Heard: November 8, 2019.
PETITION filed in the Nantucket Division of the Probate and
Family Court Department on July 9, 2018, A motion to dismiss
was heard by Randy J. Kaplan, J.
Manning for the grandparents.
E. Cherny (Joana L. Stathi also present) for the mother.
Kinder, Neyman, & Wendlandt, JJ.
Blixt v. Blixt, 437 Mass. 649, 665-666 (2002), cert.
denied, 537 U.S. 1189 (2003), the Supreme Judicial Court set
forth certain pleading requirements for a petition under G.
L. c. 119, § 39D (grandparent visitation statute), pursuant
to which a grandparent may seek visitation with a child over
the objection of the custodial parent who has a fundamental
constitutional right to make basic determinations for the
child's welfare. The court set forth two situations
pursuant to which a grandparent could seek visitation: first,
where the grandparent alleges a preexisting relationship with
the subject children and second, where the grandparent did
not have a preexisting relationship with the grandchildren.
In Martinez v. Martinez-Cintron, 93 Mass.App.Ct.
202, 205-206 (2018), we applied Blixt in light of the notice
pleading requirements for civil complaints delineated in
Iannacchino v. Ford Motor Co.,
451 Mass. 623, 636 (2008), to a petition pursuant to the
second basis. This case presents occasion to apply Blixt in
view of Iannacchino to the first basis. Because the petition
here and accompanying affidavits fail to set forth sufficient
allegations plausibly suggesting the type of relationship
required to rebut the presumptive validity of the parental
decision concerning grandparent visitation, we affirm.
briefly summarize the facts, assuming as we must that the
allegations of the paternal grandparents' petition are
true and drawing any reasonable inferences therefrom in their
favor. See Warner-Lambert Co. v. Execuquest
Corp., 427 Mass. 46, 47 (1998). At the time of the
petition at issue on appeal, the defendants Angel Conrad
Frazier (mother) and J Pepper Frazier, II (father) were in
the midst of divorce proceedings. By stipulation, the mother
was granted temporary sole physical and legal custody of the
children,  while the father's parenting time was
limited to three hours each week on Sunday mornings because
of his substance use disorder. The paternal grandmother,
Elizabeth Frazier, and the paternal grandfather, J Pepper
Frazier, filed a petition pursuant to the grandparent
visitation statute for visitation, along with a motion to
establish visitation and supporting affidavits.
paternal grandparents alleged "a significant
relationship between the grandparent(s) and the child(ren)
and that it is in the best interest of the minor child(ren)
that petitioner(s) be granted visitation with the
child(ren)." Specifically, the paternal grandmother
averred that she had a "close relationship" with
the children. She explained that the paternal grandparents
had "over the years enjoyed many activities" with
the children, including "lunches, dinners, and
visits." The children took sailing lessons at the
paternal grandparents' yacht club, swimming lessons at
another Nantucket club, and tennis lessons at both clubs.
They also attended a weekly bingo night at the paternal
grandparents' golf club, along with their cousins, and
enjoyed holidays with the paternal grandparents by visiting
their home in Florida (although the children stayed at a
nearby house rented by their parents).
paternal grandfather similarly averred that he enjoyed a
"close personal relationship" with the children and
spent time with them over meals and holidays. He was
with his namesake grandson whom he described as "very
garrulous and affectionate" ...