The call usually comes after something has already broken. A grandparent who saw a grandchild constantly is now seeing the child rarely, or not at all, and the parents have stopped returning messages. The question is always the same: do I have a right to see my grandchild?
Wisconsin has a statute on the subject, and the honest answer is that it is narrower than most people expect. A grandparent may petition. A court may order visitation. But the burden a grandparent carries is one of the heaviest the law imposes outside a criminal courtroom, and it is heavy on purpose.
Two doors into the same statute
Grandparent visitation lives at Wis. Stat. § 767.43, and the section contains two different routes.
The general provision, § 767.43 (1), lets a grandparent, a greatgrandparent, a stepparent, or a person who has maintained a relationship similar to a parent-child relationship petition for reasonable visitation. The court may grant it if the parents have notice of the hearing and the court determines that visitation is in the child’s best interest. One point is frequently misunderstood: the parent-like-relationship requirement in that list attaches only to the final category. A grandparent, greatgrandparent, or stepparent does not have to prove a parent-like relationship to petition under sub. (1). The Wisconsin Supreme Court said so in S.A.M. v. Meister, 2016 WI 22.
The second route, § 767.43 (3), is the special grandparent provision, and § 767.43 (2m) makes it mandatory rather than optional: where the conditions of sub. (3) (a) to (c) fit the child, sub. (3) applies instead of sub. (1). Those conditions are that the child is a nonmarital child whose parents have not subsequently married each other, that paternity has been determined if the petitioning grandparent is a parent of the child’s father, and that the child has not been adopted.
A grandparent proceeding under sub. (3) must satisfy the court of more than best interest. Under sub. (3) (d) through (f), the grandparent must have maintained a relationship with the child — or have tried to and been prevented by a parent with legal custody; must not be likely to act contrary to the decisions of the parent who has legal custody regarding the child’s physical, emotional, educational, or spiritual welfare; and must show that visitation is in the child’s best interest. Section 767.43 (3m) then requires a pretrial hearing at which the court evaluates the probability that visitation would be granted at trial and may recommend a settlement.
Section 767.43 (2) adds that, whenever possible in making a determination under sub. (1), the court shall consider the child’s wishes — a provision the statute ties textually to the general route rather than to the special grandparent provision. And the statute contains an express bar, at subs. (1m) and (6), against visitation for a person convicted of the first- or second-degree intentional homicide of the child’s parent, subject to a narrow exception the court may find only by clear and convincing evidence, in applying which the court is separately directed to consider the child’s wishes.
The constitutional overlay is the real story
The statutory checklist is not where these cases are decided. They are decided on a constitutional principle that sits above the statute.
A parent has a fundamental liberty interest in the care, custody, and control of the parent’s own child. The Supreme Court of the United States said so in Troxel v. Granville, 530 U.S. 57 (2000), and the consequence is that a court may not simply weigh a grandparent’s request against a parent’s refusal as though the two started even. They do not start even. The parent’s decision is entitled to a presumption that it is correct.
That presumption is why grandparent visitation is not a contest about who would be a better influence on the child, and why a judge’s private view that more time with a loving grandparent would be nice for everyone is beside the point. The question is not whether the court agrees with the parent. The question is whether the parent’s decision can be shown to be against the child’s best interest.
Michels v. Lyons and the standard of proof
Wisconsin settled how strong that showing must be in Michels v. Lyons, 2019 WI 57, 387 Wis. 2d 1, 927 N.W.2d 486.
The facts were unremarkable, which is precisely what makes the case useful. The child’s parents had never married and had separated in 2011. The paternal grandmother had spent a great deal of time with the child, including overnights. When the child started kindergarten in the fall of 2015, the parents reduced that time to make room for school, friends, and the father’s alternate-weekend placement. At the end of that year the relationship deteriorated over a proposed Disney World vacation and the reduced schedule. The grandmother intervened in the pending paternity action and petitioned for additional visitation. The circuit court granted it.
The Wisconsin Supreme Court vacated that order. It held that § 767.43 (3) is constitutional on its face, because there are circumstances in which it can be constitutionally enforced. It held that the statute is narrowly tailored to 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. And it held that the statute was unconstitutional as applied to these parents, because the grandmother had not carried that burden.
Three things in that holding deserve emphasis, because they change how these cases are actually litigated.
First, the standard is clear and convincing evidence — not the ordinary civil preponderance. That is the standard Wisconsin reserves for matters in which the stakes are more than money.
Second, the sequence is fixed. The court held that a circuit court should consider the nature and extent of visitation only if the grandparent first overcomes the presumption. A judge does not begin by designing a schedule and then ask whether it is justified.
Third, the court declined to send the case back for another try. It vacated the order outright rather than force the parents into further litigation that would itself burden the right at stake. That is an unusual disposition, and it signals how the court views the cost of these proceedings to the family on the receiving end.
One limit on Michels should be stated plainly, because a good deal of writing on this subject overstates it: the case was decided under § 767.43 (3), and its holdings are addressed to that subsection. The constitutional principle it applies, however, comes from the parent’s own right rather than from the statutory route a petition travels, which is why the decision reshaped the landscape well beyond its facts. Earlier Wisconsin decisions that applied a softer version of the presumption are flagged in the official annotations to the statute with a pointed but see to Michels.
