9.7: Considerations in Child Custody Orders

The ultimate goal with respect to orders impacting children is to foster and encourage the child’s well-being, health (mental, emotional, physical), security, and emotional development into young adulthood, while at the same time preserving the Constitutional rights of the parents. Fortunately, in most cases, the parents are able to agree regarding legal custody and physical placement of their children. Most states have established procedures that encourage the parties to agree, based on the theory that the parties are more likely to abide by orders based on their agreement. When legal custody is disputed, however, the courts must intervene.

Initial Order for Legal Custody and Physical Placement

Legal custody and physical placement laws are fairly similar across all 50 states, with the overriding factor being the best interest of the child. How the best interest of the child is defined varies by state, and courts have a lot of discretion with respect to what is in a specific child’s best interest.

In Wisconsin, joint legal custody is presumed to be in the child’s best interest. Similarly, courts are directed to “set a placement schedule that allows the child to have regularly occurring, meaningful periods of physical placement with each parent and that maximizes the amount of time the child may spend with each parent, taking into account geographic separation and accommodations for different households.”

In addition to those presumptions, Wisconsin statutes require the court to consider the following factors when determining what is in the child’s best interest:

• The wishes of the child’s parents as contained in a proposed parenting plan or stipulation
• The wishes of the child, as communicated by the child or through the child’s guardian ad litem or other appropriate professional
• The cooperation and communication between the parents, and whether either parent unreasonably refuses to cooperate or communicate with the other parent.
• Whether each parent can support the other parent's relationship with the child, including encouraging and facilitating frequent and continuing contact with the child, or whether one parent is likely to unreasonably interfere with the child's continuing relationship with the other parent.
• The interaction and interrelationship of the child with his or her siblings, and any other person who may significantly affect the child's best interest.
• The interaction and interrelationship of the child with his or her parent or parents and the amount and quality of time that each parent has spent with the child in the past, any necessary changes to the parents' custodial roles, and any reasonable lifestyle changes that a parent proposes to make to maximize placement with the child.
• Whether a parent, someone who resides in the parent’s household, or someone in a dating relationship with a parent has or had a significant problem with alcohol or drug abuse.
• The child's adjustment to the home, school, religion, and community.
• The age of the child and the child's developmental and educational needs at different ages.
• Whether the mental or physical health of a parent, minor child, or other person living in a proposed custodial household negatively affects the child's intellectual, physical, or emotional well-being.
• Whether a parent, someone who resides in the parent’s household, or someone in a dating relationship with a parent has a criminal record or has engaged in abuse of the child or any other child or neglected the child or any other child.
• Whether there is evidence of interspousal battery or domestic abuse
• The reports of the appropriate professionals, if admitted into evidence.

Some courts also consider the “stability” and “continuity” of the parent’s household, as well as the parent’s “availability” to respond to the child’s day-to-day needs. These courts look at the proportion of time each parent spent performing caretaking functions (for example, taking the child to appointments, helping with homework, changing diapers, etc.) prior to the divorce or paternity action.

Unfit Parents

Unless a person is deemed “unfit,” the law cannot interfere with that person’s fundamental rights to be a parent. Although there is no specific definition of what makes a parent “unfit,” again there is some language in the Wisconsin statutes that provides some insight:

• The “court shall presume that joint legal custody is in the best interest of the child.” However, there is “a rebuttable presumption that it is detrimental to the child and contrary to the best interest of the child to award joint or sole legal custody to that party” if the court “finds by the preponderance of the evidence that a party has engaged in a pattern or serious incident of interspousal battery or domestic abuse.” Section 767.41(2)(d), Wis. Stats. (emphasis added). Click on the link and read the statute for details about what needs to be proven and how the rebuttable presumption may be overcome.
• “A child is entitled to periods of physical placement with both parents unless, after a hearing, the court finds that physical placement with a parent would endanger the child's physical, mental or emotional health.” Section 767.41(4)(b), Wis. Stats. (emphasis added),
• A party “is not capable of performing parental duties and responsibilities or does not wish to have an active role in raising the child.” Section767.41(2)(b)2.a., Wis. Stats.
• A party unreasonably refuses to cooperate with the other party. Section 767.41(2)(b)2.c. and 767.41(2)(c), Wis. Stats.

