By Jason M. Scally
The Appeals Court has clarified the standard of proof in grandparent-visitation cases in a decision allowing a maternal grandmother, whose daughter is missing, to continue her legal battle to see her grandson over the objection of the father.
In 2002, the Supreme Judicial Court’s Blixt v. Blixt decision found that a parent’s decision on whether or not to allow visitation rights to a grandparent was presumed valid, and it created a heightened pleading requirement for grandparents seeking to rebut that presumption.
In order to survive a motion to dismiss, the Blixt court stated, a grandparent must show in an affidavit that the grandchild’s “health, safety or welfare” would be significantly harmed by denying visitation rights.
In today’s Sher v. Desmond decision, the father, whose motion to dismiss had been granted, argued that the Appeals Court should hold the grandmother’s affidavit to a heightened standard, similar to that of summary judgment, and require the grandmother’s affidavit “be based on personal knowledge, set forth facts as would be admissible into evidence, and show affirmatively that the affiant is competent to testify on the matters stated therein.”
But the Appeals Court agreed with the grandmother, finding that a normal Rule 12(b)(6) standard of review should apply in reviewing the father’s motion to dismiss.
Judge Fernande R.V. Duffly, writing for the panel and addressing the proof needed to meet the Blixt standard, found that, where a grandparent does not have actual knowledge of harm, the grandparent can survive a motion to dismiss “where the Blixt affidavit contains averments of significant harm that are (1) facially sufficient to rebut the presumption of parental fitness; (2) based on information and belief; and (3) made with particularity and indicating the source of the information.
In this case, the grandmother had no personal knowledge of harm to her grandchild since she had never met the child and had been estranged from the mother for years. But the grandmother’s affidavit included allegations that the father had abused the mother; the grandmother even suspected the father in the mother’s disappearance.
The grandmother’s affidavit was supported by information obtained through a private investigator and letters from the mother’s former employers.
After applying the proper standard of proof, Duffly concluded that the information in the grandmother’s affidavits was enough to “rebut the presumption of the father’s fitness, at the very least, to decide alone whether to permit visitation. ... It was therefore error to allow the motion to dismiss.”
The 21-page decision is Sher v. Desmond, Lawyers Weekly No. 11-233-07. The full text of the ruling can be found by clicking here.
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