealth
failed to produce a compelling state interest necessary to impinge upon not
only Ms. Blixt’s equal protection rights, but other parents that may be
affected by Section 39D; (C) The heightened pleading requirements, still
not contained in the language of the statute, fail to insulate a parent and
child from a frivolous lawsuit; and (D) The SJC should have sent Section
39D back to the Legislature for revision instead of the court acting as a
pseudo-legislature by creating law that the Legislature failed to anticipate
or provide for in the statute.
A. Kristin Blixt’s Due Process Rights Were Violated When the SJC
Permitted a Grandparent to Petition for Visitation of Her Child
Without Clear and Convincing Evidence to Prove She Was an
Unfit or Incompetent Parent.
The Troxel plurality did not expressly foreclose a state’s ability to create
a grandparent visitation statute.152 Therefore, state courts are forced to deal
with the resulting ambiguity concerning the appropriate analysis of
grandparent visitation statutes.153 Like the Troxel Court, state courts turn to
the impressive litany of decisions by the Supreme Court regarding
fundamental parental rights under the Fourteenth Amendment of the United
States Constitution.154
151.
Id. at 1085. The dissenter stated: “This statute does not meet these exacting
requirements of strict scrutiny. Our reverence for our grandparents, our hope to see our own
grandchildren, and our wish that all children may enjoy healthy relationships with their
grandparents, do not allow us to relax those constitutional standards.” Id.
152.
See id. at 1058.
153.
See supra Part I.B.
154.
The Fourteenth Amendment of the United States Constitution declares that “No
state shall . . . deprive any person of life, liberty, or property, without due process of the
law.” U.S. CONST. amend. XIV, § 1.
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The Fundamental Parental Right Permits a Parent to Raise
Her Child Free from Government Intrusion Except in Only
Limited Circumstances.
As Troxel noted, the Due Process Clause “provides heightened
protection against government interference with certain fundamental rights
and liberty interests.”155 Essentially, the Due Process Clause is designed to
protect fundamental rights of the citizenry from illegitimate intrusion by
the states.156 Over the past eighty years, the Supreme Court protected the
rights of parents and guardians to make decisions for their children as a
fundamental right under the Fourteenth Amendment.157 This protection is
born out of a respect for the traditions and values of this country.158 In
Meyer v. Nebraska,159 the holding represented the Supreme Court’s belief
that the Due Process Clause protected a person from statutes that
“unreasonably infringe” upon one’s liberty.160 The Supreme Court stated:
Without doubt, it denotes not merely freedom from bodily restraint but
also the right of the individual to contract, to engage in any of the
common occupations of life, to acquire useful knowledge, to marry,
establish a home and bring up children, to worship God according to the
dictates of his own conscience, and generally to enjoy those privileges
long recognized at common law as essential to orderly pursuit of
happiness by free men.161
155.
Troxel v. Granville, 530 U.S. 57, 65 (2000) (quoting Washington v. Glucksberg,
521 U.S. 702, 720 (1997)).
156.
See Stanley v. Illinois, 405 U.S. 645, 656 (1972). The Due Process Clause is
“designed to protect the fragile values of a vulnerable citizenry from the overbearing
concern for efficiency and efficacy that may characterize praiseworthy government
officials.” Id.
157.
See generally Santosky v. Kramer, 455 U.S. 745, 753 (1982); Moore v. City of
East Cleveland, 431 U.S. 494 (1977); Stanley v. Illinois, 405 U.S. 645, 657-58 (1972);
Wisconsin v. Yoder, 406 U.S. 205, 232-34 (1972); Griswold v. Connecticut, 381 U.S. 479
(1965); Prince v. Massachusetts, 321 U.S. 158, 166 (1944); Pierce v. Soc’y of the Sisters,
268 U.S. 510, 534-35 (1925); Meyer v. Nebraska, 262 U.S. 390, 399 (1923).
158.
See Moore, 431 U.S. at 503. “Appropriate limits on substantive due process come
not from drawing arbitrary lines but rather from careful ‘respect for the teachings of history
[and] solid recognition of the basic values that underlie our society.’” Id. (quoting Griswold,
381 U.S. at 501 (Harlan, J., concurring)).
159.
262 U.S. 390 (1923). Meyer involved the conviction of a school teacher for
violating a state law that prohibited the teaching of the German language in school to
students. See id. at 396-97. While the Court agreed that the state could compel education, it
did not believe that the state could suggest that this statute protected a “child’s health by
limit[ing] his mental activities.” Id. at 403.
160.
See id. at 399.
161.
Id.
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Backed by Meyer, the Supreme Court adamantly defended the rights of
parents to care for, rear, and make decisions for their children as any other
fundamental rights.162 The Supreme Court did not wait long to reiterate
Meyer when it proclaimed that the “custody, care and nurture of the child
reside first in the parents.”163 In Wisconsin v. Yoder,164 the Court declared
that a parent’s ability to raise her child was “established beyond debate as
an enduring American tradition.”165 The Troxel plurality did not hesitate to
also state that the parental right “is perhaps the oldest of the fundamental
liberty interests recognized by this Court.”166
Applying this rationale, the Supreme Court overturned laws infringing
on this parental interest, including laws that required Amish children to
attend school after the age of sixteen,167 restricted schools from teaching
certain foreign languages,168 and dictated that children must attend public
schools.169 Nevertheless, the Supreme Court also acknowledged that a
parent’s ability to make these decisions should not go unfettered.170 States
have certain interests in children which permit them to interfere with the
fundamental parental right and therefore, “parental rights . . . are not
absolute.”171
a.
The Supreme Court Has Acknowledged that a State May
Wield Its Parens Patriae Power in Limited
Circumstances.
Both the Supreme Court and the SJC have long recognized the
government’s parens patriae power: the power of the state to “intrude upon
162.
163.
164.
See supra notes 47-54 and accompanying text.
Prince v. Massachusetts, 321 U.S. 158, 166 (1944).
406 U.S. 205 (1972). Yoder dealt with a Wisconsin’s compulsory schoolattendance law that required children to attend school until the age of sixteen. Id. at 207.
The Court held that the parents of two students, all members of the Old Order Amish
Religion, had the right to pull their children from school after completing the eighth grade
because of their religious beliefs. Id. at 207.
165.
Id. at 232.
166.
Troxel v. Granville, 530 U.S. 57, 65 (2000). The Due Process Clause protects
liberties “so rooted in the traditions and conscience of our people as to be ranked as
fundamental.” Snyder v. Massachusetts, 291 U.S. 97, 105 (1934).
167.
See Yoder, 406 U.S. at 234.
168.
See Meyer v. Nebraska, 262 U.S. 390, 403 (1923).
169.
See Pierce v. Soc’y of the Sisters, 268 U.S. 510, 534-35 (1925). “[W]e think it
entirely plain that the Act of 1922 unreasonably interferes with the liberty of parents and
guardians to direct the upbringing and education of children under their control.” Id.
(discussing Meyer, 262 U.S. 390 (1923)).
170.
See Prince v. Massachusetts, 321 U.S. 158, 166 (1944).
171.
E.N.O. v. L.M.M., 711 N.E.2d 886, 893 (Mass. 1999).
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the sanctity of the family sphere.”172 This authority stemmed from the
government’s general interest in a youth’s well being.173 A state has the
undoubted ability to “promote the health, safety, and general welfare” of its
children.174 In Prince v. Massachusetts,175 the Supreme Court upheld the
Commonwealth’s ability to regulate a child’s labor despite the wishes of
her guardian-aunt;176 the government could overrule a parent or guardian’s
decision if the decision “jeopardize[d] the health or safety of the child, or
[had] a potential for significant social burdens.”177
b.
A Child’s Welfare is Not a Compelling State Interest if
There is a Fit Parent Making Decisions Regarding
Visitation with Third Parties
The parental right is a fundamental right under the Fourteenth
Amendment; as such, a state may not intrude upon this right unless it has a
compelling interest to do so.178 This narrow exception is best represented
by the Supreme Court’s inclination to limit such intrusions to serious
situations such as the one in Prince or medical issues.179 In these cases,
courts are not afraid to invade the parental sphere and order medical
assistance to a child against the wishes or beliefs of the parents.180
Unfortunately, the Troxel plurality failed to decide what standard of review
should be applied to grandparent visitation statutes because it only
172.
Kovalcik, supra note 25, at 807. See generally Prince, 321 U.S. at 166; E.N.O.,
711 N.E.2d at 893.
173.
Prince, 321 U.S. at 166.
174.
Yoder, 406 U.S. at 220.
175.
321 U.S. 158. The Prince Court ruled that the state acted appropriately when it
enacted a law prohibiting a child from distributing leaflets on the streets despite the presence
and supervision of the child’s guardian only a few feet away. See id. at 169-70. The safety
of the child was a legitimate interest of the state. See id. at 168-69.
176.
See id. at 166, 170.
177.
Yoder, 406 U.S. at 234-35.
178.
See Bohl, Grandparent Visitation Law, supra note 11, at 284 (citing Jehovah’s
Witnesses v. King County Hosp. Unit No. 1, 278 F. Supp. 488, 504-05 (W.D. Wash. 1967),
aff’d, 390 U.S. 598 (1968)). Hence, the Prince court upheld the Commonwealth’s child
labor law because the law addressed a compelling state interest—the protection of children
from exploitation. Prince, 321 U.S. at 168. “Among evils most appropriate for such action
are the crippling effects of child employment.” Id.
