Giving Custody Rights to Other Relatives Or Others

The first people who will be affected by divorce are your children. They are the ones who will deal with different matters concerning the break up of their parents. They are also the parties who will be affected with the settlements during the divorce proceedings. The divorce cases include the adjudication of the properties of the husband and wife as well as the order for child custody and support.

In general, visitation rights are permitted to the parents, grandparents, great-grandparents or step-parents of children based off Wisconsin statute 767.245. However, there are some exceptions.

Family attorneys will confirm that family courts put a high regard to the interests of the children. This is the rationale why judges grant the custody over their persons to the party who is shown to have the capacity in promoting the welfare of the children. There are several factors that the court considers before it awards the custody to a certain party.

As decided by the Supreme Court in various cases, child custody may be given not only to the biological parents, but also to third parties[1]. However, it is imperative that the “third party” must have a legal standing in the case. An example of this is an adoptive parent who may gain custody upon showing that he or she has a good relationship with the children. Another example is a grandparent who is allowed to take custody over their grandchildren. These situations arise if the judge sees that none of the biological parents deserve the custody.

When an adoption to a third party takes place, the child no longer has any legal ties to the family from which he or she was adopted. This was illustrated in the case of Soergel v. Raufman 154 Wis. 2d 564, 453 N.W.2d 624 (1990)[2]. In this case the parents of the father who relinquished his parental rights began an action for visitation. The court found that under adoption laws, they had no rights to the child. They appealed, and the court of appeals affirmed. Perhaps you could simply speak to the father and request visitations personally. Either way, I suggest that you speak to an attorney and provide further detail on the case.

Nevertheless, the general rule is that the rights of the parents are always superior to that of the non-parents. This is what the court calls as the “superior rights doctrine.” The assumption under this doctrine is that the parents have a more special and unique bond to their children. This doctrine also puts emphasis on the constitutional right of every parent for due process.

If you want to make sure that the custody is awarded in your favor, do not forget to hire the services of a lawyer. You need to know the grounds that may make you lose in the child custody case. Do not forget to present testimonial and object evidence to convince the court that among the parties interested in getting the child custody, you are the most deserving. Since the law presumes that a biological parent has a better right, working on the proceedings will be easier for your part. For a guaranteed win, inquire with your lawyer for every step that you will take. This is to prevent you from making a big legal mistake.

What are Supervised Visitation Orders?

In cases involving child custody and support, the judge usually grants shared custody between the parents. As much as possible, both the mother and father are given the same opportunity to exercise their rights and fulfill their obligations to their children. In deciding who takes care and provides for the needs of the latter, an attorney in Milwaukee will confirm that their best interest is always put into consideration. The officer of the court will look into the different attending circumstances before rendering any decision.

However, there are instances when the family court may order that a parent shall not be given visitation rights or if given, there is a requirement for supervised visitation[3]. In the first scenario, the non-custodial parent is not given right to either visit the children nor communicate to the latter. The court can also order for the issuance of a temporary restraining order to prevent the parent from getting near the children involved. In the second situation, the non-custodial parent is awarded visitation rights but the same is limited. He or she can only see the children when there is a third party supervising the meeting. It is also mandated that the meetings take place at public areas like the parks, restaurants or malls.

The judge will consider various factors before it will issue an order. If there is a history of harm or violence in the family perpetuated by the involved parent, the judge will most likely order for a supervised visitation. This is to ensure that the child will not experience any harm from the non-custodial parent. Another factor that may affect the order is the relationship of the parent to the children. If it is shown that the parent was negligent in taking good care of the children, an order for supervised visitation may be issued.

It must be noted that any party may request for the modification of custody orders. For example, if the judge issues an order that a parent is given only supervised visitation rights, there is a chance that it will be changed upon showing that the latter has already undertaken corrective measures to rectify the mistakes committed in the past. When the judge sees that there is already a substantial improvement in the attitude of the non-custodial parent, he may lift the order granting only a supervised visitation. There is just a need to show to the family court that the parent has become more responsible and reliable in dealing with his or her children.

In the case of F.P.R. v. J.M. (In re Custody of D.M.M.) 128 Wis.2d 265, 382 N.W.2d 73 (Ct. App. 1985)[4], an aunt received guardianship and then lost it. She requested visitation rights and the court did not allow her the rights. However, the court ruled that anyone with a parent-child relationship to a child could potentially have visitation rights, if it is in the best interest of the child and it is what the child wants.

Is It Possible to Get Visitation of a Stepchild?

Believe it or not, this question is not all that uncommon. The circumstances to each scenario can be unique, however.

The real question is, who has jurisdiction? If the father is living out of state, and the child is currently with him, then the state he lives in more than likely has jurisdiction. The closest relationship I can think of that would relate to this situation is the case of Thompson v. Thompson 129 Wis. 2d 348, 384 N.W.2d 713 (Ct. App. 1986)[3]. Despite the complexities involved in the case, one of the factors involved a state having jurisdiction, but deciding not to exercise that jurisdictional power. You do have rights as a stepparent, it's just a matter of understanding who has jurisdiction on the matter.

Is It Possible to Get Visitation Rights for a Niece or Nephew or Uncle and Cousin?

You can. It would be up to the courts to decide whether the visitations are justified. It also depends on how the law is translated during your proceeding.

There was a similar case in F.P.R. v. J.M. (In re Custody of D.M.M.) 137 Wis. 2d 375, 404 N.W.2d 530 (1987) (Reversing 128 Wis. 2d 265, 382 N.W.2d 73 (Ct. App. 1985))[4]. A situation took place where an aunt had informal custody for nearly 6 years. She vied for visitation, only to be denied by the trial court. Upon appeal, she was denied by the court of appeals. However, upon petition of the supreme court, the decision was reversed. This was based on the translation of discussed visitation rights by grandparents and “other parties” being inclusive of family members in your position.

Can the Court Restrict the Geographic Location of Visitations?

Absolutely. This is well within the discretion authority of a child custody court.

This is seen in the case of G.R.S. v. J.R.G. (In re Custody of L.J.G.) 141 Wis. 2d 503, 415 N.W.2d 564 (Ct. App. 1987)[5]. In this case, the circumstances were present and the court restricted visitation to Wisconsin. The mother appealed, and the court of appeals affirmed. Depending on the specifics of your case, the court might be able to restrict visitation.

Can I Request the Court to Limit Visitation Rights to Wisconsin?

If you feel it is not in the best interest of the child to go out of state, then there is a strong chance the courts will modify the visitation rights.

Limiting visitation rights was discussed in the case G.R.S. v. J.R.G. (In re Custody of L.J.G.), 141 Wis.2d 503, 415 N.W.2d 564 (Ct. App. 1987)[6]. In this case, the courts ruled that noncustodial parents can make certain visitation requests, but the court has the authority to limit visits to a particular geographic area. Visitation privileges, like custodial rights themselves, exist to promote the best interests of the child. That standard applies to the determination of what is reasonable visitation in a given case.

Is a Failure to Exercise Visitation Considered a Substantial Change in Circumstance?

The court will ultimately view this petition based on several factors. Some of these factors include comparing the factual inquiry when the award was made and present financial circumstances. The court would have to decide whether or not a financial change has occurred due to a failure of visitation. This is not very likely.

This is seen in the case of Peters v. Peters 145 Wis. 2d 490, 427 N.W.2d 149 (Ct. App. 1988)[7]. In this case, a mother also petitioned the court under similar circumstances. The court granted her a higher support award, but the husband appealed and the court of appeals reversed. The court of appeals asserted that, without proof that the father's lack of visitation resulted in a financial impact, no substantial change of circumstance could be proven.

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