Blixt v. Blixt , 437 Mass. 649 ( 2002 )

Greaney, J.

The plaintiff, John D. Blixt, is the maternal grandfather of the minor child of the defendants, a boy bom on June 10, 1993. The defendants have never married each other, but the defendant Paul Sousa has been adjudicated the child’s father. The child resides with his mother, the defendant Kristin Blixt (mother), and the defendants share legal custody of the child. The plaintiff filed a complaint in the Probate and Family Court seeking visitation with the child under G. L. c. 119, § 39D, the so-called grandparent visitation statute (statute). The statute reads, in pertinent part, as follows:

“If the parents of an unmarried minor child are divorced, married but living apart, under a temporary order or judgment of separate support, or if either or both parents are deceased, or if said unmarried minor child was bom out of wedlock whose paternity has been adjudicated by a court of competent jurisdiction or whose father has signed an acknowledgement of paternity, and the parents do not reside together, the grandparents of such minor child may be granted reasonable visitation rights to the minor child during his minority by the probate and family court department of the trial court upon a written finding that such visitation rights would be in the best interest of the said minor child; provided, however, that such adjudication of paternity or acknowledgment of paternity shall not be required in order to proceed under this section where maternal grandparents are seeking such visitation rights. No such visitation rights shall be granted if said minor child has been adopted by a person other than a stepparent of such child and any visitation rights granted pursuant to this section prior to such adoption of the said minor child shall be terminated upon such adoption without any further action of the court.”

The mother moved, pursuant to Mass. R. Civ. P. 12 (b) (6), 365 Mass. 754 (1974), to dismiss the grandfather’s complaint on the ground that the statute was unconstitutional on its face because it violated her substantive due process rights under the Fourteenth Amendment to the United States Constitution and cognate provisions of the Massachusetts Declaration of Rights. See Moe v. Secretary of Admin. & Fin., 382 Mass. 629, 633 n.4 (1981). She also argued that the statute violated the equal protection provisions of both the Federal and State Constitutions. A judge in the Probate and Family Court, with respect to the mother’s due process challenge, concluded that the statute was unconstitutional because it infringed on the defendants’ “fundamental right to make decisions concerning the care, custody, and control of their child[].” The judge reasoned that the statute “contains no presumption that [the defendants] are acting in [the child’s] best interest in denying visitation, nor ... a requirement that the [p]laintiff demonstrate how [the child] is harmed by the denial of visitation.”² The grandfather appealed, and we granted the mother’s application for direct appellate review. We conclude that the statute survives a facial challenge on due process grounds and also does not violate equal protection insofar as the mother’s statutory classification is concerned.³ We, therefore, vacate the judgment and remand the case for further proceedings.

1. Due process. The mother’s claim is to be decided under certain well-established principles governing a facial constitutional challenge as well as under the considerations stated by the United States Supreme Court in Troxel v. Granville, 530 U.S. 57 (2000) (Troxel), the only case thus far decided by that Court on Federal due process (but not equal protection) implications of grandparent visitation statutes. We set forth those principles and considerations. The liberty interests of parents protected by the due process clause of the Fourteenth Amendment to the United States Constitution are also protected by our State Constitution. See McCarthy v. Sheriff of Suffolk County, 366 Mass. 779, 785 (1975). See also Youmans v. Ramos, 429 Mass. 774, 784 (1999). Our standard of review for such claims, under either the Federal or State Constitution, is the same. See Take Five Vending, Ltd. v. Provincetown, 415 Mass. 741, 746 n.3 (1993).

(a) A facial challenge to the constitutional validity of a statute is the weakest form of challenge, and the one that is the least likely to succeed. See United States v. Salerno, 481 U.S. 739, 745 (1987). A statute so questioned is presumed constitutional. See Landry v. Attorney Gen., 429 Mass. 336, 343 (1999), cert. denied, 528 U.S. 1073 (2000). A court may interpret a statute to set forth considerations to clarify and specify, and, where necessary, to narrow, the statute’s terms in order that it may be held constitutional. See Commonwealth v. Lammi, 386 Mass. 299, 301 (1982). See also Kennedy v. Commissioner of Corps. & Taxation, 256 Mass. 426, 430 (1926).