The following circumstances do not make a parent “unfit” and thus are not grounds for denying legal custody or, at a minimum, visitation:

• Failure to pay court-ordered child support, family support, or spousal support. 767.41(4)(c), Wis. Stats.
• A party is (or is not) a certain gender or race. 767.41(5)(am), Wis. Stats. Gender or race also cannot be a ground of “preference” regarding granting legal custody and/or physical placement
• With respect to legal custody, military service of a parent, including whether the service member has been or may be called to active duty and consequently is, or in the future will be or may be, absent from the service member's home. 767.41(5)(c), Wis. Stats.
• With respect to legal custody, a parent’s incarceration. Also, a court may order the child to visit the parent while the parent is incarcerated.

Generally speaking, a parent (or the parent’s circumstances) will not be seen as “unfit” unless there is evidence of harm to the child’s best interest that would justify restricting a parent’s right to legal custody or physical placement. While domestic violence, child abuse (physical or sexual), or other crimes committed against the child or the other parent, and threats to kidnap the child present fairly clear justifications for restrictions (such as supervised placement and exchange/transfer of the child), they do not always justify outright denial of legal custody or physical placement. Similarly, other issues such as parental substance abuse or the parent’s sexual conduct (hetero- or homosexual) may justify restrictions against engaging in specific conduct while the child is placed with that parent, but they do not always justify greater restrictions such as supervised placement.

Grounds for Modifications of Orders for Legal Custody and Physical Placement

Chapter 11 discussed the court’s jurisdiction to modify an existing legal custody or physical placement order. Once the court has determined it has jurisdiction, a modification must be determined to be in the best interest of the child and also justified by one of the following factors:

• A substantial change in circumstances has occurred since the original order, OR
• Relevant facts have come to light that were not available to the Court at the time the original order was entered

What constitutes a substantial change in circumstances is not specifically defined in the statutes. Some examples may include

• Significant changes in the child’s health, education, or other needs
• Relocation by one parent may impact time with the child
• Evidence of substance abuse or other criminal behavior by a parent
• A change in a parent’s work hours
• Adjustment to home or school
• Other circumstances that make it impractical to continue the current placement order
• Failure to effectively communicate or co-parent with the other party regarding the child(ren)
• A parent’s repeated unreasonable refusal to allow the other parent to exercise court-ordered physical placement

Wisconsin imposes additional requirements on courts determining whether to modify an existing order:

• There is a rebuttable presumption that continuing the current order regarding legal custody and physical placement is in the best interest of the child. Section 767.451(1)(b), Wis. Stats.
• A change in the economic circumstances or marital status of either party is not sufficient to meet the standards for modification

Moreover, in Wisconsin modification of existing legal custody and physical placement orders is not allowed before 2 years have passed after the initial order unless the requesting party 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. Section 767.451(1)(a), Wis. Stats. (emphasis added). This restriction imposes higher evidentiary standards with respect to the burden/amount of proof required (substantial evidence rather than a preponderance of the evidence) as well as the justification (a change must be necessary – there is no other alternative available to protect the child). The reason for this restriction is to provide for a transition or “cooling off” period during which the child(ren) and the parents can adjust to life under the existing order without the parents continually going back to court seeking changes.

Failure to exercise ordered physical placement.

There can be numerous reasons why a parent does not exercise their right to physical placement as ordered by the court. In Wisconsin, if 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” the court is allowed to modify the order. Section 767.451(2m), Wis. Stats. This is sometimes referred to as Wisconsin’s “use it or lose it” law. Additionally, an unreasonable failure to exercise court-ordered physical placement can also result in the party being required to reimburse the other parent for financial losses and expenses resulting from that failure. Section 767.471(5)(c), Wis. Stats.

Relocation of the child.

In our mobile society, it’s not uncommon for issues concerning relocation to arise in the context of a parent’s job change/reassignment or a parent’s to move closer to other family members. When one parent’s desire to relocate impacts the child’s ability to enjoy an ongoing relationship with the other parent through meaningful and regular physical placement, the courts are often asked to intervene.

