Grandparent Visitation in Wisconsin

When we think of a full, in-tact, family relationship, we typically think of not only parents and children, but also grandparents. In the context of parents separating, usually the parents share joint legal custody and physical placement, ensuring that the parent-child relationship remains intact. But what about grandparents? Shouldn’t grandparents also be able to continue seeing their grandchildren in the event parents separate or divorce? While the easy answer might be “yes,” it’s not quite that simple under Wisconsin family law.

Wisconsin Courts Generally Grant Parents Placement Rights

Under Wisconsin statutes, parents have a clear right to “parent” and have placement time with their children, unless the Court finds that there are facts which justify denying placement. Most often, the Court prefers to safely support a parent-child relationship, and it is rare that one parent involuntarily has all placement and parental rights taken away.

Grandparents Must Petition the Court for Visitation with Grandchildren

Although Wisconsin family law statutes specifically address parental rights and placement and presume it is in a child’s best interest to spend time with both parents unless proven otherwise, the same cannot be said for grandparents.
State statute expressly permits grandparents, step-parents, or other persons who have maintained a parent-like relationship with the child to request reasonable visitation rights. But while it is clear the Court believes a grandparent-child relationship is important, there is no presumption that such visitation should be awarded.
Instead, generally speaking, a grandparent must:

  • petition the Court for visitation
  • provide notice to the child’s parents of the request, and
  •  explain at a hearing why awarding visitation with grandparents is in the child’s best interest

Grandparent Visitation Rights When Parents Were Never Married

When a child is born to an unwed couple and the parents never subsequently marry, grandparent visitation rights involve additional prerequisites.
Before even reaching the question of the child’s best interests, the Court must find that:

  • the child’s paternity has been established
  • the child has not been adopted
  • the grandparent has maintained or attempted to maintain a relationship with the child but been prevented from doing so by a parent with legal custody of the child, and
  • the grandparent is not likely to act in a manner contrary to the decisions of the parent(s) with legal custody that are related to the child’s physical, emotional, educational, or spiritual welfare

Historically, Wisconsin grandparents have been able to meet this standard fairly easily by showing they have maintained a close, parent-like relationship with the child and there is no reason for them not to continue that relationship. But the question becomes more complicated when the child’s parents do not want grandparents to have visitation, especially because Wisconsin courts did not have clear guidance on how to account for the parents’ wishes until 2019.

WI Supreme Court Decision Increased Parental Control Over Grandparent Visitation

In 2019, a Wisconsin Supreme Court decision made it more difficult for grandparents to seek visitation rights, particularly where the child’s parents oppose such visitation. While grandparents still have the right to seek visitation with their grandchildren, a grandparent must now overcome the presumption that a parent’s visitation decision is in the best interest of their child. In other words, if a parent opposes grandparent visitation, the grandparent must prove with clear and convincing evidence that the parent’s decision to oppose grandparent visitation is not in the child’s best interest.
“Clear and convincing evidence” is the highest burden of proof in civil law, and is second only to “beyond a reasonable doubt” in criminal law. Simply stated, the court gives very strong deference to a parent’s decision about how to parent a child. If a parent believes it is in their child’s best interest to reduce or otherwise deny a grandparent’s visitation time with their child, the Court will agree unless there is extremely strong evidence to the contrary.

When Can Grandparents Overcome Parents’ Objection to Visitation Rights?

The recent legal changes do not mean it is impossible for a grandparent to succeed in a visitation request. The standard of deferring to a parent’s judgment has always existed; the difference is that now, the grandparent must prove why the parent’s judgment is not in the child’s best interest.
There are many scenarios where grandparents can succeed. For example, where the child resided with the grandparent for a period of time, or the grandparent provided substantial care to the child on a consistent basis, and a parent subsequently decides to cut off all contact between the child and grandparent, it may be appropriate for the circuit court to order visitation. Of course, the reason for the parent’s decision to cut off contact will be considered and thoroughly evaluated. But depending upon several factors, in a situation like the one above, it may be more likely to meet the burden of proof necessary to achieve court ordered visitation.

Maintain Good Relationships with Parents is Key

In sum, while Wisconsin Courts continue to recognize the importance of maintaining a grandparent-child relationship, particularly where one already exists or existed, such relationships must be balanced with a parent’s decision regarding the best interest of their child. Because the Court acknowledges and generally trusts a parent’s authority and decision-making, the best guidance is often for a grandparent to nurture their relationship with the parents.
If a grandparent fosters a strong relationship with the parents of their grandchild, it becomes more likely that the parents will agree to grandparent visitation. As in most family law cases, agreement between the parties is the best, most effective, and cost-efficient way to achieve goals. Going through the Courts, while sometimes necessary, is a costly and emotional process.

Experienced Family Law Attorneys Can Help Secured Grandparent Visitation

If you or someone you know is considering pursuing grandparent visitation, it is important to consult a Wisconsin family law attorney first, especially because of the high burden that will be faced in Court.

Contact us to discuss your situation with an attorney.

Natalie Gerloff

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