The Battle for the Best Interests of the Grandchild

Judith Sperling Newton, JD
Madison, WI

I. Child Protection

  1. Why is it so hard to protect children?

    Under the law, children have long been regarded as the property of their parents. State statutes and case law nationwide protect the constitutional rights of parents, often disregarding the rights of children. What is now common knowledge among professionals and the general public with respect to the importance of loving, appropriate child rearing, is generally not reflected in the law.

  2. What can grandparents do to protect their grandchildren?

    Grandparents should make themselves heard individually and as a group. Each and every grandparent should contact his or her legislators to support pending bills which protect children and to encourage the creation of laws to make it easier for those who care about children to protect them when the parents are not willing or able to so. Grandparents should not assume that they cannot protect their grandchildren; they should obtain all the information available to determine whether they may be able to take actions which could be helpful. Although child protection litigation is emotionally and financially draining, we are more and more obtaining results from the courts which benefit young children.

II. Custody

  1. What is legal custody?

    Legal custody confers the right and responsibility to make major decisions concerning the child, except with respect to specified decisions as set forth by the court or the parties in the final judgment or order. Sec. 767.001(2), Stats. Major decisions include, but are not limited to, decisions regarding consent to marry, consent to enter military service, consent to obtain a motor vehicle operator's license, authorization for nonemergency health care and choice of school and religion. Sec. 767.001(2m), Stats.

  2. What is the standard for transfer of legal custody to a grandparent?

    As between parents and grandparents, a parent is entitled to custody of his or her child unless the parent is either unfit or unable adequately to care for the child or there are compelling reasons for awarding custody to a grandparent. Compelling reasons include abandonment, persistent neglect of parental responsibilities, extended disruption of parental custody, or other similar extraordinary circumstances that would drastically affect the welfare of the child. Barstad v. Frazier, 118 Wis. 2d 549, 568 (1984).

III. Visitation

  1. Why should courts grant visitation to grandparents?

    Children often form close bonds with people other than their biological or adoptive parents. A grandparent will in many cases be a primary parent-figure in the child's life. Sometimes parents have problems such as alcoholism, drug addiction, mental or physical illness, poor judgment, or immaturity, which prevent them from caring properly for their children. Grandparents often step in to protect and nurture their grandchildren.

  2. When do courts grant visitation to grandparents?

    1. In the past, Wisconsin courts frequently refused to override determinations made by "intact families" regarding children's relationships with third parties. Van Cleve v. Hemminger, 141 Wis. 2d 543 (1987). Grandparents had no standing to ask a court for visitation with the child, even when preserving the child's relationship with his or her grandparents was in the child's best interest. In re Marriage of Soergel, 154 Wis. 2d 564 (1990); In re Interest of Z.J.H, 162 Wis. 2d 1002 (1991).

    2. Current law allows children to maintain relationships with grandparents under the following circumstances:

      1. Under sec. 767.245, Stats., a grandparent or great-grandparent may petition for visitation. Weichman v.Weichman, 50 Wis. 2d 731 (1970); Ponsford v. Crute, 56 Wis. 2d 407 (1972). Although this statute appears to give courts broad authority to grant visitation to grandparents, the courts have developed a two-part test which limits grandparents in requesting court-ordered visitation. First, there must be an underlying action affecting the family (i.e., a divorce, separation, paternity action, etc.) Second, the child cannot be a member of an "intact family." Van Cleve v. Hemminger, 141 Wis 2d 543 (1987); In re Interest of Z.J.H., 162 Wis. 2d 1002 (1991); Cox v. Williams, 177 Wis. 2d 433 (1993). When the family is not "intact," court intervention is justified on the grounds that ordering visitation with grandparents could help to mitigate the trauma and impact of a dissolving family relationship. Van Cleve v. Hemminger, 141 Wis. 2d 543, 415 N.W. 2d 571 (1987). The two-part test, however, leaves some children's relationships with their grandparents vulnerable when the parents refuse to allow contact under circumstances where there is no underlying court action. As such, the legislature and the Wisconsin Supreme Court have taken steps to protect these children.

      2. The legislature has enacted statutes to protect children where:

        1. a parent has died and it is in the best interests of the child to have visitation with grandparents (the deceased parent's parents). Sec. 880.155(2), Stats.; and

        2. a parent's rights have been terminated, and the child has been adopted by a relative, it is in the best interests of the child to have visitation with the parents of the parent whose rights were terminated (the child's grandparents), and these grandparents had maintained a parent-child relationship with the child within two years prior to the filing of the petition requesting visitation. Sec. 48.925(1), Stats.