Like many states, Wisconsin places restrictions on parents desiring to relocate with the child. Section 767.481, Wis. Stats. The procedural requirements are designed to ensure adequate notice and opportunity to object to the child’s relocation. Specifically, prior to relocating, a parent intending to relocate with the child 100 miles or more from the other parent is required to file a motion with the court requesting permission to relocate. Once the motion is filed, the court must hold an initial hearing on the motion within 30 days. The parent is not allowed to relocate the child before the initial hearing occurs.

Once the initial hearing is scheduled, the motion must be mailed immediately to the other parent and is required to include all of the following:

1. A relocation plan including date, municipality, and state of relocation, and the reason for the relocation
2. A proposed new physical placement schedule, including allocation between the parents for the cost of transporting the child between the parents
3. A notice to the other parent of the initial hearing date and time, the parent’s right to object, the procedure for objecting, and a court-provided Objection to Relocation form.

Once the motion is filed, if the other parent wishes to object to the relocation, that parent must file and serve the Objection to Relocation form on the other parent, at least 5 days prior to the date on which the hearing is scheduled. If the objecting party does not attend the hearing, the court must approve the relocation plan unless it is not in the best interest of the child. If the objecting party appears at the initial hearing, the court must enter an order

• Requiring the objecting party to explain, in writing, the basis for the objection, and to submit an alternative proposal for physical placement with cost allocations
• Referring the parties to mediation (unless it would cause undue hardship or endanger the health or safety of a party)
• Appointing a guardian ad litem for the child to investigate, in the event mediation is not successful
• Setting a final hearing date to be held within 60 days
• Allowing temporary relocation pending the outcome of the final hearing, if the relocation is in the child’s “immediate” best interest.

In determining whether to approve the proposed relocation plan, the court is to apply the same factors used to determine the child’s best interest for an initial legal custody and physical placement order. Additionally, presumptions in favor of approval are applied if the objecting parent has not significantly exercised existing court-ordered physical placement, or if the objecting parent has engaged in abuse of the child or the other parent.

If the parents already live more than 100 miles apart when one of them desires to relocate with the child, court permission to relocate is not required. However, written notice of the intent to relocate (including the date of the move and new address) must still be served on the other parent at least 60 days before the relocation.

Enforcement of Legal Custody and Physical Placement Orders

As you have already learned in Chapter 11, the Full Faith and Credit Clause, the PKPA, and the UCCJEA require states to enforce legal custody and physical placement orders properly entered in other states. As a practical matter, however, enforcement of these orders – even in the home state – can present challenges. Law enforcement agencies are often reluctant to assist in the enforcement of physical placement orders, and often outright refuse to do so. Thus, the primary method of enforcing these orders is through the civil contempt of court process or, in extreme cases, the criminal contempt of court process. Essentially, an aggrieved parent files an action with the court requesting that the other party be found in contempt of court for disobeying its orders. If a parent is found to be in contempt, sanctions may include unfavorable modification of orders, orders for restitution/payments to the other party, fines, or even jail time.

Denial of or interference with physical placement.

In Wisconsin, the aggrieved party would file a motion to enforce the physical placement order. If, after a hearing, the court determines that the other parent intentionally and unreasonably denied physical placement or intentionally and unreasonably interfered with physical placement, the court is required to order additional periods of physical placement to replace those that were denied or interfered with. Depending on the circumstances, the court can also find the other party to be in contempt of court, punishable by fines or imprisonment. The court can also issue an injunction ordering the other parent to strictly comply with the physical placement order, which can also include an order to the sheriff to assist with serving or executing the injunction. Section 767.471, Wis. Stats. Repeated denial or interference can also become grounds for the aggrieved party to seek a modification of the initial physical placement order.

Psychological or emotional interference.

Sadly, hostility between parents can sometimes spill over onto the children. One parent may attempt to manipulate the child’s wishes to spend more time with that parent through “bribery” or lax rules or may engage in undermining or badmouthing the other parent. The child suffers the most from this type of conduct, and the courts have had difficulty coming up with ways to rectify these situations. The following case from the Florida Supreme Court is one example of a court’s attempt to do so.

Case in Point: Schutz v. Schutz, 581 So. 2d 1290 (Fl. 1991).