(b) In the Troxel case, Justice O’Connor, writing for a plurality of the Court, held that Wash. Rev. Code § 26.10.160 (3) (1994), a nonparental visitation statute under which the plaintiff grandparents sought visitation with their grandchildren, as applied, unconstitutionally infringed on the defendant mother’s parental rights protected by Federal due process guarantees.⁴ Troxel, supra at 60-61, 67. See Marks v. United States, 430 U.S. 188, 193 (1977), quoting Gregg v. Georgia, 428 U.S. 153, 169 n.15 (1976) (opinion of Stewart, Powell, & Stevens, JJ.). The Washington statute provided:

“Any person may petition the court for visitation rights at any time including, but not limited to, custody proceedings. The court may order visitation rights for any person when visitation may serve the best interest of the child whether or not there has been any change of circumstances.”

Troxel, supra at 61, quoting Wash. Rev. Code § 26.10.160 (3). Noting that the Supreme Court of Washington had failed to narrowly construe the statute, the plurality thought that the statute was “breathtakingly broad” because its language “effectively permits any third party seeking visitation to subject any decision by a parent concerning visitation of the parent’s children to state-court review,” and because the statute “contains no requirement that a court accord the parent’s decision any presumption of validity or any weight whatsoever.” Troxel, supra at 67. The plurality was disturbed that the statute “places the best-interest determination solely in the hands of the judge. Should the judge disagree with the parent’s estimation of the child’s best interests, the judge’s view necessarily prevails. Thus, in practical effect, in the State of Washington a court can disregard and overturn any decision by a fit custodial parent concerning visitation whenever a third party affected by the decision files a visitation petition, based solely on the judge’s determination of the child’s best interests” (emphasis in original). Id.

Highlighting “extensive precedent,” the plurality went on to state, “it cannot now be doubted that the Due Process Clause of the Fourteenth Amendment protects the fundamental right of parents to make decisions concerning the care, custody, and control of their children.” Id. at 66. The problem with the application of the statute by the lower court judge in Washington was that his decisional framework “directly contravened the traditional presumption that a fit parent will act in the best interest of his or her child.”⁵ Id. at 69. The judge’s approach, the plurality explained, “failed to provide any protection for [the mother’s] fundamental constitutional right to make decisions concerning the rearing of her own daughters.” Id. at 70. The plurality emphasized that “the decision whether such an inter-generational relationship would be beneficial in any specific case is for the parent to make in the first instance. And, if a fit parent’s decision of the kind at issue here becomes subject to judicial review, the court must accord at least some special weight to the parent’s own determination” (emphasis added). Id.

The plurality was troubled not only with the judge’s failure to give any special weight to the mother’s decision concerning visitation, but also with the judge’s “slender findings,”⁶ “announced presumption in favor of grandparent visitation,”⁷ and “failure to accord significant weight to [the mother’s] already having offered meaningful visitation to the [grandparents].”⁸ Id. at 72. The judge’s approach to awarding visitation, the plurality stated, “show[s] that this case involves nothing more than a simple disagreement between the Washington Superior Court and [the mother] concerning her children’s best interests.” Id. The plurality concluded that “the Due Process Clause does not permit a State to infringe on the fundamental right of parents to make child rearing decisions simply because a state judge believes a ‘better’ decision could be made.” Id. at 72-73.

Importantly, however, the plurality expressly declined to foreclose the States from enacting grandparent visitation statutes. Id. at 73. This restraint, of course, is not surprising in view of the following statement by Justice O’Connor, writing for the plurality, that sums up today’s family structures:

“The demographic changes of the past century make it difficult to speak of an average American family. The composition of families varies greatly from household to household. While many children may have two married parents and grandparents who visit regularly, many other children are raised in single-parent households. In 1996, children living with only one parent accounted for 28 percent of all children under age 18 in the United States. . . . Understandably, in these single-parent households, persons outside the nuclear family are called upon with increasing frequency to assist in the everyday tasks of child rearing. In many cases, grandparents play an important role. For example, in 1998, approximately 4 million children — or 5.6 percent of all children under age 18 — lived in the household of their grandparents.” (Citations omitted.)

Id. at 63-64. In recognition, in part, of this situation, all fifty States have enacted statutes authorizing some form of grandparent visitation.⁹ Id. at 73 & n.*.

