2023 Wisconsin Statutes & Annotations
Chapter 767 - Actions affecting the family.
767.43 - Visitation rights of certain persons.

767.43 Visitation rights of certain persons.

(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.

(1m) Exception; homicide conviction.

(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.

(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.

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

(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.

(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:

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

(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.

(c) The child has not been adopted.

(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.

(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.

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

(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.

(3m) Pretrial hearing; recommendation.

(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.

(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.

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

(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.

(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).

(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.

(6) Modification of order if homicide conviction.

(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.

(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.

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.

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).

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).

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).

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).

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).

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).

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.

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.

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.

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.

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.

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.

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.

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.

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.

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

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

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

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