Pauline Quirion is an attorney at Greater Boston Legal Services, where she specializes in domestic relations matters. She is a member of the MBA Family Law Section Council.
In Troxel v. Granville, the United States Supreme Court affirmed the bedrock constitutional principle of judicial deference to parents in raising their children. Troxel requires that a grandparent rebut the presumption that "natural bonds of affection lead parents to act in the best interests of their children" before the court orders grandparent visitation over the objection of the parents. Troxel v. Granville, 530 U.S. 57, 68 (2000). The plurality in Troxel, along with Justices Stevens and Kennedy, held that a court's intervention is justified only when based on "more" than disagreement with the parent and founded on "special factors." Id. at 68. Consequently, a custodial parent's decisions are given presumptive validity. The Supreme Court declined to hold that specific non-parent visitation statutes violate the Due Process Clause as a per se matter because so much adjudication in this context occurs on a "case-by-case basis." Id. at 73. All of the justices, except for Justice Thomas, declined to federalize a standard of review for grandparent cases, such as strict scrutiny or proof of harm to a child.1 Instead, the constitutionality of a state's grandparent visitation statute depends on the way it is applied. Id. at 73. What is constitutionally required to apply the "best interests" standard is "gleaned from that State's own statutes or decisional law employing the same phrase in different contexts, and from the myriad other state statutes and court decisions at least nominally applying the same standard." Id. at 83-84 (Stevens, J. dissenting).
In Blixt v. Blixt, our Supreme Judicial Court picks up where the United States Supreme Court left off in Troxel by clarifying what "special factors" are necessary to override a fit parent's decision about grandparent visitation in Massachusetts.2
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. The requirement of significant harm presupposes proof of a showing of a significant preexisting relationship between the grandparent and the child. In the absence of such a relationship, the grandparent must prove that visitation between grandparent and child is nevertheless necessary to protect the child from significant harm.
Blixt v. Blixt, 437 Mass. 649, 658 (2002).
After Blixt, judicial intervention is warranted only when a parent's interference with grandparent visitation is so substantial that it causes significant harm to the child. Thus, the burden of proving significant harm tips the scale in favor of parental discretion.3
Blixt has special implications for children of victims of domestic violence whose safety may be jeopardized when grandparents ally themselves with the abusive parent or condone the abusive behavior. Increased judicial deference to custodial parents may help some victims maintain a safe refuge for themselves and their children.
Applying Blixt in conjunction with Custody of Vaughn
In the landmark case of Custody of Vaughn, the Supreme Judicial Court acknowledged that domestic violence has a detrimental impact on children growing up in abusive homes. Custody of Vaughn, 422 Mass. 590, 599-600 (1996). Custody of Vaughn requires judges to make "explicit findings about the effect of the violence on the child . . . to keep these matters well in the foreground of the judges' thinking." Id. Children in a grandparent visitation cases filed by batterer's parents may be in need of similar protection because these cases often implicate and may perpetuate the batterer's dynamics of domestic violence. Moreover, grandparents, whose children who are batterers, may not only minimize, but deny the significance of the abusive conduct. See e.g., Guardianship of Norman, 41 Mass. App. Ct. 402,405-406 (1996) (grandparents violated order prohibiting contact between children and their father and lied to the children to cover up their son's murder of the mother). Unwittingly or not, grandparents may seriously undermine safety planning and the safe harbor of protections put into place under Chapter 209A for the victim and the children. Safe transfer of the child for grandparent visits may not be possible or at the least, very risky and nerve wracking. Likewise, it may not be feasible for a child to keep a victim's new address confidential during grandparent visits. Accordingly, Custody of Vaughn's requirement of findings on the impact of abuse on the child and the relationship should extend to grandparent visitation. Domestic violence and the well-being of children are no less important in the grandparent context.4
For people caught in dangerous and abusive situations, it is already difficult to summon the strength to approach the courts for protection for fear of retribution. Abusers, in turn, often respond with retaliatory court proceedings as a means of maintaining contact with and control over their victims. Kanaszka v. Kunen, 713 A.2d 565, 569 (N.J. 1998) (litigation, by itself, involving a perpetrator can be a form of abusive behavior).5 Victims in grandparent visitation cases may be disadvantaged because they are dependent on their abusers and have limited resources to retain an attorney. See Opinion of the Justices to the Senate, 427 Mass. 1201, 1209 (1998). Victims also may have the added disruption and expense of relocating for safety reasons. Grandparent litigation places further financial and emotional strain on victims and their children. As the Supreme Court recently opined, when it is "a single parent who is struggling to raise a child . . . the attorney's fees alone might destroy her hopes and plans for the child's future." Troxel, 530 U.S. at 78 (Kennedy J. dissenting).