What clearly emerges from the plurality decision in Troxel, with respect to due process, are the following principles:

(i) reaffirmation that a parent’s liberty interest in child rearing is indeed fundamental, and is certainly fundamental in this context, see Troxel, supra at 66;

(ii) “any third party” should not be permitted to seek visitation, see id. at 67;

(iii) in determining whether grandparent visitation should occur, there exists a “presumption that a fit parent will act in the best interest of his or her child,” id. at 69, and the decision of a fit parent concerning grandparent visitation is entitled to considerable deference, contrast id. at 67; and

(iv) in determining whether grandparent visitation should occur, the potential impact to the parent-child relationship should be considered, see id. at 70.

(c) When a fundamental right is at stake, the so-called “strict scrutiny” formula for examining the constitutionality of State infringement on that right comes into play. See Aime v. Commonwealth, 414 Mass. 667, 673 (1993). This formula traditionally is stated in terms of requiring (1) a legitimate and compelling State interest to justify State action, and (2) careful examination to ascertain whether the action taken was “narrowly tailored to further [that] interest.” Id. The Troxel case recognized that a third-party visitation statute implicates the fundamental right of parents to make decisions concerning the care, custody, and control of their children, see Troxel, supra at 66. The plurality stated that, given the fundamental nature of the parental rights at issue, a State grandparent visitation statute, to be held valid, must furnish the judge applying it with sufficient objective criteria to make reasonable decisions based on facts, not idiosyncratic choices based on undefined amorphous standards. See Troxel, supra at 73.

The plurality’s approach in the Troxel case has also been used in our jurisprudence. See E.N.O. v. L.M.M., 429 Mass. 824, 832, cert. denied, 528 U.S. 1005 (1999); Opinion of the Justices, 427 Mass. 1201, 1203 (1998). It cannot be disputed that the State has a compelling interest to protect children from actual or potential harm. See Prince v. Massachusetts, 321 U.S. 158, 167 (1944); Matter of McCauley, 409 Mass. 134, 136 (1991). This interest is expressed in a variety of statutes and proceedings, ranging from the complete severance of parental rights on a judge’s finding of parental unfitness,¹⁰ to the limitation of parental choices in the areas, for example, of education,¹¹ health care,¹² and safety.¹³ As we shall explain more fully below, the statute can be interpreted to require a showing of harm to the child if visitation is not allowed. So interpreted, the statute furthers a compelling and legitimate State interest in mitigating potential harm to children in nonintact families, an area in which the State has been traditionally and actively involved.

(d) We now turn to the scope of the statute. Contrary to the Washington statute under review in the Troxel case, which the plurality found to be “breathtakingly broad,” Troxel, supra at 67, the Massachusetts statute, enacted before the Troxel decision, itself limits standing to seek visitation to grandparents in certain classes and circumstances. The mother readily acknowledges that the statute is not as broad as the Washington statute reviewed in the Troxel case, but she argues nonetheless that it cannot withstand any measure of constitutional scrutiny. We reject the mother’s argument.

The statute adopts the “best interests of the child” standard as the test for determining visitation. This standard has long been used in Massachusetts to decide issues of custody and visitation and other issues relating to child welfare. The statute, however, uses the standard in a new context, and, based on the reasoning in the Troxel case, the standard, left unspecified, cannot survive a due process challenge. The interpretive role of an appellate court now comes into play. As we have mentioned, an appellate court may, in an appropriate case, construe a statute to render it constitutional. See, e.g., Yannas v. Frondistou-Yannas, 395 Mass. 704, 710-712 (1985) (discussing relevant factors bearing on “best interests” of children that must be considered when evaluating parent’s motion to remove child from Commonwealth pursuant to G. L. c. 208, § 30, despite absence of specifically enumerated standard or factors in statute). We conclude that, operating with the guidance of the Troxel case and our case law in related areas, and law from other jurisdictions, the traditional best interests considerations (of which the Legislature is presumed to have been aware when it enacted the statute) can, and should, be construed to fit the statute’s context and, thereby, satisfy due process.

To accord with due process, an evaluation of the best interests of the child under the statute requires that a parental decision concerning grandparent visitation be given presumptive validity. See Troxel, supra at 69.¹⁴ This requirement is of paramount importance because the best interests of children and fundamental parental autonomy rights traditionally are “cognate and connected.” Petition of the Dep’t of Pub. Welfare to Dispense with Consent to Adoption, 383 Mass. 573, 591 (1981), quoting Bezio v. Patenaude, 381 Mass. 563, 571 (1980). As Justice O’Connor explained, quoting Parham v. J.R., 442 U.S. 584, 602 (1979):

“The law’s concept of the family rests on a presumption that parents possess what a child lacks in maturity, experience, and capacity for judgment required for making life’s difficult decisions. More important, historically it has recognized that natural bonds of affection lead parents to act in the best interests of their children.”

