Grandparent Rights

Can Third Parties Use A Parent’s Placement Time?

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Stepparents, grandparents, aunts, and uncles are third parties who play pivotal roles in children’s lives – but does that mean that they can exercise placement time?  The short answer is no.  Physical placement is defined in Wisconsin as the time period in which a parent has their child with them under their care.  Since third parties are not parents, they cannot exercise placement or be your substitute during that time, even if they are a third party who is near and dear to your child.

But most of the time, third parties can babysit and spend meaningful time with your child.  So where do the courts draw the line?  Courts want to ensure that when a child is left alone with a third party, it is for no longer than a few hours without one of the parents exercising their placement time.  For example, it is generally acceptable to ask a family member to babysit your child for a few hours, or even a day, during your placement time when you are working.  On the other hand, it is generally unacceptable to leave your child with that same family member for a days or weeks or let them “use your placement time” so that you can go on vacation or move to a different state.  Doing so may be grounds for a petition to enforce placement action or even a modification of placement motion.

The courts provide a remedy for times when a parent isn’t fully exercising their placement and is having someone else exercise placement for them.  Wisconsin statutes provide that a court can modify a physical placement order if it finds that a parent has “repeatedly and unreasonably failed to exercise periods of physical placement.”  This is sometimes called the “use it or lose it” statute.  Not exercising your placement time could be grounds for the other parent to modify a placement schedule in their favor.

 If you are in a situation where a third party is exercising placement time of your child, please give us a call Nelson, Krueger & Millenbach at (414) 258-1644 to schedule a free initial consultation.

New Grandparent’s Rights Rule in Wisconsin

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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.

Wisconsin Supreme Court Resolves Issues Regarding Grandparents and Stepparents Rights

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Grandparents And Granddaughter Walking On Winter BeachUntil recently, Wisconsin case law supported an interpretation of Wis. Stat. § 767.43(1) that required a grandparent, great-grandparent, or stepparent to prove “a parent-like relationship” with the child in order to secure visitation rights. However, the Supreme Court of Wisconsin’s ruling in the recently decided Meister* case made it clear that only a person other than a grandparent, or stepparent filing a motion for visitation must prove “a parent-like relationship.”

The Court, through this decision, eliminated an additional and unintended barrier for grandparents and stepparents who are seeking visitation rights. This change in the interpretation of the law will open the door to more grandparents, great-grandparents and stepparents who wish to seek visitation rights. Regardless of this barrier being eliminated, it does not guarantee that the grandparents or stepparents will prevail. The Court must “consider the constitutional rights of the parents” and “decide, in its sound discretion, whether the facts and circumstances of the case warrant granting, modifying, or denying a visitation petition in the best interest of the child.”

It is important to note that the above applies to children born to married parents. For children of unmarried (and subsequently never married) parents, the visitation statute still requires that a grandparent or stepparent show they have “maintained a relationship with the child or have attempted to maintain a relationship with the child but have been prevented from doing so by a parent who has legal custody of the child.” Again, however, this type of relationship does not have to be “parent-like” in nature.

If you are a grandparent, great-grandparent or stepparent seeking visitation rights of a child, it is important that you have an attorney navigate you through this evolving area of the law. If you wish to speak with an attorney at our office, please call 414-258-1644 for a free ½ hour office consultation.
* In re the Marriage of Meister, Nancy and Jay. 2016 WI 22.

Grandparent Rights in Wisconsin: Can I File an Action?

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Sad senior couple in parkIn Wisconsin, grandparents may be afforded the legal right to have visitation with their grandchildren. The process to obtain these rights may be difficult, therefore it is helpful to have an attorney navigate you through this process.

When the parents have been married, and have subsequently divorced, grandparents may request “reasonable visitation rights” in the existing family law action. In order to be successful in this type of action, the grandparent must successfully demonstrate three factors: (1) he/she has maintained a parent-child relationship with a child, (2) the child’s wishes to have a relationship with the grandparent, and (3) the visitation with the grandparent is found to be in the child’s best interest.

When the parents are unmarried, the grandparent may file an independent suit or petition if they have maintained a relationship with the child or have attempted to do so, but were prevented from having a relationship with the child by the child’s custodial parent. In these cases, there must be a determination of who is the father of the child (a paternity determination). If the requirements are met, then the court will consider other factors, such as the best interest of the child, the wishes of the child, and whether the grandparent will abide by decisions made by the child’s parents concerning the child’s “physical, emotional, educational or spiritual welfare,” if that grandparent is afforded visitation rights.

There are also other actions available to grandparents seeking visitation when one or both parents are deceased or when the biological grandchild has been adopted. Nelson, Krueger and Millenbach, LLC does not handle guardianship cases or adoption cases, so if this is your situation, you should seek advice from an attorney experienced in these areas of the law.

If you wish to speak with an attorney regarding grandparents rights in a divorce action or in a paternity matter, please contact Nelson, Krueger and Millenbach, LLC, at 414-258-1644 to schedule a free half-hour consultation.