RUNGE FAMILY LAW NEWSLETTER
(Winter 2020 Edition)
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What's been Happening:
Cindy, Zoe Martin and Amanda Gnau presented at the Association of Professional Family Mediators Conference in November 2019. This was the largest gathering of APFM professionals to date. Thanks to Deborah Smith and David Goodman, our co-presenters, for inviting us to participate!
Cindy was interviewed by Boston Podcast about Mindfulness and Divorce!
Groundhogs Day Fundraiser: Cindy is hosting a yoga fundraiser, with live music, at MG Fitness in Wakefield, MA from noon to 2:00 pm. on February 2, 2020, to benefit the American Heart Association. $20 suggested donation, or whatever folks can contribute. We hope you can come!
There are exciting changes coming to the firm soon. More information on these changes will be announced in the spring newsletter!
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Question of the Quarter
Question:
Do grandparents have the "right" to see their grandchildren?
By: Zoë Martin
The interest of parents in the care, custody, and control of their children is one of the oldest fundamental liberty interests, which courts recognize. While the courts prioritize a parent’s interests in child-rearing over the interests of the state and third parties, some states have created statutes allowing third parties to petition the court to authorize the third party’s visitation with a child. However, some questions remain as to whether or not such statutes infringe upon the constitutional rights of the biological parent to care for his or her children.
The first case in Massachusetts to address grandparent visitation was
Blixt v. Blixt
, 437 Mass. 649 (2002), which interprets M.G.L. c. 119 §39D, the so-called “grandparent visitation” statute. The statute allows grandparents to file a petition with the court to allow them visitation with their grandchildren. Once the case is filed, a judge must find that visitation is in the best interest for the child. If the Court makes such finding, that finding could obviously impact the parent’s care of his/her own child. For this reason, the grandparent must allege and prove in their petition that “failure to grant visitation will cause the children significant harm by adversely affecting the child’s health, safety, or welfare.” Id. At 658. The
Blixt
Court stated that significant harm may arise in two contexts: (1) where there is a significant pre-existing relationship, or (2) in the absence of such relationship, visitation is nevertheless necessary to protect the child from significant harm.
This standard was recently questioned in the recent Massachusetts Appeals Court decision,
Frazier v. Frazier
, NO. 19-P-178 (2019), where grandparents filed petitions to allow visitation with their three grandchildren. The grandparents stated they had a significant relationship with the children, they had meals together, that the children would take classes and lessons at their golf club in Nantucket and would come visit them in Florida during the winter.
The
Frazier
Court considered the grandparent’s complaint to determine whether or not they were entitled to relief from the court. Put another way, the grandparents needed to prove “harm to the children,” and that as such, they were entitled to the visitation they requested. Although the petitioners were able to show a pre-existing relationship with the children, they were unable to prove that the children would be harmed if the grandparents were denied visitation. The
Frazier
Court found that there were insufficient allegations in the complaint to meet the standard.
While the
Frazier
court was sympathetic to the grandparents and the relationship they had with the grandchildren, there was nothing in their complaint to show that the grandparents were de facto parents, or that the grandparents had such a close bond with the children that significant harm would ensure from the disruption of that relationship. A nurturing and enriching relationship between grandparents and grandchildren is not enough to override a parent’s fundamental right to decide who gets visitation with their children. Thus,
Frazier
affirms
Blixt
in that grandparent visitation remains a privilege, not a legal right.
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Sitting With Difficult Emotions
When I meet with a potential client, the person is usually anxious to get through their divorce process as quickly as possible. The way I see it, a part of my job is to help the client slow down long enough to make sure they understand what is at stake and to prevent the client from making decisions in haste, which he or she could later regret.
While there are certainly situations which require quick or emergency intervention through the courts, there are also many situations where clients have the ability to think through their options carefully. However, when thinking about what type of outcome one desires from a divorce settlement, the client also has to manage the emotions that frequently come along with the process such as: anger, sadness, fear, and confusion, among others. It is a natural human reaction to want to speed through the difficult times of our lives, so we don’t have to feel emotional pain. Like the movie, “Click” with Adam Sandler, we wish we could hit a button and “get over” the emotions that inevitably come with the loss of a relationship.
Attorneys have a duty of loyalty to their clients to help them get through the process as quickly as possible and to obtain the best possible outcomes for them, within the bounds of ethics. In some cases, this may mean trying to slow down the process to help our client be ready to make their important decisions. Some people use mindfulness practices such as yoga and meditation to help with this process. However, there are many other paths: journaling and/or talking to non-toxic friends who have been through the process can also be helpful. The main message here is to be brave and hang in. Every divorce comes to an end, although it may seem like an eternity. If you can sit with your emotions, without trying to bury them, there is a lot you can learn about yourself, which you may not have otherwise learned.
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