What does not satisfy the standard
The most instructive part of Michels is what the grandmother wanted. She was not shut out. She was not seeking to restore a severed relationship. She wanted a more generous and more predictable schedule than the parents were willing to provide. That was not enough, and the court said so.
The same lesson appears in Rogers v. Rogers, 2007 WI App 50, where the existing informal arrangement was already sufficient to maintain the relationship between the grandparents and the children. The question in that posture is not whether additional time might be good for everyone. It is whether the state should intervene to dictate to a parent that more time is warranted — and, if so, which parent must surrender part of their own placement to supply it. Someone always pays for court-ordered visitation out of their own time with the child.
The practical translation is uncomfortable but worth hearing: a grandparent who is being given some access is in a considerably weaker position than one who is being given none, however unsatisfying the arrangement feels.
Where the petition can be filed, and against whom
Standing is a live issue under sub. (1), and it catches people out. An action under that subsection is tied to an underlying action affecting the family, and the court of appeals held in Marquardt v. Hegemann-Glascock, 190 Wis. 2d 447 (Ct. App. 1994), that the existence of such an action is not by itself enough — the underlying action must threaten the integrity of a family unit. The section does not reach intact families. Grandparents sometimes assume that a bad relationship with their own adult child is a legal problem the family court can solve. Where the child’s family unit is intact, it is not.
Under sub. (3) the position differs. Section 767.43 (3c) allows a grandparent to commence an independent action for visitation, or to file the petition inside an existing action affecting the family. And the court of appeals held in Wohlers v. Broughton, 2011 WI App 122, that the separate triggering-event requirement developed for equitable visitation does not apply to a sub. (3) petition.
Two hard limits
Adoption ends the analysis. In Soergel v. Soergel, 154 Wis. 2d 564 (1990), the Wisconsin Supreme Court held that biological grandparents had no right to visitation following the termination of their son’s parental rights and the child’s adoption by a stepfather. Section 767.43 (3) (c) reflects the same principle on its face by excluding adopted children from the special grandparent provision.
And visitation is not placement. A grandparent exercising court-ordered visitation makes the routine daily decisions that come with having the child in the house and nothing greater; decisions inconsistent with the major decisions of the person holding legal custody are not theirs to make. That is the rule of Rick v. Opichka, 2010 WI App 23. Our explanation of legal custody and physical placement in Wisconsin sets out the distinction those cases turn on.
The other route: equitable visitation
Section 767.43 is not the only door. In Holtzman v. Knott, 193 Wis. 2d 649 (1995), the Wisconsin Supreme Court held that a circuit court may use its equitable powers to consider visitation by a non-parent in circumstances the statute does not cover, where the petitioner demonstrates a parent-like relationship with the child and a significant triggering event — typically a substantial interference with that relationship — justifying state intervention.
That route matters most to the person who functioned as a parent without ever being one on paper: a former partner of a parent, a relative who raised the child for years. It is not a way around the constitutional presumption, and the fit-parent principle applies there too. It is a way in where the statute’s categories do not fit.
Enforcement, if an order exists
Section 767.43 (5) provides that a person who interferes with visitation rights granted under sub. (1) or sub. (3) may be proceeded against for contempt of court under ch. 785 — with the express limitation that the court may impose only the remedial sanctions specified in s. 785.04 (1) (a) and (c). This is a remedial mechanism aimed at compliance, not a punitive one. A grandparent holding an order that is being ignored has a remedy; it is narrower than the word “contempt” suggests to most people.
Reading this from the parent’s side
Most of what is written about § 767.43 is addressed to grandparents. Parents facing a petition should understand the same law, because their position is stronger than they generally believe.
A fit parent’s decision about who sees their child carries a presumption of correctness that must be overcome by clear and convincing evidence. A court may not substitute its own judgment for the parent’s simply because it would have decided differently. And under Michels, the question of how much visitation is appropriate is not even reached until that burden has been carried. Parents who assume a court will “split the difference” are working from the wrong model of the proceeding.
That said, nothing above is a reason to treat a petition casually. These cases are fact-intensive, the record made early tends to govern, and the analysis changes with the family’s posture — whether there is an underlying action, whether the child is marital or nonmarital, whether there has been an adoption, whether a guardianship or the death of a parent has brought other statutes into play. If a custody or placement order is already in place, our post on modifying custody and placement orders explains the framework a visitation dispute is likely to be argued alongside.
Talk to a New Berlin family law attorney
Grandparent visitation is one of the few areas of Wisconsin family law where the governing rule is genuinely counterintuitive: the statute invites the petition, and the constitution makes it hard to win. Knowing which side of that line a particular family falls on — before anyone files — saves a great deal of money and a great deal of damage.
Carson Law Office handles family law matters for clients throughout New Berlin, Waukesha County, Milwaukee, West Allis, Wauwatosa, and the surrounding communities. If you are a grandparent who has lost contact with a grandchild, or a parent who has been served with a visitation petition, call (262) 860-8932 or contact us here for a candid assessment of where you actually stand.
This article provides general information about Wisconsin law and is not legal advice. Reading it does not create an attorney-client relationship. Statutes and case law change, and the outcome of any visitation dispute depends on its own facts; for advice about your own situation, speak with a licensed Wisconsin attorney.