Grandfather Knows Best?

Grandparent visitation has been an evolving field of law in Wisconsin.  Under Wis. Stat. Sec. 767.43, certain persons may petition the Court for reasonable visitation rights so long as they are able to show that they have maintained a relationship similar to a parent-child relationship and that reasonable visitation is in the best interest of the child.

First, what does it mean to be a certain person?  A “certain person” includes grandparents, great-grandparents, stepparents and any person who has maintained a parent-child relationship.

Second, how do you define a parent-child relationship?  Grandparents are often utilized as no-cost or low-cost caregivers for their grandchildren.  A grandparent could spend more waking hours with a grandchild than their own parent.  Does that rise to the level of a parent-child relationship?  These types of questions are fact dependent and vary from case to case.

In further consideration of a grandparent’s role in a child’s life, Wis. Stat. Sec. 767.43(3), carves out special considerations for a grandparent of a nonmarital child.  The most significant provisions are whether  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 and whether the grandparent is not likely to act in a manner that is contrary to decisions that are made by a parent who has legal custody of the child and that are related to the child’s physical, emotional, educational or spiritual welfare.

Petitions for visitation typically arise when a parent or parents do not agree with the type of visitation being sought by the grandparent.  In Michels v. Lyons, 2019 WI 57, the Supreme Court of Wisconsin recently narrowed the scope of this law to state that “a grandparent must overcome the presumption in favor of a fit parent’s visitation decision with clear and convincing evidence that the decision is not in the child’s best interests.”

Whether this decision applies to decisions which fall outside of Ch. 767 has yet to be determined.

Under Wis. Stat. Sec. 54.56, a grandparent may petition the Court for reasonable visitation if one or more of the minor child’s parents are deceased.  The Court may grant reasonable visitation, if the surviving parent has received notice of the hearing and if they determine it is in the best interest of the minor child.  Under this section, there is no requirement to show a parent-child relationship.

Under Wis. Stat. Sec. 48.925, a grandparent may petition the Court after the adoption of their grandchild only if they have maintained a relationship similar to a parent-child relationship within 2 years prior to the filing of the petition, if notice is provided to a party holding legal custody and if the Court determines all of the following:

• That visitation is in the best interest of the child;
• That the petitioner will not undermine the adoptive parent’s relationship with the child; and
• That the petitioner will not act in a manner that is contrary to parenting decisions that are related to the child’s physical, emotional, educational or spiritual welfare.

Whether a grandparent files under Ch. 767, 54 or 48, a key consideration is the best interest of the child.  This will involve appointing a third-party, typically an attorney, called a Guardian ad Litem who will be tasked with providing a recommendation based on statutory factors.

The three sections are all related but with significant differences based on whether the child has been adopted, whether a parent is deceased and whether a grandparent has maintained a parent-child relationship with the minor child.