Under Massachusetts law, grandparents may pursue a variety of legal rights regarding their grandchildren, but the state often defers to the grandchildren's parents. Grandparents' options depend on many factors, including the marital status of their grandchild's parents; whether the grandchild's parents agree to give rights to the grandparents and whether the family already has other legal proceedings in the Massachusetts courts. When grandparents cannot obtain custody rights, some circumstances permit them to request visitation rights.
General Custody Laws in Massachusetts
Grandparents should understand the custody laws in effect for Massachusetts families. Under state law, married parents equally share legal and physical custody of their children, unless one parent requests a court order for a different custodial arrangement, such as through a divorce case. For unmarried parents, the child's mother retains sole custody rights, unless the other parent gets a court order. Accordingly, the grandparents do not have legal standing to request custody or visitation rights in Massachusetts when the child's parents remain married and they do not have any open court cases involving the child.
Grandparents' Rights Given by Parents
The grandchild's parents can choose to assign temporary rights to the grandparents. In Massachusetts, grandparents can become temporary agents for a period of up to 60 days, during which they have legal rights to make decisions regarding their grandchild's health, safety, education and other legal considerations. Massachusetts law also allows parents to share custodial rights with a grandparent who lives in the same residence as the child by signing a Caregiver Authorization Affidavit; the affidavit allows the grandparent to take on a legal right to make health-related and education-related decisions for the grandchild, without taking those rights from the grandchild's parents.
Grandparents' Rights Against Parents' Wishes
Grandparents who have assumed responsibility for the care of their grandchildren may be able to legally gain custodial rights through several types of arrangements, even against the wishes of the grandchild's parents, if the state courts or child-welfare agency has limited or ended the parents' custodial rights. As foster parents, grandparents may gain temporary physical custody, but the Massachusetts child-welfare agency retains legal custody. In a temporary or permanent guardianship, a Massachusetts court gives legal custody to the grandparents while leaving open the possibility of the parents regaining their rights in the future. In an adoption, the grandparents permanently take on physical and legal custody of their grandchild -- generally, Massachusetts adoption law requires the parents' unavailability or a court finding of the parents' unfitness.
Visitation Rights as an Alternative
Under Massachusetts law, grandparents who do not have custody rights for their grandchildren may be able to obtain court-ordered visitation rights under certain circumstances. Grandparents may file a petition in the Massachusetts Probate and Family Court Department if their grandchild's parents have divorced or separated, if one of the grandchild's parents has died or if the parents were never married but they have legally established the child's paternity. The grandparents must file their petition with the same Probate and Family Court Department where the grandchild's parents filed their divorce or paternity case, or in the county where the child currently lives if the parents' court cases occurred outside of Massachusetts. They can only gain visitation rights if the court believes that the child's "best interest" compels regular contact with the grandparents.