Troxel, supra at 68. To obtain visitation, the grandparents must rebut the presumption. The burden of proof will lie with them to establish, by a preponderance of the credible evidence, that a decision by the judge to deny visitation is not in the best interests of the child. More specifically, to succeed, the grandparents must allege and prove that the failure to grant visitation will cause the child significant harm by adversely affecting the child’s health, safety, or welfare. The requirement of significant harm presupposes proof of a showing of a significant preexisting relationship between the grandparent and the child. In the absence of such a relationship, the grandparent must prove that visitation between grandparent and child is nevertheless necessary to protect the child from significant harm. Imposition of the standards just stated, as explained in specific written findings by the judge, see Guardianship of Norman, 41 Mass. App. Ct. 402, 407 (1996), ensures a careful balance between the possibly conflicting rights of parents in securing their parental autonomy, and the best interests of children in avoiding actual harm to their well-being.

These standards do not require de facto parental status on the part of the grandparents, but the standards are consistent with our cases concerning de facto parents. These cases recognize that disruption of a child’s preexisting relationship with a non-biological parent can be potentially harmful to the child, and they hold that such a relationship may be protected by court-ordered visitation with a nonparent over a fit parent’s objection. See E.N.O. v. L.M.M., supra at 834, 830 (concluding that judge properly allowed de facto parent’s motion for temporary visitation with child and, in considering motion, properly considered whether such visitation would be in child’s best interests); Youmans v. Ramos, 429 Mass. 774, 782-783 (1999) (concluding that judge may order visitation between child and maternal aunt who was child’s de facto parent after considering best interests of child).¹⁵ The standards we have established are also consistent with considerable authority elsewhere concerning the issue of grandparent visitation.¹⁶

We conclude, in rejection of the facial due process challenge made by the mother, that the statute satisfies strict scrutiny because our construction narrowly tailors it to further the compelling State interest in protecting the welfare of a child who has experienced a disruption in the family unit from harm.

2. Equal protection. The mother claims that the statute violates equal protection because its classifications impermissibly burden parents of “non-traditional families” with litigation affecting their parental decisions. She correctly states that the statute does not apply to grandparents of a minor child whose parents are living together. The mother maintains that “[tjhere are no distinguishing characteristics of widowed, divorced or otherwise single parents relevant to any interest of the [Sjtate in promoting grandparent visitation under any standard of review.” Essentially, the mother argues that the statute is both “underinclusive,” because it does not burden biological parents of minor children who are living together at the time the petition is filed, and “overinclusive,” because it burdens a single parent, or any two parents living separately, but who are, nonetheless, fully capable of making decisions in their children’s best interest.

(a) Because the statute’s classifications implicate fundamental parental rights, “strict scrutiny” analysis is again appropriate to evaluate the mother’s equal protection challenge. See English v. New England Med. Ctr., Inc., 405 Mass. 423, 428 (1989), cert. denied, 493 U.S. 1056 (1990); Paro v. Longwood Hosp., 373 Mass. 645, 649 & n.6 (1977). Under this analysis, a statutory classification is permissible if it “furthers a demonstrably compelling interest of the State and limits its impact as narrowly as possible consistent with the purpose of the classification.” Opinion of the Justices, 374 Mass. 836, 838 (1977).¹⁷