179.
See generally Quilloin v. Walcott, 434 U.S. 246, 255 (1978); In re McCauley, 565
N.E.2d 411, 413 (Mass. 1991). “We noted that there are three interests involved: (1) the
‘natural rights’ of parents; (2) the interests of the child; and (3) the interests of the State. We
conclude that the interests of [the child] and of the State outweigh her parents’ rights to
refuse the medical treatment.” Id. at 413.
180.
See Bohl, Grandparent Visitation Law, supra note 11, at 284.
2004]
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reviewed the case on an “as applied” basis.181
The SJC correctly decided to use strict scrutiny because the issue at
stake dealt with a person’s fundamental rights.182 The strict scrutiny
standard required “(1) a legitimate and compelling State interest to justify
State action, and (2) careful examination to ascertain whether the action
taken was ‘narrowly tailored to further [that] interest.’”183 The SJC opined
that Section 39D satisfied strict scrutiny because the statute, as construed
by the court, was “narrowly tailor[ed] to further the compelling State
interest in protecting the welfare of a child who has experienced a
disruption in the family unit from harm.”184 While all parties agreed that a
state might have a compelling interest in its children,185 the justices of the
SJC disagreed on whether grandparents should be accorded standing under
Section 39D. Unlike the Washington statute in Troxel, the
Commonwealth’s version limited standing to only grandparents of certain
181.
Troxel v. Granville, 530 U.S. 57, 80 (2000). Justice Thomas, regarding the
appropriate standard of review, noted:
Our decision in Pierce v. Society of Sisters holds that parents have a fundamental
constitutional right to rear their children, including the right to determine who
shall educate and socialize them. The opinions of the plurality, Justice Kennedy,
and Justice Souter recognize such a right, but curiously none of them articulates
the appropriate standard of review. I would apply strict scrutiny to infringements
of fundamental rights. Here, the State of Washington lacks even a legitimate
governmental interest—to say nothing of a compelling one—in second-guessing a
fit parent’s decision regarding visitation with third parties.
Id. at 80 (citations omitted); see Maegan E. Peek, Grandparent Visitation Statutes: Do
Legislatures Know the Way to Carry the Sleigh Through the Wide and Drifting Law?, 53
FLA. L. REV. 321, 339 (2001); see also Fern L. Frolin & Jennifer A. Fabriele, After Troxel v.
Granville: Grandparent Visitation in Massachusetts, 44 BOSTON B.J. 8, 8 (2000). The
Troxel plurality held that the Washington statute, “as applied” to Granville and family,
“unconstitutionally infringed” on her fundamental right “to make decisions concerning the
care, custody and control of their children.” Id.
182.
See Roberts, supra note 32, at 22. “All of the courts that declared the standard of
review in cases evaluating visitation statutes . . . claimed to be applying strict scrutiny.” Id.;
see also Gregory, supra note 10, at 701. “Typically the court acknowledged that parental
rights are fundamental and, therefore, the constitutional standard to be applied was strict
scrutiny.” Id.
183.
Blixt v. Blixt, 774 N.E.2d 1052, 1059 (Mass. 2002) (quoting Aime v.
Commonwealth, 611 N.E.2d 204, 209 (Mass. 1993) (discussing the use of strict scrutiny
when reviewing actions protected by one’s fundamental rights)).
184.
Id. at 1062. The distinction between “as constructed” and “as written” is important
because after the decision in Blixt, Section 39D is to be applied with a presumption in favor
of parental fitness, but the statute itself contains no such language.
185.
See id. at 1059. “It cannot be disputed that the state has a compelling interest to
protect children from actual or potential harm.” Id.
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classes of parents.186 While the SJC concluded that Section 39D adequately
limited standing so as to narrow its scope and survive strict scrutiny, other
courts, faced with the same question, have disagreed.187 For example, the
Michigan Court of Appeals, dealing with a similar grandparent visitation
statute, held that a visitation statute limited to just grandparents did not
automatically avoid constitutional problems.188 That court determined that
Michigan’s statute was not overly broad; yet when utilized by a
grandparent against a fit parent, the statute violated the parent’s due
process rights because a non-parent was given a statutory right to seek
visitation rights from a court.189 Justice Sosman appeared to agree with the
Michigan court’s assessment of grandparent visitation statutes. The justice
believed that Section 39D gave rights to a non-parent that infringed upon
the fundamental parental right without the requisite compelling interest by
the state.190
While the Majority and Justice Sosman agreed that strict scrutiny should
be applied to this statute, they disagreed on what standard should be
appropriate when a grandparent challenges a parental decision denying
visitation.
2.
The SJC Appropriately Required More Than Just the “Best
Interests” Standard
While the Supreme Court unanimously agreed the Constitution protects
a parent’s right to raise his or her child without state government intrusion,
the Court could not agree on what standard to apply when determining if a
state had the compelling interest to warrant an intrusion into the familial
sphere.191 The SJC decided that the best interests of the child standard
186.
See MASS. GEN. LAWS ch. 119, § 39D (2002) (limiting petitioners to grandparents
of children who have lost a parent to death, divorce or a broken home).
187.
Because of the lack of agreement among the six justices of the plurality, the
Troxel case all but demanded a state-by-state debate of third party visitation statutes.
Therefore, it is appropriate to look to how other states handled similar situations since
Troxel.
188.
DeRose v. DeRose, 643 N.W.2d 259, 262 (Mich. Ct. App. 2002). “While
Michigan’s statute is certainly narrower in scope than Washington’s in terms of standing to
file a visitation petition, the Michigan statute is not narrower once a petition is properly
before the trial court.” Id. at 263.
189.
See DeRose, 643 N.W.2d at 263.
190.
See Blixt, 774 N.E.2d at 1084 (Sosman, J., dissenting). “If the protection of such
‘grandparents’ rights’ were a compelling State interest, these classifications would easily
pass strict scrutiny, as they provide a remedy for those grandparents who are most likely to
face obstacles in asserting those ‘rights.’ However, grandparents do not have any such
‘rights’. . . .” Id.
191.
See Kovalcik, supra note 25, at 819; see also Laurence C. Nolan, Beyond Troxel:
2004]
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would not suffice alone and that actual or potential harm caused by denying
the visitation must be proven.192 Justice Sosman believed an even stricter
standard should be employed that would be consistent with child custody
standards and would include a showing of potential or actual harm to the
child because of an unfit or incompetent parent.193 The best interests of the
child standard, alone, can be problematic because it may still permit a
judge to infuse his or her preferences against the decision of the parent.194
a.
The Best Interests of the Child Standard
When asked to determine whether visitation with the grandparents was
appropriate, all courts relied on the third party visitation statutes requiring
some form of the “best interests of the child” standard.195 From a practical
standpoint, this standard denoted the difference in the legal gravity and
consequences between child custody and visitation.196 Because “most
jurisdictions view visitation as less intrusive than custody,” the best
interests standard appeared more appropriate for determining visitation
rights than the “proof of harm” standard used to determine custody
rights.197 In Massachusetts, a parent petitioning for visitation of his or her
The Pragmatic Challenges of Grandparent Visitation Continue, 50 DRAKE L. REV. 267,
268-69 (2002).
192.
See Blixt, 774 N.E.2d at 1060.
193.
See id. at 1073.
194.
Roberts, supra note 32, at 37 n.230. “Furthermore, statutes that provide no
guidance other than the best-interests standard ‘delegate to judges authority to apply their
own personal and essentially unreviewable lifestyle preferences to resolving each dispute.’”
Id. (quoting Rideout v. Riendeau, 761 A.2d 291, 310 (Me. 2000) (Alexander, J.,
dissenting)); see also Michael C. Gottlieb, Introduction to the Special Issue, 41 FAM. CT.
REV. 8, 8 (2003) (noting that the standard “is vague and indeterminate,” has “few specific
criteria that judges can employ in decision making,” and often “requires a psycho/legal
determination . . . [which] many judges are ill-equipped to address.”).
195.
M. KRISTINE TAYLOR WARREN, GRANDPARENT VISITATION RIGHTS: A LEGAL
RESEARCH GUIDE 1 (2001). This standard is based on the logic that:
so long as a parent adequately cares for his or her children (i.e., is fit), there will
normally be no reason for the State to inject itself into the private realm of the
family to further the question the ability of that parent to make the best decisions
concerning the rearing of the parent’s child.
Troxel v. Granville, 530 U.S. 57, 68-69 (2000).
196.
Kovalcik, supra note 25, at 808. Yet even in these situations, the best interests
standard may be inadequate. “There is now widespread appreciation that the child’s best
interests are a policy goal and not an administrable legal standard . . . .” Katherine T.
Bartlett, U.S. Custody Law and Trends in the Context of the ALI Principles of the Law of
Family Dissolution, 10 VA. J. SOC. POL’Y & L. 5, 15-16 (2002).
197.
See Kovalcik, supra note 25, at 808.