The cyclical nature of family violence also should be considered. Children exposed to domestic violence are more likely to abuse their partners as adults. See e.g. Peter Jaffe et al., Children of Battered Women, 56 (Sage 1990) (studies on children who have witnessed abuse). Logical questions follow. How far does the apple fall from the tree? How do the grandparent's attitudes and conduct relating to the domestic violence impact the best interests and safety of the victim and grandchild? What is the grandparent's history of protecting the child and ability to set limits on the abuser? What are the consequences of sending the child on visits where abuse is condoned, or abusive conduct may be still occurring? Negative dynamics related to abuse will further tip the scale in favor of deference to the victimized parent. Thus, it is incumbent on lawyers and others in the court system to explore these issues.
Creating a record to support deference to the victim-parent
While lawyers for parents increasingly focus on constitutionally based arguments, creating a strong factual record is equally important. When judges order grandparent visitation over the objections of a parent, Blixt requires written findings on: 1) whether the grandparent has a preexisting substantial relationship with a child; and 2) whether the parent's decision about visitation has significantly harmed the child. 437 Mass. at 658. The grandparent visitation statute also requires written finding on why visitation is in the best interests of the child. G.L. c. 119, ß 39D. "[S]pecific written findings by the judge . . . ensures a careful balance between the possibly conflicting rights of parents in securing their parental autonomy, and the best interests of children in avoiding actual harm to their well-being." Blixt, 437 Mass. at 658.
Despite the increase in public awareness regarding the dynamics of domestic abuse, guardians ad litem, family service officers and judges may not appreciate the impact of grandparent visitation on the victim or the grandchildren's safety and well-being. Thus, the lawyer opposing visitation needs to flesh out the facts relating to the family's dynamics of domestic violence, including acts of a grandparent enabling, minimizing or condoning the abuse.
Like other jurisdictions, our courts should deny visits to grandparents who respond inappropriately to domestic violence. In C.M. v. M.M., for example, a judge denied visitation to a paternal grandmother where the father was incarcerated for assaulting the child's mother. 176 N.Y. Misc. 2d 644, 653 (1998). The child's father engaged in domestic violence throughout his relationship with the child's mother, including handcuffing her in the bathroom for entire days. The grandmother saw the mother with black eyes and bald spots on her head where the child's father tore her hair out, but neglected to ask about it. 176 N.Y. Misc. 2d at 649.
The petitioner [grandmother] failed to protect the respondent, the mother of the child and her daughter-in-law, from the serious physical and emotional abuse perpetrated by her son, which occurred in the presence of the grandchild. The petitioner failed to obtain help of any kind for this mother and her grandchild. Rather, at every juncture, she chose to ignore the violence and, in fact, to ask respondent to conceal it from others. She chose to support her son financially, to the detriment of her grandchild and, in fact, gave money to her son to "fight" having to give child support to this child. She should have realized the impact the violence had on her grandchild, who was of tender years. Her failure to protect this mother was also a failure to protect her grandchild.
C.M. v. M.M., 176 N.Y. Misc. 2d at 653.
The grandmother's insensitivity and failure to protect the child from abuse were grounds to deny visitation. Id.
In In re Marriage of Sisson, the Court of Appeals of Oregon reversed an order awarding visitation to paternal grandparents where the child's father perpetrated serious domestic violence against the child's mother. 13 P.3d 152, 153 (2000). During a dispute over visitation, the father violently assaulted mother. "He held both mother and child at gunpoint for hours, threatening mother's life and claiming that grandparents would take care of the child once he killed mother, or had her killed by a third party." Id. Both paternal grandparents made statements blaming the mother for the attack. 13 P.3d at 153-154. The Court of Appeals found that the child associated the grandparents with the trauma of the abuse and that contact with the grandparents might trigger further trauma to the child. 13 P.3d at 153, 156. "[W]hile the grandparents are not responsible for their son's actions in assaulting mother, their ability to interact with their grandson is clearly affected by their son's actions and the resulting trauma." 13 P.3d at 156. The cycle of abuse was ongoing. During the grandparents' marriage, the grandfather physically abused the grandmother in front of their children; like the father, the grandfather previously kidnapped and held the grandmother and the children against their will. 13 P.3d at 156-157. Because the grandparents did not appreciate the seriousness or impact of the domestic violence, the court found that they were unable to protect the child emotionally. 13 P.3d at157.
