1. Grandparents’ Visitation and Custodial Options and Rights in Massachusetts When Child not in State Custody

2. Options for Grandparents as custodial caregivers n Caregiver (no Court involvement) n Temporary Agent (no Court involvement) n Parental or Guardian Appointment of Guardian (“Springing” Guardianship) n Court Appointment of Guardian –Temporary Guardianship –Permanent Guardianship –Special Guardian 2

3. CAREGIVER AUTHORIZATION

4. Caregiver Authorization n M.G.L. c. 201F. n Effective April 14, 2009. n Parent may authorize a designated caregiver to exercise “concurrent parental rights.” n Authority extends to health care and education of minor only. n Caregiver is defined as an adult with whom the minor resides. n Valid for up to two years; Parent can re-authorize. 4

5. Guardianship of Minor General Provisions

6. Powers, Duties, Rights and Immunities of Guardian of Minor § 5-209 § 5-209 n Effective July 1, 2009; M.G.L. c. 201 repealed as of July 1, 2009. n Guardian has powers of a parent regarding ward’s support, care, education, health and welfare. n Guardian shall act in ward’s best interest and exercise reasonable care, diligence and prudence. 6

7. COURT APPOINTMENT OF GUARDIAN

8. Court Appointment of Guardian of Minor n M.G.L. c. 190B,,§§ 5-204 and 5-206 n Court may appoint guardian for a minor if: –Parents are deceased or incapacitated; –Parents consent; –Parental rights have been terminated; –Voluntary surrender signed by parents; or –Court finds parents, jointly, or the surviving parent, unavailable or unfit to have custody. 8

9. Court appointment of Guardian of Minor: Guardianship versus Adoption n Guardianship n Guardianship does not sever parental rights or obligations n Parents can be ordered to pay guardian child support. n Parent can seek to terminate guardianship at any time. n Adoption n Adoption permanently severs all rights and obligations a parent has toward his or her child. n Once an adoption is final, it cannot be revoked or altered. 9

10. Court Appointment of Guardian of Minor: Who may not be Guardian n § 5-107 n Court shall not appoint as guardian any person who is currently being investigated or has charges pending for: n committing an assault and battery that resulted in serious bodily injury to the minor, or; n neglect of the minor. 10

11. Special Guardian n The court may appoint a special guardian where: –The child already has an appointed guardian –The appointed guardian is not performing his duties “effectively” and –The court finds that the welfare of the child requires immediate action. 11

12. Powers and Authority of Special Guardian n Section 5-204(c) –A special guardian has the same powers as a general guardian. –A special guardian may be appointed for the same length of time as a temporary guardian (90 days). –The appointment of a special guardian suspends the authority of the previously appointed guardian. 12

13. Court Appointment of Guardian of Minor: Appointment of Counsel for Minor n § 5-106 n Court shall appoint counsel for the minor if: –the ward, or someone on his behalf, requests appointment of counsel; or –the court determines that the interests of the ward “are or may be inadequately represented.” n No right to counsel for guardian in Probate and Family or Juvenile Court. 13

14. Appointment of Counsel for Parent Guardianship of V.V., 470 Mass. 590 (2015) “… a parent of a minor child has a right to counsel where, as here, someone other than the parent seeks to have himself or herself appointed as the child's guardian pursuant to G. L. c. 190B, § 5-206.” 14

15. Court Appointment of Guardian of Minor: Appointment GAL for Minor n § 5-106 n Court may appoint GAL to investigate the condition of the ward and make appropriate recommendations to the Court. 15

16. Court Appointment of Guardian of Minor: Procedural Matters Venue: ward must reside within county at the time proceedings commence, or if guardian nominated by will, the county in which the will could be probated. § 5-105. Venue: ward must reside within county at the time proceedings commence, or if guardian nominated by will, the county in which the will could be probated. § 5-105. 16

17. Court Appointment of Guardian of Minor: Temporary Guardian § 5-204(b) § 5-204(b) n Motion for appointment of a temporary guardian shall state: –The nature of the circumstances requiring appointment; –The particular harm sought to be avoided; and –The actions necessary by the temporary guardian to avoid the occurrence of the harm. n Motion must be accompanied by Affidavit containing facts supporting the statements and requests in the motion. 17

18. Court Appointment of Guardian of Minor: Temporary Guardian n Appointment for 90 days n Or longer. Upon a finding of “extraordinary circumstances” set forth in its order, the Court may order an appointment for a longer period to a date certain. n Court may for good cause shown extend the appointment for additional 90 day periods. 18

19. Court Appointment of Guardian of Minor: Notice for Temporary Guardianship n Written notice, 7 days prior to any hearing –to minor over 14, in hand; and –By delivery or mail to all persons named in the petition for appointment of guardian. n Certificate of notice, setting forth the names and addresses of those to whom notice has been given, shall be prima facie evidence of notice. n G.L. 190B 5-204(d) 19

20. Waiving Notice of Temporary Guardian §5-204(e) n Court may shorten or waive the notice requirements in an “immediate emergency situation.” n Provided that prior notice shall be given to the minor 14 or more years of age, as the court may order. n Post-appointment notice of any appointment must be given to the minor and those named in the petition. Certificate stating that such notice has been given shall be filed with the Court within 7 days of the appointment. n Any such person may move to vacate the order. n Court shall hear said motion as a de novo matter. n If a person is parts unknown, notice shall be mailed to the person’s last known address. 20