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child needs to prove what is in the best interests of the child.198 To do so, a
person may emphasize the relationship with the child.199 Thus, a
Massachusetts court awarded visitation to a non-natural parent, for
example, a de facto parent in a non-traditional family, based on the best
interest standard.200 Visitation was ordered only after a court assessed the
intimacy and extent of the de facto parent’s relationship with the child.201
One of the factors the SJC affirmed for establishing this relationship
included “participat[ion] in the child’s life as a member of the child’s
family” if the “de facto parent reside[d] with the child and, with the consent
and encouragement of the legal parent, performe[d] a share of caretaking
functions at least as great as the legal parent.”202 Other factors included the
de facto parent’s effect on the child’s daily routines, developmental needs,
discipline, education, medical care, and moral growth.203 Based on the
strong evidence of this relationship, the court awarded visitation to the de
facto parent using its equitable powers.204
The court weighed the natural parent’s fundamental right to parent
against the best interests of the child.205 In E.N.O. v. L.M.M., despite the
198.
199.
Frolin & Fabriele, supra note 181, at 22.
E.N.O. v. L.M.M., 711 N.E.2d 886, 891 (Mass. 1999); see MASS. GEN. LAWS ch.
215, § 6 (2002). For a discussion of the court’s equitable powers, see E.N.O., 711 N.E.2d at
889-90. See also Frolin & Fabriele, supra note 181, at 22. “Also, Section 39D does not
require a threshold showing that a substantial relationship exists.” Id.
200.
See E.N.O., 711 N.E.2d at 892.
201.
Id. at 891.
202.
Id. (emphasis added). In this case, one of the factors included the opinion of the
parent at the time the relationship was encouraged. See id. at 892. This factor can help a
court differentiate between the subjective beliefs of the grandparent and the objective
circumstances of the situation. Professor Bartlett notes that American Law Institute
Principles (ALI), in attempting to create the best standards without being constrained by
existing law, recognizes the de facto parent. See Bartlett, supra note 196, at 6. The ALI
Principles define such a parent as “an individual who has lived with the child and functioned
as a parent, for at least two years, regularly performing a majority of the caretaking
functions for the child, with the consent or acquiescence of the legal parent.” Id. at 45
(explaining AMERICAN LAW INSTITUTE, PRINCIPLES OF THE LAW OF FAMILY DISSOLUTION:
ANALYSIS AND RECOMMENDATIONS 2.03(1)(c) (2002) [hereinafter ALI PRINCIPLES]). The
ALI Principles do not grant grandparents any special privileges “except in the absence of a
parent who is fit and willing to care for the child.” Bartlett, supra note 196, at 50 (stating
that grandparents are given this one special circumstance, but otherwise may qualify for
visitation only after meeting the rigorous de facto parent test); see ALI PRINCIPLES, §
2.18(2).
203.
See E.N.O., 711 N.E.2d at 891.
204.
See id. at 892. The SJC awarded temporary visitation rights to a plaintiff as a de
facto parent because of her role in the decision to have the child and her participation in the
child’s rearing and growth. See id.
205.
See id. at 893.
2004]
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natural mother’s fitness as a parent, the child’s best interests outweighed
the mother’s liberty interests because of the extremely close relationship
between the child and the de facto parent.206 Thus, such a strong
relationship made the government intrusion “minimal.”207 Similarly, the
SJC in Youmans v. Ramos upheld visitation to an aunt, based on the best
interests standard because she raised her niece for most of the niece’s
childhood.208 After the aunt established the existence of the intimate
relationship between herself and the child, the judge granted visitation over
the father’s objections only.209 The SJC affirmed this balancing of interests,
though burdensome, because of the level of evidence necessary to prove
the relationship and the necessity for it to continue. The court considered
the careful balance between a parent’s fundamental liberty interest with a
child’s “interest in continuing to have access to the only adult who has
acted as a parent to [the child].”210
As written, Section 39D seemingly mirrored the best interests standard
used by the courts in cases like E.N.O. and Youmans;211 yet the court did
206.
See id. The SJC distinguished between a person who had lived with a child for
several months after the birth of the child and a person who was part of the decision to bring
a child into the world, thereby creating a family. See id. at 891 (citing C.M. v. P.R., 649
N.E.2d 154, 154-55 (Mass. 1995)). The SJC did not address the de facto parent doctrine in
C.M., but awarded de facto status to the plaintiff in E.N.O. See id. at 892-93.
207.
Id. at 893. In effect, the intrusion was minimal because the de facto parent was a
great part of the child’s life. The court adequately protected the mother’s fundamental rights
in this case because the court demanded that petitioning party meet a high burden of proof.
See generally id.
208.
See Youmans v. Ramos, 711 N.E.2d 165, 174 (Mass. 1999). In Youmans, a father
petitioned the court for custody of his eleven year old daughter who had been living with her
aunt since birth and had lost both her sister and her mother. The mother’s will requested that
the daughter live with the grandmother or, if the grandmother was unable to care for the
child, the aunt. After only sporadic visits in his daughter’s eleven years of life, the father
petitioned for guardianship. See id. at 167-70. Even under these circumstances, one must
appreciate the great burden of proof levied against the aunt in order to protect the rights of
the father, even though the father played little part in the child’s life to that point.
209.
See id. at 173. “As to the scope of the visitation, the judge considered the nature
and the duration of the relationship between [the child] and the aunt.” Id.
210.
Id. at 172. “It is not the aunt’s interests that the visitation order protects, but [the
niece’s] interests.” Id. at 174.
211.
See E.N.O. v. L.M.M., 711 N.E.2d 886, 891-92 (Mass. 1999) (articulating the
factors for determining the relationship between a child and a de facto parent when
determining the best interests of a child); Youmans, 711 N.E.2d at 173-74 (outlining the
scope of judicial inquiry to determine the relationship between a child and parent-like
relative); Blixt v. Blixt, 774 N.E.2d 1052, 1060 (Mass. 2002); see also Frolin & Fabriele,
supra note 181, at 22. See generally Guardianship of Norman, 670 N.E.2d 414, 417 (Mass.
App. Ct. 1996) (requiring the grandparent, under Section 39D, to prove the best interests of
the child before a court may grant reasonable visitation rights to the grandparent).
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not require the petitioning grandparent to meet a similar burden of proof as
that of the petitioning de facto parent.
As the Commonwealth’s cases indicated, the SJC has held that “a
parent’s interest in his relationship with his child is not absolute, because
the ‘overriding principle’ in determining the right of a parent to custody
‘must be the best interest of the child.’”212 Therefore, the best interests of
the child are to be weighed against the fundamental rights of the parent, but
the parent’s rights are usually secondary to the child’s best interests.213
Section 39D only required a judge to find whether visitation by the
grandparent with the child would be in the child’s best interest.214 This
standard, as articulated in the statute, essentially empowers a court to
overrule the decisions of a fit and competent parent with what the judge
believes to be in the best interests of the child.215
b.
The SJC Correctly Held that a Visitation Statute Cannot
Be Valid with a Presumption in Favor of the Parent’s
Decision to Deny Visitation
The Troxel plurality stated that the Washington visitation statute failed
because it authorized courts to base their decision solely on the best
interests of the child standard.216 The Washington statute did not give
deference to the parent’s decisions or actions, but rather granted the trial
judge the power to decide the child’s best interests,217 even though a
presumption in favor of the parent has existed in this country for
decades.218 The SJC agreed with Justice O’Connor’s opinion that the
statute “directly contravened the traditional presumption that a fit parent
212.
Youmans, 711 N.E.2d at 172 (quoting Opinion of the Justices, 691 N.E.2d 911,
915 (Mass. 1998)). See generally Adam Narris, Are You My De Facto Mommy? Third Party
Visitation Rights: A Case Comment on Youmans v. Ramos, 35 NEW ENG. L. REV. 685
(2001).
213.
See Kovalcik, supra note 25, at 805.
214.
MASS. GEN. LAWS ch. 119, § 39D (2002). However, one commentator notes that a
comparison of cases decided before and after Troxel shows that a court may not presume
that visitation with a grandparent is beneficial for the child. See Roberts, supra note 32, at
26.
215.
See Blixt, 774 N.E.2d at 1070 (Sosman, J., dissenting).
216.
See Troxel v. Granville, 530 U.S. 57, 69 (2002).
217.
Id. at 67.
218.
See Succession of Reis, 15 So. 151 (La. 1894). This case involved a maternal
grandmother who petitioned a court to force her widowed son-in-law to send her
grandchildren to visit her. See id. The Supreme Court of Louisiana rejected her request
despite the father’s mere refusal to send them to her. See id. “He owes no account to anyone
of his motives,” the court stated, because “[t]hey may be so intimate that the honor of the
family requires that they shall remain a secret.” Id. at 152.
2004]
BLIXT V. BLIXT
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will act in the best interest of his or her child.”219 Noting that the
Commonwealth’s courts used the best interests standard to decide custody,
visitation, and other child welfare issues, the SJC concluded that under the
Supreme Court’s reasoning in Troxel, the standard could not survive a due
process challenge.220 Therefore, any “evaluation of the best interests of the
child under [Section 39D] require[d] that a parental decision concerning
grandparent visitation be given presumptive validity.”221 Courts based this
presumption on the recognition that the “‘natural bonds of affection lead
parents to act in the best interests of their children.’”222
Similarly, other courts faced with this same problem recognized that a
presumption must exist even if it is not written into the statute.223 By
enforcing this presumption, courts hope to protect a parent’s due process
rights by placing the “clear burden on the petitioner to show that the
parent’s decision is contrary to the child’s best interest.”224 The SJC held
that “[t]o obtain visitation, the grandparent must rebut the presumption . . .
by a preponderance of the credible evidence, that a decision by the judge to
deny visitation is not in the best interests of the child.”225
219.