In sum, family dynamics and loyalties make some grandparents unlikely to act independent of the abuser. Hughes v. Hughes, 463 A.2d 478, 479-480 (Pa. 1983) (visits denied to grandmother "acting as a substitute for the child's natural father" in "an attempt to obtain through the back door what is not possible by the front"); Fitzpatrick v. Youngs, 186 N.Y. Misc. 2d 344, 346 (2000) ("Visitation with a grandparent who had knowledge of domestic violence and took no action to prevent it or protect the child is not in the best interests of the child, and a parent's action denying visitation is reasonable.") C.f. Custody of Michel, 28 Mass. App. Ct. 260, 264 (1990) (custody to state affirmed, in part, based on mother's lack of ability to act independent of the children's abusive father). Lawyers can create a better record supporting deference to the victim-parent if they submit proposed findings along with evidence related to threshold standing and the grandparent's conduct related to the abuse. If the judge fails to make required findings of fact in a grandparent visitation case, this constitutes reversible error. Guardianship of Norman, 41 Mass. App. Ct. 402 (1996). See also Maalouf v. Saliba, 54 Mass. App. Ct. 547 (2002) (unsupervised visitation reversed for failure to make findings about child's safety and well-being based on past domestic violence.)
A hallmark of batterers is their desire to control, intimidate and inject themselves into their former partners' lives even when the relationship has ended. Grandparent visitation can be used as a tool for a batterer's continued harassment of a victim and to undermine Chapter 209A protective orders. Judges who order grandparent visitation are required to make sufficiently detailed findings that reflect meaningful deference to the custodial parent's decisions about what visitation is in the child's best interest. When appropriate evidence of domestic violence is admitted, an order for visitation should include findings about the impact of the abuse on the family dynamics and on the grandparent-grandchild relationship. This better ensures that grandparent visitation does not undermine efforts of victims to break the cycle of violence or adversely affect children in the process of healing from exposure to the abuse.
1. Justice Thomas applies strict scrutiny to grandparent visitation statutes; he notes that "curiously" the opinions of the plurality, Justice Kennedy, and Justice Souter do not articulate "the appropriate standard of review." Troxel, 530 U.S. at 80 (Thomas, J. concurring). Justice Scalia indicates that these matters should be left to states. Id. at 91-93 (Scalia, J. dissenting). Other justices reject a universal harm standard. Id. at 86 (Stevens, J. dissenting) ("We have never held the parent's liberty interest in this relationship to be so inflexible as to establish a rigid constitutional shield, protecting every arbitrary parental decision from any challenge absent a threshold finding of harm."); Id. at 97 (Kennedy, J. dissenting) ("To say that third parties have had no historical right to petition for visitation does not necessarily imply . . . that a parent has a constitutional right to prevent visitation in all cases not involving harm.") [back]
2. In construing our statute, the Supreme Judicial Court had to follow principles of statutory construction "to avoid not only the conclusion that it is unconstitutional but also grave doubts upon that score." Kennedy v. Comm. of Corps. & Taxation, 256 Mass. 426, 430 (1926). "[A]n appellate court may, in an appropriate case, construe a statute to render it constitutional." Blixt , 437 Mass. at 657. The "best interests" test is defined by case law depending on the context. See, e.g., Yannas v. Frondistou-Yannas, 395 Mass. 704, 710-712 (1985) (removal statute); Jones v. Roe, 33 Mass. App. Ct. 660, 664 (1992) (name change statute).[back]
3. While minors are also protected by the Constitution, the Supreme Court has yet to define the nature or extent of a child's constitutional rights in "family" relationships. Troxel , 530 U.S. at 88 (Stevens, J. dissenting). Courts, however, do not have to rely on children's constitutional rights to limit parental rights; they can exercise parens patriae power to protect children. See e.g. Prince v. Massachusetts, 321 U.S. 158 (1944) (parens patriae power used to uphold child labor laws against child's guardian to avoid harm to child); Blixt, 437 Mass. at 656 ("State has a compelling interest to protect children from actual or potential harm.") [back]
4. In 1998, the legislature enacted a presumption against awarding custody to a batterer; this requires the court to make findings and protect "the safety and well-being of the child, and the safety of the abused parent" when ordering visitation. G.L. c. 209C, ß 10 (e); G.L. c. 208, ß 31A; G.L. c. 209, ß 32. [back]
5. "Extremely litigious behavior" is classic abusive conduct of batterers. Roberta Valente, Screening Guidelines in The Impact of Domestic Violence on Your Legal Practice, 2-4 (American Bar Association 1996). [back]