Tracy Hightower-Henne: On today’s podcast, we’re going to be talking about grandparents rights and visitation and how it can be affected sometimes by divorce cases and paternity cases and all of the things that grandparents can have. So with me today is Erin Wetzel, one of our other attorneys in our office, and we’re going to chat about all the things grandparents. Hello. What’s up with you, Erin?
Erin Wetzel: Well, it just kind of been obsessively watching the Olympics for the last week now, and it’s going to keep going for another couple of weeks, I guess.
Tracy Hightower-Henne: So you’re you’re awake at like two thirty in the morning?
Erin Wetzel: Well, not that early. I only wake up early for gymnastics, otherwise I’ll just have it spoiled and watch it later in the evening.
Tracy Hightower-Henne: Right. So Simone Biles is like a hot topic, right? Yeah, she
Erin Wetzel: Had some issues in the team final withdrew after the first vault. She was supposed to do two and a half twists on her vault and only did one and a half and she got lost. Kind of lost in the air. Didn’t really know where she was. I guess it’s this thing that gymnasts can experience called the twisties, where they just kind of lose the sense of where they’re at, where their bodies at. And and obviously the moves that they perform are super dangerous. And so if they don’t land right, they could get really injured. She actually posted a couple of videos last night of her training where it’s still happening to her and off a bar, but she was landing like the foam pit, and then she kind of took them down afterwards, so somebody must have told her to take them down. But so she dropped out of the all didn’t compete in that yesterday, and it’s not really looking good for the individual finals she qualified for all four. There’s a couple of days. The first one’s not until, I think, August 2nd. So it could reverse itself. But she said in the past, when it’s happened to her, it’s lasted like two weeks.
Tracy Hightower-Henne: You are obsessed. I am. Well, but interestingly, though, in relation to our topic today, they’re calling Simone Biles the grandma of gymnastics, right?
Erin Wetzel: Yes. Which is kind of comical because she’s twenty four. But in gymnastics terms, I’d say the majority of the athletes that compete in the Olympics for the women at least are like 16 to 18.
Tracy Hightower-Henne: Oh, I thought, I thought we were going to say, like, they’re like two and a half years old.
Erin Wetzel: Now you actually have to be turning 16 within a couple of months of when the Olympics is, I think, is what it is. So you have to be at least 16 or close to turning 16 to compete. And then it’s just so demanding on their body that usually, even if they try to come back for a second Olympics, it doesn’t happen. Like Nastia Liukin, who was the 2008 all around champ she tried to come back in 2012, didn’t make the team. Laurie Hernandez, who was on the team at the last Olympics and got a couple of medals. She tried to come back this year and wasn’t able to do it, so it’s kind of rare. Only a couple of women have recently done that. You know, Ali Raisman did it twenty twelve and twenty sixteen. And then Simone obviously was supposed to come back and she had been performing even better than before. She’s done all these new moves that no women have done before, and she was trying to perform a new move on the vault this Olympics, which would have been named after her. But in order to have the move named after you have to be the first one to successfully perform it in an international competition. So if she’s not able to come back for the vault finals, then who knows what she’s going to do after this Olympics, then she won’t be able to do it and won’t get it named after her.
Tracy Hightower-Henne: Listen, the type of things that I try that are close to Olympic moves like one and a half or two and a half aerials is includes attempting to hula hoop and trying to do a cartwheel. But the cartwheel is like mostly just sticking my butt out in the air and then like putting my arms on the ground and like, maybe my legs kind of come in the air like six to eight inches.
Erin Wetzel: That’s not a cartwheel,
Tracy Hightower-Henne: It is when you’re almost 40.
Erin Wetzel: I hate to break it to you. Hey, Chelsea Memmo, who was on the I think twenty four Olympics team tried to come back this year. She’s she’s like in her thirties now and has kids, and she came back and she was like, she looked pretty good. I mean, she wasn’t good enough to get on the Olympic team, but her
Tracy Hightower-Henne: Cartwheel was good.
