University of Wisconsin - Extension

National headlines this summer about a Supreme Court case involving grandparents' visitation rights made it sound like grandparents across the country lost in their bid to keep in touch with grandchildren.

But a Madison attorney familiar with family law says grandparents in Wisconsin shouldn't be affected by the Troxel vs. Granville Supreme Court Case, because laws in Wisconsin are different than those in Washington State, where the Supreme Court case originated.

"All the Supreme Court case really said is that parents shouldn't have to prove in court that a relationship with their children's grandparents is harmful," says attorney Theresa Roetter, who works for Stafford Rosenbaum LLP, a Madison law firm. "The Supreme Court's ruling focused on a parent's right to decide what is best for their children."

Roetter says some lower courts have since misinterpreted the case. "There is a general perception that the Troxel case prevents all grandparent visitation actions. That is simply not true. Because Wisconsin laws don't put the burden of proof on parents, our current grandparent visitation statues should not be affected."

In Wisconsin, there are three legal recourses a grandparent can use to petition the courts for visitation. They are:

• Chapter 767 in Family Court. Roetter says this law can be applied when a family unit is breaking apart, such as during divorce, or wasn't intact to begin with, such as parents who never married. In those cases, a grandparent can file a petition to get periods of physical placement, which are sometimes referred to as visitation rights.
• Chapter 880, the Guardianship statutes. These laws can be used when one parent dies to allow grandparents or step-parents to petition for visitation.
• Chapter 48, the Children's Code. If a stepparent or relative adopts a child, a grandparent who has maintained a relationship with the child similar to a parent-child relationship during the preceding two years can petition the court for visitation.

"The important thing for most grandparents is to maintain a relationship with the child," Roetter says. "If a grandparent believes that the relationship between the grandparent and the child is at risk of being severed, the best way for the grandparent to address the problem is to first try to work with the parent or parents to stay in the child's life. If there is a concern about the welfare of the child, the best way to keep an eye on the situation is for the grandparent to remain involved. Even if the child and their parents move across the country, grandparents should try to maintain phone contact and write to the child."

Roetter also says it's important to consult an attorney immediately if grandparents are having difficulty seeing their grandchildren. She says the longer grandparents wait after being separated from their grandchildren, the weaker the case and the harder it is to win in court.

She recommends looking for an attorney with experience in children's law matters who knows the family court system. An attorney well-versed in children's law should be able to give you possible options for building a case.

"These cases depend on both the best interests of the child and the grandparent's ability to prove the details of their relationship with their grandchildren," she says. "Children should be permitted to maintain relationships with important people in their lives."