Grandparents (sometimes) have legal right to visit grandchildren

Grandparents' rights to see their grandchildren

Grandparents often lament not seeing their grandchildren as often as they’d like. For some, though, it’s a real legal issue with actual legal remedies.

In fact, grandparents’ rights discussions are growing in legal circles, with cases reaching our Wisconsin appellate courts. The increased attention likely reflects how families differ today than in decades past. Families now are more fragmented and live farther apart, and more children need daycare. That means grandparents, along with parents and even children themselves, are redefining relationships and establishing new perspectives on what it means to be family.

Parents are ultimate decision-makers

If you’re a grandparent who feels you’ve been wrongly excluded from your grandchild’s life, you must begin your examination with the proposition that parents are the ultimate decision-makers and actually have a fundamental right to make childrearing decisions such as whether grandparents have visitation. About 20 years ago, the United States Supreme Court held that parents have a constitutional liberty interest in making such decisions. However, there are statutes in Wisconsin that may help.

Wisconsin’s family code includes a section that provides visitation rights for certain persons, such as grandparents, and provides means for those persons to petition the court to gain visitation.

Two bases for grandparent visitation

There are two bases for visitation. The first is that if you have maintained a relationship similar to a parent-child relationship — you have lived in the same home, provided day care or had some other similar arrangement — you may be entitled to reasonable visitation rights. The court determines if that visitation is in the best interests of the child.

If you have not had that special relationship with the child, then the court will consider whether these six factors apply:

  1. The parents were never married.
  2. You’re a paternal grandparent, and paternity has been established.
  3. The child has not been adopted.
  4. You have maintained a relationship or attempted to do so but have been prevented by the parent who has legal custody.
  5. The grandparent is not likely to act in a manner that is contrary to a decision made by a parent that is related to the physical, emotional, educational, or spiritual welfare of the child.
  6. Visitation is in the best interest of the child.

In cases where the grandchild’s parents are married to each other, the court is not likely to disagree with the parents’ wishes unless you meet the special relationship requirements.

Legal remedies to enforce grandparents' rights
If you have that sort of relationship or find that the six factors apply to you, you can petition your family court for visitation. In Wisconsin, your case will come before a court commissioner or judge who will determine whether you meet the requirements of the state statute and whether visitation is in the best interest of the child. Courts can and do also consider the wishes of the child in this process although those wishes never drive the decision.
There is also a guardianship statute that may provide visitation rights if a parent is deceased. The surviving parent has to have notice and again the court will determine if visitation is in the best interest of the child. This type of action is brought under a guardianship action.
If you’re struggling with such visitation issues, it’s best to try to work it out with the parents directly before seeking legal remedies. Oftentimes, family counselors can help bring people together, reestablishing expectations and definitions for ‘family’ among your relations. Should both those approaches fail, the law can provide a definitive solution.
By Sonja Davig, family law attorney at Johns, Flaherty & Collins. For more information on grandparents' rights in Wisconsin, contact her at 608-784-5678.


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