Troxel, 530 U.S. at 69. The SJC took note of the fact that no allegation or finding
of unfitness was made against Ms. Granville. Blixt v. Blixt, 774 N.E.2d 1052, 1057 n.5
(Mass. 2002) (citing Troxel, 530 U.S. at 69). Rather, the lower court judge had placed the
burden of disproving that the grandparents’ visitation would be in the children’s best
interests. Id. In the opinion, six justices found that the best interests standard was
insufficient to intrude on one’s parental liberties. See Kovalcik, supra note 25, at 819.
220.
See Blixt, 774 N.E.2d at 1060 (quoting Troxel, 530 U.S. at 68).
221.
Id. “Trial court findings in support of Section 39D petitions for third party
visitation must now establish more than judge’s view that grandparent’s visits will benefit
the child.” Frolin & Fabriele, supra note 181, at 24.
222.
Troxel, 530 U.S. at 68 (quoting Parham v. J.R., 442 U.S. 584, 602 (1979)).
“Essentially, the decisional framework authorized by the [Washington] statute and
employed by the trial court directly contravened the traditional presumption that a fit parent
acts in the best interest of his or her child.” Roth v. Weston, 789 A.2d 431, 438 (Conn.
2002).
223.
See Wickham v. Byrne, 769 N.E.2d 1, 6 (Ill. 2002). “We begin with the
presumption that a fit parent’s decision to deny or limit visitation is in the child’s best
interests.” Id.
224.
Frolin & Fabriele, supra note 181, at 24. The American Academy of Matrimonial
Lawyers noted that the Troxel plurality did not “say how much weight needs to be given to
the parent’s position. It held only that the burden must be placed on the third-party to
prove . . . that the parent’s objection should not be respected. . . .” American Academy of
Matrimonial Lawyers Model Third-Party (Non-Parental) Contact Statute, 18 J. AM. ACAD.
MATRIM. LAW. 1 (2002) [hereinafter AAMC]. The Academy stated that a third-party must
prove with “clear and convincing evidence” that a parent’s decision should be overruled. Id.
225.
Blixt, 774 N.E.2d at 1060.
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The SJC Missed an Opportunity to Allow the Legislature
to Prescribe the Best Interests Standard
The best interests standard is neither uniform nor easy to define, even
though courts repeatedly use this standard.226 Before outlining the
standard’s key factors in E.N.O., the SJC characterized the best interests
standard as “somewhat amorphous.”227 Absent factors prescribed by the
legislature that outline the best interests standard, Justice Sosman feared
that Blixt wrongfully defined the standard.228 A child’s best interest should
not “allow[] judges to question the decisions made by fit parents where
there is no compelling reason to justify state intervention into family
life.”229 Troxel rejected the Washington statute’s authorization permitting
judges to decide visitation based on a belief that a “better” decision could
be made.230 Empowering judges with this ability would violate a parent’s
fundamental parental right because it would smash the familial sphere.
A court’s decision to intrude upon the familial sphere should not be
based on something that is merely “desirable for young people.”231 The
SJC previously held that even if another person can provide materially
more for the child, the fact that the parent provides less income is of “little
consequence in considering what is in the child’s best interest”;232 the
federal and state constitutions protect the bond between the parent and the
child.233 By condoning the conclusion that a grandparent will confer a
benefit on the child merely because he or she is a grandparent, the SJC is
apparently creating a similar right vested in a grandparent.234
The Blixt decision also contradicts many states’ decisions regarding
similar situations. In Tennessee, the state’s highest court rejected the
grandparents’ assertions that visitation with them was beneficial to the
child because they were the child’s grandparents.235 Similarly, the Illinois
226.
227.
228.
229.
230.
231.
232.
233.
234.
See WARREN, supra note 195, at xiv.
E.N.O. v. L.M.M., 711 N.E.2d 886, 890 (Mass. 1999).
See Blixt, 774 N.E.2d at 1072-73 (Sosman, J., dissenting).
Kovalcik, supra note 25, at 812.
See Troxel v. Granville, 530 U.S. 57, 72-73 (2000).
Blixt, 774 N.E.2d at 1068 (Sosman, J., dissenting).
Guardianship of Yushiko, 735 N.E.2d 1260, 1262 (Mass. App. Ct. 2000).
See supra Part II.B.1.
See Blixt, 774 N.E.2d at 1071 (Sosman, J., dissenting); see also King v. King, 828
S.W.2d 630, 635 (Ky. 1992) (criticizing the belief that a denial of grandparent visitation is
harmless as “illogical”).
235.
See Hawk v. Hawk, 855 S.W.2d 573, 575 (Tenn. 1993). “The record reflects a
family history of bickering and personality clashes that ultimately resulted in a decision by
the [parents] . . . that neither they nor their children . . . would associate with [the father’s]
parents. . . .” Id. at 575. Moreover, the opinion rejected the interference by the trial court as
a “virtually unprecedented intrusion into a protected sphere of family life.” Id. at 577.
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Supreme Court found the Illinois grandparent visitation statute, which is
similar to Section 39D, facially unconstitutional.236 The court ruled that
parents have a “constitutionally protected latitude to raise their children as
they decide, even if their decisions are perceived by some to be for
arbitrary or wrong reasons.”237 The court found the statute facially
unconstitutional because no decision of a parent, absent evidence of
unfitness, should be placed in the courtroom.238 Moreover, the court held
that a parent’s decision could withstand this scrutiny “even where the
intrusion is made in good conscience, such as the request for visitation to
preserve the child’s only connection to a deceased parent’s family.”239
Maine’s highest court recently limited the applicability of petitions for
grandparent visitation to situations where the grandparent acted as a parent
to the child for “significant periods of time.”240 This reasoning was similar
to the best interests standard used in E.N.O. because it relied on the
existence of a prior intimate relationship. In like manner, the Connecticut
Supreme Court dismissed a petition by an aunt even though the parent’s
decision was “arbitrary and neither serve[d] nor [was] motivated by the
best interests of the child.”241
These decisions typify the difficulties in applying a best interests
standard and the courts’ reluctance to rely on it—there is no universal
formula. When the court attempts to create the criteria in lieu of legislative
guidelines, the result is often greater ambiguity about what factors to use;
this inconsistency can affect decisions within a state and across the entire
nation regarding the same rights. Because of this confusion, and the
interests at stake, the SJC should not only have required a showing of
actual or potential harm to the child based on a prior intimate relationship
by the petitioning-grandparents, but a relationship mirroring the ones
necessary to prove a de facto parenthood.242
236.
Wickham v. Byrne, 769 N.E.2d 1, 8 (Ill. 2002). The statute permitted reasonable
visitation to grandparents, great-grandparents, and siblings for reasons including: (1) if the
parents were not residing with each other; (2) one of the parents was missing; or (3) a parent
was deceased. See 750 ILL. COMP. STAT. ANN. 5/607 (West 2000).
237.
Wickham, 769 N.E.2d at 8.
238.
See id.
239.
Id.
240.
Rideout v. Riendeau, 761 A.2d 291, 303 (Me. 2000).
241.
Roth v. Weston, 789 A.2d 431, 444 (Conn. 2002).
242.
Troxel did not hold that the Constitution requires a showing of harm in
grandparent visitation cases. See Troxel v. Granville, 530 U.S. 57, 74 (2002). Nevertheless,
many state courts will not award visitation “without a showing of harm to the child
[because] a court cannot constitutionally substitute its determination of a child’s best
interests for that of fit, married parents.” Roberts, supra note 32, at 17.
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All Decisions that Concern the Custody of a Child Should
Include a Harm Requirement
Troxel did not address whether the Due Process Clause requires a
grandparent to include a showing of harm or potential harm to the child in a
petition for visitation.243 However, because of the difficulty in assessing the
best interests of a child, visitation decisions in favor of a grandparent
should be based on a finding of actual or potential harm caused by parental
unfitness, incompetence or the existence of a prior intimate relationship.244
This determination should not be limited to the harm caused by the
deprivation of the grandparents’ company.245 Many courts already limit
forced-visitation only when it is constitutionally permissible in order to
avoid potential harm to a child.246 The SJC found that Section 39D “can be
interpreted to require a showing of harm to the child if visitation is not
allowed.”247 There are two dangers to this holding: (1) it assumes that
denying visitation with the grandparents is harmful absent any prerequisite
that a parent is unable to care for the child; and (2) this requirement only
exists in the SJC’s interpretation of Section 39D, not in the statute’s
language.248
a.
Harm is Usually Defined By Concentrating on the
Parent.
A court of the Commonwealth determines potential or actual harm by
answering “whether the natural parents are currently fit to further the
welfare and best interests of the child.”249 The level of harm must rise to a
level of pervasiveness sufficient to supercede the parent’s liberty interests.
