Do Grandparents Have Visitation Rights in Wisconsin?

Grandparents can fill a unique role in their grandchildren's lives. Yet, a parent's death or divorce can change the amount of time a grandparent is allowed to see a grandchild.

Nearly every state allows at least some form of grandparent visitation, but only if it's in the best interests of the child. There's not a lot of consistency among the grandparent laws of each state, so it's essential to understand the laws where you live. This article provides an overview of grandparent visitation rights in Wisconsin. If after reading this article you have questions, contact a local family law attorney for advice.

Overview of Grandparent Visitation Laws

Grandparent visitation laws exist on a state, not a federal level. What this means is that each state has created its own laws governing grandparent visitation. However, the U.S. Supreme Court in Troxel v. Granville, set a basic standard on grandparent visitation rights.

The Troxel case upheld the constitutionality of a Washington state grandparent visitation law, but clarified the scope of grandparent visitation laws. Troxel reinforced that parents' rights to raise their own is rooted in the Constitution and grandparents don't share these same privileges. Additionally, a fit, stable parent's wishes should be considered in any custody or visitation decision. While a parent's wishes are given "special weight", a child's best interests will determine the final outcome of the case.

Grandparent Visitation in Wisconsin

Parents have fundamental rights to raise their children as they see fit, as long as the children's basic emotional and physical needs are being met. However, in certain circumstances, Wisconsin law allows grandparents to have reasonable visitation with a grandchild, even if it's against the parent's wishes.

A grandparent must file a petition requesting visitation with the court. A judge will schedule a hearing to review the circumstances of the case and allow the child's parents to respond. All of the following factors must be present for a judge to grant grandparent visitation:

• the child's parents are not married, or were married but have subsequently divorced, separated or one parent is deceased
• the child isn't adopted
• the grandparent has maintained a relationship with the child, or has attempted to maintain a relationship but was prevented by the parent
• the grandparent is unlikely to act counter to the parent's decisions regarding the child's emotional physical, educational or spiritual welfare, and
• grandparent visitation is in the child's best interests.

Wisconsin courts require all the above elements to be met for grandparent visitation to occur. Grandparent visitation is almost always granted in cases where grandparents have had a strong relationship with the child and death or divorce has disrupted the child's nuclear family unit.

For example, in one Wisconsin case, a grandmother was able to win visitation rights because she had visited her grandchildren at least once a week and one weekend per month while the children's mother (the grandparent's daughter) was alive. Following her death, the child's father cut off visitation almost completely. The child's father was a fit and proper parent and although the judge considered his wishes, the court decided that grandparent visitation served the child's best interests.

In another Wisconsin case, a court granted broad paternal grandparent visitation after the child's father (the grandparents' son) died. The child's mother only allowed the grandparents to have supervised visitation with their grandchild. The grandparents sued for unsupervised, regular visitation and won. The court found that continuing visitation was in the child's best interests because of the close bond the grandparents had always shared with their grandchild.

If it will continue to serve the child's best interests, Wisconsin courts are generous in allowing grandparent visitation. In one case a maternal grandmother was awarded visitation with her grandchild every other weekend, every Monday, Wednesday and Friday and on other occasions when the child wasn't in a structured activity or school. Although the child's father objected that the extensive visitation schedule interfered with his parental rights, the court concluded that it didn't. Wisconsin law allows a grandparent to have reasonable visitation privileges if it serves a child's best interests. What constitutes "reasonable visitation" will depend on the unique circumstances of your case.

When Can Grandparents Get Custody of a Grandchild?

In very rare cases, a grandparent may be able to obtain custody rights over a child's natural parent when it's necessary to protect the child's safety or well-being. A court may only award custody to a child's grandparent if the following are true:

• granting custody to the grandparent would serve the child's best interests, and
• the parent is unfit or unable to adequately care for the child, or there are other compelling reasons for awarding custody to a grandparent.

In one Wisconsin case, a set of maternal grandparents sought custody of a grandchild and lost. The grandparents had lived with their granddaughter after the child's mother and father separated. When the child's mother died, the child's father and the grandparents both sought custody of the child. Although the father had been uninvolved in his child's life until that point, he was awarded custody. The court reasoned that a natural parent's rights should outweigh a grandparent's rights if the parent isn't unfit at the time he or she is seeking custody.

Can a Biological Grandparent Obtain Visitation with a Grandchild That was Given up for Adoption?

Adoption severs biological parents' ties as well as grandparents' rights. If parents' voluntarily terminate their parental rights to a child, the child's grandparents will have no legal rights either. However, in cases of stepparent adoption or where a child is adopted by another relative, a grandparent may petition for visitation privileges. Ultimately, a judge will determine whether visitation would help meet a child's emotional needs and not hinder the stepparent-child relationship.

Grandparent visitation laws are complex and continually evolving. It's important to understand your rights under the particular laws of your state. Grandparent rights are usually secondary to a parent's; however, you may be able to establish some form of visitation if you can show you created a bond with your grandchild and that visitation would be in the child's best interests. If you have additional questions about grandparent visitation and custody rights in Wisconsin, contact a local family law attorney for advice.