Synopsis

The parties were divorced in 1978, with custody awarded to the father. In 1979, custody was modified and the mother was granted sole custody, with visitation rights granted to the father. In 1981, the mother moved to Georgia, without notifying the father. The father traveled to Georgia three times to visit the children, only to find an empty house. After seven months, the mother moved back to Florida and did not notify the father. When the father finally discovered the children’s whereabouts in 1985, the father visited the children and learned that they "hated, despised, and feared" him due to his failure to support or visit them. After a hearing, the trial court concluded that the mother had “brainwashed” the children into “bigoted belligerence” toward the father. The court then ordered the mother "to do everything in her power to create in the minds of [the children] a loving, caring feeling toward the father . . . [and] to convince the children that it is the mother's desire that they see their father and love their father." The court further ordered that if the mother breached this order "either in words, actions, demeanor, implication or otherwise" would result in the "severest penalties . . ., including contempt, imprisonment, [or] loss of residential custody…."

Excerpts

Following are excerpts from the opinion approving of the trial court’s order: (citations and references to other authorities within the opinion are omitted)

[A] custodial parent has an affirmative obligation to encourage and nurture the relationship between the child and the noncustodial parent. … This duty is owed to both the noncustodial parent and the child. This obligation may be met by encouraging the child to interact with the noncustodial parent, taking good faith measures to ensure that the child visits and otherwise has frequent and continuing contact with the noncustodial parent, and refraining from doing anything likely to undermine the relationship naturally fostered by such interaction.

Consistent with this obligation, we read the challenged portion of the order at issue to require nothing more of the mother than a good faith effort to take those measures necessary to restore and promote the frequent and continuing positive interaction (e.g., visitation, phone calls, letters) between the children and their father and to refrain from doing or saying anything likely to defeat that end. There is no requirement that the petitioner express opinions that she does not hold, a practice disallowed by the First Amendment. … Under this construction of the order, any burden on the mother's First Amendment rights is merely "incidental.”

Accordingly, we must balance the mother's right of free expression against the state's … interest in assuring the well-being of the parties' minor children. However, as with all matters involving custody of minor children, the interests of the father and of the children, which here happen to parallel those of the state, must also factor into the equation.

In this case, the court … sought to resolve the dispute between the parties in accordance with the best interests of their children by attempting to restore a meaningful relationship between the children and their father by assuring them unhampered, frequent and continuing contact with him. In resolving the matter, the court also properly considered the father's constitutionally protected "inherent right" to a meaningful relationship with his children, a personal interest which in this case is consistent with the state's interest in promoting meaningful family relationships.

There is no question that the state's interest in restoring a meaningful relationship between the parties' children and their father, thereby promoting the best interests of the children, is at the very least substantial. Likewise, any restriction placed on the mother's freedom of expression is essential to the furtherance of the state's interests because affirmative measures taken by the mother to encourage meaningful interaction between the children and their father would be for naught if she were allowed to contradict those measures by word or deed.

Think About It ...

1. Do you agree with the court’s opinion and its outcome? Why or why not?
2. If you disagree with the trial court’s order, what would you have ordered instead?
3. Would the mother violate the court order if she simply never mentioned the father in the children’s presence and refused to respond in any way to the children’s questions or statements about their father?
4. What if the court ordered the mother to tell the children “Your father loves you” or “Your father is a good man” – would this violate her First Amendment rights?

Third-Party Visitation and Other Special Issues

Up to this point, we’ve been discussing the rights of parents who are divorcing or who were never married in the context of legal issues regarding children born to those parents. Issues can also arise with respect to other adults who have a special relationship with those children, and who want to continue to have regular interactions and relationships with the children. Additionally, there may be as yet unborn children whose future must be determined.

Third Party/Grandparent Visitation.

When parents are unmarried, or about to become unmarried, grandparents and other adults may be concerned about whether they will be able to maintain their relationships with the children. The United States Supreme Court has established that actions for grandparent or third-party visitation cannot be brought when the children are from an intact marriage. Troxel v. Granville, 530 U.S. 57 (2000).

Definition: Intact Marriage/family

Intact marriage: The parents are married and there is no pending action for divorce or legal separation.