To answer this question, the Commonwealth’s courts will “tak[e] into
consideration a parent’s character, temperament, conduct, and capacity to
provide for the child in the same context with the child’s particular needs,
243.
244.
See Troxel, 530 U.S. at 73.
See Bohl, Grandparent Visitation Law, supra note 11, at 281; see also supra Part
III.A.2.
245.
See Bohl, Grandparent Visitation Law, supra note 11, at 281. “Grandparent
visitation decisions have also moved toward this harm standard independently of any
explicit constitutional argument as a result of increasingly realistic assessments of the best
interests of the child under the circumstances and an increasing unwillingness to base
awards of visitation on sentimental generalizations about grandparents.” Id. at 280-81.
246.
Id. at 283.
247.
Blixt v. Blixt, 774 N.E.2d 1052, 1059 (Mass. 2002) (emphasis added).
248.
See discussion infra Part III.D.
249.
Custody of a Minor, 452 N.E.2d 483, 490 (Mass. 1983) (quoting Petition of the
Dep’t of Pub. Welfare to Dispense with Consent to Adoption, 421 N.E.2d 28, 37 (Mass.
1979)).
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affections, and age.”250 In custody disputes within the Commonwealth,
courts require “clear and convincing evidence that a parent is presently
unfit” because the judgment may strip the parent’s custody of his child.251
In Custody of a Minor, the SJC wrote: “State intervention in the parentchild relationship is justified only when parents appear unable to provide
for their children’s care and protection.”252
Absent this proof, a parent is deemed fit and presumed to make
decisions in the best interests of the child. A parent’s fitness is intertwined
with his or her ability to make decisions regarding the care of his or her
child: “the best interests of the child cannot be determined separate and
apart from a determination of the current fitness of the [parent].”253
Other states have utilized this standard for visitation based on the
assertion that granting visitation is comparable to revoking custody from a
parent, even if only temporarily.254 Connecticut, for example, required the
harm to be “real and substantial,” the same standard it used for determining
whether to take custody from a parent.255 Like Blixt, the court only focused
on the harm if visitation was denied, not if it was granted.256 Tennessee
viewed the requirement of harm as the “sole protection that parents have
against pervasive state interference.”257
250.
251.
Adoption of Mary, 610 N.E.2d 898, 902 (Mass. 1993).
Id. “[I]t must be shown by clear and convincing evidence that the parent’s
unfitness to assume parental responsibility is such that it would be in the best interests of the
child for all legal relations to be ended.” Petition of the Dep’t of Soc. Servs. to Dispense
with Consent to Adoption, 461 N.E.2d 186, 190 (1984).
252.
452 N.E.2d at 489 (quoting Custody of a Minor (No. 1), 389 N.E.2d 68, 73 (Mass.
1979)).
253.
Guardianship of Yushiko, 735 N.E.2d 1260, 1262 (Mass. App. Ct. 2000) (citing
Bezio v. Patenaude, 410 N.E.2d 1207, 1214 (Mass. 1980)).
254.
See Roth v. Weston, 789 A.2d 431, 445 (Conn. 2002). “We draw no distinction
[between visitation and custody] . . . for purposes of this discussion. Visitation is ‘a limited
form of custody during the time the visitation rights are being exercised . . . .’ (citation
omitted).” Id. at 447 n.13 (quoting In re Marriage of Gayden, 229 Cal. App. 3d 1510, 1517
(Cal. Ct. App. 1991)).
255.
Id. at 447.
256.
See id. at 452; see also Brooks v. Parkerson, 454 S.E.2d 769, 773-74 (Ga. 1995).
257.
Hawk v. Hawk, 855 S.W.2d 573, 580 (Tenn. 1993). In Hawk, the court explained:
For the state to delegate to the parents the authority to raise the child as the parents
see fit, except when the state thinks another choice would be better, is to give the
parents no authority at all. ‘You may do whatever you choose, so long as it is what
I would choose also’ does not constitute a delegation of authority.
Id. at 580-81 (quoting Kathleen Bean, Grandparent Visitation: Can the Parent Refuse?, 24
U. LOUISVILLE J. FAM. L. 393, 441 (1985-86)).
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b.
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The Supreme Court Requires the Government to Prove
Harm to the Child Before Entering the Familial Sphere.
The Supreme Court cases supporting the fundamental parental right,258
including Meyer, Pierce, Prince, Yoder and Moore, “indicate that the
state’s power to interfere in the parent-child relationship is subject to a
finding of harm to the child.”259 Where plaintiffs failed to establish harm,
the court rejected any governmental interference.260 Conversely, if the
court found actual or potential harm to the child, then the court granted
government interference into the familial sphere.261
As written, Section 39D did not require petitioning grandparents to
prove that the absence of visitation would cause harm to the child;262
correctly, the SJC required the grandparents “allege and prove that the
failure to grant visitation would cause the child significant harm by
adversely affecting the child’s health, safety, or welfare.”263 Consistent
with the Youmans decision, the requirement “presupposes proof of a
showing of a significant preexisting relationship between the grandparent
and the child.”264 Thus, without the pre-existing relationship, the
grandparent would have the burden of proving that a denial of visitation
will significantly harm the child.265 First, as this Comment asserts, this
burden should be equal to that of a de facto parenthood. Second, Section
39D erroneously grants a grandparent automatic standing and thus supports
a right that does not exist.266 Youmans and E.N.O. already permit a court to
award visitation to a non-natural parent based upon a showing of an
intimate pre-existing relationship without conferring a right because of a
258.
259.
See supra Part III.A.1.
Hawk, 855 S.W.2d at 580; see also Bohl, Grandparent Visitation Law, supra note
11, at 289.
260.
See Meyer v. Nebraska, 262 U.S. 390, 403 (1923); Pierce v. Soc’y of Sisters, 268
U.S. 510, 534-35 (1925); Stanley v. Illinois, 405 U.S. 645, 657-58 (1972) (“The State’s
interest in caring for Stanley’s children is de minimis if Stanley is shown to be a fit father.”);
Wisconsin v. Yoder, 406 U.S. 205, 232-34 (1972) (finding that the state failed to prove
harm to the child’s physical or mental health).
261.
See Prince v. Massachusetts, 321 U.S. 158, 169 (1944).
262.
See Frolin & Fabriele, supra note 181, at 22.
263.
Blixt v. Blixt, 774 N.E.2d 1052, 1060 (2002). See generally Frolin & Fabriele,
supra note 181, at 24 (noting that harm remains the apparent “factual circumstance most
likely to overcome the presumption that a fit parent’s visitation decision serves the child’s
best interest”).
264.
Blixt, 774 N.E.2d at 1060.
265.
Id.
266.
See Gregory, supra note 10, at 699. “The fatal flaw in the . . . opinion is its
conclusion that a grandparent has a ‘fundamental right’ to visitation with a grandchild. No
authority is cited for this proposition as there is no such right.” Id.
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blood relationship.267 The result of severing that relationship is significant
harm to the child.268
Section 39D, as written and interpreted by the SJC, only muddies the
water because it affirms an older presumption that a relationship with a
grandparent is per se healthy. Recent court decisions around the country
question this belief that grandparent visitation is in a child’s best
interests.269 Because the litigation filed under these statutes is often
tenacious in character and has a “deleterious effect” on the families
involved, some courts and professors have begun to question whether
court-ordered visitation is in the best interest of the child.270 Also, Section
39D appears to protect this “right” of visitation possessed by grandparents,
instead of being a statute for the welfare of children.271 Justice Sosman
argued any protection of “grandparent rights” fails under the strict scrutiny
analysis because such rights do not exist under the common law or Federal
or State Constitution.272 Finally, the denial of grandparent visitation—not
the denial of a relationship with a de facto parent—is dissimilar to
permitting a guardian to overwork a child or a parent denying basic
vaccinations, medical care or an education.273
B. Kristin Blixt’s Equal Protection Rights Were Violated Because
the Legislature Lacked a Compelling Interest When It Classified
Her.
The SJC dismissed Kristin’s assertion that Section 39D “offend[ed] the
principles of equal protection”274 because, under a strict scrutiny analysis,
the Legislature had “confin[ed] the reach of [Section 39D] . . . to a discrete
class of children within the discrete class of households at issue.”275 The
267.
268.
Blixt, 774 N.E.2d at 1061.
Id. It should be noted that severing a strong relationship between a child and third
party is different than performing a “best interests of the child” evaluation. A best interests
evaluation, alone, is dangerous because “ultimately such open-ended discretion can lead to
unwanted and inappropriate litigation which could be detrimental to the child.” AAMC,
supra note 224, at 1.
269.
Bohl, Grandparent Visitation Law, supra note 11, at 327 (“Recent decisions have
increasingly refused to simply presume a benefit to a grandparent-grandchild
relationship. . . .”).
270.
Id.
271.
Blixt, 774 N.E.2d at 1083 (Sosman, J., dissenting).
272.
Id. at 1084.
273.
See supra notes 178-180 and accompanying text.
274.
Blixt, 774 N.E.2d at 1065.
275.
Id. Section 39D is representative of the majority of grandparent visitation statutes
across the country in its applicability to parents experiencing divorce, death, or
estrangement. See Bartlett, supra note 196, at 47 n.171 (listing several other representative
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SJC thereby concurred with the Legislature’s assumption that a child
residing with only a single parent was more vulnerable to life’s harms than
if the grandparent was permitted a relationship with the child.276 Permitting
the Legislature to arrive at this kind of conclusion appeared to counter
Supreme Court precedent and the trend of other state courts.
