By Attorney Max Stephenson

Families can be complicated, and this means that matters of family law can also involve a variety of complex issues. Divorce and child custody cases often result in contentious disputes, and when issues such as visitation rights of grandparents or other third-parties are added to the mix, they can be difficult to resolve. Parents and grandparents should be sure to understand their rights in these situations. 

Constitutional Rights

Parents’ right to raise their children without government interference is protected under the 14th Amendment of the U.S. Constitution, which generally prohibits government interference with a person’s liberty without due process. An award of visitation rights to a third party—including grandparents—over a parent’s objections interferes with a parent’s constitutionally protected right to make decisions regarding the “care, custody and control” of his or her children (Troxel v. Granville). The only thing that may override this right is if visitation rights to a third party is found to be “in the best interests of the child.”

It was based on this constitutional right that the Wisconsin Supreme Court recently vacated an earlier circuit court’s verdict regarding the visitation rights of a grandmother. The decision in the case of Michels v. Lyons was delivered on May 24, 2019. The lower circuit court had granted the grandmother’s petition for visitation, despite finding that the child’s parents were good and fit parents and despite the fact that both parents objected to the grandmother’s visitation rights.

The Wisconsin Supreme Court overturned the original verdict, citing that the grandmother had failed to present clear and convincing evidence that the parents’ decision to disallow the grandmother’s visitation rights was not in the child’s best interest. Therefore, the decision was unconstitutional.

Wisconsin’s Grandparent Visitation Statute

In the case of Marriage of Meister v. Meister in 2016, the Wisconsin Supreme Court ruled that a grandparent, great-grandparent, or step-parent who files a petition for visitation rights does not have to prove that he or she “has maintained a relationship similar to a parent-child relationship with the child” (Wis. Stat. 767.43(3)), which remains a requirement for other persons wishing to file for visitation rights (Wis. Stat. 767.43(1)).

However, grandparents still need to meet specific criteria to file for visitation. A court may grant visitation rights if all of the following are true:

  • The child was born to unmarried parents, and the parents have not subsequently married each other.
  • If the grandparent seeking visitation is the parent of the child’s father, the paternity of the child has been established, either under Wisconsin law or in another jurisdiction.
  • The child has not been legally adopted.
  • The grandparent has maintained or attempted to maintain an ongoing relationship with the child, but one or both of the parents have prevented the grandparent from doing so.
  • The grandparent is not expected to act in a way that is contrary to decisions made by the child’s parent or in a way that is detrimental to the child’s physical, emotional, or educational well-being.
  • Visitation with the grandparent would be in the best interests of the child.

In addition, the Wisconsin Supreme Court has recognized that visitation may be ordered in cases that do not meet these specified criteria if the court determines it is in the best interests of the child while simultaneously keeping in mind a fit parent’s idea of appropriate visitation. 

Divorce

As mentioned above, Wis. Stat. 767.43(1) allows a court to grant child visitation rights to “another person,” including—but not limited to—a grandparent, step-parent or great-grandparent, “who has maintained a relationship similar to a parent-child relationship with the child.” These rights may be granted after the filing of “an underlying action” affecting the family unit, such as divorce, annulment, legal separation, or the death of one or both parents. As always, when determining visitation rights in these cases, the court’s goal is to protect the best interests of the child.

Contact a Milwaukee Family Law Attorney

No two families are alike, and when it comes to family law, no two cases are identical. You need a law firm that has the experience to settle your case to your satisfaction while keeping the best interest of children at the forefront. Contact the Milwaukee, WI grandparent visitation lawyers at Gimbel, Reilly, Guerin & Brown, LLP today by calling 414-271-1440.

Sources: 

After Michels v. Lyons, What Visitation Rights Do Grandparents Actually Have?

https://docs.legis.wisconsin.gov/statutes/statutes/767/V/43

https://docs.legis.wisconsin.gov/misc/lc/information_memos/2016/im_2016_05