Chapter 767

767.41 Annotation In a custody dispute triggered by a petition for guardianship between a birth parent and a non-parent, the threshold inquiry is whether the parent is unfit, unable to care for the child, or there are compelling reasons for awarding custody to the non-parent. Consideration of a minor’s nomination of a guardian presupposes that the need for a guardian has been established. If it is determined that the birth parent is fit and able to care for the child and no compelling reasons exist to appoint a non-parent guardian, then the minor’s nomination of a guardian becomes moot. Nicholas C.L. v. Julie R.L., 2006 WI App 119, 293 Wis. 2d 819, 719 N.W.2d 508, 05-1754.

767.41 Annotation Enforcement of surrogacy agreements promotes stability and permanence in family relationships because it allows the intended parents to plan for the arrival of their child, reinforces the expectations of all parties to the agreement, and reduces contentious litigation. Because the agreement in this case was a valid, enforceable contract, the circuit court’s exclusion of the agreement and decision to render a custody and placement order without consideration of the agreement constituted an erroneous exercise of discretion. Rosecky v. Schissel, 2013 WI 66, 349 Wis. 2d 84, 833 N.W.2d 634, 11-2166.

767.41 Annotation Groh, 110 Wis. 2d 117 (1983), is still good law, subject to the expanded authority granted over intrastate moves of 150 or more miles. Accordingly, the circuit court in this case had no authority to prospectively order a parent to not move beyond 45 miles from the marital home. By its enactment of s. 767.481, the legislature has made a judgment that moves of less than 150 miles are not subject to the best interests of the children standard. Rather than providing a court authority to prohibit geographical separation, sub. (4) (a) 2. presumes such separation exists and directs the court to consider the separation when establishing a placement schedule. Derleth v. Cordova, 2013 WI App 142, 352 Wis. 2d 51, 841 N.W.2d 552, 12-2018.

767.41 Annotation Sub. (2) (d) permits, but does not mandate, an analysis of whether a party has engaged in a pattern or serious incident of domestic abuse. The legislature chose to require the parties and guardian ad litem to ask the court to consider whether there was a pattern or serious incident of domestic abuse. By not doing so at the time of the original divorce, the parties waived the right to seek application of the presumption in sub. (2) (d) based upon the facts that existed at the time they stipulated to joint custody. A party is free to seek application of the presumption in a post-divorce action if new facts support the presumption. Glidewell v. Glidewell, 2015 WI App 64, 364 Wis. 2d 588, 869 N.W.2d 796, 14-1957.

767.41 Annotation One may only overcome the presumption against sole or joint custody set forth in sub. (2) (d) 1. by successfully completing treatment designed for batterers and provided by a certified program or provider. Valadez v. Valadez, 2022 WI App 2, 400 Wis. 2d 523, 969 N.W.2d 770, 20-1006.

767.41 Annotation Custody—To Which Parent? Podell, Peck, & First. 56 MLR 51 (1972).

767.41 Annotation The Best Interest of the Child Doctrine in Wisconsin Custody Cases. Hofer. 64 MLR 343 (1980).

767.41 Annotation In the Interest of a Child: A Comparative Look at the Treatment of Children Under Wisconsin and Minnesota Custody Statutes. Walsh. 85 MLR 929 (2002).

767.41 Annotation Gender Equity and Procrustean Presumptions: A comment on the Recent Changes in Wisconsin’s Law Regarding Child Custody and Placement. Rue. 2001 WLR 1177.

767.41 Annotation Debating the Standard in Child Custody Placement Decisions. Molvig. Wis. Law. July 1998.

767.41 Annotation Wisconsin’s Custody, Placement, and Paternity Reform Legislation. Walther. Wis. Law. Apr. 2000.

767.41 Annotation Domestic Abuse: Little Impact on Child Custody and Placement. Meuer, Gibart, & Roach. Wis. Law. Dec. 2018.

767.43 767.43 Visitation rights of certain persons.

