If you’re a step-parent, you may be entitled to visitation rights. Wisconsin statute 767.245 grants visitation rights to parents, grandparents, great-grandparents or step-parents. The term guardianship is used whenever a non-parent is given custody. Courts tend to grant guardianship to parties who show an ability to serve the best interest of the child.
In Wisconsin, family courts apply the “best interest of the child” standard, holding that all decisions related to custody or placement must be made in the best interest of the child.
In the case S.A.M. vs. Meister, 361 Wis. 2d 286, 862 N.W.2d 619 (Ct. App. 2015 – Unpublished), the court holds that if visitation with a step-parent serves the best interest of the child, such visitation should be granted. The court then continues to find that if granting stepparent visitation rights serves the best interest of the child, such visitation does not infringe upon the biological parents’ constitutional rights.
Stepparents do have rights to visitation. However, this issue can become complex when establishing the proper jurisdiction in which to pursue these rights. It is generally best to consult a family law attorney who can help you pursue your visitation rights through the proper channels, particularly if the parties involved live in different jurisdictions.
In certain cases, the court can restrict visitation based on geographic location. For example, when parties have shown it not to be in the best interest of the child to leave the state of Wisconsin, courts have restricted visitation to the state of Wisconsin. However, such rulings are highly fact specific and relate to the question of what is “reasonable visitation” under the facts of each individual case.
The Supreme Court, over several cases, has established that custody may be granted to third parties who are not biological parents. However, a critical first step in this process is that the third party seeking custody must establish legal standing in the case.
With respect to a third-party stepparent, the party may show examples of his or her good relationship with the child to build a case for custody. To show this, you will need to present the court with both object and testimonial evidence to support the claim that you are the most deserving of all parties who may be seeking custody of the child. Enlisting the help of a family law attorney can help ensure you are gathering and presenting appropriate evidence to support your case.
At base, the “superior rights doctrine” sets out the general rule that the rights of parents are always superior to the rights of non-parents. This rule is rooted in the assumption that biological parents have a more special and unique bond to their children, and in the constitutional right of each parent to due process.
However, when an adoption to a third party occurs, all legal ties are severed between the child and the biological parent(s) who relinquished rights. For example, in Soergel v. Raufman, 154 Wis. 2d 564, 453 N.W.2d 624 (1990), the court found a father who had relinquished his parental rights did not have the right to seek visitation with the child in question. This decision was further affirmed by the Court of Appeals. However, if you are uncertain about the visitation rights that may be available to you, it is always best to speak with a family law attorney about the facts of your specific case.
Failure to exercise visitation rights can, in some instances, result in a substantial change in circumstances that could trigger a change in the child support amount. However, this rests on the court’s finding that the failure of visitation has caused a financial change to occur. In making this finding, the court will consider both the financial situation when the current support amount was established and the present financial situation. While these findings are less common, a family law attorney will be able to provide more direct guidance on whether this may be a worthwhile path to pursue, based on the facts and circumstances of your case.
