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Wisconsin Third Party Custody and Visitation

The court may, in a divorce or legal separation action, grant visitation rights or even transfer custody of children to persons other than the parents. I refer to non-parents as "third parties" because they are not parties to the action unless the court allows them to join or intervene in the action.

For constitutional reasons there is a strong preference for awarding custody and placement of children to the parents. The issue of third party visitation or custody arises under special circumstances where a non-parent has been in a parent-like relationship with the children in a sufficiently significant was as to justify granting visitation rights to that person or even considering that person as the custodian of the children.

Third Party Visitation Rights

Wisconsin has a statute which governs the granting of visitation rights to third parties under certain circumstances. The basic rule is that upon petition by a 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 the court determines the visitation is in the best interests of the child. Whenever possible, the court is to consider the wishes of the child.

There is also a special rule for grandparents of a nonmarital child whose parents have not subsequently married each other: they may petition for visitation rights even if they have not been in a parent-like relationship with the child, if they have tried to maintain a relationship with the child but the custodial parent has interfered with this attempt, and the grandparents are not likely to act contrary to the decisions of the custodial parent regarding the child's health or welfare. This right to request visitation rights cannot be exercised if the child has been adopted.

Courts are generally cautious about granting third party visitation rights for the obvious reason that it is probably not in the child's best interest to clutter up the child's life with too many non-parents having visitation rights. There must generally be a significant relationship between the child and the non-parent, and the child's wishes are to be considered if at all possible.

The Wisconsin Statute governing third party visitation is s. 767.245.

Third Party Custody/Placement

Even more rare than third party visitation is third party custody and placement, but the court is empowered to do this by statute. The rule is essentially as follows: If the interest of any child demands it, and if the court finds that neither parent is able to care for the child adequately or that neither parent is fit and proper to have the care and custody of the child, the court may declare the child to be in need of protection or services and transfer legal custody to a relative or agency.

Third party placement sometimes occurs when the parents have had difficulties in life and have allowed relatives to care for the children, and then when the parents seek divorce the relatives step in seek custody and placement. When this occurs, the appropriate standard which the court uses to decide the issue is known as the Barstad standard after the case of Barstad v. Frazier, 118 W2d 549, 348 NW2d 479 (1984), in which the standard was articulated. In recognition of the strong preference for parental custody required by constitutional law, the Barstad standard says that custody shall be awarded to a parent unless both parents are either unfit or unable to care for the children or there are compelling reasons for awarding custody to a third party. Compelling reasons include abandonment, persistent neglect of parental responsibilities, extended disruption of parental custody, or other similar extraordinary circumstances that would drastically affect the welfare of the child. If the court finds such compelling reasons, it may award custody to a third party if the best interests of the children would be promoted thereby.

It should be noted that although the Barstad standard reflects the strong parental preference required by constitutional concerns, it also expanded the two-prong statutory basis for third party custody by adding the "other compelling reasons" prong, and then giving some idea of what other compelling reasons might justify third party placement. Although the statute suggests that either inability or unfitness is required, the Barstad standard opens up other possible reasons for considering third party placement.

Wisconsin law is currently unclear about the relationship between finding a child in need of protection or services in family court in a divorce or legal separation action, and the regular juvenile court law and procedure for finding children in need of protection or services. Some courts have followed the practice of commencing a juvenile court action alongside the family court action to clarify the applicable law and procedure regarding the placement of the children and the conditions for return of the children to the custody of a parent. Another approach would be for the court to conclude that certain relevant statutes of the Juvenile Code are applicable in divorce or legal separation proceedings where children have been found to be in need of protection or services.

The Wisconsin Statute governing third party custody is s. 767.24(3).


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