As previously stated, for a statute to survive a facial challenge, it must
be “establish[ed] that no set of circumstances exists under which the
[statute] would be valid.”277 Notwithstanding, a statute can still fail because
it includes people who should not be affected by the statute’s reach.278 In
Stanley v. Illinois,279 the Supreme Court held that an Illinois statute was
unconstitutional because of its overbreadth.280 The statute denied an
unmarried father the opportunity to a hearing for custody of his child
because the Illinois Legislature deemed single fathers unsuitable and
neglectful.281 The statute violated Stanley’s equal protection rights because
the hearing, statutorily entitled to all other parents, could have proven him
statutes similar to Section 39D).
276.
Blixt, 774 N.E.2d at 1065. Grandparent visitation statutes “assume that in all these
single parent homes the grandchild is harmed unless the grandparent is protected through a
court order.” Nolan, supra note 191, at 290. In response to a large-scaled study in Europe
that concluded that children of single-parents were more likely to develop serious
psychiatric illnesses and addictions, Dr. Stephen Scott, a child and behavior researcher at the
Institute of Psychiatry in London, found that these problems were more attributable to the
influence of bad parenting. Emma Ross, Single-Parent Homes Studied: Afflictions Later in
Life are Seen for Children, BOSTON GLOBE, Jan. 24, 2003, at A8.
277.
Wilde v. Wilde, 775 A.2d 535, 544 (N.J. Super. Ct. App. Div. 2001) (quoting U.S.
v. Salerno, 481 U.S. 739, 745 (1987)).
278.
See Roberts, supra note 32, at 28-29. Ms. Roberts states:
Court observers have discussed how the traditional understanding of as-applied
and facial challenges to statutes—that statutes are usually challenged as applied to
a particular party and that facial challenges are extremely rare—seems to have
fallen by the wayside, as the Court continues to debate when courts may facially
invalidate statutes.
…
The plurality’s decision to hold the statute unconstitutional only as applied to
Granville’s case seems inconsistent with this criticism. In addition, the Supreme
Court has upheld the facial invalidation of “overbroad” statutes that infringe
fundamental constitutional rights. More specifically, the Court has often sustained
facial challenges in the area of family privacy, for example, striking down laws in
Roe v. Wade and City of East Cleveland v. Moore in their entirety.
Id. (citations omitted) (emphasis added).
279.
405 U.S. 645 (1972).
280.
See id. at 658.
281.
See id. at 654.
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797
deserving of his children’s custody.282 The Supreme Court asserted that
“the State registers no gain towards its declared goals when it separates
children from the custody of fit parents. Indeed, if Stanley is a fit father, the
State spites its own articulated goals when it needlessly separates him from
his family.”283
The Supreme Court and state courts around the United States appear to
ignore the status of parents in past decisions concerning the family unit.
Prince, a landmark case in the doctrine of parens patriae, concentrated on
the government intrusion against a non-traditional family—an auntguardian and her niece—as any other intact family.284 Likewise, Moore
defended the family unit and was not concerned with the mix-and-match
unit that constituted the Moore family.285 One commentator holds that
“these decisions would apparently reach the same conclusions whether the
child at issue was natural or adopted and whether his parents were married,
divorced, or widowed.”286 The states have also yielded important cases
regarding equal protection rights. At the state level, the Hawk case287
“concluded its characterization of family rights under the Federal
Constitution without having discussed the marital status of the parents at
any point.”288 Referring to Stanley, Hawk holds that a state “cannot
presume an unwed father is unfit in order to remove his children from his
custody; it must instead demonstrate an ‘individualized finding of parental
282.
See id. By denying the ability to even have a hearing, the state was concluding
that an unwed single father could not raise his own children regardless of the father’s actual
fitness. Id. at 657-58.
283.
Id. at 652-53.
284.
Prince v. Massachusetts, 321 U.S. 158, 159-60 (1944). The Supreme Court did not
question the aunt’s ability to properly rear the child even though she was only a guardian
and not a mother to the child. Id.; see also Bohl, Grandparent Visitation Law, supra note 11,
at 287-88.
285.
Moore v. City of East Cleveland, 431 U.S. 494, 499 (1977). Moore involved a city
ordinance that restricted the family members who could live in a single household to a
single family. In this case, the occupants were a grandmother, her son, and two grandsons—
each with a different parent—and thus outside the parameters of East Cleveland’s definition
of a single family. Id. at 496-97. The Court stated that “the Constitution prevents East
Cleveland from standardizing its children—and its adults—by forcing all to live in certain
narrowly defined family patterns.” Id. at 506. Section 39D affects the Blixt family—Kristin
and her son—in the same way as Grandmother Moore by punishing them for not being what
the Commonwealth considers a traditional family. See also Bohl, Grandparent Visitation
Law, supra note 11, at 287-88.
286.
Bohl, Grandparent Visitation Law, supra note 11, at 287.
287.
Hawk v. Hawk, 855 S.W.2d 573 (Tenn. 1993).
288.
Bohl, Grandparent Visitation Law, supra note 11, at 288 (citing Hawk, 855
S.W.2d at 580).
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neglect.’”289 This burden established by the Hawk court also recognized the
need to prove a parent unfit or incompetent before tampering with the
parent’s custody rights, even if only temporarily.290 Later, Tennessee
discounted the grandparents’ claim that the “constitutional protection of
family privacy and parental rights was ‘limited to married, natural parents
who have maintained continuous custody of their children and whose
fitness as parents has not been challenged.’”291
The SJC maintained that Section 39D did not violate Kristin Blixt’s
family unit, one composed of Kristin and her son, and her unanimous
decision as head of the family to deny visitation of her son to her father.292
Kristin and Paul Sousa, the child’s father, shared legal custody of the child;
despite the lack of cohabitation, the parents retained the same legal rights
that any married parent held and made decisions on behalf of their child
accordingly.293
When faced with a similar situation to Blixt, various state courts have
not dwelled on this distinction. In Lockhart v. Lockhart,294 the court
reasoned that since grandparents could not interfere with the parental
decisions of married parents, they should not be entitled to interfere with
the united decisions of divorced parents.295 Kristin and Paul were not
challenging each other for custody of the child; together, these parents
decided the upbringing of their child. Under a Michigan-style statute, for
example, the state awards grandparent visitation if the child was the subject
of a custody dispute.296 The language of the Michigan statute reflected a
narrower classification than Section 39D and appropriately honored a
289.
Id. (quoting Hawk, 855 S.W.2d at 580). This finding of parental neglect is much
different than a finding of harm based on a parent’s decision to end or limit grandparent
visitation.
290.
Hawk, 855 S.W.2d at 580.
291.
Gregory, supra note 10, at 704 (quoting Simmons v. Simmons, 900 S.W.2d 682,
684 (Tenn. 1995)).
292.
See Blixt v. Blixt, 774 N.E.2d 1052, 1064 (Mass. 2002). “[C]hildren whose
unmarried parents live apart may be especially vulnerable to real harm from the loss or
absence of a grandparent’s significant presence is a permissible legislative conclusion,
drawn from social experience and consistent with the State’s compelling interest in
protecting minors from harm.” Id.
293.
See Bohl, Grandparent Visitation Law, supra note 11, at 314. See generally
MASS. GEN. LAWS ch. 119, § 39D (2002) (disallowing grandparents, where a minor with
married parents are residing together, to petition the court for visitation, but allowing a
grandparent’s petition when the parents are divorced).
294.
603 N.E.2d 864, 866 (Ind. Ct. App. 1992).
295.
See id. When applying a grandparent visitation statute, united decisions by
divorced parents would be treated the same as those of married parents. See id.; see also
Bohl, Grandparent Visitation Law, supra note 11, at 314.
296.
See DeRose v. DeRose, 643 N.W.2d 259, 261 (Mich. Ct. App. 2002).
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parent’s decision as head of the family unit.297 One professor noted that “a
growing number of courts, influenced in part by social studies that
challenge traditional thinking . . . have evidenced a belief that greater
latitude should be given to the custodial parent in making relocation
decisions.”298
Section 39D violated the equal protection rights of Kristin because the
language afforded a different standard to her than to a mother who was
married and living with her husband.299 Justice Sosman questioned the
rationale of the Legislature: Why would a single mother not encourage and
foster a relationship with the grandparents?300 When a parent does not
foster this relationship, despite all the reasons the Legislature believed a
parent should, it is inappropriate to permit a court to force a family to
reconcile its differences.301 Finally, the “mere fact that the child’s
biological parents do not live in the same household does not identify a
category of at-risk children with anything approaching the requisite degree
of precision.”302 Rather, the legislative history supported a different
conclusion. The sponsors of Section 39D granted rights to grandparents
that protected a “non-existent” right at the behest of the grandparent-lobby.
297.
298.
See id.
Charles P. Kindregan, Jr., Family Interests in Competition: Relocation and
Visitation, 36 SUFFOLK U. L. REV. 31, 38 (2002). Professor Kindregan stated:
These social studies tend to focus on the desirability of recognizing that a oneparent family is itself a family unit that requires both flexibility in decisionmaking and stability in accommodating the needs of the primary care parent and
child, rather than focusing undue emphasis on the role of the “visiting” rights of
the noncustodial.
