## Facts

- A minor child was born in 1993 to parents who never married; paternity was adjudicated, and the parents did not live together but shared legal custody.
- The child lived with his mother.
- The child’s maternal grandfather filed a complaint in Probate and Family Court seeking visitation under G.L. c. 119, § 39D.
- The mother moved to dismiss, asserting the statute was facially unconstitutional under substantive due process and also violated equal protection by targeting non-intact family structures.
- The Probate and Family Court held § 39D facially unconstitutional on substantive due process grounds and dismissed the complaint.
- The grandfather appealed directly to the Supreme Judicial Court of Massachusetts.

## Issues

1. Whether G.L. c. 119, § 39D is facially unconstitutional under substantive due process because it infringes a fit parent’s fundamental right to make decisions concerning the care, custody, and control of a child.
2. What constitutional presumption and burden must govern grandparent visitation petitions to ensure appropriate deference to a fit parent’s decision.
3. Whether § 39D violates equal protection by permitting petitions in specified non-intact family situations but not in intact families.
4. Whether the complaint should have been dismissed at the pleading stage given the proper constitutional construction of § 39D.

## Decision

- The court held § 39D is not facially unconstitutional, but must be narrowly construed to comply with constitutional limits protecting parental rights.
- The court required a rebuttable presumption that a fit parent’s decision about grandparent visitation is in the child’s best interests and must receive special weight.
- The court held grandparents must rebut that presumption by proving, by a preponderance of the evidence, that denial of visitation is likely to cause the child significant harm to the child’s health, safety, or welfare.
- The court rejected the equal protection challenge under rational basis review.
- The court vacated the dismissal and remanded for further proceedings under the articulated standard.

## Legal Principles

- Fit parents have a constitutionally protected liberty interest in decisions concerning the care, custody, and control of their children; courts must give special weight to a fit parent’s visitation decision.
- A grandparent-visitation statute framed in “best interests” terms may be applied constitutionally only if it incorporates a presumption favoring the fit parent’s decision.
- Grandparents seeking visitation over parental objection must show that denial of visitation will likely cause significant harm to the child; showing that visitation would be beneficial is insufficient.
- The required showing is by a preponderance of the evidence when combined with the parental presumption and the significant-harm threshold.
- Limiting grandparent visitation petitions to circumstances such as separated parents, unmarried parents not residing together with established paternity, or a deceased parent survives equal protection review because it is rationally related to legitimate child-welfare interests.

## Conclusion

The court sustained the grandparent visitation statute against a facial due process and equal protection attack by construing it to require deference to a fit parent and allowing court-ordered visitation only upon proof that denial is likely to cause the child significant harm, then remanded for litigation under that standard.


Blixt v. Blixt, 437 Mass. 649, 774 N.E.2d 1052 (Mass. 2002)