Legal Question in Family Law in Massachusetts
My husband and I ar in agreement with all areas of our divorce other than his parents being written into the agreement with visitation rights. My husband left me and my 3 year old stranded at my inlaws to live while he moved out of town on his own. I have always had the best interest of my daughter in mind and even though we are finally able to move out and I could move closer to my family a few hours away, I chose to stay close to my inlaws in order to keep my daughter's daily routine the same. My soon to be ex-inlaws watch her while I work part-time 3 days a week and will continue to do that and they will also have her for 1 overnight a week. We had discussed this and agreed upon it months ago among ourselves and I have no intention of taking her away from them or denying them access to her. I am more part of the family than my husband who only sees her (and his parents), by choice, once for a few hours every 2-3 weeks. He hasn't been a part of her life regualarly for a long time and admits to being selfish about it yet he is adament about putting in writing visitation privledges for his parents, not my parents, but his parents. If we are filing a joint custody no fault divorce is it even customary to have grandparent visitation in the agreement? I've been told that it is not normal unless there is a sole custody issue or some kind of restraint order against the father. This is the only thing stopping us from just having my lawyer write it up and get it over with cheap vs. having to pay more than double to go to a mediator over this one thing. Thank you.
3 Answers from Attorneys
It is not usual to write in a visitation for grand parents. However, if you have a good relationship with his parents, there is nothing to stop you for providing that his parents and yours will have reasonable access to the grandchildren.
I believe that your approach is a recipe for problems. Cheapness will cost you especially if the mediator is not an attorney. I do not understand your question concering sole physical custody or the restraining order.
There is much more to a separation agreement that needs attention.
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Grandparent visitation is not at all appropriate as a subject in a divorce case. Grandparent visitation is a Constitutionally limited proposition, and the Massachusetts statute is limited in how the right may be claimed. Although five justices of the Federal Supreme Court couldn't quite agree on "why," they joined in striking down another statute that gave third parties the right to seek visitation. The one bottom line that seems to be understood is this: fit custodial parents have the right to limit any third party's right to visitation (the other parent is NOT a "third party" for this purpose).
Also, grandparents are not parties to a divorce.
Allowing such rights to be expressed in a divorce agreement is rare at best. I personally would advise against it. I would advise any attorney considering allowing you to do it to consider it potential malpractice.
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