(b) We review the validity of the statute on equal protection grounds only as it pertains to the class in which the mother belongs, that is, a parent of a nonmarital child bom out of wedlock, living apart from the child’s other parent, in this case, the child’s father.¹⁸ There is no reason in this case to depart from the established mie, followed both in Massachusetts and Federal courts, that, “[ojrdinarily one may not claim standing ... to vindicate the constitutional rights of some third party.” Slama v. Attorney Gen., 384 Mass. 620, 624 (1981), quoting Barrows v. Jackson, 346 U.S. 249, 255 (1953). See New York v. Ferber, 458 U.S. 747, 767-768 & n.20 (1982); United States v. Raines; 362 U.S. 17, 21 (1960). Stated somewhat differently in Massachusetts Comm’n Against Discrimination v. Colangelo, 344 Mass. 387, 390 (1962), “[ojnly one whose rights are impaired by a statute can raise the question of its constitutionality, and he can object to the statute only as applied to him” ' (emphasis added). See Broadhurst v. Fall River, 278 Mass. 167, 170 (1932). See also Cleburne v. Cleburne Living Ctr., Inc., 473 U.S. 432, 437 (1985) (“to avoid making unnecessarily broad constitutional judgments,” “preferred course” should be inquiry concerning statute as applied). Contrary to the rationale of the dissent of Justice Sosman, there is no exception to these rules governing standing permitting challenges to certain classifications if those classifications happen to share one particular characteristic, here, parents living apart. The other classifications in the statute contain characteristics that do not apply to the mother: she is not divorced, she is not married, she is not a widow. Those classifications raise different characteristics and different issues that may be challenged only by persons who are members of those classes. It is inappropriate for us to examine them, and Justice Sosman’s dissent does so in a diffused, scattershot effort to invalidate the statute on any basis.¹⁹

(c) Although it does not address equal protection concerns, the Troxel decision instructs us that it may be constitutionally permissible for a State to authorize court-ordered visitation in some situations, and not in others, as long as the visitation is ordered in carefully limited circumstances. See id. at 67, 73. Classifications within statutes authorizing some form of grandparent visitation grant standing depending on, in some States, the existence of a preexisting relationship with the child²⁰ or, the domestic situation of the child’s parents.²¹ The mother asserts that classifications based on the living arrangements of a child’s parents unfairly intrude into the lives of single parents, such as herself, and constitute “an outmoded notion of their capabilities as parents.”²²

However, the mother mistakes the focus of our grandparent visitation statute. The statute’s intent, as we have stated, is not to penalize parents but to safeguard children. Cf. G. L. c. 119, § 1 (stating Commonwealth’s policy “to provide substitute care of children only when the family itself or the resources available to the family are unable to provide the necessary care and protection to insure the rights of any child to sound health and normal physical, mental, spiritual and moral development”); Custody of a Minor, 389 Mass. 755, 767-768 (1983) (in care and protection proceeding pursuant to G. L. c. 119, § 24, purpose of court’s inquiry must be directed to protecting children from actual harm and not to penalizing parents). Hardly a more compelling State interest exists than to keep children safe from the kinds of physical or emotional trauma that may scar a child’s “health and . . . physical, mental, spiritual and moral development” well into adulthood.

The Legislature has long recognized, as it may, consistent with our Federal and State Constitutions, that children whose parents are unmarried and live apart may be at heightened risk for certain kinds of harm when compared with children of so-called intact families. See, e.g., G. L. c. 209C, § 9 (court may issue support orders protecting rights of nonmarital children to, among other things, parental financial support and adequate health insurance). That children whose unmarried parents live apart may be especially vulnerable to real harm from the loss or absence of a grandparent’s significant presence is a permissible legislative conclusion, drawn from social experience and consistent with the State’s compelling interest in protecting minors from harm. As Troxel recognizes, studies show that, in the over one-quarter of households in which children are raised by single parents, grandparents may play an increasingly important role in child rearing, Troxel, supra at 63-64. Thus, grandparents may play an increasingly important role in a child’s development. This important role, when it does develop, does not arise by accident, but by a parent’s deliberate choice to invite the grandparent into the family fold, and to permit (or encourage) a bond between grandparent and grandchild that may then become crucial to the child’s physical or emotional security. In such situations, the State’s intervention may be necessary to secure the child’s well-being from traumatic separation from the grandparent. Such intervention has nothing to do with appeasing a grandparent’s hurt feelings, castigating a parent’s lifestyle, or perpetuating an illusion of family unity. It has everything to do with protecting the child, insofar as possible, by preserving the fruits of significant developmental attachment whose seeds were planted by a parent. Cf. E.N.O. v. L.M.M., 429 Mass. 824, 833 (1999) (where defendant encouraged plaintiff to become child’s de facto parent and such relationship was formed between child and plaintiff, “defendant’s parental rights do not extend to the extinguishment of the child’s relationship with the plaintiff”).

