October 05, 2017
Third Party Visitation: What Is Your Legal Burden?
The legal framework in determining third-party visitation is different from the legal framework for awarding physical placement in a divorce or paternity action. Cassel Villarreal outlines an analysis for determining third-party visitation.
In the last several years I have seen a large increase in actions filed for third party visitation.
The legal framework in awarding third-party visitation is different from physical placement in a divorce or paternity action.
You must look beyond the statute into case law to piece together the four steps considered in a determination of third-party visitation:
1. Determine that the petition is brought by a person identified in Wis. Stat. section 767.43(1):
... upon petition by a grandparent, great grandparent, 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.
To prove a parent-child relationship, a nonparent must show that the parent consented to and fostered a parent-like relationship with the child, and that the relationship was of sufficient length to create an attachment to the nonparent; that the nonparent and child lived together in the same household; and that the nonparent assumed obligations of parenthood whether financial or caretaking.1
A grandparent, great grandparent, or stepparent does not have to prove a parent-child relationship in seeking visitation. However, grandparents of a nonmarital child must prove that they maintained or attempted to maintain a relationship with the child. See Wis. Stat. section 767.43(3) for this special grandparent visitation provision.
2. Determine that a significant triggering event has occurred and has substantially interfered with the nonparent’s relationship.2
3. Apply a rebuttable presumption that a fit parent’s decision regarding third party visitation is in the best interest of the child.3
4. Determine whether the party seeking third party visitation rebuts the above presumption and demonstrates that the parent’s decision is not in the child’s best interest, and if so, determine if the nonbiological parent’s request for visitation is in a child’s best interest.
[T]he court is to tip the scales in the parent's favor by making that parent's offer of visitation the starting point for the analysis and presuming it is in the child's best interests. It is up to the party advocating for non-parental visitation to rebut the presumption by presenting evidence that the offer is not in the child's best interests. The court is then to make its own assessment of the best interests of the child.4
1 In re Custody of H.S.H.-K, 193 Wis.2d 649 at 658-659 (1995).
2 Wohlers v. Broughton, 2011 WI App 122.
3 Roger D.H. v. Virginia O., 2002 WI App 35, ¶¶ 18-19, 250 Wis.2d 747. The due process clause does not allow the state to intervene in child-rearing decisions of a fit custodial parent simply because a court believes there is a better decision.
4 Martin L. v. Julie R.L., 2008 WI App 37, ¶¶11-12, 299 Wis. 2d 768.
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