The Future of Grandparent Visitation in the Commonwealth
On Feb. 5, 2002, the Supreme Judicial Court heard oral argument on the first major family-law issue to be argued at the Massachusetts high court this year. In companion cases, Blixt v. Blixt and Ballarino v. Ballarino, advocates for the parties to the cases addressed the Massachusetts statute authorizing courts to order grandparent visitation. Defendant parents in both cases argued that G.L.c.119, ß39D impermissibly infringes on parents' fundamental constitutional right to make visitation decisions for their children.
Section 39D permits a court to compel grandparent visitation upon written findings that the visits are "in the best interest of the child." Not all grandparents have standing under Section 39D. The statute is specifically limited to grandparents of children whose parents are divorced or living apart, or of children who have at least one deceased parent. Paternal grandparents of a child whose parents were not married have standing only after paternity has been established. Maternal grandparents of a child whose parents did not marry have standing whether or not paternity has been established. Thus the statutory scheme exposes a class of parents-to-grandparent visitation litigation based solely on the parents' marital status.
In Blixt, Judge Catharine Sabaitis of the Plymouth County Probate and Family Court held that Section 39D is unconstitutional on its face and granted the mother's motion for summary judgment. Judge Sabaitis reasoned under Troxel v. Granville, 530 U.S. 57 (2000), that Section 39D impermissibly permits a court to substitute its own view of the child's best interest for a fit parent's decision. Troxel holds that parents have a fundamental constitutional right to make visitation decisions for their children. Under Troxel, visitation decisions of fit parents are presumed to be in the best interest of the child. Therefore, a state court may not simply substitute its own view for a fit parent's decision concerning whether grandparent visitation is best for a child. Rather, the state must give special deference to a fit parent's visitation decisions.
In Ballarino, another judge of the same trial court, Judge James Menno, declined to reconsider in light of Troxel his recent order compelling grandparent visitation. On March 22, 2002 the Supreme Judicial Court affirmed Judge Menno's discretion to deny the post trial motion for reconsideration on the ground that the constitutional issues were waived when not raised at trial. (SJC - 08639, Slip Opinion)
The issue of the constitutionality of grandparent visitation statutes in light of Troxel has drawn nationwide attention. The Troxel court specifically declined to decide whether a threat of harm is required before a state may constitutionally override a parent's visitation decision. Instead, the Troxel court left it to the individual states to determine the constitutionality of the various state statutes. Several states have invalidated their grandparent visitation statutes since Troxel. Other states have sustained their statutes by distinguishing them from the Washington state statute considered in Troxel. The test case for Section 39D in Massachusetts has been keenly anticipated in the wake of the Troxel decision.
On Dec. 21, 2001, the MBA filed an amicus curiae brief in the Blixt case. The MBA amicus position asserts that visitation decisions of fit parents are entitled to deference under Troxel and that "strict scrutiny" is the appropriate standard of review for any fundamental right, including parents' rights to determine visitation. Under strict scrutiny, the statute can be constitutional only if it serves a compelling state interest, and is narrowly tailored to meet that interest. The MBA brief urges that the lone circumstance in which the state has a compelling interest in interfering with a parent's right to control visitation is to protect a child from harm. Even then, the visitation remedy imposed by the court must be no more intrusive than necessary to prevent the threatened harm to the child. In a child-centered - but constitutionally balanced - analysis, the MBA concludes that a child who is deprived of a formerly substantial relationship with a grandparent may very well be harmed by that loss. Consistent with the MBA's mandate to protect individual rights, to advocate for concerns of children and families and to promote the administration of justice, the MBA amicus brief argues that Section 39D may be constitutionally applied if construed as applicable only when necessary to protect children from harm.
The text of Section 39D, unlike grandparent visitation statutes of many other states, provides no guidance concerning its application. The MBA's brief therefore asks the Supreme Judicial Court to offer direction to the trial courts. Factors we suggest for the court's consideration include: prior level of grandparent-child contact; amount of contact available without court order; and the degree of burden that forced visits will have on the parent-child relationship. The MBA notes that grandparent visitation cases pose a unique strain for family and parent-child relationships. Like all visitation cases, but distinctly different from civil, criminal, probate and virtually all other litigation, these cases do not end at the time of final judgment. Because the needs of children change over time, and a visitation pattern suitable to a three-year-old will necessarily be different than an appropriate order for a 13-year-old, courts can expect these cases to return frequently to their dockets for modification or enforcement actions. Courts ordering grandparent visitation may expect to be involved in monitoring a family's life for many years and the burdens of these cases for families and for courts will therefore be considerable. For this reason, in addition to the constitutional reason, the MBA brief urges the Supreme Judicial Court to hold that Section 39D must be sparingly applied.
The invitation for amicus curiae briefs in Blixt and Ballarino drew considerable interest from advocacy groups for various constituencies. Including the MBA, seven organizations filed amicus curiae briefs. The Massachusetts chapter of the American Academy of Matrimonial Lawyers and the Coalition for Parents' Rights agree with the MBA's view that any state interference with a fundamental right warrants strict scrutiny. However, the Academy and the Coalition for Parents' Rights disagree with the MBA's analysis that the statute can be constitutionally applied through a limiting construction. Both the Academy and the Coalition therefore advocate that the SJC affirm Judge Sabaitis' judgment that Section 39D is facially unconstitutional. On the other hand, briefs of the Women's Bar Association, Greater Boston Legal Services, the American Association of Retired Persons, and Gay and Lesbian Advocates and Defenders argue that a child has a right to a relationship with a grandparent that must be balanced against the parent's right to determine visitation. The position of these groups depends upon their assertion that parent's fundamental rights do not require a strict scrutiny analysis. They maintain instead that "heightened scrutiny" is the appropriate middle ground analysis.
Oral argument in Blixt included little discussion of a requirement of harm to the child as a basis for court compelled visitation. Instead, argument focused primarily on whether the status of the parties to grandparent visitation cases is an adequate basis upon which the Legislature can constitutionally grant standing to sue parents for visitation with minor children. On April 1, 2002, the Supreme Judicial Court directed the parties to file supplemental briefs on the equal protection issue. (SJC - 08643, Order) The Court also asked the amici to weigh in on the constitutional validity of the classifications in Section 39D, including whether, if the statute violates equal protection, it can be rendered constitutional by a judicial construction. The answer to that interesting question is eagerly anticipated by the family-law bar.