Wisconsin Grandparents' Rights: Michels v. Lyons Sets the Real Standard

Grandparents in Wisconsin do not have automatic rights to see their grandchildren. Wisconsin's grandparent-visitation statute, read on its own, looks like an open-ended best-interest law with no protection built in for a fit parent's own decision. That is not the operative law. A 2019 Wisconsin Supreme Court decision rewrote how that statute actually functions, without the legislature ever changing a word of it.

This guide covers what the statute's bare text says, the case that is the real controlling law, the separate routes for nonmarital children and for children whose parent has died, the custody track, adoption cutoffs, and what filing actually involves.

Information last verified on 2026-09-02. This article has not yet been reviewed by a licensed lawyer.

What Wisconsin's Statute Says on Its Face

Wisconsin's general grandparent-visitation provision, Wis. Stat. § 767.43(1), reads as a pure best-interest test on its face, with no presumption favoring the parent's decision and no requirement to show harm. Read in isolation, this is exactly the kind of open-ended statute Troxel v. Granville, 530 U.S. 57 (2000), warned could violate a fit parent's constitutional rights.

The subsection the Wisconsin Supreme Court actually construed in 2019 was a narrower one, § 767.43(3), which covers nonmarital children. That is precisely why the case law discussed below matters so much for Wisconsin: the statutory text alone would understate how demanding a Wisconsin grandparent-visitation case actually is.

Michels v. Lyons: The Case That Is the Real Law

In Michels v. Lyons (In re Visitation of A.A.L.), 2019 WI 57, 387 Wis. 2d 1, 927 N.W.2d 486 (Wis. 2019), the Wisconsin Supreme Court confronted § 767.43(3), the special grandparent-visitation provision for nonmarital children. The petitioner was the father's mother; the child's parents had lived together but never married. The court held that because a fit parent has a fundamental liberty interest in raising their own child, the statute has to withstand strict scrutiny, the most demanding constitutional standard courts apply. The court found the statute facially constitutional, meaning it can be applied consistently with that standard, but only because it read into the statute a requirement the text itself never stated: a grandparent must overcome a presumption favoring the fit parent's visitation decision with clear and convincing evidence that the parent's decision is not in the child's best interest.

The court did not confine that rule to one subsection. It modified the earlier court of appeals decision in Roger D.H. and clarified Martin L., a case brought after a parent's death under former § 54.56, to require the same clear-and-convincing rebuttal, and it said a circuit court considers the nature and extent of visitation only after that burden has been met. A circuit court is not to substitute its judgment for a fit parent's even where it disagrees.

On the specific facts before it, the court held the statute had been applied unconstitutionally, because the grandparent in that case had not met that heightened clear-and-convincing standard, despite having a long, close relationship with the child. The court vacated the visitation order the trial court had granted.

The upshot: Wisconsin's real, operative standard is presumption-and-rebuttal, not bare best-interest, even though the statute's own words never say so. Anyone researching Wisconsin grandparent-visitation law by reading only the statute text would come away with a materially wrong picture of how hard the case actually is.

The Nonmarital-Child Route

Section 767.43(3) is the narrower provision, and it is the one Michels construed. It applies where the child is a nonmarital child whose parents have not subsequently married each other, where paternity has been determined if the petitioning grandparent is a parent of the child's father, and where the child has not been adopted.

The relationship element, § 767.43(3)(d), is disjunctive. It asks whether the grandparent «has maintained a relationship with the child or has attempted to maintain a relationship with the child but has been prevented from doing so by a parent who has legal custody of the child.» Prevention attaches only to the second branch. A grandparent who simply kept the relationship going satisfies the element without having to show that anyone blocked them.

Two further elements follow. Paragraph (3)(e) asks that the grandparent not be likely to act in a manner contrary to decisions made by a parent with legal custody about the child's physical, emotional, educational or spiritual welfare, and paragraph (3)(f) requires that the visitation be in the child's best interest. Those are additional statutory conditions, not a softer substitute for the Michels burden. Because Michels was decided under this very subsection, a grandparent petitioning here still has to overcome the fit-parent presumption by clear and convincing evidence.

When a Parent Has Died

Section 767.43 is not the whole visitation picture. If one or both of a child's parents are deceased and the child is in the custody of the surviving parent or any other person, a grandparent or stepparent petitions under Wis. Stat. § 48.9795(12), a provision formerly numbered § 54.56. It applies whether or not the person with custody is married, and the court grants reasonable visitation if it determines that visitation is in the child's best interest, considering the child's wishes where possible. The statute also bars visitation for a petitioner convicted of first-degree or second-degree intentional homicide of the child's parent unless clear and convincing evidence shows visitation is nonetheless in the child's best interest. Michels expressly clarified the case law decided under the predecessor statute, so the fit-parent presumption governs this route as well.

Custody: The Psychological Parent Doctrine

Wisconsin has no dedicated statute letting a grandparent petition for custody in a private dispute with a fit parent. The real-world vehicle instead is a judge-made legal theory, the «psychological parent» doctrine, that originates from a Wisconsin Supreme Court decision in this area of family law. This guide names that doctrine as the relevant background because it is frequently discussed in Wisconsin custody practice, but does not characterize its underlying case's specific holding here, since the full opinion was not independently reviewed for this article. See can grandparents get custody for how this harder track generally compares to other states' approaches.