Id. (citing Carol Bruch & Janet M. Bowermaster, The Relocation of Children and Custodial
Parents: Public Policy, Past and Present, 30 FAM. L. Q. 245, 262-72 (1996) (finding that
visitation decisions should support the custodial parent’s decisions)).
299.
See Nolan, supra note 191, at 290. Professor Nolan asserted that “[t]hese single
parents should not have a standard different from the standard of two parent homes.” Id.
300.
See Blixt v. Blixt, 774 N.E.2d 1052, 1081 (Mass. 2002) (Sosman, J., dissenting).
301.
See generally Hawk v. Hawk, 855 S.W.2d 573, 577 n.2 (Tenn. 1993). “Because of
the petition filed by the grandparents . . . the parents were required to come to court and
expose what can only be described as the family’s ‘dirty linen.’” Id.
302.
Blixt, 774 N.E.2d at 1076 (Sosman, J., dissenting). Professor Nolan asserted:
There are no convincing studies, however, indicating that the benefit of courtordered grandparent visitation outweighs the detriment. The data justifying
grandparent visitation often has been in the form of courts’ sentimental
generalizations about this special bond between parent and child. . . . However,
statutes that provide automatic standing to grandparents in death and divorce
cases . . . assume that in all of these single parent homes the grandchild is harmed
unless grandparent contact is protected through a court order.
Nolan, supra note 191, at 289-90.
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They achieved this statutory right by creating a suspect classification at the
cost of infringing upon a parent’s fundamental right to rear her child.303 In
conferring on grandparents the ability to sue their children, the SJC found
that a heightened pleading requirement would be a sufficient safeguard.304
C. Questioning the Heightened Pleading Requirement: Does it
Really Protect the Child and Parent and Is it Clear Enough To Do
So?
Six justices of the Supreme Court in Troxel expressed concern about the
potential effects to family members, especially the children, caused by
petitions for grandparent visitation. The justices were concerned about the
litigation’s strain on the parents and the high costs that could be incurred by
all parties.305 These expenses include “court costs, expert witness fees,
pretrial discovery cost, and if there is an appeal, numerous appeal costs.”306
Furthermore, a court may order “counseling, mediation, or persons to
represent the interests of the child. . . .”307 These financial issues could
force parents to settle despite their desire to keep their children away from
the grandparents.308 Justice Kennedy articulated his concern regarding
these issues when he wrote:
303.
See Blixt, 774 N.E.2d at 1084 n.17, n.18 (Sosman, J., dissenting) (citing State
House News Service (House Sess.), May 19, 1982, at 29-30); see, e.g., Roberts, supra note
32, at 31 n.33 (quoting PRINCIPLES OF THE LAW OF FAMILY DISSOLUTION: ANALYSIS AND
RECOMMENDATIONS 6 (Tentative Draft No. 3, Part I, 1998) (noting that “states have carved
out an exception for one group of non-parents who may be given rights regardless of
function: grandparents”)); id. at 31 n.30 (quoting Brief Amici Curiae of AARP and
Generations United in Support of Petitioners, at 16-17, Troxel v. Granville, 530 U.S. 57
(2000)). “Today’s increased mobility and high divorce rates, separations and family abuse
problems have tended to separate millions of children from relatives of an older generation
who have traditionally served as the emotional buffers between generations.” Id.
304.
See Blixt, 774 N.E.2d at 1065-66.
305.
See Troxel, 530 U.S. at 75, 101 (Kennedy, J., dissenting). The American Academy
of Matrimonial Lawyers noted that “formal dispute resolution through the judicial process
can have many negative costs and ought not to be lightly undertaken.” AAMC, supra note
224, at 2. Similarly, one professor noted “that it is not in a child’s best interest to be in the
middle of a visitation dispute.” Solangel Maldonado, When Father (or Mother) Doesn’t
Know Best: Quasi-Parents and Parental Deference After Troxel v. Granville, 88 IOWA L.
REV. 865, 892 n.171 (2003). Professor Maldonado cited several decisions where the court
denied visitation because of the potential strain on the children. Id.
306.
Nolan, supra note 191, at 287.
307.
Id. at 287.
308.
If unsuccessful in defending against the visitation petition, some jurisdictions
force parent(s) to pay the grandparents’ litigation costs. Id. at 287; see also AAMC, supra
note 224, at 13 (asserting that “the court shall award reasonable and necessary costs and fees
to the prevailing party unless there is a compelling reason to do otherwise”).
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If a single parent who is struggling to raise a child is faced with
visitation demands from a third party, the attorney’s fees alone might
destroy her hopes and plans for the child’s future. Our system must
confront more often the reality that litigation can itself be so disruptive
that constitutional protection may be required; and I do not discount the
possibility that in some instances the best interests of the child standard
may provide insufficient protection to the parent-child relationship.309
With constitutional issues at stake, the Supreme Court holds that a
greater standard of proof is required to protect the defendant’s interests.310
In Santosky v. Kramer,311 the Supreme Court mandated a standard of “clear
and convincing evidence”312 when the “individual interests at stake in a
state proceeding are both ‘particularly important’ and ‘more substantial
than mere loss of money.’”313 The Supreme Court used this standard
because “due process requires the clear and convincing test to be applied to
the termination of parental rights because it is the complete severance by
court order of the legal relationship . . . between the child and his
parent.”314 Thus, “[a] majority of the States have concluded that a ‘clear
and convincing evidence’ standard of proof strikes a fair balance between
the rights of the natural parents and the State’s legitimate concerns.”315
Section 39D does not establish the standard of proof that the petitioning
grandparents must satisfy.316 The SJC now requires grandparents to satisfy
a lesser burden of proof than a clear and convincing standard:
309.
310.
Troxel, 530 U.S. at 101 (Kennedy, J., dissenting) (emphasis added).
See Cruzan v. Dir., Missouri Dep’t of Health, 497 U.S. 261, 282-83 (1990); see
also Roth v. Weston, 789 A.2d 431, 447 (Conn. 2002). “When constitutional issues are at
stake, a heightened evidentiary standard is warranted.” Id.
311.
455 U.S. 745 (1982). The Court held that the Due Process Clause entitled the
parents to a greater standard of proof than the “fair preponderance of the evidence”:
The function of a standard of proof, as that concept is embodied in the Due
Process Clause and in the realm of factfinding, is to “instruct the factfinder
concerning the degree of confidence our society thinks he should have in the
correctness of factual conclusions for a particular type of adjudication.”
Id. at 754-55 (quoting Addington v. Texas, 441 U.S. 418, 423 (1979); In re Winship, 397
U.S. 358, 370 (1970) (Harlan, J., concurring)).
312.
Id. at 756.
313.
Id. (quoting Addington, 441 U.S. at 424).
314.
Roth, 789 A.2d at 448. Abuse and neglect petitions, on the other hand,
constitutionally require only a “preponderance of the evidence because any deprivation of
rights [at that stage] is reviewable and nonpermanent.” Id. at 448 (internal quotation marks
omitted).
315.
Santosky, 455 U.S. at 769. Thirty states require this standard of proof by either
statute or court decision. Id. at 749-51 n.3. Massachusetts, however, does not require this
standard of proof. See id.
316.
See MASS. GEN. LAWS ch. 119, § 39D (2002).
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[The grandparents must] establish, by a preponderance of the credible
evidence, that a decision by the judge to deny visitation is not in the
best interests of the child. More specifically, to succeed, the
grandparents must allege and prove that the failure to grant visitation
will cause the child significant harm by adversely affecting the child’s
health, safety, or welfare.317
The preponderance of the evidence standard is an extremely low
standard compared to the clear and convincing evidence standard used for
establishing parental right termination proceedings.318 Because of the
concerns articulated by Justices Kennedy and O’Connor and the relatively
low bar of the preponderance standard, the Connecticut Supreme Court
heightened the standard to clear and convincing.319 Even though the court
felt that the stricter standard was not “constitutionally mandated,” it
believed that the stricter standard was more “sound[ ] because of the ease
with which a petitioning party could otherwise intrude upon parental
prerogative.”320 A stricter burden of proof provides greater protection for
parents from frivolous lawsuits and the hardships envisioned by the
Supreme Court Justices. Because Section 39D failed to adequately protect
both children and parents from these concerns, the section may now
contribute to greater erosion of a parent’s fundamental rights and the best
interests of the child by permitting visitation where a stricter standard
would not allow it.
D. The SJC Inappropriately Wrote Law When the Legislature
Should Have Been Asked To Redraft the Statute
The SJC should have, at the very least, sent Section 39D back to the
Legislature for clarification. Aside from the constitutional efficacy of
grandparent visitation statutes in general, as compared to similar statutes
around the United States, Section 39D is flawed and in need of a legislative
rather than a judicial overhaul.321 Nevertheless, the SJC decided to apply
an appellate court “band-aid” to Section 39D by interpreting the statute “to
render it constitutional.”322 To save the statute, the SJC did the following,
317.
318.
319.
320.
321.
Blixt v. Blixt, 774 N.E.2d 1052, 1060 (Mass. 2002).