Although state laws vary as to the rights, procedure, and factors involved in a petition for grandparent or third-party visitation, the best interest of the child is still consistently used as the overriding standard. Some states require proof that a person seeking visitation is either a psychological parent or fictive kin.

Definition: "Parents"

Psychological parent: An adult other than a biological or adoptive parent who, in a substantial and continuing way, has provided for the physical and emotional needs of a child.

Fictive kin: A person who is not related by birth or marriage to a child, but who has an emotionally significant and family-like relationship with the child.

Wisconsin provides for non-parent visitation in limited circumstances.

Visitation by Grandparents and Other Third Parties

Wisconsin statutes permit a court to order visitation with a child by a third party, such as a grandparent, in specific circumstances. These circumstances include visitation during the course of a divorce proceeding, visitation if one or both of the child’s parents are deceased, and visitation if the child’s parents never marry each other. Who may petition for visitation and the type of relationship that person must have with the child varies under each statute. In addition, the Wisconsin Supreme Court has recognized that courts have equitable powers to protect the best interests of a child by ordering visitation even in specified circumstances that do not meet the criteria of any statute governing third-party visitation.

Background

Parents have a constitutionally protected right to raise their children without government interference. This right is based on the privacy protections of the U.S. Constitution. Privacy rights are derived from the Fourteenth Amendment, which generally prohibits government interference with a person’s liberty without due process. Awarding visitation to a third party over a parent’s objection interferes with the parent’s constitutionally protected right to make decisions regarding the “care, custody, and control” of his or her children. [Troxel v. Granville, 530 U.S. 57, 67 (2000).]

In determining whether to order third-party visitation, a court must analyze the visitation request based on the child’s best interest, giving special deference to a fit parent’s determinations as to what visitation is appropriate. Current law presumes that a fit parent’s decision regarding nonparental visitation is in the child’s best interest. A court may read this requirement into a nonparental visitation statute, even when the statute is silent on the topic.

Wisconsin law gives courts the authority to order visitation of children by certain persons who are not a child’s parent in several specific situations, but the person seeking visitation must overcome the presumption in favor of a fit parent’s visitation decision with clear and convincing evidence that the parent’s decision is not in the child’s best interest. The Wisconsin Supreme Court has cautioned judges not to substitute their judgment for a fit parent’s judgment, even if the judge disagrees with the parent’s decision. A court may consider the nature and extent of third-party visitation only if the person seeking visitation has overcome the presumption in favor of a fit parent’s visitation decision. [Michels v. Lyons, 2019 WI 57.]¹ These case law principles apply in cases involving third-party visitation, in addition to any statutory requirements discussed later in this information memorandum.

Visitation Rights in Actions Affecting the Family

A grandparent, great-grandparent, stepparent, or person who has maintained a relationship similar to a parent-child relationship with a child may petition the court for visitation with the child subsequent to, or during, an action affecting the family (such as divorce, legal separation, and paternity actions). The Wisconsin Supreme Court has held that the statutory requirement to prove a “parent-child relationship” applies only to the “person” category listed in the statute, and not to grandparents, great-grandparents, or stepparents. [S.A.M. v. Meister, 2016 WI 22.]

Under this statute, the court may grant reasonable visitation rights to the grandparent, great-grandparent, stepparent, or other person who has standing to seek visitation if: (1) the parents have notice of the hearing; and (2) the court determines that visitation is in the best interests of the child. Whenever possible, in making its determination, the court must consider the wishes of the child. [Section 767.43 (1), Wis. Stats.]

The Wisconsin Supreme Court has further held that a person has standing to seek visitation under the provision above if an underlying action affecting the family unit has been filed, and the child’s family is not intact so that it may be in the child’s best interests to order visitation. [Cox v. Williams, 177 Wis. 2d 433 (1993).] Generally, a child’s family is considered to be “intact” if the child’s parents are married to each other.

Wisconsin law includes a special grandparent visitation provision involving a child whose parents have not married each other and who has not been adopted (non-marital child). The grandparent of such a non-marital child must petition for visitation with the child under the special provision, described next below. [Section 767.43 (2m), Wis. Stats.]

