Are you a grandparent who hasn’t been able to see your grandchildren for some reason? Do you have any “rights” to seek visitation from the court?

In Wisconsin, the courts strongly protect the rights of parents to raise their children as they see fit, without outside interference. The statutes do permit grandparents, or those who have had a “parent-like” relationship with the child, to petition the court for visitation. This is only true, however, if there is an action affecting the family (divorce, legal separation, paternity) pending.

If there is no action pending and the parents are still married, grandparents are not allowed to petition the court for visitation. Unless the parents are unfit or incompetent, there is no recourse for grandparents who want to see their grandchildren. In those instances, your best course of action as a grandparent is to repair or attempt to repair the circumstances which led to the breakdown in your relationship with your child or grandchild in the first place.

This protection of parental rights carries through to an action for divorce or legal separation where the standard for grandparent visitation is a bit different than a situation where the parents where never married. The statute simply states that visitation can be granted if it is in the best interests of the child. However, there is no definition or qualifying standards to determine what that means. This gives the court very broad discretion in those instances. The US Supreme Court has ruled, however, that courts must apply a presumption that a fit parent’s decision regarding non-parental visitation is in the best interest of the child. The Wisconsin courts have upheld this presumption. What that means is that if both parents (married or formerly married) have refused to allow grandparent visitation, it is going to be difficult to ask the court to interfere with that decision.

In a divorce, the courts usually find that grandparents should see the children during their own child’s placement time. Parents have little enough time with their children when their time is already divided between two people. The courts are going to be very reluctant to divide the time three ways. If the relationship between the parent and the grandparent is broken down to the point where the parent will not allow the grandparents to see the child on his or her own time, the court is going to be reluctant to interfere with that decision based on the above presumption.

However, if a parent is not seeing the child(ren) for some reason, which does not afford the grandparents the opportunity to see their grandchildren, then the court is likely to order some visitation to preserve the child’s relationship with their grandparents.

In a paternity case (where the parents were never married), the courts are much more likely to grant a grandparent visitation. The statute sets forth a different standard. Best interests apply but the statute also allows visitation more broadly in situations where grandparents have had a relationship in the past or have attempted to maintain a relationship in the past but now are prevented from doing so by the parent with legal custody. The court must find, however, the grandparents will not interfere with the custodial decisions of the parent. In the case of the benevolent grandparents who only want to see their grandchildren, this virtually guarantees some kind of visitation.

The difficulty comes in when you have interfering grandparents or grandparents who have attempted to control or take over parental decisions. In those instances, the court may be reluctant to give grandparents the opportunity to interfere or damage the parental relationship with the child which it protects above all else.

If you are a grandparent seeking visitation with your grandchild or grandchildren, make sure that you do not attempt to interfere with the relationship between parent and child. Keep in mind that you do not have any “rights” over your grandchildren except to have a relationship with them. Your actions are going to be scrutinized by the court to determine whether visitation with you is in the best interest of the child(ren). If you cause problems or take actions which can be interpreted to be contrary to parental decisions, you very well may be giving the court just cause to deny visitation. You should consult with an experienced family law attorney to determine if you have a basis to petition the court for visitation and what actions you should take which would lead to the best chance of success in your case.

If you have any questions about grandparent visitation and would like to meet with one of our lawyers for a free initial office consultation, please call us at 414-258-1644. You can also visit our website for more information.