Moreover, the Legislature may, within its narrow field of action under our equal protection guarantees, presume that the burden of the traumatic loss of a grandparent’s significant presence may fall most heavily on the child whose unmarried parents live apart and who may not have or be able to draw on the resources of two parents in coping with his or her loss. Such a child may already be vulnerable to the feelings of loss, inadequacy, and insecurity that our society still often visits on those children whose family structure departs from an idealized two-parent norm. This is not to say that every child whose parents are unmarried and live apart is particularly vulnerable to the harm of a grandparent’s absence, or that every child in a two-parent household will be shielded from such harm. We merely hold that the Legislature does not offend the principles of equal protection, as seen through the narrow lens of strict scrutiny, by confining the reach of the grandparent visitation statute, as we construe it today, to a discrete class of children within the discrete class of households at issue.

Justice Sosman’s dissent seeks to conjure up circumstances of family disruption in the statute’s classifications, and then concludes that the disruption should not affect parental rights. For example, her dissent points to circumstances where divorced parents might agree that visitation with a particular grandparent is undesirable. Such a situation is not unlike the one presented in this case, in which both parents, though never married and living apart,²³ do not want the requested visitation to occur. These considerations, however, become relevant after the threshold issue of standing is satisfied. They are matters that are relevant to an as-applied analysis, but not to a facial equal protection challenge. In addition, the plethora of hypothetical situations concocted in her dissent’s ad terrorem approach discloses that the dissent has completely ignored the harm requirement — the State will not intrude into a nonintact family in the absence of a showing of significant harm. None of the situations conjured up by the dissent involves a situation where there is actual harm to the child. Again, the dissent attempts to invalidate the statute on any ground it possibly can contrary to our duty to uphold the statute. Because the classification narrows the impact of the statute, while furthering a compelling State interest, it survives an equal protection challenge. The dissent ignores this important, and ultimately decisive, consideration.²⁴

3. Pleading requirements under statute. There is one other matter with respect to the statute that needs to be addressed. A complaint under the statute for grandparent visitation is brought under the rules of civil procedure.²⁵ The complaint is essentially notice pleading, as was the grandfather’s complaint, which simply asked for “visitation.” As recognized by the plurality in the Troxel case, “the burden of litigating a domestic relations proceeding can itself be ‘so disruptive of the parent-child relationship that the constitutional right of a custodial parent to make certain basic determinations for the child’s welfare becomes implicated.’ ” Troxel, supra at 75, quoting id. at 101 (Kennedy, J., dissenting). Notice pleading does not safeguard these concerns.

Before 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.²⁶ 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. This procedure should minimize the burden placed on a parent or parents to defend against unwarranted actions.

4. Remand. The present case was dealt with by the judge on a motion to dismiss. We have concluded that the action should not have been dismissed. There is pending a request for summary judgment, and affidavits and other materials are in the record dealing with the question of summary judgment. The judge may choose to deal with the case on the summary judgment record after allowing the parties a reasonable opportunity to file additional materials. The judge may also take any other action necessary or appropriate to decide the case. The judgment dismissing the complaint is vacated, and the case is to stand for further proceedings in the Probate and Family Court consistent with this opinion.

So ordered.

2 This conclusion obviated the need for the judge to reach the mother’s challenge to G. L. c. 119, § 39D, on equal protection grounds.

3 On April 1, 2002, we entered an order directing the parties to file supplemental briefs on the equal protection issue.

4 The father of the children, the grandparents’ son, had committed suicide. Troxel v. Granville, 530 U.S. 57, 60 (2000) (Troxel).

5 There had been no allegation or finding that the mother was unfit, yet the judge improperly placed on her “the burden of disproving that visitation would be in the best interest of her daughters” (emphasis in original). Troxel, supra at 69.

6 The judge made only the two following findings. First, that the grandparents “are part of a large, central, loving family, all located in this area, and the [grandparents] can provide opportunities for the children in the areas of cousins and music,” and, second, that “[t]he children would be benefitted from spending quality time with the [grandparents], provided that that time is balanced with time with the childrens’ [.sic] nuclear family.” Id. at 72.

7 The judge referred to his “enjoyable [childhood] experience” of spending one week during the summer with each set of his grandparents. Id. at 72.

8 There was “no allegation that [the mother] ever sought to cut off visitation entirely.” Id. at 71. The plurality noted that some State statutes do not permit a visitation award unless a parent has denied or unreasonably denied visitation to the third party. Id. at 71-72, citing Miss. Code. Ann. § 93-16-3 (2)(a) (1994); Ore. Rev. Stat. § 109.121 (l)(a)(B) (1997); R.I. Gen. Laws §§ 15-5-24.3 (a) (2) (iii)-(iv) (Supp. 1999).