There is one statutory custody route, and it is not a private-dispute route. Wis. Stat. § 767.41(3)(a) allows a court, if the interest of the child demands it and the court finds that neither parent is able to care for the child adequately or that neither parent is fit and proper to have care and custody, to declare the child in need of protection or services and transfer legal custody to a relative of the child as defined in § 48.02(15), a category that includes grandparents. That turns on a finding about both parents' inability or unfitness, not on a comparison of households, so it does nothing for a grandparent who simply disagrees with a fit parent. Wisconsin's UCCJEA jurisdictional statute (§ 822.02) defines «person acting as a parent» for jurisdictional purposes, but it is not itself a standing or merits custody statute.

Adoption Cutoff

Under the nonmarital-child provision, § 767.43(3)(c), the child must not have been adopted for a grandparent to maintain standing under that section, and that paragraph states no stepparent or relative exception.

The exception exists, in a different statute. Wis. Stat. § 48.925 lets a relative who has maintained a relationship similar to a parent-child relationship with a child who has been adopted by a stepparent or relative petition for reasonable visitation. The court must find that visitation is in the child's best interest, that the petitioner will not undermine the adoptive parent's relationship with the child, and that the petitioner will respect the parent's decisions about the child's physical, emotional, educational or spiritual welfare. Subsection (3) of that statute makes it apply to every child in Wisconsin who has been adopted by a stepparent or relative, regardless of the date of the adoption. A grandparent whose grandchild was adopted by a stepparent is squarely within it, so long as the parent-like relationship is there. What § 48.925 does not reach is an adoption outside the family, which does end the grandparent relationship.

Court Procedure

Wisconsin grandparent-visitation petitions are filed in circuit court, and § 767.43(1) requires that parents receive notice of the hearing. The statute answers the filing-vehicle question outright rather than leaving it to inference: under § 767.43(3c), a grandparent requesting visitation under sub. (3) «may file a petition to commence an independent action for visitation under this chapter or may file a petition for visitation in an underlying action affecting the family under this chapter that affects the child.» A standalone petition is available, so a pending divorce or paternity case is not a prerequisite. Section 767.43(3m) further provides for a pretrial hearing at which the parties may present and cross-examine witnesses and present other relevant evidence, after which the court evaluates the probability of visitation being granted and may recommend a settlement. No official statewide fee schedule was located for this guide; confirm current filing costs with the circuit court clerk in the county where you plan to file.

Before You File: Mediation and the Real Cost of Litigation

Wisconsin's real standard, per Michels v. Lyons, is considerably more protective of parents than the bare statute suggests. A grandparent needs clear and convincing evidence, not just a sympathetic case, on every one of these routes.

As in every state, litigation against your own child's parenting decision is adversarial and can strain family relationships regardless of outcome. Mediation or a direct family conversation is worth trying first, and a Wisconsin family-law attorney can assess whether your specific facts plausibly meet the clear-and-convincing bar before a petition is filed.

Related Wisconsin Resources

For the broader family-law picture in Wisconsin, see Wisconsin child custody laws and Wisconsin divorce laws. For the nationwide picture on this topic, see grandparent visitation rights, can grandparents get custody, and the grandparents' rights by state hub.

Disclaimer

This article provides general information about Wisconsin grandparent-visitation law. It is not legal advice and does not create an attorney-client relationship. Verify current statutory text and procedural details with the Wisconsin State Legislature, the circuit court clerk in your county, or a licensed Wisconsin attorney before relying on anything here for a specific situation.

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Last updated: 2026-09-02.

Frequently Asked Questions

Does Wisconsin's grandparent visitation statute require proof of harm?

The statute's own text does not. But under Michels v. Lyons (2019), decided under § 767.43(3), a grandparent must overcome a presumption favoring the fit parent's decision with clear and convincing evidence. It is a real, demanding standard even though it is not written into the statute, and the court extended the same burden to the other grandparent-visitation routes it addressed.

What is Michels v. Lyons?

A 2019 Wisconsin Supreme Court decision construing § 767.43(3), the special grandparent-visitation provision for nonmarital children. The court held the provision facially constitutional only because it must be read to require a clear-and-convincing-evidence rebuttal of a presumption favoring the fit parent, then held it unconstitutional as applied and vacated the visitation order because the grandmother had not met that standard.

Is there a different Wisconsin statute for children born outside of marriage?

Yes. Section 767.43(3) applies where the child is a nonmarital child whose parents never subsequently married each other, paternity has been determined where the statute requires it, and the child has not been adopted. Its relationship element is disjunctive: having maintained a relationship with the child is enough on its own, and proof that a custodial parent prevented contact is needed only if you are relying on an attempted relationship. This is the subsection Michels construed, so the clear-and-convincing burden applies here rather than a softer test.

What if my grandchild's parent has died?

Then the petition goes under Wis. Stat. § 48.9795(12), formerly numbered § 54.56, not under § 767.43. It lets a grandparent or stepparent petition for visitation when one or both parents are deceased and the child is in the custody of the surviving parent or any other person, whether or not the person with custody is married.

Can a Wisconsin grandparent get custody instead of just visitation?

There is no dedicated statute for a grandparent seeking custody in a private dispute with a fit parent, so that path runs through the judge-made «psychological parent» theory. Where the court finds that neither parent is able to care for the child adequately or is fit and proper, Wis. Stat. § 767.41(3)(a) lets it transfer legal custody to a relative of the child, a category that includes grandparents.

Does adoption end a Wisconsin grandparent's visitation rights?

Under the nonmarital-child provision, § 767.43(3)(c), adoption ends standing. But Wis. Stat. § 48.925 provides a separate route after an adoption by a stepparent or a relative: a relative who has maintained a parent-like relationship with the child may petition for reasonable visitation, regardless of when the adoption happened. An adoption outside the family is not covered.