State Laws and Legislation

Wisconsin Custody and Visitation Law

Wisconsin courts typically will not consider a parent’s sexual orientation in custody and visitation determinations unless it is shown to adversely affect or harm the child(ren).Wisconsin law states: “In determining legal custody and periods of physical placement, the court shall consider all facts relevant to the best interest of the child. The court may not prefer one parent or potential custodian over the other on the basis of the sex or race of the parent or potential custodian. The court shall consider the following factors in making its determination: (a) The wishes of the child’s parent or parents, as shown by any stipulation between the parties, any proposed parenting plan or any legal custody or physical placement proposal submitted to the court at trial. (b) The wishes of the child, which may be communicated by the child or through the child’s guardian ad litem or other appropriate professional. (c) The interaction and interrelationship of the child with his or her parent or parents, siblings and any other person who may significantly affect the child’s best interest. (cm) 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 be able to spend time with the child in the future. (d) The child’s adjustment to the home, school, religion and community. (dm) The age of the child and the child’s developmental and educational needs at different ages. (e) The mental and physical health of the parties, the minor children and other persons living in a proposed custodial household. (em) The need for regularly occurring and meaningful periods of physical placement to provide predictability and stability for the child. (f) The availability of public or private child care services. (fm) The cooperation and communication between the parties and whether either party unreasonably refuses to cooperate or communicate with the other party. (g) Whether each party can support the other party’s relationship with the child, including encouraging and facilitating frequent and continuing contact with the child, or whether one party is likely to unreasonably interfere with the child’s continuing relationship with the other party. (h) Whether there is evidence that a party engaged in abuse … of the child. … (i) Whether there is evidence of interspousal battery … or domestic abuse. … (j) Whether either party has or had a significant problem with alcohol or drug abuse. (jm) The reports of appropriate professionals if admitted into evidence. (k) Such other factors as the court may in each individual case determine to be relevant.”

In a 1993 case, Dinges v. Montgomery, the Wisconsin Court of Appeals upheld a trial court’s decision rejecting a father’s claim that the mother’s same-sex relationship was reason to seek a change in custody. The court ruled that barring evidence that the son was being harmed in some way by the mother’s relationship, there would be no change in custody.

Custody and Visitation for Transgender Parents

There are no reported or published opinions dealing with transgender parents.

Custody and Visitation for Same-Sex Co-Parents

Wisconsin courts will allow a former same-sex partner (with no legal or biological relationship to the children) to petition for visitation.

Wisconsin law states: “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. (1m) (a) … The court may not grant visitation rights … to a person who has been convicted … of the first-degree intentional homicide, or … of the second-degree intentional homicide, of a parent of the child, and the conviction has not been reversed, set aside or vacated. (b) Paragraph (a) does not apply if the court determines by clear and convincing evidence that the visitation would be in the best interests of the child. The court shall consider the wishes of the child in making the determination. (2) Whenever possible … the court shall consider the wishes of the child.”

In a 1995 case, In re the custody of H.S.H.K., the co-parent had been involved in planning to have the baby, was emotionally and financially supportive of the child and raised the child for five years before her relationship with her same-sex partner ended. The family court awarded custody to the birth mother with no visitation to the co-parent. The Supreme Court ruled that there was no evidence that the birth mother’s care for the child warranted a change in custody but held that the co-parent should at least be allowed to petition for visitation. The state Supreme Court found that if a person had established a “parent-like” relationship with a child, that person was allowed to petition the court for custody. The court held that the four criteria involved in establishing a “parent-like” relationship are as follows: “(1) that the biological or adoptive parent consented to, and fostered, the petitioner’s formation and establishment of a parent-like relationship with the child; (2) that the petitioner and the child lived together in the same household; (3) that 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; and (4) that the petitioner has been in a parental role for a length of time sufficient to have established with the child a bonded, dependent relationship parental in nature.” The decision in this case overruled 1991’s In re Z.J.H., a case in which the state Supreme Court ruled that a former same-sex partner did not have standing to petition for visitation.

Citations: WIS. STAT. § 767.24 (2003); Dinges v. Montgomery, 514 N.W.2d 723 (Wis. Ct. App. 1993); WIS. STAT. § 767.245; In re the custody of H.S.H-K., 533 N.W.2d 419 (Wis. 1995); In re Z.J.H, 471 N.W. 2d 202 (Wis. 1991).


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Updated: Tue, October 12, 2004 - 10:59:21