TAVARES v. HURTUK (2021)

Appeals Court of Massachusetts.

Pamela TAVARES v. Megan HURTUK 1& another.2

19-P-1564

Decided: February 05, 2021

By the Court (Lemire, Ditkoff & Grant, JJ.3)

MEMORANDUM AND ORDER PURSUANT TO RULE 23.0

The paternal grandmother, Pamela Tavares, appeals from a judgment on her petition for grandparent visitation, G. L. c. 119, § 39D, which adopted a stipulation signed by her and the parents. Discerning no basis to disturb the parties' agreement, we affirm.

“The liberty interest at issue in this case -- the interest of parents in the care, custody, and control of their children -- is perhaps the oldest of the fundamental liberty interests recognized by this Court.” Martinez v. Martinez-Cintron, 93 Mass. App. Ct. 202, 205 (2018), quoting Troxel v. Granville, 530 U.S. 57, 65 (2000). To obtain an order of visitation, a grandparent must establish “that the failure to grant visitation will cause the child significant harm by adversely affecting the child's health, safety, or welfare.” Blixt v. Blixt, 437 Mass. 649, 658 (2002), cert. denied, 537 U.S. 1189 (2003). Here, the evidence elicited by the parties prior to the stipulation established only that the grandmother cut four to five inches of hair from one child's head without permission and that the grandmother sent “nonstop text messages” to the mother disparaging her and her family.

After that uninspiring start to the trial, the parties agreed that the grandmother would be allowed to attend the father's parenting time, which was already required to be in a public place. See Frazier v. Frazier, 96 Mass. App. Ct. 775, 776 (2019). The children could not be transported by vehicle during these visits, and no other relatives were allowed to attend. If the father failed to exercise his parenting time, the grandmother would have one visit per month with the children. Finally, the grandmother agreed not to discuss “court-related matters” with the children, not to make disparaging comments about the parents, and not to make comments that would harm the relationship between the children and the parents.

The grandmother personally signed the stipulation. She testified at the hearing that she read the agreement carefully, that she understood it, that she signed it freely and voluntarily, and that she understood that it would become a court order.

The grandmother asks us to delete the restriction on other relatives being present, increase the frequency of visits if the father does not attend visits, eliminate the restriction on her disparaging the mother, and allow her to transport the children to her home during visits. She does not, however, provide us with any legal reason why we should do any of these things.

Absent further agreement by the parties or newly emergent issues, the grandmother has no basis to attack the agreement she voluntarily entered into, especially where her “claims -- which amount to nothing more than an extended diatribe against counsel to the mother -- were all visible and known to [her] before [she] signed” the agreement. Hoppe v. Haskins, 29 Mass. App. Ct. 411, 415 (1990). The grandmother agreed to the terms of the judgment, and her dissatisfaction with its restrictions on her behavior are no basis for vitiating her agreement.

Finally, we have reviewed the transcript carefully, and we discern no basis for the grandmother's complaint that the judge was biased against her. To the contrary, the judge demonstrated admirable patience with the grandmother, despite her repeated failure to ask questions of the witness she called to testify. There is no basis to disturb the judgment. See Tatar v. Schuker, 70 Mass. App. Ct. 436, 451-452 (2007).

Judgment affirmed.

Order denying motion to alter or amend affirmed.