Blixt v. Blixt

Decision Date09 September 2002
Citation774 NE 2d 1052,437 Mass. 649
PartiesJOHN D. BLIXT v. KRISTIN BLIXT & another.
CourtUnited States State Supreme Judicial Court of Massachusetts Supreme Court


George P. Lordan, Jr. (Dennis P. Derrick with him) for John D. Blixt. Sheila S. Lewinger for Kristin Blixt.

The following submitted briefs for amici curiae:

Karen A. Wyle, of Indiana, for Coalition for the Restoration of Parental Rights.

Rochelle Bobroff & Michael Schuster, of the District of Columbia, & Deborah Banda for AARP.

Fern L. Frolin, Martin W. Healy, & Carol A.G. DiMento for Massachusetts Bar Association.

Mary L. Bonauto, Jennifer L. Levi, & Karen L. Loewy for Gay & Lesbian Advocates & Defenders.

Ronald A. Witmer, Mark I. Berson, & Philip J. Byers for American Academy of Matrimonial Lawyers, Massachusetts Chapter.

Christine Durkin & Pauline Quirion for Greater Boston Legal Services & another.

David D. Meyer, of Illinois, & Thomas J. Carey, Jr., pro se.


The plaintiff, John D. Blixt, is the maternal grandfather of the minor child of the defendants, a boy born 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 born 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."5Id. 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 intergenerational 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...

To continue reading

Request your trial
125 cases
  • E.H.G. v. E.R.G.
    • United States
    • Alabama Court of Civil Appeals
    • March 12, 2010
    ...(2000); In re Marriage of Howard, 661 N.W.2d 183 (Iowa 2003); Koshko v. Haining, 398 Md. 404, 921 A.2d 171 (2007); Blixt v. Blixt, 437 Mass. 649, 774 N.E.2d 1052 (2002); Moriarty v. Bradt, 177 N.J. 84, 827 A.2d 203 (2003); In re Herbst, 971 P.2d 395, 399 (Okla.1998); Camburn v. Smith, 355 S......
  • Kligler v. Attorney General
    • United States
    • United States State Supreme Judicial Court of Massachusetts Supreme Court
    • December 19, 2022
    ...only as applied to him" (citation omitted). See McCarty's Case, 445 Mass. 361, 367, 837 N.E.2d 669 (2005), quoting Blixt v. Blixt, 437 Mass. 649, 661, 774 N.E.2d 1052 (2002), cert. denied, 537 U.S. 1189, 123 S.Ct. 1259, 154 L.Ed.2d 1022 (2003). Nonetheless, a plaintiff may have standing to ......
  • Boston Globe Media Partners, LLC v. Retirement Board of The Massachusetts Bay Transportation Authority Retirement Fund
    • United States
    • Massachusetts Superior Court
    • March 9, 2016
    ... ... statute's constitutionality.'" ... Gonzalez , 553 U.S. at 251, quoting Harris , ... 536 U.S. at 555; accord Blixt v. Blixt , 437 Mass ... 649, 674, 774 N.E.2d 1052 (2002); Beeler v. Downey , ... 387 Mass. 609, 613-14, 442 N.E.2d 19 & n.4 (1982). As ... ...
  • Michels v. Lyons (In re Visitation of A. A. L.)
    • United States
    • Wisconsin Supreme Court
    • May 24, 2019
    ...Wash.2d 52, 109 P.3d 405, 410 (Wash. 2005) ). See also E.H.G. v. E.R.G., 73 So. 3d 634, 649-50 (Ala. 2011) ; Blixt v. Blixt, 437 Mass. 649, 774 N.E.2d 1052, 1059 (Mass. 2002) ; Camburn v. Smith, 355 S.C. 574, 586 S.E.2d 565, 580 (S.C. 2003) ; Glidden v. Conley, 2003 VT 12, ¶21, 175 Vt. 111,......
  • Request a trial to view additional results

VLEX uses login cookies to provide you with a better browsing experience. If you click on 'Accept' or continue browsing this site we consider that you accept our cookie policy. ACCEPT