A Guide to Grandparent Rights and Visitation

The ability of grandparents to have contact with their grandchildren is often an informal, private matter. It can become a legal issue when there is a death of the child’s parent, a breakdown in the relationship between the parents, or a breakdown in the relationship between the grandparent(s) and parent(s).

A grandparent who is not satisfied with the amount of contact he or she has with his or her grandchild will want to know his or her “rights.” The Wisconsin Legislature has outlined specific circumstances under which a court can grant an order allowing the grandparent(s) to have visits with the grandchild(ren).

Wisconsin Statute § 767.43 refers generally to “visitation rights of certain persons,” including grandparents, great-grandparents, step-parents or a “person who has maintained a relationship similar to a parent-child relationship with the child.” Subsection three (3) of this statute applies specifically to grandparents, and allows the court to grant “reasonable visitation rights” with a child as long as all of the following six criteria apply:

1. The child’s parents are not and were never married.
2. If the grandparent filing the petition is a parent of the child’s father (or paternal grandparent), paternity has been determined, meaning that the father of the child has been legally established.
3. The child has not been adopted.
4. 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 at least one of the parents.
5. The grandparent is not likely to act in a manner that is contrary to decisions that are made by a parent, related to the child’s physical, emotional, educational or spiritual welfare.
6. The visitation is in the best interest of the child.

There are three significant things about the “Special Grandparent Visitation Provision” in Wis. Stat. § 767.43(3). The first is that it does not provide relief to grandparents when the parents are married and operating as an intact family. The second is that it does not provide relief to grandparents when at least one of the parents is out of the picture (due to non-involvement or death), and the child has been adopted by another adult(s). The third is that it treats the grandparents who meet the above six criteria differently than other third parties who have to establish that they have maintained a parent-child type of relationship with the child. See Wis. Stat. § 767.43(1).

The fifth criteria – that the grandparent is not likely to act in a manner contrary to the decisions made by the parent – is an acknowledgement that parents have a constitutional right to the care and custody of their children. In the absence of limited circumstances, parents and parents alone have the right to make decisions about their children’s physical, emotional, educational, or spiritual welfare. A grandparent who is unwilling to respect that authority is going to have a hard time obtaining visitation rights.

Whether a petition is filed by a grandparent who meets the criteria in Wis. Stat. § 767.43(3), or another third party who files a request for visitation of a child pursuant to Wis. Stat. § 767.43(1), the Court is instructed to consider and determine whether the visitation is in the best interest of the child. In these actions, a Guardian ad Litem is appointed to represent the best interest of the child. The Guardian ad Litem will recommend to the court whether or not a visitation schedule with the grandparents is in the child’s best interest, and what that schedule should be. To make this recommendation, a Guardian ad Litem will speak with the parents, the grandparents or other third-party filing the petition, and potentially the child(ren) depending on age.