Grandparent Visitation with a Non-marital Child

The court may grant reasonable visitation to the grandparents of a non-marital child whose parents have not subsequently married if the court determines all of the following:

• The paternity of the child has been determined if the grandparent filing the petition is a parent of the child’s father.²
• The child has not been adopted.
• 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 with legal custody of the child.
• The grandparent is not likely to act in a manner that is contrary to decisions that are made by a parent with legal custody of the child and that are related to the child’s physical, emotional, educational, or spiritual welfare.
• The visitation is in the child’s best interest.

[Section 767.43 (3), Wis. Stats.]

Visitation if One or Both Parents of a Child Are Deceased

A court may grant periods of visitation to a grandparent or stepparent if one or both of a child’s parents are deceased and the child is in the custody of the surviving parent or any other person. The person seeking visitation may file a petition as an independent action or within an existing minor guardianship or temporary guardianship proceeding. In order for the court to grant visitation, the surviving parent or other person who has custody of the child must have notice of the hearing, and the court must determine that visitation is in the child’s best interest. Also, whenever possible, the court must consider the child’s wishes. [Sections 48.9795 (12), Wis. Stats., and 54.56, Wis. Stats.]

A court may grant visitation to a grandparent or stepparent in these circumstances, regardless of whether or not the person with custody of the child is married. Moreover, a trial court’s authority to grant visitation under this statute continues even after a subsequent adoption of the child. [Sections 48.9795 (12), Wis. Stats., and 54.56, Wis. Stats.; In re C.G.F., 168 Wis. 2d 62 (1992).]

Visitation Rights of Relatives After a Child's Adoption

If a child is adopted, the parent-child relationship between the adopted child and his or her birth parents is extinguished, unless the adoption is by the birth parent’s spouse who is a stepparent to the child. However, even if all parental rights have been extinguished by the adoption, the court is still permitted to order reasonable visitation rights in certain circumstances to a birth relative³ who has maintained a relationship similar to a parent-child relationship with the child.

A relative may be granted visitation with a child following adoption if the child was adopted by either a stepparent or a relative. The visitation action may be filed at any time, regardless of the date of the adoption. Upon a petition for visitation by a relative, the court must consider the wishes of the adopted child whenever possible and may grant reasonable visitation rights if the court determines all of the following:

• The relative has maintained a parent-child relationship within the two years prior to the filing of the petition for visitation rights.
• The adoptive parent or parents or, if a birth parent is the spouse of an adoptive parent, the adoptive parent and the birth parent have notice of the hearing.
• Visitation is in the child’s best interest.
• The relative will not undermine the adoptive parent’s or parents’ relationship with the child or, if a birth parent is the spouse of an adoptive parent, the adoptive parent and birth parent’s relationship with the child.
• The relative will not act in a manner that is contrary to parenting decisions that are related to the child’s physical, emotional, educational, or spiritual welfare and that are made by the adoptive parent or parents or, if a birth parent is the spouse of an adoptive parent, by the adoptive parent and birth parent.

[s. 48.925, Stats.]

Other Third-Party Visitation Rights

Wisconsin courts may grant third-party visitation under certain circumstances when the statutory procedures do not apply. However, grandparents are not currently eligible to petition a court for visitation with grandchildren under these circumstances. Grandparents must rely upon the statutory procedures described above.
In 1995, the Wisconsin Supreme Court decided a case involving the visitation rights of a third party when no action affecting the family had taken place or was pending. In Holtzman v Knott, the Court held that the former live-in female partner of the biological mother of a minor child could bring an action for visitation with the child. [193 Wis. 2d 649 (1995).] The Court held that a court’s powers to order visitation with a child are not solely governed by statute. The Court stated that courts have equitable powers to protect the best interests of a child by ordering visitation under circumstances not included in the statutes and that those equitable powers come into play when the petitioner has a parent-like relationship with the child and a triggering event occurs that justifies state intervention.

The Court created a four-part test to apply when a third party seeks visitation rights with respect to a minor child, absent an underlying action affecting the family, to establish that the petitioner has a parent-like relationship with the child. The test requires a showing of all of the following:

• The biological or adoptive parent consented to, and fostered, the petitioner’s formation and establishment of a parent-like relationship with the child.
• The petitioner and the child lived together in the same household.
• The petitioner assumed obligations of parenthood by taking significant responsibility for the child’s care, education, and development, including contributing towards the child’s support without expectation of financial compensation.
• The petitioner has been in a parental role for a length of time sufficient to have established a bonded, dependent relationship that is parental in nature.