Erin Wetzel: Well, she was doing more than cartwheels.
Tracy Hightower-Henne: Solid. All right. So Olympics is where it’s at and Erin’s world. But let’s talk about some grandparents rights because we get a lot of calls often for either grandparents calling us or our clients who are the parents who have. Questions about their parents or their in-laws wanting to do some grandparents, so what does Nebraska law say about grandparent visitation and when is it appropriate?
Erin Wetzel: Well, there’s a couple of different kind of parameters that the grandparents have to establish before they could even file for these grandparents rights. First, there’s what the statute says
Tracy Hightower-Henne: You have to be a grandparent.
Erin Wetzel: They have to be a grandparent. And what that means, and the grandparent relationship is dependent on the parental relationship. So if a parent’s parental rights have been relinquished or terminated, their parent is no longer legally considered a grandparent. So there’s nothing they can do at that point, which obviously sometimes that goes that’s beyond the grandparents control what happens with the parental relationship, which is disappointing. But once you establish that you meet the definition of a grandparent, then there’s only certain situations where you can ask for the grandparent visitation. And so in those situations, one or both of the parents are deceased that the parents relationship, if they’ve been divorced or they’re in the middle of a divorce, divorce has been filed or that the parents have never been married, but that the paternity of the parent has been legally established. So if the parents are still married and they’re just choosing not to extend a relationship to the grandparents or let them see it, there’s nothing that those grandparents can do.
Tracy Hightower-Henne: If I can’t imagine that ever would happen, right? So, so we’re painting the picture of during the marriage. Folks have babies and they decide for all the reasons that you may decide that you really don’t want to have a relationship with the children’s grandparent. Right. So there’s nothing the grandparents could do in that situation.
Erin Wetzel: No, if the parents are married to each other and they choose not to allow their kids to have a relationship with with the grandparents, that’s their choice.
Tracy Hightower-Henne: So this is constitutional law one on one you don’t need to go to law school. What we’re going to tell you will save you thirty thousand and a semester of con law one on one. You have a fundamental right to parent your child. Exactly. So mom and dad, grandma, grandpa, if you’re crazy, you’re out.
Erin Wetzel: You don’t even have to be crazy. It could be the parents who are crazy and the grandparents who are not. But if the crazy parents
Tracy Hightower-Henne: You are
Erin Wetzel: Allegedly crazy parents are married to each other and they don’t want to let somebody have a relationship, that’s their
Tracy Hightower-Henne: Choice, right? Ok, so let’s talk about the divorce is pending, started or finished, then tell us a scenario when the grandparents then come in and let’s assume there are clients.
Erin Wetzel: So if the grandparents come in and they say we are the paternal grandparents, mom has custody, she won’t let us see the kids. Dad’s not around or dad’s not exercising his parenting time. For some reason, they can say, I want to request that the court grant as grandparent visitation because we are not seeing these kids anymore,
Tracy Hightower-Henne: So they’re going to file their pleading in court.
Erin Wetzel: Correct. You have to include both parents on the pleading, not just one of them, even if one of them has primary custody and the other parents not seeing the child.
Tracy Hightower-Henne: So then what does that process look like as far as in court proceedings, in the hearings and things like that?
Erin Wetzel: So similar to any other case, you file your initial pleading, telling the court that you want these grandparent visits. You then have to serve both parents with a copy of what you filed, and then those parents have the opportunity to respond. They have the 30 days from the date that they’re served to respond. If they don’t respond, then you can ask for a default hearing telling the court that they haven’t responded appropriately and that you’re entitled to the grandparent visitation if they would respond. Then eventually, if there’s not an agreement for the grandparent visitation, it would get set for a trial.
Tracy Hightower-Henne: So if we have the grandparent and it’s a paternal grandparent, why would the court give that grandparent visitation if otherwise, during dad’s parenting time, he can just, you know, have the kids spend some time with their grandparents?
