In a recent case, In re the Paternity of E.M.B. (available at http://www.wisbar.org/res/capp/2011/2009ap000488.htm), the Court of Appeals clarified the standards for grandparent requests for visitation with their grandchildren. In general,grandparents must overcome a parent’s Constitutional interest to care for her child, and the presumption that a parent is competent to know what is best for her child. The parent’s decision whether to allow contact between her child and the grandparents is granted “special weight.” In cases of intact or divorced families, the grandparents must prove the occurrence of some “triggering event” granting the state the ability to become involved in the family’s life. However, Paternity of E.B. holds that differing standards apply to paternal grandparents when the parents of the child never married. The “triggering event” step is unnecessary in these circumstances, removing a potential obstacle to grandparents seeking to establish or maintain a relationship with their grandchild.
The grandparent (and other non-parent) visitation law is not clear about the extent of visitation that can be granted. There is no minimum or maximum time limit. Therefore, although visitation is generally considered to be a somewhat limited concept, the statute itself does not prevent grandparents from requesting substantial visitation with their grandchildren. In Paternity of E.B., for example, the grandparents’ visitation ranged from 35% to 14% of the total available time. Prior to the action itself, the grandparents had full visitation of the child. The outcome of the request will depend in large part on the length and depth of the relationship, as indicated through heavily fact-based evidence. Child development experts may be necessary to determine and explain the depth of the bond (as they were in Paternity of E.B.), as well as the effects of severing that bond. Although these cases are usually viewed by the public from the grandparents’ perspective, there may certainly be valid reasons to deny or limit visitation.
Regardless of the side you are on, an attorney versed in family law can be indispensable in properly framing the argument and addressing expert testimony. Decisions like these are some of the most important in a family’s life, and should be handled properly. I have addresses these issues several times in Madison, Sauk county and throughout Wisconsin and encourage you to contact me to discuss your questions. Please share your comments below.
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