21. Court Appointment of Guardian of Minor: Notice for Permanent Guardianship n At least14 days notice must be given to: –Minor, 14 or more; –Person with care or custody of the minor during the 60 days preceding the filing of the petition, excluding foster parents –Any living parent of the minor, if parental rights have not been terminated and parent has not signed a voluntary surrender; –Spouse of the minor; –Person nominated as guardian by a minor 14 or more; –Parental or guardian appointee; –Current guardian or conservator, in Mass. or elsewhere; and –Veteran’s Administration, if minor is entitled to benefits. § 1-401 § 1-401 21

22. Priority of Nominee n Court shall appoint a person nominated by the minor (age 14 or older), unless the Court finds the appointment contrary to the best interest of the minor. n If parent appoints a guardian pursuant to 5-202, this guardian has priority over any guardian appointed by the court, unless the appointment is nullified after objection by child, other parent, or person with custody. 22

23. Court Appointment of Guardian of Minor: Bond n Prior to receiving letters, a guardian shall file a bond conditioned upon faithful discharge of all duties of the trust according to law and containing a statement of acceptance of the duties of the office. n Guardian submits personally to jurisdiction of the Court. n Surety shall be required on the bond unless the Court determines that it is in the best interest of the minor to waive the surety. 23

24. Decree and Letters n Decree and Order of Appointment of Guardian establishes specific authority of guardian. n Authority is reflected in Letters of Appointment, which are issued to Guardian. n Letters after permanent order expire on minor’s 18 th birthday, unless otherwise ordered. n Letters from Temporary Appointment of Guardian of Minor generally expire 90 days after temporary appointment. 24

25. Court Appointment of Guardian: Guardian must file Annual Report n Guardian must report on the condition of the ward to the Court and of his or her estate, that has been subject to the guardian’s possession or control, as ordered by the court…..but not less than annually. §5-209(6) 25

26. Court Appointment of Guardian of Minor: Termination of Guardianship n Guardianship terminates upon: –Death, resignation or removal of guardian; –Death, adoption, marriage or attainment of majority of ward. n Termination does not affect guardian’s liability for prior acts or the obligation to account for funds and assets of the ward. n Resignation must be approved by the Court. n Parental appointment under an informally probated will is voided if the will is later denied probate in a formal proceeding. 26

27. Court Appointment of Guardian of Minor: Resignation, Removal of Guardian § 5-212 § 5-212 n Any person interested in the welfare of the ward or the ward, if 14 or more years of age, may petition for removal of a guardian on the ground that removal would be in the best interest of the ward. n Guardian may petition for permission to resign. n Guardian may petition the court for appointment of successor guardian. 27

28. Removal n §5-107 requires the court to terminate a guardianship upon petition if: –The guardian is currently being investigated or has charges pending for n Assault and battery resulting in serious bodily harm or n Neglect. 28

29. Court Appointment of Guardian of Minor: Summary n Temporary and Permanent guardianships. n Right to counsel for minor & parents. n Court may appoint guardian for a minor if parents are deceased or incapacitated, parents consent, parental rights have been terminated; voluntary surrender signed by parents; or court finds parents, jointly, or the surviving parent, unavailable or unfit to have custody. n Notice requirements. n Terminated by court order, death, removal or resignation of guardian, or by death, marriage, adoption or majority of minor. n Interested parties have right to file objection. n Guardian must submit annual report. n Court may appoint Special Guardian to replace guardian, if minor’s welfare requires. 29

30. VISITATION RIGHTS OF GRANDPARENTS IN FAMILY COURT 30

31. Who can request court order for visitation? n Which grandparent’s can ask the court to order visitation? –If parents of children were divorced or are currently living apart –If both parents of children are deceased –Maternal grandparents of child without acknowledged father 31

32. Where to file? n A petition for grandparents visitation is filed in the county in which the parents divorced or filed for paternity, or if there is no case in Massachusetts, in the county where the child lives. 32

33. Controlling case law n Troxel v. Granville n Supreme Court of the United States n Paternal grandparents had regular contact with their grandchildren through their son, who lived with them. The son committed suicide and subsequently the mother reduced the frequency of the visits. The grandparents petitioned the court in the state of Washington and the court ordered visits one weekend per month, one week in the summer and on the grandparent’s birthdays. n The Supreme Court held that the Washington state statute was unconstitutional because it placed a substantial burden on the traditional parent child relationship. The Washington State statute provided for visitation with the grandparents when it was in the child’s best interest. A parent’s decision that the visitation would not be in the child’s best interest was not given any deference. There is a presumption that fit parents act in the best interests of their children. So long as the parent is fit, there is no reason for the State to interject into the private realm of the family to question the ability of that parent to make the best decisions concerning rearing of their child. 33

34. Massachusetts SJC n Blixt v. Blixt 437 Mass. 469 –Massachusetts statute is narrowly tailored to further the compelling state interest in protecting the welfare of a child who has experienced a disruption in the family unit, from harm. 34