Wisconsin is generally classified as a permissive state in the area of grandparents' rights. However, three separate statutes address visitation rights, and they are lengthy and not easy to understand.
Wisconsin law covers grandparents, great-grandparents, stepparents and other persons who have maintained a parent-child type relationship with the child in question. Generally speaking, grandparents are most likely to win visitation if the parents of their grandchild are unmarried or if a parent is deceased.
If the grandchild in question lives in an intact family, the chances of winning visitation are virtually nil.
Grandparents wishing to file for visitation in Wisconsin will almost certainly need comprehensive legal advice. The information here can provide only a broad outline of Wisconsin law. In addition, grandparents will need to document their relationship with their grandchildren as closely as possible. For more information, see Safeguarding Your Grandparents Rights.
An unusual provision of the Wisconsin statutes is that they specify that visitation cannot be granted to a person who has been convicted of the homicide of the other parent, although it is also provided that such a conviction can be ignored in the face of "clear and convincing evidence" that visitation is in the best interest of the child.
When Grandparents Have Acted as Parents
Wisconsin Statute 767.43 provides for "reasonable visitation rights" for grandparents, great-grandparents or other persons who have maintained a parent-child relationship with a child.
The court is directed to act in the best interest of the child and to consider the wishes of the child whenever possible. Such a petition can only be filed in conjunction with an existing family law action, such as a divorce. See full text of 767.43. (Scroll down if necessary.)
When a Grandchild's Parents Are Unmarried
A "special" grandparent visitation provision pertains to "non-marital" children.
This special provision does not require the presence of a parent-child relationship for a grandparent to win visitation. Instead, the grandparent must have maintained a relationship with the child or must have attempted a relationship with the child but been prevented from doing so by the child's custodial parent.
Grandparents filing for visitation under this provision do not have to file in conjunction with another court action. Instead they may file an independent suit. In addition to considering the best interest of the child, the court must also be satisfied as to the paternity of the child and must also find that the grandparent will abide by decisions made by the child's parents concerning the child's "physical, emotional,educational or spiritual welfare." See full text of 767.43. (Scroll down if necessary.)
When a Parent Is Deceased
Wisconsin Statute 54.56 provides for grandparent visitation when one or both of the child's parents are deceased. Grandparents may petition for visitation even if the surviving parent or person with custody is married. The adoption of a child of a deceased parent does not terminate the visitation rights of the parents of the deceased. See full text of 54.56.
(Scroll down if necessary.)
When a Grandchild Is Adopted
Wisconsin Statute 48.925 provides that in the case of the adoption of a child by a stepparent or other relative, "certain persons" have the right to request visitation. (In other cases, adoption terminates the rights of grandparents.) Those persons are relatives who have maintained a relationship similar to a parent-child relationship. The court must find that visitation is in the best interest of the child. In addition, the following findings must be made: that the petitioner will not undermine the relationship between the child and any parent or adoptive parent and that the grandparent will respect the decisions made by the child's parents concerning the child's "physical, emotional, educational or spiritual welfare." See full text of 48.925.
(Scroll down if necessary.)
The Impact of Case Law
In addition to the statutes addressing these situations, several court cases have had an impact on grandparent visitation in the state of Wisconsin. The most important case involving grandparent visitation is the U. S. Supreme Court case of Troxel v. Granville. In that case, the court ruled that parents are presumed to be acting in the best interest of their children, even when they deny contact between grandparents and grandchildren. That presumption can be rebutted, but the burden of proof is on the grandparents to prove that visitation is in the best interests of the child.
Following Troxel v. Granville, most states faced challenges that their grandparent visitation statutes were unconstituional. In Wisconsin, this occurred in the 2002 case of Roger D.H. v. Virginia O, tried in the Wisconsin Court of Appeals. The judges found that "special weight" must be given to a fit parent's decision about visitation, but that the circuit courts should continue to consider the merits of each case.
The 2010 case of Rick v. Opichka presented a slightly different constitutional challenge. The mother of the children in question was deceased, and her parents had been awarded visitation. The father challenged the decision under the equal protection principle, stating that visitation would not have been awarded had the children been living in an intact family. The court found for the grandparents, stating, "The death of a parent is the triggering event that creates a compelling state interest to protect a child’s best interests."
The 2011 case In re Paternity of E.M.B. is also considered a modest victory for grandparents' rights. In this case the grandparents raised a child for five years following the incarceration of his unmarried mother. When the father learned of his possible paternity, he sued for and won custody, then sought to reduce his child's contact with his maternal grandparents. The court upheld the grandparents right of visitation, finding that it was in the child's best interests to see the grandparents who had served as his parents for the first part of his life.