New Grandparent’s Rights Rule in Wisconsin

This spring, in the highly anticipated case, Michels v. Lyons, the Wisconsin Supreme Court changed how the circuit court interprets the Wisconsin grandparent’s rights law. The Wisconsin grandparent’s rights law allows for the circuit court to award visitation to grandparents under certain conditions. This law has been somewhat controversial as the courts must balance the interests of parent’s deemed to be fit making decisions for their children, and the importance of the relationship between grandparents and children. This law applies to paternity and divorce cases where the parents are not married.

In the Michels v. Lyons case, the Wisconsin Supreme Court determined that the Grandparent’s Visitation Statute, Wis. Stat. 767.43, is constitutional which means that grandparents continue to have the right to ask the court to order visitation with their grandchildren. However, in order for the circuit court to award visitation to a grandparent, the grandparent must overcome the court’s presumption that the parent’s visitation decision is in the child’s best interest and prove, with clear and convincing evidence, that the parent’s decision regarding visitation with the grandparents was not in the child’s best interest.

In other words, it is the grandparent’s responsibility to prove to the court, at the highest level of proof required in a civil case, that the parent’s decision (usually to reduce or stop visitation between their child and the child’s grandparent) is not in the child’s best interest. The Court made it more difficult for the courts to substitute what their judgment, or a grandparent’s opinion, of what is in the child’s best interest for visitation for that of a fit parent’s judgment. This can be an uphill battle for a grandparent seeking court ordered visitation.

However, it does not mean that a grandparent cannot succeed in a motion to set grandparent visitation. There has always been an assumption that fit parent’s decisions as to visitation between a child and a grandparent is what is in the child’s best interest. The change is that in a motion for grandparent visitation it is the grandparent’s responsibility to prove that the parent’s decision is not in the child’s best interest. This is a more difficult thing to prove.

There are many fact scenarios where the Court could see that grandparents could be successful. For example, if the minor child has resided with the grandparent for a period of time, or provided care to the minor child on a consistent basis. If a parent decides to cut off all contact between a minor child and a grandparent, especially in such a situation where there is an established relationship in the examples above, it may be appropriate for the circuit court to order visitation in that situation. Grandparents visitation cases may be more common when a parent decides to reside with a grandparent to get back on their feet after the end of a relationship, or during and after a divorce. Depending upon several factors, it may be more likely to see the relationship between a grandparent and grandchild reach a level envisioned by the Court to meet the burden of proof necessary to award court ordered visitation.

This new standard in the grandparent visitation cases places a greater emphasis on fit parents’ decisions regarding visitation between a grandparent and their minor child. However, it still contemplates many situations where there should be visitation ordered by the circuit court when this parental decision can be proven by clear and convincing evidence to not be in the child’s best interest. The Court acknowledges the importance of preserving a relationship between a grandparent and a grandchild.  However, these relationships must be balanced with a fit parent’s decision. If you are involved in a situation regarding grandparent’s visitation, whether you are a grandparent, or a parent, call us at (414) 258-1644 to schedule a free initial consultation to discuss your case.

We welcome your comments or questions. We will do our best to try to respond. However, please be advised that we cannot give legal advice in this forum and all communications are for general informational purposes only. Communication should not be construed as forming an attorney-client relationship. This is an open forum and any information you provide may be posted and will not be held confidentially. By posting a comment or question, you are expressly giving consent for the publication of same. If you have any specific legal issues or concerns, we always recommend that you consult with an attorney in the county and state in which you reside.

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