See Santosky, 455 U.S. at 751.
See Roth, 789 A.2d at 448.
Id.
See MASS. CONST. Part I art. XXX. (“[T]he judicial shall never exercise the
legislative and executive powers, or either of them: to the end it may be a government of
laws and not of men.”).
322.
Blixt, 774 N.E.2d at 1060. “A court may interpret a statute to set forth
considerations to clarify and specify, and, where necessary, to narrow, the statute’s terms, in
order that it may be held constitutional.” Id. at 1056.
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as noted above: (1) gave presumptive validity to a parent’s decision to deny
visitation;323 (2) required the grandparents to prove by a preponderance of
the evidence that denying visitation would substantially harm the child;324
and (3) required petitioners to file a heightened pleading as a safeguard to
parents from frivolous lawsuits.325
Section 39D still contains none of this language as drafted and recorded
in the Commonwealth’s General Laws.326 In analyzing the grandparent
visitation statute, the SJC attempted to render the statute constitutional by
reading into the statute the constitutional prerequisites espoused in
Troxel.327 The Legislature enacted the statute prior to Troxel; thus, the
Legislature could not, and did not, account for the constitutional
requirements espoused in Troxel. Moreover, because there is no guiding
language in the statute, and the case law containing the different factors and
tests to be applied is scattered throughout the Massachusetts reporters, there
are no clear and unambiguous criteria for probate judges to follow.328
Justice Sosman notes that other states, encountering similar problems
with their grandparent visitation statutes in the post-Troxel era, declined to
render the statute constitutional through court interpretation.329 Those
statutes “predicated on nothing more than a determination of the child’s
‘best interest’ . . . have wisely resisted the temptation to salvage such
statutes under the guise of ‘interpretation.’”330 Because of the significant
323.
324.
325.
326.
Id. at 1060.
Id.
Id. at 1065-66.
See MASS. GEN. LAWS ch. 119, § 39D (2002). Justice Sosman believed that it was
“unacceptable statutory construction to find incorporated in the meaning of the statute,
general in its terms, specific constitutional requirements not articulated until after the
enactment of the statute.” Blixt, 774 N.E.2d at 1072 (Sosman, J., dissenting) (quoting
Commonwealth v. Upton, 476 N.E.2d 548, 553 (Mass. 1985)).
327.
See supra Part III.C.
328.
See Blixt, 774 N.E.2d at 1073 (Sosman, J., dissenting). See generally DeRose v.
DeRose, 643 N.W.2d 259, 263 (Mich. Ct. App. 2002) (“It is precisely this lack of legislative
guidance that renders the statute fatally flawed.”); Roberts, supra note 32, at 27. One
commentator believes this judicial practice is dangerous because it “give[s] more freedom to
judges to exercise discretion” and “too much room to maneuver.” Id. Thus, “[j]udges may
purposefully or inadvertently infringe parents’ rights while ostensibly following Troxel.” Id.
329.
See Blixt, 774 N.E.2d at 1072 (Sosman, J., dissenting). The Tennessee Supreme
Court, for example, rejected the state legislature’s second attempt at the statute because it
continued to omit language required by Troxel and its decision in Hawk. See Bohl,
Grandparent Visitation Law, supra note 11, at 299.
330.
Blixt, 774 N.E.2d at 1073 (Sosman, J., dissenting). Justice Sosman cites state
cases, including the following: Linder v. Linder, 72 S.W.3d 841 (Ark. 2002) (declining to
rewrite statute based solely on the best interest standard without a showing of unfitness or
harm); DeRose, 643 N.W.2d at 263 (“To render the statute constitutional . . . [w]e would
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liberty interests at stake and the children potentially affected by the statute,
the SJC should have sent Section 39D back to the Legislature.
IV. CONCLUSION
Because a parent’s right to raise her children is so fundamental, the
SJC’s best course of action was to strike down the grandparent visitation
rights invented by Section 39D, thereby embracing this fundamental right.
Thereafter, the SJC should have instructed grandparents and the lower
courts to rely on the E.N.O. and Youmans decisions when petitioning for
visitation. The lower courts should also note that any third party visitation
statute should closely follow the guidelines established by E.N.O. and
Youmans.331 Granted, such a stance could also be viewed as judicially
active, but the decision would have been based in the court’s equitable
powers. Furthermore, a parent would no longer be expected to fight against
a visitation claim because the petitioner is only the child’s grandparent;
instead, standing would only be afforded to a person who met a rigorous
test establishing a prior intimate relationship.332
Based on the arguments presented by this Comment, it may be helpful to
outline a statute that would (1) honor a parent’s fundamental right; (2)
address the concerns of a grandparent who may also be a de facto parent;
have to go from the judicial robing room to the legislative cloakroom and we decline to do
so.”). See also Wickham v. Byrne, 769 N.E.2d 1, 8 (Ill. 2002) (rejecting grandparent
visitation statute because it permits a state to infringe on parental child rearing decisions
based on judge’s belief of a “better” decision).
331.
For a full discussion on E.N.O. and Youmans, see notes 199-210 and
accompanying text.
332.
See Gregory, supra note 10, at 689-90 (citing the language of the Oregon statute
that affords “standing to petition or intervene in custody or visitation proceedings to anyone
‘who has established emotional ties creating a child-parent relationship . . . with a child.’”
(quoting OR. REV. STAT. § 109.119(1) (2001)); see also Youmans v. Ramos, 711 N.E.2d
165, 172-74 (Mass. 1999). Moreover, this stance appears to be more sympathetic to family
units not defined by traditional views. One commentator noted that Troxel only concentrated
on the “narrow, Eurocentric family model and fail[ed] to consider the reality of the extended
family model for various diverse groups, including Latino/a, Native American, Asian
American, and African American families.” Melba J. T. Vasquez, Troxel v. Granville:
Impact on Ethnic Minority Families, 41 FAM. CT. REV. 54, 55 (2003). Ms. Vasquez states:
“The highest court in the United States has made a decision . . . without considering the
effect of the value of extended family—one of the major strengths for the ethnic minority
populations of this country.” Id. at 57; see also Maldonado, supra note 305, at 869 (noting
that “[i]n African-American and Latino communities . . . extended kin, especially
grandparents, are expected to and frequently do help to raise children”). The equitable
doctrine utilized in Youmans allows the court to consider these ties with third parties, but
only after considering the parents. Given the SJC’s recent decision in Goodridge v.
Department of Public Health, 798 N.E.2d 941 (Mass. 2003), a better-defined third party
statute appears necessary.
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and (3) arm the state with the proper process arising from the need to
transfer custody from a parent. A statute that could effectuate this principal
may appear like the following:333
MODEL VISITATION STATUTE
Visitation shall be awarded to a third party after the probate court has
established that the third party has acquired de facto parent status and
the visitation is in the best interests of the child.
(A) To establish this relationship, all of the following factors must be
proven by clear and convincing evidence:334
(1) Third party participated in the child’s life as a member of the
child’s family for the previous two years;
(2) Third party resided with or near the child;
(3) Relationship between the third party and the child was carried
out with the consent and encouragement of the legal parent; and
(4) Third party performed a share of the caretaking functions at
least as great as the legal parent, including assistance with the
child’s daily routines, developmental needs, discipline, education,
medical care, and moral growth.
(B) The probate court shall consider, but not be limited to, the following
matters:335
(1) The length and quality of the prior relationship between the
child and the third party and the role played by the third party;
(2) The existing emotional ties of the child to the third party;
(3) The preference of the child if the child is determined to be of
sufficient maturity to express a preference;
(4) The effect of hostility between the third party and the legal
parent of the child manifested before the child, and the willingness
333.
334.
See E.N.O. v. L.M.M., 711 N.E.2d 886, 891 (Mass. 1999).
In drafting its model third party visitation statute, the American Academy of
Matrimonial Lawyers “reject[ed] the concept that adults who are not the parent have a right
to develop a relationship with someone else’s child, absent the parent’s ongoing consent.”
AAMC, supra note 224, at 1.
335.
See TENN. CODE ANN. § 36-6-307 (2002).
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of the third party to encourage a close relationship between the
child and the parent or parents, or guardian or guardians of the
child; and
(5) The good faith of the third party in filing the petition.
(C) A court may grant reasonable visitation rights to grandparents and
siblings of the child if:336
(1) The child is:
(a) removed from the custody of the child’s parents, guardian
or legal custodian; or
(b) placed in a foster home or other facility managed by a
licensed child care agency; and
(2) The reasonable visitation must be based on a finding that:
(a) The visitation is in the best interests of the child;
(b) The grandparents or siblings are not implicated in the
commission of an alleged act of abuse against the child.
Constitutionally, the Legislature makes the Commonwealth’s laws.
Though the SJC interprets the laws, it cannot ask the Legislature to adopt a
statute. Within these parameters, however, the Legislature should also act
to correct or clarify judicial decisions. This hypothetical statute, though
imperfect, first and foremost protects the right of a parent to raise his or her
child; yet it also takes into account the interests of a loving grandparent and
the best interests of the child. Finally, this statute is capable of addressing
the claims that will arise from the growing number of non-traditional
relationships with children as well as from the vast spectrum of America’s
ethnic families.
Jeffrey J. Trapani
336.
See id. § 36-6-302.