Divorcing parents, or parents who have never wed, will sometimes attempt to prevent grandparents from seeing or spending time with the grandchildren. However, grandparents have recourse to try establishing visitation rights through the court process. And even though requesting visitation has become easier for grandparents to do, the nature of these visitations can be complex.
Any grandparent wishing to establish visitation rights should begin by reviewing Wisc. Stat. 767.43, which provides for an easier way to request such rights. Grandparents need not worry about having to cast themselves as a third-party, as Wisc. Stat. 767.43(3) exempts grandparents from having to establish a parent-child relationship.
Under 767.43(3), a court may grant reasonable visitation if the following is determined:
a. The child’s parents have not married each other.
b. Except as provided in sub. (4), visitation may be granted if the paternity of the child has been determined under the laws of this state or another jurisdiction, where the grandparent filing the petition is a parent of the child’s father.
c. The child has not been adopted.
d. The grandparent has maintained a relationship with the child or has attempted to maintain a relationship with the child but has been prevented from doing so by a parent who has legal custody of the child.
e. The grandparent is not likely to act in a manner contrary to decisions that are made by a parent who has legal custody of the child, especially decisions related to the child’s physical, emotional, educational, or spiritual welfare.
f. The visitation is in the best interest of the child.
Unfortunately, as you navigate through the visitation statute, you may find not only a degree of vagueness in the language, but also little detail on how a grandparent may best seek visitation rights. The chief issue in establishing grandparent visitation is overcoming what’s called a steep burden. Case law has established that parents have a fundamental interest in the care and upbringing of their children. Furthermore, and in a highly visible case by family law practitioners in the State of Wisconsin, the Supreme Court upheld the presumption that parental decisions are most often favored as they relate to the children. The specific case in question is Michels v Lyons, 2019 WI 57 (May 24, 2019).
Therefore, the burden facing a grandparent is one of clear and convincing evidence against a parent or parents. This burden, if proven, mandates the circuit courts to a strict scrutiny of a parent’s fundamental interest to care and raise their child.
While grandparent visitation may be difficult to establish, your case may be successful, depending on your specific circumstances. In each grandparent visitation case, the courts must balance the best interest of the child against the parent’s right to raise their child. To determine if your case can overcome this burden, give us a call today to schedule your free consultation.