9 The statutes vary considerably and it would not be helpful to this opinion to list them and to describe their variations. See Bobroff, The Survival of Grandparent Visitation Statutes, 34 Clearinghouse Rev. 284, 287-288 (2000).

10 See G. L. c. 119, §§ 23-29 (care and protection statute); G. L. c. 210, § 3 (adoption statute); G. L. c. 201, § 5 (guardianship statute). See Custody of a Minor, 389 Mass. 755, 765 (1983) (“parents’ right to custody is not absolute, and it must yield to the welfare of the child”).

11 See, e.g., G. L. c. 76, §§ 1-2 (compulsory school attendance law). See also Commonwealth v. Renfrew, 332 Mass. 492, 494 (1955).

12 See, e.g., G. L. c. 76, § 15 (compulsory child vaccination law). See also Matter of McCauley, 409 Mass. 134, 136 (1991) (concluding that best interests of child, and strong interests of State over child’s welfare, outweighed parents’ rights, grounded on religion, to refuse blood transfusions for child).

13 See, e.g., G. L. c. 90, § 7AA (requiring children under age of five years and children weighing forty pounds or less to be secured by “child passenger restraint” in motor vehicle, and requiring children between ages of five and twelve years to wear safety belts while riding in motor vehicles).

14 The presumption of valid parental decision-making necessarily requires application of a presumption that the parent is fit.

15 One definition of the term “de facto parent” is: “A de facto parent is an individual other than a legal parent or a parent by estoppel who, for a significant period of time not less than two years, (i) lived with the child and, (ii) for reasons primarily other than financial compensation, and with the agreement of a legal parent to form a parent-child relationship, or as a result of a complete failure or inability of any legal parent to perform caretaking functions, (A) regularly performed a majority of the caretaking functions for the child, or (B) regularly performed a share of caretaking functions at least as great as that of the parent with whom the child primarily lived.” ALI Principles of the Law of Family Dissolution § 2.03 (c) (Tent. Draft No. 4 2000).

16 See Linder v. Linder, 348 Ark. 322, 352 (2002) (requiring “some other special factor such as harm to the child or custodial unfitness that justifies [Sjtate interference”); Roth v. Weston, 259 Conn. 202, 229 (2002) (“[State] interference [with parental decisions] is justified only when it can be demonstrated that there is a compelling need to protect the child from harm. In the absence of a threshold requirement of a finding of real and substantial harm to the child as a result of the denial of visitation, forced intervention by a third party seeking visitation is an unwarranted intrusion into family autonomy”); Von Eiff v. Azicri, 720 So. 2d 510, 514 (Fla. 1998) (“Neither the legislature nor the courts may properly intervene in parental decisionmaking absent significant harm to the child threatened by or resulting from those decisions”); Brooks v. Parkerson, 265 Ga. 189, 193, 194, cert. denied, 516 U.S. 942 (1995) (because “[S]tote interference with parental rights to custody and control of children is permissible only where the health or welfare of a child is threatened,” State may not order grandparent visitation absent “a showing that failing to do so would be harmful to the child”); Wickham v. Byrne, 199 Ill. 2d 309, 317 (2002) (interference in parent’s decision may only occur “when the health, safety, or welfare of a child is at risk”); Neal v. Lee, 14 P.3d 547, 550 (Okla. 2000) (visitation order unconstitutional “absent a showing of harm” to child); Hawk v. Hawk, 855 S.W.2d 573, 577, 579 (Tenn. 1993) (“when no substantial harm threatens a child’s welfare, the [S]tote lacks a sufficiently compelling justification for the infringement on the fundamental right of parents to raise their children as they see fit”); Williams v. Williams, 256 Va. 19, 21-22 (1998) (visitation statute constitutional because “court reaches consideration of the ‘best interest’ standard in determining visitation only after it finds harm if visitation is not ordered”). See also Roth v. Weston, supra at 226 (“proof of a close and substantial relationship [with party seeking visitation] and significant harm should visitation be denied are, in effect, two sides of the same coin”); Skov v. Wicker, 32 P.3d 1122, 1126-1127 (Kan. 2001) (to uphold constitutionality of grandparent visitation statute, court added requirement that grandparent prove existence of “a substantial relationship with the grandchildren”); Rideout v. Riendeau, 761 A.2d 291, 301 (Me. 2000) (because “cessation of contact with a grandparent whom the child views as a parent may have a dramatic, and even traumatic, effect upon the child’s well-being,” there is compelling State interest in protecting “child’s significant need to be assured that he or she will not unnecessarily lose contact with a grandparent who has been a parent to that child”).

