Grandparent Visitation When a Parent Has Died

June 15, 2009

Many states have adopted laws under which grandparents who have been estranged from their grandchildren may obtain formal visitation rights to see them.  These laws are a variation of the concept that Courts may intervene and allow such visitation even if it occurs over the objection of the custodial parent. 

Wisconsin law provides conditions under which grandparents may be able to obtain formal grandparent visitation rights with their grandchildren.  One example of this is where one of the parents has died.  In that unfortunate situation, a grandparent has the right to petition the Court for visitation rights under a special statute, Section 54.56.   If, after a hearing, the Court finds that it would be in the best interests of the child to have visitation with the grandparent, some amount of visitation can be granted. 

Most grandparents use the legal system as a last resort, and for good reason.  In a contest between a parent and a grandparent, the parent’s judgment is given great deference.  Many times, grandparents will find that they are able to see their grandchildren more often by simply trying to maintain a good relationship with the surviving parent, rather than running to the courthouse.

The cases that end up in litigation tend to be those where the relationship between extended family members is already irreparably damaged.  These cases always seem to be very difficult for everyone involved.   Unfortunately, there are no standard formulas or guidelines for judges to follow, and no magic solutions.   Parents have a constitutionally protected right to raise their children as they see fit.  But when a child has already lost a parent, should she lose her grandparents, too? 

Whether or not a grandparent has a “good” case for visitation is dependent upon the facts and circumstances.  Good resources for grandparents wanting to learn more about their potential rights include an informational pamphlet published by the UW-Extension, and the AARP website.  An experienced Wisconsin family law attorney can provide legal advice specific to a particular situation.

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