Grandparents’ rights in Massachusetts are narrow: under G.L. c. 119, § 39D you can petition the Probate and Family Court for visitation with a grandchild, but only when the child’s family fits specific circumstances, and only if you can prove that cutting off contact would cause the child significant harm. There is no automatic right to see a grandchild, and if the child’s parents are married and living together, the statute gives you no path in at all.
Who Can File a Petition
Standing under § 39D is limited to situations where the child’s family has already been disrupted. You can petition if any of the following is true:
- The parents are divorced.
- The parents are still married but living apart.
- A court has entered a temporary order or judgment of separate support.
- One or both parents have died.
- The parents were never married, they do not live together, and the father’s paternity has been established by court order or signed acknowledgment.
One wrinkle on that last category: if you are the mother’s parent, you do not need paternity to be formally established before filing. Paternal grandparents do.
What’s missing from the list matters as much as what’s on it. If your grandchild’s parents are married and living together, you have no standing under this statute, no matter how serious the family conflict. A rift, even a bitter one, does not create a legal opening while the household stays intact.
What You Have to Prove
Getting into court is not the same as winning there. In Blixt v. Blixt, the Supreme Judicial Court read § 39D to require grandparents to meet a demanding standard before any visitation can be ordered.
You carry the full burden of proof. You must show, by a preponderance of the evidence, that denying visitation would cause the child significant harm to their health, safety, or welfare. Significant harm is not the same as “it would be good for the child to see their grandparents.” Courts want concrete evidence of how the child would suffer without the relationship, not general claims about the value of grandparent involvement.
In practice, proving significant harm almost always requires an established, meaningful relationship with the grandchild. The logic is simple: severing a bond can only harm a child if the bond genuinely exists. Regular contact, caregiving, holidays together, a role in daily life — evidence like this is what carries the argument. Without a prior relationship, your case is much harder, because you would have to show visitation is necessary to protect the child from significant harm even absent that bond, which is an unusual set of facts.
The Verified Affidavit Gate
Blixt also created a gatekeeping step so parents are not dragged through full litigation on thin claims. Your petition must either be detailed and verified under oath, or come with a detailed, verified affidavit setting out the factual basis for your claim. The affidavit should describe your relationship with the child, the nature and frequency of your involvement, and specifically how the child would be harmed by losing contact with you. A vague or boilerplate filing can be dismissed on the parents’ motion before there is ever a hearing on the merits.
Why the Bar Is Set So High
The demanding standard traces back to a constitutional principle. In Troxel v. Granville, the U.S. Supreme Court held that the Due Process Clause protects a parent’s fundamental right to make decisions about the care, custody, and control of their children. Fit parents are presumed to act in their children’s best interests, and courts must give special weight to a fit parent’s decision.
That is why Massachusetts reads its statute the way it does. The significant harm requirement and the burden placed on grandparents exist to keep § 39D constitutional. Even when a parent’s reasons for cutting off contact look unreasonable, the grandparent still has to prove harm to the child. The court will not substitute its own view for a fit parent’s without that showing.
What the Court Weighs If You Clear the Gate
If your petition survives the initial screening, the court considers whether visitation serves the child’s best interests. Judges look at the totality of the circumstances, and several factors tend to carry weight:
- The existing relationship. How close are you and the grandchild, how often did you see each other, and did you play a caregiving role? A grandparent who provided after-school care three days a week has a very different case from one who visited on holidays.
- The child’s emotional needs. Evidence from therapists, school counselors, or other professionals who know the child can matter here.
- Impact on the parent-child relationship. If every exchange turns into a battle, a judge may conclude the stress outweighs the benefit.
- Your ability to respect the parent’s rules on diet, screen time, discipline, and similar decisions. A history of undermining the parent’s authority works against you.
The court may appoint a guardian ad litem to investigate independently. That is typically a mental health clinician or attorney who interviews the child, visits homes, speaks with teachers and therapists, and files a report. The guardian represents the child’s interests, not either party’s. A negative guardian ad litem report can effectively end a case.
How to File
You file in the Probate and Family Court. There is no filing fee for the petition itself, though a $5 summons fee applies for each party you need to serve. The initial filing includes:
- Petition for Grandparent(s) Visitation (Form CJD-105).
- Child Care or Custody Disclosure Affidavit, which tells the court about any other cases involving the child.
- A detailed affidavit describing your involvement with the grandchild and the harm the child will suffer without visitation. This is the document that matters most at the early stage.
- A certified copy of the child’s birth certificate, strongly recommended even though not required at filing.
- A Uniform Counsel Certification Form if you are represented.
Where you file depends on your situation. If there was a Massachusetts divorce, separate support, or paternity case, file in the county that handled it. If the judgment was entered outside Massachusetts but the child now lives here, file in the county where the child resides. After filing, you serve the parents under Massachusetts Rules of Domestic Relations Procedure Rule 4.
How Adoption Ends Your Rights
Section 39D contains an absolute rule. If the grandchild is adopted by anyone other than a stepparent, no visitation can be granted, and any existing visitation order terminates automatically the moment the adoption is finalized. The court takes no further action; the adoption itself ends your rights.
Stepparent adoptions are the one exception. If a former son- or daughter-in-law’s new spouse adopts your grandchild, you can still petition for visitation under the usual standards. If you learn a non-stepparent adoption is being considered, time is short. Once it is final, there is no mechanism under this statute to reopen the door.
Changing or Ending an Existing Order
A visitation order is not permanent. Either side can ask the court to change or end it, but the moving party must show that circumstances have changed significantly since the order issued and that the current arrangement no longer serves the child’s best interests. Changes in the child’s needs as they grow, a move that makes the schedule impractical, a decline in the grandparent’s health or home, or a shift in family dynamics can all support a modification.
A parent seeking to terminate visitation entirely needs more than dissatisfaction with the arrangement. Evidence that continued visitation no longer serves the child’s best interest — safety concerns or emotional harm during visits, for example — is what the court looks for. A grandparent asking for expanded visitation faces the same best-interests analysis, with the same deference to parental judgment. If a child’s safety is at immediate risk, a parent can seek an emergency modification by showing that the child’s health or safety is in danger due to circumstances that arose after the original order.1Mass.gov. Request to Change a Child Custody or Parenting Time Order
An Honest Check Before Filing
Before you file, work through a few questions honestly.
Do you actually meet the standing requirements? If the parents are married and living together, the statute does not apply, and filing wastes time and money. Can you document a genuine preexisting relationship with the grandchild? Judges want more than your word. Photographs, text messages, school pickup records, and testimony from people who witnessed your involvement all help. Can you articulate specific harm to the child, not just your own grief at losing contact? Courts are sympathetic to grandparents, but sympathy does not override the legal standard.
Given the verified-affidavit requirement and the high evidentiary bar, at least an initial consultation with a family law attorney is worth the cost. If you cannot afford one, Massachusetts Legal Help and local legal aid organizations may be able to help or point you to lower-cost resources.
Mediation is another option to consider before or alongside a court case. If the parent is willing to sit down with a neutral third party, an agreement reached that way can be submitted to the court and turned into an enforceable order, and it avoids the adversarial dynamic that often damages family relationships past repair. Mediation is not right for every situation, particularly where safety is a concern, but when it works, the arrangements tend to hold.