767.43(1) (1) Petition, who may file. Except as provided in subs. (1m) and (2m), upon petition by a grandparent, greatgrandparent, stepparent or person who has maintained a relationship similar to a parent-child relationship with the child, the court may grant reasonable visitation rights to that person if the parents have notice of the hearing and if the court determines that visitation is in the best interest of the child.

767.43(1m) (1m) Exception; homicide conviction.

767.43(1m)(a) (a) Except as provided in par. (b), the court may not grant visitation rights under sub. (1) to a person who has been convicted under s. 940.01 of the first-degree intentional homicide, or under s. 940.05 of the 2nd-degree intentional homicide, of a parent of the child, and the conviction has not been reversed, set aside or vacated.

767.43(1m)(b) (b) Paragraph (a) does not apply if the court determines by clear and convincing evidence that the visitation would be in the best interests of the child. The court shall consider the wishes of the child in making the determination.

767.43(2) (2) Wishes of the child. Whenever possible, in making a determination under sub. (1), the court shall consider the wishes of the child.

767.43(2m) (2m) When special grandparent provision applicable. Subsection (3), rather than sub. (1), applies to a grandparent requesting visitation rights under this section if sub. (3) (a) to (c) applies to the child.

767.43(3) (3) Special grandparent visitation provision. The court may grant reasonable visitation rights, with respect to a child, to a grandparent of the child if the child’s parents have notice of the hearing and the court determines all of the following:

767.43(3)(a) (a) The child is a nonmarital child whose parents have not subsequently married each other.

767.43(3)(b) (b) Except as provided in sub. (4), the paternity of the child has been determined under the laws of this state or another jurisdiction if the grandparent filing the petition is a parent of the child’s father.

767.43(3)(c) (c) The child has not been adopted.

767.43(3)(d) (d) The grandparent has maintained a relationship with the child or has attempted to maintain a relationship with the child but has been prevented from doing so by a parent who has legal custody of the child.

767.43(3)(e) (e) The grandparent is not likely to act in a manner that is contrary to decisions that are made by a parent who has legal custody of the child and that are related to the child’s physical, emotional, educational or spiritual welfare.

767.43(3)(f) (f) The visitation is in the best interest of the child.

767.43(3c) (3c) Action in which petition filed; alternatives. A grandparent requesting visitation under sub. (3) may file a petition to commence an independent action for visitation under this chapter or may file a petition for visitation in an underlying action affecting the family under this chapter that affects the child.

767.43(3m) (3m) Pretrial hearing; recommendation.

767.43(3m)(a) (a) A pretrial hearing shall be held before the court in an action under sub. (3). At the pretrial hearing the parties may present and cross-examine witnesses and present other evidence relevant to the determination of visitation rights. A record or minutes of the proceeding shall be kept.

767.43(3m)(b) (b) On the basis of the information produced at the pretrial hearing, the court shall evaluate the probability of granting visitation rights to a grandparent in a trial and shall so advise the parties. On the basis of the evaluation, the court may make an appropriate recommendation for settlement to the parties.

767.43(3m)(c) (c) If a party or the guardian ad litem refuses to accept a recommendation under this subsection, the action shall be set for trial.

767.43(3m)(d) (d) The informal hearing under this subsection may be terminated and the action set for trial if the court finds it unlikely that all parties will accept a recommendation under this subsection.

767.43(4) (4) Paternity determination. If the paternity of the child has not yet been determined in an action under sub. (3) that is commenced by a person other than a parent of the child’s mother but the person filing the petition under sub. (3) has, in conjunction with that petition, filed a petition or motion under s. 767.80 (1) (k), the court shall make a determination as to paternity before determining visitation rights under sub. (3).

767.43(5) (5) Interference with visitation rights. Any person who interferes with visitation rights granted under sub. (1) or (3) may be proceeded against for contempt of court under ch. 785, except that a court may impose only the remedial sanctions specified in s. 785.04 (1) (a) and (c) against that person.

767.43(6) (6) Modification of order if homicide conviction.

