Grandparents Rights in Wisconsin

Grandparents seeking visitation will need to apply for custody and visitation if it is in the best interests of the child. In most cases, this is only granted when there is convincing evidence that both parents of the child are deemed unfit to care for their children, or if both parents pass away. 

According to Wisconsin law, grandparents are not entitled to visitation rights by default. In most cases, a grandparent's right to see their grandchildren is left to the discretion of the parents. However, there are some specific cases where they are allowed to have reasonable privileges for visitation if it is in the best interest of the child. This right is not guaranteed, and is dependent on the situation of the family for which the grandparent is asking for visitation.

Grandparents Rights and Responsibilities

Parents have the right to raise their children in whatever way they deem acceptable as long as they are in a safe, stable environment and their basic needs are being met. However, there are certain situations in which the grandparents have a reasonable expectation for visitation. If a grandparent can substantiate their claims, with clear and convincing evidence, that it is in the child's best interest that they have visitation, they would file a petition to request visitation with the court. 

In this petition, it is the grandparents' responsibility to prove that the parents' decision to deny the grandparents access to the child is not in the child's best interest. Once this is filed, a hearing would be scheduled to review the information provided by the grandparent. 

Constitutional Rights

Wisconsin Statute 767.43 [1], also known as the Grandparents Visitation Statute, outlines that grandparents, great grandparents, stepparents, or other individuals who have maintained a parent-child relationship with the child may be granted reasonable visitation rights if it is in the best interest of the child and the parents are given notice of the hearing. This has been established as a constitutional right.

The case of Michael v. Lyons in 2019 did make it harder for grandparents to obtain secure visitation rights because it put the burden of proof more heavily on the grandparents in order to maintain the standard that parents are allowed to raise their children as they see fit.

Guardianship

Guardianship is the procedure by which a person is appointed as a “guardian” to an underage or incompetent individual, referred to as a “ward”. The guardian is appointed in order to make medical or financial decisions on behalf of their ward.

In order to be granted guardianship, there must be substantial evidence of an extended abandonment of the child by the parents or other circumstances that have caused the parent to be incapable of fulfilling their duties as a parent. 

Grounds for Third Party Visitation

When a grandparent, stepparent, or individual who has a parent-like tie to the child, applies for visitation rights, this is called “third party visitation”. This applies to children outside of a marriage as well. For instance, if a non-married couple had a child who was often looked after by the grandparents, the grandparents could apply for third party custody rights.

As is true in all visitation and custody cases, criminal history and one's past relationship with the children will have a big effect on the outcome of the ruling. The following conditions must be met in order for the court to consider awarding visitation rights:

Unmarried Parents, Divorce, or Legal Separation

The parents of the child must never have been married, divorced, or legally separated in order for the court to consider third party visitation. 

Death of a Parent

In situations where one parent is deceased, the grandparent can apply to receive formal visitation with the child if they already have an established relationship with the child. 

Unfit Parent Law and Legal Definition

When a party's ability to parent is questioned, the court will look to ensure that the children's safety is maintained. When a parent has a documented history of being neglectful, abusive, or is otherwise unable to care for the child, the Wisconsin court could find that the parent is unfit or unable to care for the child.

Wisconsin Child Custody / Visitation forms

The Wisconsin State Law Library[2] contains any required forms that you will need in order to file for custody or visitation. The forms that you will need and the filing fee may vary depending on the county you are filing in.

Frequently Asked Questions

Do grandparents have legal rights in Wisconsin?

Unfortunately, Wisconsin law tends to heavily favor the parent's wishes in raising their child, meaning that if they choose to stop the relationship between you and your grandchildren, you may have little recourse.

When it comes to visitation and custody rights in the family court system in Wisconsin, there's only one thing that truly matters: the children's best interest. If choosing to petition the court for visitation, it's important to prove that a lack of relationship with the children would be damaging to them.

How can grandparents get custody of grandchildren in Wisconsin?

The courts are legally obligated to preserve a parents right to raise their child as they see fit. That being said, the court may award visitation rights to grandparents who can provide substantial evidence that is in the child's best interest to award the grandparents custody or visitation rights. This means that they must have documentation that the parent is unfit and unable to properly care for the child or other compelling evidence that suggests awarding the grandparents custody is in the child's best interest.

Do grandparents have legal rights to see grandkids? 

Grandparents have the right to ask for visitation, but it is not guaranteed. If they have a strong relationship with the child that is being hindered by the parent, and they have evidence that proves that it is in the best interest of the child for the grandparent to have visitation rights, then they can file a petition and submit it to the court so that the petition may be reviewed by a judge. 

What state has grandparent rights? 

Grandparents rights are viewed differently state by state. Currently, all 50 states have some sort of grandparent visitation statute, though some may be more restrictive than others. For instance, while Wisconsin recognizes grandparents rights as constitutional rights, they still hold the parents rights as superior, as long as the child is safe and their needs are being met. Be sure to research your state's policies on grandparents rights when looking into child custody and visitation. 

Can grandparents sue for visitation rights in Wisconsin? 

In Wisconsin, Grandparents are not entitled to visitation rights by default. In most cases, a grandparent's right to see their grandchildren is left to the discretion of the parents. However, there are some specific cases where a grandparent or another third party, such as a step-parent, could petition the court for visitation.

If you're applying for visitation, it's important that you can prove you had a previous and significant relationship with the children already. For instance, if you visited your grandchild every Sunday before the divorce and then were suddenly stopped from continuing that relationship after the parents split up, a judge may deem that your visits were part of the child's routine and should continue.

Can a parent deny a grandparent visitation? 

Unfortunately, Wisconsin law tends to heavily favor the parent's wishes in raising their child, meaning that if they choose to stop the relationship between you and your grandchildren, you may have little recourse.

Additionally, in a 2000 Supreme Court case [3], it was largely determined that a parent should have the ultimate say in their child's upbringing. This ruling sets a precedent that potentially complicates rulings made in Wisconsin and every other state.

What is considered an unfit parent in Wisconsin? 

An unfit parent is one who demonstrates a documented history of substance abuse, mental instability, abandonment, child neglect, or criminal history, and other factors substantiated with proof. 

If you are concerned that your child is in imminent danger, the first point of contact is the police. An attorney can assist you once you're able to verify that your children are safe.


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