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)(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)(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. 54.56] 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. Paternity of Nastassja L.H.-J.
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 his 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. Custody of H.S.H.-K.
193 Wis. 2d 649,
533 N.W.2d 419 (1995).
767.43 Annotation
Public policy does not prohibit a court, relying on its equitable powers, to grant visitation outside 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. Custody of H.S.H.-K.
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. Paternity of Roger D.H. 2002 WI App 35,
250 Wis. 2d 747,
641 N.W.2d 440,
00-3333.
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. March 2001.
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),
767.805 (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.
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)(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)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)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.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.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.
767.24 (2) (e) 1. [
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.
767.451 Note
NOTE: Sub. (3m) was created as s. 767.325 (3m) by
2005 Wis. Act 471 and renumbered by the revisor under s. 13.93 (1) (b).
767.451 Note
NOTE: The correct cross-reference is shown in brackets. Corrective legislation is pending.
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)(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 Note
NOTE: Par. (a) is shown as affected by 3 acts of the 2005 Wisconsin legislature and as merged by the revisor under s. 13.93 (2) (c).
767.451(5m)(b)
(b) In determining the best interest of the child under this section, in addition to the factor under s.
767.24 (5) (am) 12m. [
s. 767.41 (5) (am) 12m.], 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.
767.451 Note
NOTE: The correct cross-reference is shown in brackets. Corrective legislation is pending.
767.451(5m)(c)
(c) In an action to modify a legal custody order, if a party is a service member, as defined in s.
767.24 (2) (e) 1. [
s. 767.41 (2) (e) 1.], the court may not consider as a factor in making a determination whether the service member has been or may be called to active duty in the U.S. armed forces and consequently is, or in the future will be or may be, absent from the service member's home.
767.451 Note
NOTE: Par. (c) was created as s. 767.325 (5m) (c) by
2005 Wis. Act 471 and renumbered by the revisor under s. 13.93 (1) (b).
767.451 Note
NOTE: The correct cross-reference is shown in brackets. Corrective legislation is pending.
767.451(6)
(6) Notice. No court may enter an order for modification under this section until notice of the petition, motion or order to show cause requesting modification has been given to the child's parents, if they can be found, and to any relative or agency having custody of the child.
767.451(6m)
(6m) Parenting plan. In any action to modify a legal custody or physical placement order under
sub. (1), the court may require the party seeking the modification to file with the court a parenting plan under
s. 767.41 (1m) before any hearing is held.
767.451(7)
(7) Transfer to department. The court may order custody transferred to the department of health and family services only if that department agrees to accept custody.
767.451(8)
(8) Petition, motion, or order to show cause. A petition, motion, or order to show cause under this section shall include notification of the availability of information under
s. 767.105 (2).
767.451 History
History: 1987 a. 355,
364;
1995 a. 27 s.
9126 (19);
1999 a. 9;
2003 a. 130;
2005 a. 101;
2005 a. 443 ss.
160 to
162; Stats. 2005 s. 767.451;
2005 a. 471 ss.
6 to
8; s. 13.93 (1) (b) and (2) (c).
767.451 Note
NOTE: 1987 Wis. Act 355, which created this section, contains explanatory notes.
767.451 Note
NOTE: 2005 Wis. Act 443, which affected this section, contains explanatory notes.
767.451 Annotation
"Necessary" implies that a change of custody itself is needed because custodial conditions are harmful in some way to the best interest of the child.. Millikin v. Millikin,
115 Wis. 2d 16,
339 N.W.2d 573 (1983).
767.451 Annotation
The revision of s. 767.24 [now s. 767.41] allowing joint custody in cases where both parties did not agree was not a "substantial change in circumstances" justifying a change to joint custody. Licary v. Licary,
168 Wis. 2d 686,
484 N.W.2d 371 (Ct. App. 1992).
767.451 Annotation
Sub. (1) (a) prohibits a change of custody solely to correct a mother's unreasonable interference with physical placement of the child with the father. Sub. (1) (a) provides a 2-year truce period. Judicial intervention during this period must be compelling. Paternity of Stephanie R.N.