Erin Wetzel: Well, sometimes that other parent might not allow that. Or, like I said, there might be a situation where even if by a court order that other parent has parenting time, they’re not exercising it for some reason. And sometimes the, you know, maybe that relationship isn’t great either, so that they need to intervene and still ask the court for parenting time or grandparent visitation, I should say.
Tracy Hightower-Henne: So I have a case right now where divorces almost completed dads in jail and dads parents want to institute some grand. And visitation. What do you think that scenario looks like as far as what type of time and a length of time the grandparents are looking at?
Erin Wetzel: Well, if the grandparents can establish there’s there’s a few things that the grandparents have to establish beyond meeting those criteria for what the parents’ relationship is. You know, they they have to prove to the court that there has been some type of significant beneficial relationship between them and the children prior to this filing in the past, and that it’s in the best interest of the kids to continue that relationship. Additionally, they have to prove to the court that whatever visitation they want or they’re requesting is not going to adversely impact the parents relationship with the child because the court has said, like you said, parents have a constitutional right to parent their children. That’s the most important relationship is the parent child relationship. And so if the court would find that the grandparent visitation could affect that parent child relationship adversely, they’re still not going to get the parenting time. Additionally, if you have a situation where the grandparents are have never had a relationship or not a good relationship with the grandchildren, they’re not going to get parenting time just because they want it. So it’s on the grandparents to prove that those conditions exist in order to get the court to agree with them that they deserve the grandparent visitation.
Tracy Hightower-Henne: It’s their burden, yes. Also another piece of constitutional law one on one. What type of burden is this?
Erin Wetzel: So in a grandparent relationship case, you have to prove I believe it’s the clear and convincing evidence. Oh, it’s
Tracy Hightower-Henne: Not strict scrutiny. No, I think that comes from a case law or something that was also bar exam 12 years ago for me.
Erin Wetzel: So for the like the the standard that you have to prove in court, you know, I think the one that everybody knows about is the beyond a reasonable doubt. That’s the criminal law one, right? Right.
Tracy Hightower-Henne: Then there’s that’s all the TV shows, right? Yeah, they probably use it even when it’s like not appropriate, right?
Erin Wetzel: And that one doesn’t apply ever to any type of civil cases. This is a civil case. In civil cases, you usually have by a preponderance of the evidence or clear and convincing evidence.
Tracy Hightower-Henne: No one knows about any of that means now, sometimes lawyers.
Erin Wetzel: Sometimes we do. It’s hard to
Tracy Hightower-Henne: Explain that well, we know what it means. But oftentimes, like the lawyers on the other side, are like, what? What are you even talking about?
Erin Wetzel: You basically have to prove to the judge that your evidence and what you’re saying is likely true right is good. You have to convince the judge with clear evidence, right?
Tracy Hightower-Henne: Ok, so do you use the phrase significant beneficial relationship? Yes. What types of things can we use to prove on behalf of the grandparents?
Erin Wetzel: So one of my cases that I had recently, the paternal grandparents, their son had been in prison, and when he got out, he had moved somewhere. They didn’t know where he was. Well, while he was incarcerated, the mom and the children were actually living in their house, and they provide a daily child care for the children while mom was working. And then she eventually moved out and they were still providing daycare and financial assistance to both her and the kids think they even had the kids on their health insurance at some point. And she ended up meeting somebody else and starting this new relationship woman. She started this new relationship. She kind of started cutting off that relationship more and more. And then when Dad was released from prison, she was worried that they were going to allow the kids to see dad and didn’t want that because he was not in a good place in his life. And so she totally cut off the relationship at that point. So their proof was that the children had lived with them for years, that they had provided daily care and there was no concern about them being around the children other than mom saying, I don’t want you to allow dad to have contact. And they were very adamant that if she didn’t want that, they weren’t going to allow that.
Tracy Hightower-Henne: So then if grandparents get some visitation rights, can there be those limitations and parameters around what they’re allowed to do?