767.43(6)(a) (a) If a person granted visitation rights with a child under this section is convicted under s. 940.01 of the first-degree intentional homicide, or under s. 940.05 of the 2nd-degree intentional homicide, of a parent of the child, and the conviction has not been reversed, set aside or vacated, the court shall modify the visitation order by denying visitation with the child upon petition, motion or order to show cause by a parent or guardian of the child, or upon the court’s own motion, and upon notice to the person granted visitation rights.

767.43(6)(b) (b) Paragraph (a) does not apply if the court determines by clear and convincing evidence that the visitation would be in the best interests of the child. The court shall consider the wishes of the child in making that determination.

767.43 History History: 1971 c. 220; 1977 c. 105 ss. 35, 39; 1979 c. 32 ss. 50, 92 (4); Stats. 1979 s. 767.245; 1983 a. 447, 450; 1987 a. 355; 1995 a. 68; 1999 a. 9; 2005 a. 443 ss. 101, 183; Stats. 2005 s. 767.43.

767.43 Annotation Biological grandparents had no right to visitation following termination of their son’s parental rights and adoption by the child’s stepfather. Soergel v. Soergel, 154 Wis. 2d 564, 453 N.W.2d 624 (1990).

767.43 Annotation The visitation petition of a custodial parent’s widow did not meet the criteria of sub. (1) when, prior to the custodial parent’s death, the non-custodial parent had filed a motion to revise custody. Section 880.155 [now s. 48.9795 (12)] governs visitation in the event of a parent’s death. Cox v. Williams, 177 Wis. 2d 433, 502 N.W.2d 128 (1993).

767.43 Annotation A paternity case in which the court has retained postjudgment authority to enforce the judgment constitutes an underlying action under which a petition for grandparent visitation may be brought. Patricia H.C. v. Louise H., 181 Wis. 2d 666, 512 N.W.2d 189 (Ct. App. 1993).

767.43 Annotation An existing underlying action affecting the family does not alone provide standing to petition under this section. The underlying action must threaten the integrity of a family unit. An action under this section does not apply to intact families. Because the father figure in a household was not the biological or adoptive father of one of the children did not mean the family was not intact. Marquardt v. Hegemann-Glascock, 190 Wis. 2d 447, 526 N.W.2d 834 (Ct. App. 1994).

767.43 Annotation While this section does not apply outside the dissolution of a marriage, it does not preempt the consideration of visitation in circumstances not subject to the statute. A circuit court may consider visitation by a non-parent outside a marriage dissolution situation in the best interests of the child if the non-parent petitioner demonstrates a parent-like relationship with the child and shows a significant triggering event such as substantial interference with that relationship. Holtzman v. Knott, 193 Wis. 2d 649, 533 N.W.2d 419 (1995).

767.43 Annotation Public policy considerations do not prohibit a court from relying on its equitable powers to grant visitation apart from s. 767.245 [now this section] on the basis of a co-parenting agreement between a biological parent and another when visitation is in the child’s best interest. Holtzman v. Knott, 193 Wis. 2d 649, 533 N.W.2d 419 (1995).

767.43 Annotation When applying sub. (3), circuit courts must apply the presumption that a fit parent’s decision regarding grandparent visitation is in the best interest of the child, but the court must still make its own assessment of the best interest of the child. Roger D.H. v. Virginia O., 2002 WI App 35, 250 Wis. 2d 747, 641 N.W.2d 440, 00-3333. But see Michels v. Lyons, 2019 WI 57, 387 Wis. 2d 1, 927 N.W.2d 486, 17-1142.

767.43 Annotation Under Troxel, 530 U.S. 57 (2000), the due process clause prevents a court from starting with a clean slate when assessing whether grandparent visitation is in the best interests of the child. Within the best interests framework, the court must afford a parent’s decision special weight by applying a rebuttable presumption that the fit parent’s decision regarding grandparent visitation is in the best interest of the child. It is up to the party advocating for nonparental visitation to rebut the presumption by presenting evidence that the offer is not in the child’s best interests. Martin L. v. Julie R.L., 2007 WI App 37, 299 Wis. 2d 768, 731 N.W.2d 288, 06-0199. But see Michels v. Lyons, 2019 WI 57, 387 Wis. 2d 1, 927 N.W.2d 486, 17-1142.

