Can Aunts, Uncles, Or Grandparents Receive Visitation Rights?

September 16, 2020 O'Connor Family Law Child Custody

Aunts, uncles, and grandparents commonly speak with our family attorneys to discuss how they can receive legal visitation rights with their nieces, nephews, and grandkids. It is essential to understand that parents are not the only family members who may be granted visitation rights in Massachusetts. With over 35 combined years of exclusive family law experience, our team may be able to help you exercise your right to spend time with your loved one.

REQUESTING VISITATION RIGHTS FOR GRANDPARENTS

In many situations, a child’s grandparents may enjoy greater legal protections and visitation rights than aunts and uncles. Under Massachusetts General Law, Chapter 119, §26B, the Massachusetts Department of Children and Families (DCF) must ensure that foster children’s grandparents receive reasonable visitation rights upon request. The Commonwealth may only deny grandparents visitation with their grandchildren if the interaction would put the children at risk of harm. Grandparents may retain legal counsel to appeal any denial of visitation.

Alternatively, grandparents may petition for visitation with a grandchild under Mass. Gen. Law Chap. 119, §39D. This law allows courts to grant grandparent visitation rights if the grandchild’s parents are divorced, separated, unmarried, living apart, or if one parent died. Any visitation schedule issued by the court must serve the child’s best interests. When determining the best interests of the child, a judge may review:

  • The relationship between the grandparent and grandchild
  • Any allegations of abuse, neglect, or emotional manipulation by parents or grandparents
  • The child’s wishes
  • The parents’ compliance or objection
  • Any special physical or emotional needs of the child
  • Any previous caregiver relationship between the grandchild and grandparent
  • The overall psychological benefits of building a grandparent-grandchild relationship

Grandparents should work with a lawyer to request court-ordered visitation over a parent’s objection. In these situations, a grandmother or grandfather must show that a denial of visitation would expose the child to significant harm.

NEGOTIATING A FORMAL CAREGIVER PLAN WITH AUNTS AND UNCLES

Unlike grandparents, aunts and uncles do not have any rights to visitation over a legal parent’s objection. Still, these family members may file guardianship cases and request temporary custody of nieces and nephews when both parents are unfit to care for their children.

If a parent is willing to allow a relative to have laid out visits or guardianship over a child, a lawyer could often help draft up an agreement that the Court can formalize.

BECOMING A KINSHIP GUARDIAN IN MASSACHUSETTS

Aunts, uncles, and grandparents all qualify as potential kinship guardians in Massachusetts. These parties have custodial priority as family members when DCF removes children from a legal caregiver’s home. Aunts, uncles, and grandparents may provide a temporary, safe home environment for minor relatives while their parents cannot exercise their parental rights.

Parents who cannot build a safe household may grant children’s sole or shared legal guardianship to trusted family members. Sometimes this is done to keep DCF from filing a petition with the court to remove the children from his or her parents. If there is a removal case, sometimes DCF can seek to terminate parental rights and permit a kinship adoption if doing so protects the child from continued harm and there is no hope of reconciling the child with his or her parents. In these situations, aunts, uncles, and grandparents could work with a family lawyer to try to keep the child in the family’s care rather than a stranger’s care.

LEARN MORE ABOUT THE VISITATION RIGHTS OF GRANDPARENTS AND OTHER FAMILY MEMBERS

Grandparents have a statutory right to petition for visitation rights during child custody litigation. While aunts and uncles do not share these legal visitation rights, they still have priority rights as kinship caregivers, foster parents, legal guardians, and adoptive parents during DCF and related proceedings. If you are an aunt, uncle, or grandparent looking to petition for visitation rights, consider contacting a family attorney at O’Connor Family Law today to discuss whether this would be the right strategy.

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