Erin Wetzel: Yes. So in that case, we we didn’t go to trial mom. After she got served with what we had filed in court, she reached out to the grandparents and they worked out a schedule on their own. They then both communicated that to me, and I drafted up the agreement and we had that in there that the grandparents agreed to not allow the kids to have any type of contact with dad, whether in person or by phone, that they agreed to not talk about any of these past disagreements that they had had with mom and that they agreed to not correct the children when they called their new stepdad dad.
Tracy Hightower-Henne: Oh wow. Very specific. Yes, it was
Erin Wetzel: Very
Tracy Hightower-Henne: Specific. And so you were able to settle that. Without having a trial or any sort of court hearing, right?
Erin Wetzel: Actually, on all of my grandparents visitation cases, they’ve all ended up settling without going to a trial.
Tracy Hightower-Henne: That’s awesome. That’s I think ultimately what most of our custody goals are in general. So that applies to grandparent visitation as well.
Erin Wetzel: Right. It’s been nice because in the cases that I’ve had the parent, when they received the complaint, they immediately reach out to the grandparents. Something gets worked out. We get the agreement drafted in the case, gets closed out pretty quickly. So that’s obviously a lot better than somebody who’s sitting here going through this litigation and has the stress and anxiety of that.
Tracy Hightower-Henne: And then sometimes if the grandparent visitation case goes to court, a lot of our case law talks about some limited visitation. So if it’s ultimately up to a judge to make a decision on what type of parenting time or visitation the grandparent gets, that can be pretty limited, right?
Erin Wetzel: Right. You know, we kind of think of the standard parenting time for a parent who doesn’t have full custody as that every other weekend, one night during the week. Well, if it’s going to go to court, usually a judge is going to offer less parenting time than that for a grandparent. So in the cases that I’ve had, thankfully the grandparents have worked out more parenting time than there probably would have gotten if they had gone to court.
Tracy Hightower-Henne: So I think we’ve heard some grandparent visitation rumors in some pretty high profile situations, right? Yes, listeners should know if you don’t already by now that Erin is the pop queen
Erin Wetzel: Pop culture pop
Tracy Hightower-Henne: Culture queen. So if you ever are in any sort of like Trivial Pursuit, Erin probably knows the answer to like eighty five percent of everything.
Erin Wetzel: Well, don’t you remember when I won trivia for us at the bar conference because I knew all of the Will Ferrell movies?
Tracy Hightower-Henne: That’s right. I think, did we win?
Erin Wetzel: We won gift cards. Yeah, the Amazon gift cards.
Tracy Hightower-Henne: There is money
Erin Wetzel: Involved. Yeah, they they had a person from each team go up and they went in order. And you had however, many seconds to name off a Will Ferrell movie that nobody else had previously named off. And I was the last one standing out of like eight people.
Tracy Hightower-Henne: See, that’s what happened in a hula hoop competition when I was a child, so I think I can still hula hoop. It was some swimming pool thing we were at. I think I was eight. My mom loves to tell the story and it was how who can hula hoop the longest while everyone else drops out? And apparently here I am at the swimming pool, just hula hooping while everyone else stops. So that’s the same with you and Will Ferrell. It was like a hula hoop competition, maybe
Erin Wetzel: Not specifically Will Ferrell, pop culture in general and probably your girl for trivia contests.
Tracy Hightower-Henne: Yes. So what’s happening in the news with grandparent visitation and pop culture?
Erin Wetzel: Well, recently a couple of articles came out saying that Meghan Markle, the Duchess of Sussex wife of Prince Harry, that her dad has claimed to some media sources that he is thinking about petitioning for grandparent visitation.
Tracy Hightower-Henne: And what state
Erin Wetzel: California? So it’s my understanding that after they kind of parted ways from the royal family they bought or I don’t know if they own it, but they’re living in a house in California and then potentially also house in Canada. But he has said specifically that he would be filing for this in California.
Tracy Hightower-Henne: So how would that work, then, if Meghan Markle and Harry are still married?