To establish a significant triggering event justifying state intervention in the child’s relationship with the biological or adoptive parent, the petitioner is required to prove that the parent has interfered substantially with the petitioner’s parent-like relationship with the child, and the petitioner sought court-ordered visitation within a reasonable time after the interference. The petitioner must prove all of these elements before a court may consider whether visitation is in the child’s best interest.

The Holtzman case could have a broad impact on those seeking visitation privileges with a child. However, Wisconsin courts have, so far, declined to apply the principles in the Holtzman case in circumstances to which a current statute applies. [See Rogers v. Rogers, 2007 WI App 50; Wohlers v. Broughton, 2011 WI App 122.]

Enforcement of Visitation Orders

Any person who interferes with visitation rights granted under an action affecting the family, following the adoption of a child, or to the grandparents of a non-marital child may be held in contempt of court under ch. 785, Stats. [ss. 48.925 (4) and 767.43 (5), Stats.]

In a contempt proceeding, the court may impose only the following remedial sanctions:

• Payment of a sum of money sufficient to compensate a party for a loss or injury suffered by the party as a result of the contempt of court.
• A forfeiture not to exceed $2,000 for each day the contempt of court continues.

[s. 785.04 (1) (a) and (c), Stats.]

With respect to visitation rights granted to grandparents and stepparents when one or both of the child’s parents are deceased, the court may issue any order to enforce the visitation order and may modify such visitation privileges or enforcement order upon a showing of good cause. [s. 48.9795 (12) (d), Stats.]
This information memorandum was prepared by Amber Otis, Staff Attorney, on February 26, 2021.

(Wisconsin Legislative Council information memorandum)

Embryos

Assistive reproductive technology (ART) has helped many people become parents through pregnancy which previously may have been impossible. As with any innovation, however, scientific advancements bring new challenges.

Definitions relating to pre-born children

Embryo: An egg that has been fertilized by a sperm and is in the early stages of development, up to about the 8^th week of pregnancy.

Fetus: An embryo (pre-born child) from the 8^th week of pregnancy through birth.

Couples struggling with infertility may utilize in vitro fertilization, which results in embryos that have been frozen with the intent that they be implanted into the woman’s uterus at a later time. When couples divorce, there may be a dispute over who has custody of the embryos. Unfortunately, there are few, if any, statutes that provide guidance as to how to answer this question.

Usually, a couple signs a consent agreement through the clinic that assists with in vitro fertilization, which provides a starting point for sorting out a dispute over custody of the embryos. Such agreements usually require mutual consent of the parties regarding the embryos’ future. Many of these agreements also include provisions specifically addressing the embryos’ future, and most courts enforce those provisions as legally binding. When the agreement is silent and the parties cannot agree, or when one party seeks to avoid enforcement of the agreement, the courts are left to balance each party’s constitutional rights to procreate – or not procreate – against one another. In many cases, the court has ruled in favor of the party who does not want to procreate. The law in this area continues to develop.

Notes

¹ Generally, a court may not grant a third-party visitation with a child if the third party has been convicted of intentional homicide of the child’s parent, unless the court finds by clear and convincing evidence that visitation is in the child’s best interest, after considering the child’s wishes. If visitation rights had already been granted, the court must modify the order to prohibit visitation. [ss. 48.925 (1m), 48.9795 (12) (cm) and (dm), and 767.43 (1m) and (6), Stats.]

² If a paternity action is pending, that action must first be completed before visitation rights may be determined.

³ “Relative” means a stepparent, brother, sister, stepbrother, stepsister, half-brother, half-sister, brother-in-law, sister-in-law, first cousin, second cousin, nephew, niece, uncle, aunt, step-uncle, step-aunt, or any person of a preceding generation as denoted by the prefix of grand, great, or great-great, whether by blood, marriage, or legal adoption, or the spouse of any “relative,” even if the marriage is terminated by death or divorce. [s. 48.02 (15), Stats.]