Heard: March 2, 2018.
action commenced in the Worcester Division of the Probate and
Family Court Department on December 16, 2016.
motion to dismiss was heard by Leilah A. Kearny, J. Leave to
prosecute an interlocutory review was allowed in the Appeals
Court by Carhart, J.
Jeffrey Sakol for the mother.
Present: Maldonado, Blake, & Desmond, JJ.
this interlocutory appeal from the order denying Frances
Martinez-Cintron's (mother's) motion to dismiss her
child's paternal grandmother's petition for
grandparent visitation, we are faced with the question
whether Blixt v. Blixt, 437 Mass. 649
(2002), requires a judge to dismiss an inadequate petition
for grandparent visitation pursuant to G. L. c. 119, §
39D. We conclude that it does and therefore reverse the
briefly summarize the facts found by the judge. The mother
and James Taylor-Martinez (father) were divorced in December,
2016, pursuant to a judgment of divorce nisi, when their lone
child was approximately six months old. The mother was
awarded sole legal and physical custody of their child, and
the father had supervised visitation. Shortly after the
divorce nisi, the child's paternal grandmother, Maria
Martinez (grandmother), filed in the Probate and Family Court
a petition for grandparent visitation supported by a
handwritten affidavit. On that petition, the grandmother
checked the box that indicates that she is not alleging that
there is "a significant relationship between the
grandparent(s) and the child(ren) but that nonetheless it is
in the best interest of the minor child(ren) that
petitioner(s) be granted visitation with the
child(ren)." Her accompanying affidavit did not provide
any support for the proposition that it would be in the
child's best interest that she be granted visitation
rights. Instead, the grandmother's affidavit merely
states that she is the child's grandmother, that she and
the father have only seen the child in the hospital after he
was born, that she wants to "be able to see him on a
weekly basis," and that the mother will not let her and
the father see the child.
mother initially did not oppose the grandmother's
petition, stating that she (the mother) would allow the
grandmother to visit the child so long as the visits took
place in Winchendon, where the mother resides. After
obtaining counsel, however, the mother moved for leave to
file an amended answer and subsequently moved to dismiss the
grandmother's petition pursuant to Mass.R.Civ.P.
12(b)(6), 365 Mass. 754 (1974). In denying the mother's
motion to dismiss, the judge relied on the following passage
from Blixt, 437 Mass. at 666:
"[b]efore a parent or parents are called upon to
litigate fully a grandparent visitation complaint, with all
the attendant stress and expense, the grandparent or
grandparents should make an initial showing that
satisfies a judge that the burden of proof, set forth above,
can be met. To this end, any complaint filed under the
statute should be detailed and verified or be
accompanied by a detailed and verified affidavit setting out
the factual basis relied on by the plaintiffs to justify
relief. A complaint not so verified, or one accompanied by an
inadequate affidavit, would be subject to dismissal
(or summary judgment) on motion by the defendant or
defendants." (Emphasis supplied by the judge.)
passage, the judge reasoned, indicates that Blixt
subjects the grandmother's inadequate petition to
dismissal, but does not require it, and the judge, quoting
Blixt, supra at 665 n.24, therefore allowed
the grandmother "the opportunity to produce evidence
that circumstances are severe enough to warrant a court's
review of the parent's decision to deny visitation."
The judge made further note of the mother's apparent
willingness to maintain contact with the father's family,
citing her original answer to the petition and her openness
to the father's grandmother serving as one of the
supervisors of the father's visitation.
mother petitioned for interlocutory relief in this court
pursuant to G. L. c. 231, § 118, seeking review of the
order denying her motion to dismiss. A single justice of this
court ordered the judge to issue written findings and
conclusions, yet lacked the authority to order the relief
requested upon receipt of those written findings and
conclusions. See Mass.R.A.P. 15(c), 365 Mass. 859 (1974).
Instead, the single justice granted the mother leave to file
an interlocutory appeal.
question before us now is, in light of Blixt,
whether a judge must allow a parent's motion to dismiss a
grandparent's petition for visitation when the petition
does not sufficiently allege why visitation is necessary to
protect the child from significant harm. We conclude that
Blixt does impose such a requirement, and