Erin Wetzel: Well, it’s my understanding that California is very similar to Nebraska as far as proving that beneficial relationship and also what the standards are for the relationship between the parents and that he’s saying this. But in reality, it’s not going to go anywhere because they’re still married.
Tracy Hightower-Henne: So let’s be clear, though California and Nebraska are not the same in any other respects. Right, right? Just their grandparent visitation statute.
Erin Wetzel: Right. And let’s say for some reason, he would meet those standards, whether California would allow you to file for that even if the parents are married or let’s say they they broke up and we’re getting divorced. I think it’s if anybody is familiar with the articles and what has happened in her relationship with her dad, he can’t prove that that significant beneficial relationship exists because he’s never had a relationship with those kids, period. I don’t think he’s ever met them.
Tracy Hightower-Henne: He didn’t even go to the wedding. No, he didn’t. But he wasn’t invited, right?
Erin Wetzel: No, he was invited. I think she actually said she wanted him to walk her down the aisle at first. But then he started kind of spouting off to the news and then. It just kind of fell apart from there.
Tracy Hightower-Henne: Right? So Meghan Markle’s dad is unlikely to get grandparent visitation.
Erin Wetzel: Yes, I, you know, I kind of looked into what California law is, and I saw some articles that were specifically quoting California family law attorneys, and they said that they just don’t see any way he could succeed in that one because they’re married and two, because he’s never had any type of relationship with the kids. And and he certainly would not succeed in Nebraska.
Tracy Hightower-Henne: So all in all, grandparent visitation is is available for some pretty narrow circumstances. But I think the probably the most important thing that we hear from our potential clients are I want to see my kids or my grandparents. Excuse me, I want to see my grandkids and my kids aren’t allowing it. And that’s really probably not the type of case that you’re going to get grandparent visitation if that relationship between the mom and the dad is still intact.
Erin Wetzel: Exactly.
Tracy Hightower-Henne: So with that being said, I think grandparent visitation is one of those things that it’s pretty important to speak with an attorney, especially one who is helpful in a settlement negotiation. There’s a lot of ways that you can settle a grandparent visitation case without going to court without all of that upset to in in the child’s life. Right?
Announcer: It’s now time for your random moment of nonsense on the Lady Lawyer League podcast.
Erin Wetzel: Cheese
Tracy Hightower-Henne: Now Cheese Cheese
Erin Wetzel: Like my girl say lellow cheese Hoyt cheese.
Tracy Hightower-Henne: What’s Hoyt White like? Oh, Hs are hard.
Erin Wetzel: Wawa cheese? Somehow they say white cheese.
Tracy Hightower-Henne: Are we starting? I don’t
Erin Wetzel: Know. Talk about my kid.
Tracy Hightower-Henne: Is it recording my children? Uh, I forget how we start over to your grandparents. So today’s podcast wouldn’t be talking about grandparents. Oh yeah.
Erin Wetzel: Or do we chitchat first?
Tracy Hightower-Henne: We first tell them what we’re talking about. Ok. Like this on today’s podcast, we’re going to be talking about grandparents rights. Susan, always does that part, OK? What’s what do you say after that? I would say grandparents rights and. Yeah, you would say. Matt’s going to listen to this and be like, what the fuck? I left and then, yeah, just and visitation, maybe we say, yeah, for custody, parenting time, OK? That’s good. Ok. So thank you for listening to our podcast about grandparent visitation and all of the things about Meghan Markle and Simone Biles and what else did we talk about
Erin Wetzel: The Olympics in general?
Tracy Hightower-Henne: Yeah, yeah. And hula hooping and I’m a champion at hula hooping in your champion at Will Ferrell movies. Well, go us.
Erin Wetzel: I hope I’m at a champion at more than just Will Ferrell movies for today.
Tracy Hightower-Henne: You are OK.
Announcer: Thank you for listening to the lady lawyer League Podcast. Be sure to like and subscribe anywhere you get your podcasts, if you would like to learn more about our firm, Hightower-Reff Law, visit us at HR Law Omaha.com. We’ll see you next week.