      3. The court has taken a giant step toward protecting the rights of children to continue their relationships with grandparents-in-fact (people who may not legally be the child's grandparents but who have in fact acted as his or her grandparents). In re Custody of H.S.H-K, 193 Wis. 2d 533 (1995). These grandparents-in-fact could be foster grandparents or parents of a parent whose parental rights have been terminated and the provisions of sec. 48.925(1) do not apply because there has not been a subsequent, relative adoption. Under the H.S.H-K decision, a grandparent-in-fact is entitled to visitation if such visitation is in the child's best interests and (1) the parent consented to and fostered the grandparent-in-fact's establishment of a parent-like relationship with the child; (2) the grandparent-in-fact and the child lived together in the same household; (3) the grandparent-in-fact assumed the obligations of parenthood, by taking responsibility for the child's care, education, and development, and contributed toward the support of the child, without expectation of financial compensation; and, (4) the grandparent-in-fact's was in a parental role for a length of time sufficient for the child to have established a bonded, dependant relationship, parental in nature. Additionally, the grandparent-in-fact must show that: (1) a triggering event occurred where the parent interfered substantially with grandparent-in fact's parent-like relationship with the child; and (2) the grandparent-in-fact sought court-ordered visitation within a reasonable period of time after the interference.

IV. Guardianship

  1. Who is subject to guardianship?

    1. All minors are subject to guardianship.

    2. The court may appoint a guardian of the person of any minor resident of the county or of a nonresident under extraordinary circumstances requiring medical aid or the prevention of harm to his or her person. Sec. 880.03, Stats.

  2. Who are preferred guardians?

    If one or both parents of a minor is suitable and willing, the court must appoint one or both of them unless the proposed ward objects. Sec. 880.09, Stats.

  3. Which court has jurisdiction?

    The juvenile court has exclusive jurisdiction over the appointment and removal of a guardian of the person for a child under chapters 48 and 880.

  4. What are the provisions for guardianship under chapter 880?

    1. A guardian is a person appointed by a court to have the care, custody and control of the person of a minor or the estate of a minor. Sec. 880.01(3), Stats.

    2. Any person may petition for the appointment of a guardian of a minor. Sec. 880.07, Stats.

    3. If a person is in need of a guardian, the court must appoint one or more guardians but not more than one guardian unless they are husband and wife. Sec. 880.12(1), Stats.

  5. What are the provisions for guardianship under chapter 48?

    A guardian appointed under chapter 48 has the duty and authority to make important decisions in matters having a permanent effect on the life and development of the child and the duty to be concerned about the child's general welfare, including but not limited to: (1) the authority to consent to marriage, enlistment in the U.S. armed forces, major medical, psychiatric and surgical treatment, and obtaining a motor vehicle operator's license; (2) the authority to represent the child in legal actions and make other decisions of substantial legal significance concerning the child by not the authority to deny the child the assistance of counsel as required by chapter 48; (3) the right and duty of reasonable visitation of the child; (4) the rights and responsibilities of legal custody except when legal custody has been vested in another person. Sec. 48.023, Stats.

  6. What is the standard for granting or terminating a guardianship?

    The Barstad standard (see II., 2, pp. 2 and 3) applies when a parent contests the granting or requests the termination of a guardianship to a grandparent. In re guardianship of Jenae K.S., 196 Wis. 2d 16 (Ct. App. 1995).

  7. What are the provisions for temporary guardianship?

    The court may appoint a temporary guardian, based on the petition and without a hearing, if the court finds that the welfare of a minor requires the immediate appointment of a guardian. The temporary guardian's appointment may not exceed sixty (60) days, with one extension of sixty (60) days. Sec. 880.15, Stats.

  8. What are the provisions for standby guardianship?

    A standby guardianship is granted to protect a child in the event of the incapacity or death of the child's parent or guardian.

    1. A standby guardian may be appointed for a minor at any time.

    2. A standby guardianship of a minor is not applicable so long as the minor has one living parent who is willing and capable of exercising legal guardianship.

    3. The standby guardianship becomes effective upon the death, incapacity or resignation of the initially appointed guardian. Sec. 880.36, Stats.

V. Adoption

  1. Are grandparents given preference in a proposed adoption?

    Grandparents are treated as any other people seeking to adopt a child; in Wisconsin they are not given any preference to adopt. Grandparents must participate in a homestudy by a licensed agency and they must receive clearance from all appropriate departments with respect to past criminal behavior and/or incidents of child neglect or abuse. Children can be placed directly into the home of a grandparent without a court order, prior to a termination of parental rights, where non-relatives must allow the child to be in foster care or with the parent until the parents' rights are terminated.

  2. Can grandparents stop a proposed adoption of a grandchild?

    In Wisconsin, grandparents do not have standing to intervene in a proceeding relating to the termination of the parental rights of the parents of their grandchild or the subsequent adoption. In re the Interest of Brandon S.S., 179 Wis.2d 14 (1993). If grandparents live in another state and the proceedings are in Wisconsin, those grandparents are entitled to intervene. Sec. 822.10, Stats. Grandparents who have maintained a relationship with a grandchild are entitled, however, to receive notice of termination of parental rights and adoption proceedings so that they can appear and state their position to the court with respect to the outcome of the case.

Copyright © 1998 Judith Sperling Newton.

stars icon For technical assistance:
Library Technology Group
General Library System
University of Wisconsin-Madison