17 The standard for evaluating equal protection challenges under our State Constitution is the same as the standard under the Federal Constitution. See Chebacco Liquor Mart, Inc. v. Alcoholic Beverages Control Comm’n, 429 Mass. 721, 723 (1999); Tobin’s Case, 424 Mass. 250, 252 (1997); Commonwealth v. Franklin Fruit Co., 388 Mass. 228, 235 (1983).

18 The mother does not challenge the paternity requirement in the classification.

19 Curiously, while Justice Sosman’s dissent mistakenly states that the statute’s classifications are “predicated entirely on the parents’ living arrangements,” post at 680 (Sosman, J., dissenting), the dissent then goes on to discuss the circumstances of, and acknowledge, the particular characteristics (those different from living arrangements) of the classifications to which the mother does not belong.

20 See, e.g., Cal. Fam. Code § 3104 (a)(1) (Deering 1994); Iowa Code Ann. § 598.35 (7) (West 2001); Kan. Stat. Ann. § 38-129 (a) (2000); Wash. Rev. Code Ann. § 26.09.240 (5)(a) (West 1997) (standing to petition for visitation accorded to grandparent with significant relationship to child).

21 This approach is one taken by a large number of States. Bobroff, The Survival of Grandparent Visitation Statutes, 34 Clearinghouse Rev. 284, 287 & n.16 (2000). See, e.g., Ariz. Rev. Stat. Ann. § 25-409 (A) (1) and (2) (West 2000) (when marriage of child’s parents dissolved, or one parent deceased or missing, for three months); Ark. Code Ann. § 9-13-103 (a)(1)(A) (LexisNexis 2002) (when marital relationship between parents severed by death, divorce, or legal separation); Fla. Stat. Ann. § 752.01 (1) (West Supp. 2002) (when marriage of parents of child dissolved, one parent has deserted child, or child bom out of wedlock); N.H. Rev. Stat. Ann. § 458:17-d (1992) (when child’s nuclear family is subject of “divorce, death, relinquishment or termination of parental rights” [unless grandparent’s access to child earlier, or contemporaneously, restricted], O’Brien v. O’Brien, 141 N.H. 435, 437 [1996]).

22 We appreciate this concern but do not consider it dispositive. The United States Supreme Court has recognized that social consensus about family relationships is relevant to the constitutional limits on State intervention. See Zablocki v. Redhail, 434 U.S. 374, 395 (1978); Moore v. East Cleveland, 431 U.S. 494, 496 (1977); Belle Terre v. Boraas, 416 U.S. 1, 2, 8-9 (1974). Given the continual reinterpretation of the notion of “family,” and of who may be a “parent,” constitutional jurisprudence in this area is not easily applied, particularly to persons defined by status. See Dolgin, The Constitution as Family Arbiter: A Moral in the Mess?, 102 Colum. L. Rev. 337, 405 (2002). To that end, the dissent assumes that gay and lesbian couples would not be considered “parents” under the statute. While G. L. c. 119, § 21, defines the term “parent” as meaning “mother or father,” those terms are not defined, and we need not define them in this case.

23 The record reflects that the mother and father, with the child, lived together for approximately one and one-half years after the child’s birth.

24 It is important as well that procedural requirements, to be discussed in Part 3 of this opinion, ensure that a parent is not subjected to a full hearing merely because he or she falls within the scope of the statute’s reach. The statute merely affords a grandparent the opportunity to produce evidence that circumstances are severe enough to warrant a court’s review of the parent’s decision to deny visitation. Further, by establishing the presumption of valid parental decision-making, and by adopting a best interest of the child standard that incorporates a significant harm requirement, the statute ensures that both interests, that of parent and child, will be safeguarded.

25 The Massachusetts Rules of Domestic Relations Procedure do not apply to complaints for grandparent visitation. See Mass. R. Dom. Rel. P. 1 (2002).

26 The standard form now apparently in use in the Probate and Family Court will need to be revised to reflect the standards we have enunciated.