174 Wis. 2d 745,
488 N.W.2d 235 (1993).
767.451 Annotation
"Necessary" embodies at least 2 concepts: 1) that the modification must operate to protect the child from alleged harmful custodial conditions; and 2) that the physical or emotional harm threatened by the current custodial conditions must be severe enough to warrant modification. Paternity of Stephanie R.N.
174 Wis. 2d 745,
488 N.W.2d 235 (1993).
767.451 Annotation
Section 767.325 does not limit a court's authority to hold a hearing or enter an order during the 2-year "truce period" with the order effective on the conclusion of the truce period. Paternity of Bradford J.B.
181 Wis. 2d 304,
510 N.W.2d 775 (Ct. App. 1993).
767.451 Annotation
There is no authority to order a change of custody at an unknown time in the future upon the occurrence of some stated contingency. Koeller v. Koeller,
195 Wis. 2d 660,
536 N.W.2d 216 (Ct. App. 1995),
94-2834.
767.451 Annotation
Sub. (1) (b) is inapplicable in guardianship litigation between a parent and a 3rd-party guardian. Howard M. v. Jean R.
196 Wis. 2d 16,
539 N.W.2d 104 (Ct. App. 1995),
94-0955.
767.451 Annotation
Neither sub. (4) nor s. 767.24 (4) (b) [mow s. 767.41 (4) (b)] permits a prospective order prohibiting a parent from requesting a change of physical placement in the future. Jocius v. Jocius,
218 Wis. 2d 103,
580 N.W.2d 708 (Ct. App. 1998),
96-2746.
767.451 Annotation
Sections 767.325 and 767.327 [now ss. 767.451 and 767.481] do not conflict. If one party files a notification of intention to move under s. 767.327, the other parent may file a motion to modify placement under s. 767.325, and the court may consider all relevant circumstances, including, but not limited to, the move. Hughes v. Hughes,
223 Wis. 2d 111,
588 N.W.2d 346 (Ct. App. 1998),
97-3539.
767.451 Annotation
The sub. (1) prohibition against modification of placement orders applies to both primary placement and physical placement. Trost v. Trost, 2000 WI App 222,
239 Wis. 2d 1,
619 N.W.2d 105,
99-1236.
767.451 Annotation
When a court denies a parent physical placement, it has the authority to impose conditions for regaining placement, which may include mental health treatment, anger management, individual or family counseling, and parenting training. Conditions imposed must be necessary to protect the child from the danger of physical, emotional, or mental harm if the child is placed with the parent. State v. Alice H. 2000 WI App 228,
239 Wis. 2d 194,
619 N.W.2d 151,
99-2812.
767.451 Annotation
A change in amount of placement days does not, in and of itself, establish a substantial change in circumstances. State v. Beaudoin, 2001 WI App 42,
241 Wis. 2d 350,
625 N.W.2d 619,
00-0825.
767.451 Annotation
By asking the trial court for what constituted a substantial modification of placement, the movant effectively conceded that there was a substantial change in circumstances to merit placement modification under sub. (1) (b) 1. and could not maintain a contrary position on appeal. Keller v. Keller, 2002 WI App 161,
256 Wis. 2d 401,
647 N.W.2d 426,
01-2970.
767.451 Annotation
A divorce judgment effecting a prospective change in physical placement, contingent on an assessment of the children's needs, is invalid. A circuit court lacks authority to order a change of physical placement that is both prospective and contingent on the occurrence of an anticipated event. Custody and placement determinations must embody a sense of contemporaneity, whether in original or modification proceedings. Culligan v. Cindric, 2003 WI App 180,
266 Wis. 2d 534,
669 N.W.2d 175,
02-2275.
767.451 Annotation
An order that modifies payments for child support is not an order substantially affecting physical placement as contemplated by sub. (1) (b). Parties have a right to informally agree to change their children's physical placement schedule. That a court order modifying child support acknowledges an informal agreement does not affect physical placement for purposes of this section, and the order to be considered under this section is that which set the placement schedule that was informally modified. Culligan v. Cindric, 2003 WI App 180,
266 Wis. 2d 534,
669 N.W.2d 175,
02-2275.