767.43 Annotation When an existing informal arrangement was sufficient to maintain the established relationship between grandparents and children, state interference in the form of court-ordered placement with the grandparents was unwarranted. The question is not whether the additional time sought by the grandparents with their grandchildren might be good for all concerned. The questions are whether, under the facts of the case, the state should intervene to dictate to the parent with primary placement, that added visitation time is warranted, and, if so, which parent should forfeit a portion of the parent’s placement time to accommodate the grandparent visitation. Rogers v. Rogers, 2007 WI App 50, 300 Wis. 2d 532, 731 N.W.2d 347, 06-1766. See also Lubinski v. Lubinski, 2008 WI App 151, 314 Wis. 2d 395, 761 N.W.2d 676, 07-1701.

767.43 Annotation The award of overnights and a week during the summer in a grandparent visitation order under s. 54.56 [now s. 48.9795 (12)] was not contrary to law for being akin to a physical placement award found in divorce cases. There is no difference between the quantity of “physical placement” as that term is used in s. 767.001 (5) and the quantity of “visitation” as that word is used in s. 54.56 [now s. 48.9795 (12)]. The proper amount of that time is a decision made by the family court in the best interests of the children. The quantity of time ordered does not depend on whether it is a visitation order or a physical placement order. Rick v. Opichka, 2010 WI App 23, 323 Wis. 2d 510, 780 N.W.2d 159, 09-0040.

767.43 Annotation When children visit their grandparents and stay with them as guests, the grandparents have the responsibility to make routine daily decisions regarding the children’s care but may not make any decisions inconsistent with the major decisions made by a person having legal custody. The same is true of a parent who does not have joint legal custody, but does have a right to physical placement. In both instances, the same rules apply: routine daily decisions may be made, but nothing greater. Rick v. Opichka, 2010 WI App 23, 323 Wis. 2d 510, 780 N.W.2d 159, 09-0040.

767.43 Annotation Under Holtzman, 193 Wis. 2d 649 (1995), a circuit court may exercise its equitable powers to hear and grant visitation to a non-parent in circumstances when the non-parent visitation provisions under this chapter do not apply. To apply these equitable powers, a circuit court must determine that the petitioner has a “parent-like relationship” with the child and that a “significant triggering event” exists justifying state intervention in the child’s relationship with a biological or adoptive parent. The triggering event required by Holtzman does not apply to cases brought under the special grandparent provision of sub. (3). Wohlers v. Broughton, 2011 WI App 122, 337 Wis. 2d 107, 805 N.W.2d 118, 09-0488.

767.43 Annotation Sub. (1) does not require a grandparent, great-grandparent, or stepparent who files a motion for visitation rights under sub. (1) to prove that he or she has maintained a relationship similar to a parent-child relationship with the child. Rather, the parent-child relationship element applies only to a person seeking visitation rights who is not a grandparent, great-grandparent, or stepparent. S.A.M. v. Meister, 2016 WI 22, 367 Wis. 2d 447, 876 N.W.2d 746, 14-1283.

767.43 Annotation The grandparent visitation statute under sub. (3) is facially constitutional because it is narrowly tailored to further a compelling state interest because a grandparent must overcome the presumption in favor of a fit parent’s visitation decision with clear and convincing evidence that the decision is not in the child’s best interest. Sub. (3) was unconstitutional as applied when there was no change in circumstances involving the child’s family unit and the grandparent’s desire to merely secure a more generous and predictable vacation schedule was not enough to overcome the presumption in favor of the parent’s visitation decision. Michels v. Lyons, 2019 WI 57, 387 Wis. 2d 1, 927 N.W.2d 486, 17-1142.

