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Grandparents’ Rights After a Divorce in Wisconsin

Child Visitation Rights

Parents have a constitutional right to raise their children free from government interference. However, that right only exists for “intact families”—once an action threatening the integrity of the family arises (divorce, birth out of wedlock, death of a parent), the government can step in to ensure the children’s best interests are protected. This can include the children’s right to an ongoing and meaningful relationship with grandparents.

In the context of grandparent visitation, the term “visitation” means to take a child away from his or her usual abode and to host them as a guest. This term is similar—but not the same—as parental visitation.

Grandparents cannot petition for “custody” which is the right to make major parenting decisions for the child. Custody is vested solely in the parents and any grandparent that is granted visitation must make decisions that are consistent with the parents’ custodial decisions. Failure to do so, can negatively impact their visitation rights.

Grandparents’ Rights During & After the Divorce

There are two avenues through which grandparents can pursue visitation rights with their grandchildren—and two (big) roadblocks that will prevent them pursuing visitation.

First, grandparents can pursue visitation in the following circumstances:

• When one or both parents of the child are deceased: The grandparents must only give notice to the child’s surviving parent (or other custodian) by filing a Petition requesting visitation. The court will only grant the visitation if it is in the child’s best interests.
• When the child’s parents are both still alive but were never married to each other: The grandparent must prove that:
  • He or she has maintained a relationship with the child (or has tried to maintain one but was prevented from doing so by the custodial parent(s));
  • The grandparent is not likely to act contrary to decisions made by the custodial parent(s)
  • That the visitation is in the child’s best interests

*If the grandparent is seeking visitation of a non-marital child and is a parent of the child’s father, paternity must be established before the grandparent can seek visitation. 

Grandparents can NOT pursue visitation in the following circumstances:

• When the parents are both alive and are married to each other.
• When the parents are both alive and were married to each other but are now divorced.

In both of these instances, there is no recourse for obtaining court-ordered grandparent visitation. Grandparents are entirely beholden to the parents’ decisions. Married parents (and those who were formerly married but are since divorced) have the right to restrict or limit their children’s relationship with grandparents.

What are reasonable visitation rights?

Short Answer: Whatever the court deems is reasonable.

Reasonable grandparent visitation rights are whatever the court determines is reasonable under the circumstances. The court has a lot of latitude to craft an arrangement that is in the best interests of the children.

• Courts have been careful to avoid establishing grandparent visitation schedules that mimic the kinds of visitation schedules separated parents often have. There is an implication in the law that “sharing placement” with grandparents is “too much.”
• Therefore, it is rare to see a grandparent visitation schedule for alternating weekends or alternating holidays.
• The courts have also held that, whenever possible, grandparent visitation should not usurp a parent’s placement time. For example, if a parent works during the day, it may be reasonable for the grandparent to have visitation with the child while the parent is at work because that would not interfere with the parent’s ability or opportunity to parent the child. But, if the parent works during the week, it may be unreasonable to establish grandparent visitation at night or on the weekends when that is also the only time available for the parent to see his or her children.

Parents Rights Against Grandparent Visitation Rights

A fit parent will always have superior rights over any grandparent.

Exceptions to this general rule would be:

• When the parent is unfit—in which case, grandparent visitation may only be a stopgap on the way to a guardianship (where the grandparent officially takes over the parenting role with court approval)
• When the grandparent had a “parent-like relationship” with the child. For example, courts are prone to grant more liberal grandparent visitation rights if the grandparents provided daily daycare services while the parents worked or if the children frequently spent the night at the grandparents’ house such that it would be detrimental to the children to undermine that routine or if, for example, a child lived with a grandparent during a parent’s incarceration—it may be harder for the parent to terminate the grandparent’s relationship with the child.

Can a parent deny a grandparent visitation with a grandchild?

Short Answer: Yes—unless there is a grandparent visitation order in effect.

There is a presumption that a fit parent makes decisions in his or her children’s best interests. Therefore, if a parent chooses to limit or restrict a child’s relationship with a grandparent, the courts must assume that this is what is best for the child.

If a grandparent disagrees, he or she can Petition for grandparent visitation. However, the grandparent must prove not only that the proposed grandparent visitation is in the child’s best interests but must prove first and foremost that the parent’s decision to restrict the child’s relationship with the grandparent is harmful to the child.

However, once a grandparent visitation order is in effect, the parent must abide by it. If he or she withholds the child from the grandparent, the parent can be held in “contempt” for violating the court order and can be fined, sanctioned, or even imprisoned.

Can grandparents sue for visitation?

Short Answer: Yes.

A grandparent who wishes to establish a court-ordered visitation schedule can file a Petition in the civil court of the county where the children reside.

Talk to a Child Visitation Lawyer

If you’re not receiving the time you feel you deserve as a grandparent, schedule a free consultation with one of our visitation attorneys at Karp & Iancu today.