767.43 Annotation A circuit court should consider the nature and extent of grandparent visitation only if a grandparent overcomes the presumption in favor of a fit parent’s visitation decision with clear and convincing evidence that the decision is not in the child’s best interest. A circuit court should not substitute its judgment for the judgment of a fit parent even if the court disagrees with the parent’s decision. Michels v. Lyons, 2019 WI 57, 387 Wis. 2d 1, 927 N.W.2d 486, 17-1142.

767.43 Annotation Grandparent Visitation Rights. Rothstein. Wis. Law. Nov. 1992.

767.43 Annotation The Effect of C.G.F. and Section 48.925 on Grandparental Visitation Petitions. Hughes. Wis. Law. Nov. 1992.

767.43 Annotation Third-party Visitation in Wisconsin. Herman & Cooper. Wis. Law. Mar. 2001.

767.43 Annotation Surviving Michels: Can Third-party Visitation Be Resurrected? Krimmer. Wis. Law. Oct. 2019.

767.44 767.44 Prohibiting visitation or physical placement if a parent kills other parent.

767.44(1) (1) When prohibited. Notwithstanding ss. 767.225 (1) (am), 767.41 (1), (4), and (5), 767.804 (3) (a), 767.805 (4) (a), and 767.89 (3) and except as provided in sub. (2), in an action under this chapter that affects a minor child, a court may not grant to the child’s parent visitation or physical placement rights with the child if the parent has been convicted under s. 940.01 of the first-degree intentional homicide, or under s. 940.05 of the 2nd-degree intentional homicide, of the child’s other parent, and the conviction has not been reversed, set aside, or vacated.

767.44(2) (2) When not applicable. Subsection (1) does not apply if the court determines by clear and convincing evidence that the visitation or periods of physical placement would be in the best interests of the child. The court shall consider the wishes of the child in making the determination.

767.44 History History: 1999 a. 9; 2001 a. 61; 2005 a. 443 s. 102; Stats. 2005 s. 767.44; 2019 a. 95.

767.451 767.451 Revision of legal custody and physical placement orders. Except for matters under s. 767.461 or 767.481, the following provisions are applicable to modifications of legal custody and physical placement orders:

767.451(1) (1) Substantial modifications.

767.451(1)(a) (a) Within 2 years after final judgment. Except as provided under sub. (2), a court may not modify any of the following orders before 2 years after the final judgment determining legal custody or physical placement is entered under s. 767.41, unless a party seeking the modification, upon petition, motion, or order to show cause, shows by substantial evidence that the modification is necessary because the current custodial conditions are physically or emotionally harmful to the best interest of the child:

767.451(1)(a)1. 1. An order of legal custody.

767.451(1)(a)2. 2. An order of physical placement if the modification would substantially alter the time a parent may spend with his or her child.

767.451(1)(b) (b) After 2-year period.

767.451(1)(b)1. 1. Except as provided under par. (a) and sub. (2), upon petition, motion or order to show cause by a party, a court may modify an order of legal custody or an order of physical placement where the modification would substantially alter the time a parent may spend with his or her child if the court finds all of the following:

767.451(1)(b)1.a. a. The modification is in the best interest of the child.

767.451(1)(b)1.b. b. There has been a substantial change of circumstances since the entry of the last order affecting legal custody or the last order substantially affecting physical placement.

767.451(1)(b)2. 2. With respect to subd. 1., there is a rebuttable presumption that:

767.451(1)(b)2.a. a. Continuing the current allocation of decision making under a legal custody order is in the best interest of the child.

767.451(1)(b)2.b. b. Continuing the child’s physical placement with the parent with whom the child resides for the greater period of time is in the best interest of the child.

767.451(1)(b)3. 3. A change in the economic circumstances or marital status of either party is not sufficient to meet the standards for modification under subd. 1.

767.451(2) (2) Modification of substantially equal physical placement orders. Notwithstanding sub. (1):

767.451(2)(a) (a) If the parties have substantially equal periods of physical placement pursuant to a court order and circumstances make it impractical for the parties to continue to have substantially equal physical placement, a court, upon petition, motion, or order to show cause by a party, may modify the order if it is in the best interest of the child.

767.451(2)(b) (b) In any case in which par. (a) does not apply and in which the parties have substantially equal periods of physical placement pursuant to a court order, a court, upon petition, motion, or order to show cause of a party, may modify the order based on the appropriate standard under sub. (1). However, under sub. (1) (b) 2., there is a rebuttable presumption that having substantially equal periods of physical placement is in the best interest of the child.

767.451(2m) (2m) Modification of periods of physical placement for failure to exercise physical placement. Notwithstanding subs. (1) and (2), upon petition, motion or order to show cause by a party, a court may modify an order of physical placement at any time with respect to periods of physical placement if it finds that a parent has repeatedly and unreasonably failed to exercise periods of physical placement awarded under an order of physical placement that allocates specific times for the exercise of periods of physical placement.

767.451(3) (3) Modification of other physical placement orders. Except as provided under subs. (1) and (2), upon petition, motion or order to show cause by a party, a court may modify an order of physical placement which does not substantially alter the amount of time a parent may spend with his or her child if the court finds that the modification is in the best interest of the child.

767.451(3m) (3m) Reinstatement of former physical placement allocation and schedule. If a party is a service member, as defined in s. 767.41 (2) (e) 1., and the court modifies an order of physical placement on the basis that the service member has been or will be called to active duty in the U.S. armed forces, notwithstanding sub. (1) the court shall require in the order that the allocation of periods of physical placement and, if applicable, the physical placement schedule that were in effect before the modification are reinstated immediately upon the service member’s discharge or release from active duty. This subsection does not apply to a temporary agreement or a temporary order under ch. 324.

767.451(3r) (3r) Approval of stipulation for modifications contingent on future event. Notwithstanding sub. (1), in an action to modify a legal custody or physical placement order, the court may approve a stipulation for further modifications to legal custody or physical placement upon the occurrence of a specified future event, as defined in s. 767.34 (3) (a), that is reasonably certain to occur within 2 years of the date of the stipulation and incorporate the terms of the stipulation into any revised legal custody or physical placement order granted by the court. The court may not approve a stipulation under this subsection that is based on an anticipated behavior modification of a party.

767.451(4) (4) Denial of physical placement. Upon petition, motion or order to show cause by a party or on its own motion, a court may deny a parent’s physical placement rights at any time if it finds that the physical placement rights would endanger the child’s physical, mental or emotional health.

767.451(4m) (4m) Denial of physical placement for killing other parent.

767.451(4m)(a) (a) Notwithstanding subs. (1) to (4), upon petition, motion or order to show cause by a party or on its own motion, a court shall modify a physical placement order by denying a parent physical placement with a child if the parent has been convicted under s. 940.01 of the first-degree intentional homicide, or under s. 940.05 of the 2nd-degree intentional homicide, of the child’s other parent, and the conviction has not been reversed, set aside or vacated.

767.451(4m)(b) (b) Paragraph (a) does not apply if the court determines by clear and convincing evidence that physical placement with the parent would be in the best interests of the child. The court shall consider the wishes of the child in making the determination.

767.451(5) (5) Reasons for modification. If either party opposes modification or termination of a legal custody or physical placement order under this section the court shall state, in writing, its reasons for the modification or termination.

767.451(5m) (5m) Factors to consider.

767.451(5m)(a) (a) Subject to pars. (b) and (c), in all actions to modify legal custody or physical placement orders, the court shall consider the factors under s. 767.41 (5) (am), subject to s. 767.41 (5) (bm), and shall make its determination in a manner consistent with s. 767.41.

767.451(5m)(b) (b) In determining the best interest of the child under this section, in addition to the factor under s. 767.41 (5) (am) 11., the court shall consider whether a stepparent of the child has a criminal record and whether there is evidence that a stepparent of the child has engaged in abuse, as defined in s. 813.122 (1) (a), of the child or any other child or neglected the child or any other child.