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Garrett Miller

Parental rights in Wisconsin are taken very seriously.  As such, even voluntary termination of parental rights can be a very complicated process.  However, there are circumstances where such a decision becomes appropriate, and in this article, we will explore this issue.  Whether you are the party who has come to the difficult decision of terminating your parental rights, or in a situation where you are seeking to adopt a child and become their legal parent, it is critical you understand the process in Wisconsin.  Voluntary termination of parental rights is by no means granted as a matter of course in Wisconsin, as such you should consider a consult with a qualified Wisconsin family law attorney.

What are parental rights in Wisconsin?

Parental rights are quite significant in Wisconsin.  If no legal father has been designated, either automatically through marriage or by adjudication of an unwed father’s paternity, the mother of a child is entitled to full custody and decision-making authority.  In the situation where a father has been adjudicated their status of paternity by a court or automatically designated the father through marriage at the time of birth, Wisconsin conveys to them an important set of rights.  A father has the right to be considered first for custody in the event the mother of a child decides to put them up for adoption.  In addition, fathers have a right to bring a petition for a court to make a decision regarding custody of their child.  Being the father of a child also entitles a father to submit a parenting plan as part of a court proceeding regarding custody of their child, conveying their desire for their child’s living situation.

As Wisconsin is not a “mother’s venue,” courts will look to both legal parents when considering custody of a child.  Though the most important factor in the court’s decision-making process when considering questions of custody is the best interest of the child, courts do factor in the wishes of each legal parent when balancing the facts of a case.  In the event a legal parent is not awarded primary physical placement of a child, Wisconsin term for custody, a legal parent will almost certainly receive substantial visitation.  This is because Wisconsin law upholds that the best interest of a child is generally served by having a relationship with both their legal parents.

Parental rights in Wisconsin are not without their obligations.  A child is entitled under Wisconsin law to financial support from both of their legal parents.  If you are not the parent with primary physical custody, this will be in the form of child support payments over the course of the child’s minority, contributing to the cost of the child’s upbringing.  During the periods in which you have custody of the child, you must provide for them, supporting their education and well-being.  

Exploring Voluntary Termination of Parental Rights in Wisconsin

Wisconsin court room with judge and lawyers

The difference between voluntary and involuntary termination of parental rights in Wisconsin is based on a parent’s consent. With voluntary termination, a parent willingly gives up their rights, while in involuntary termination, the termination is enforced against the parent’s will for reasons such as abuse or abandonment. Appreciating this distinction is important since the process for voluntary termination is multifaceted, needing careful judicial consideration to confirm the parent’s informed decision.

The Wisconsin court’s prime consideration in both voluntary and involuntary proceedings is the child’s best interest, taking precedence over the interests of the parents. The courts maintain a cautious stance on voluntary terminations, especially when it could lead to a child’s dependency on public assistance or potential child abuse. This underscores the profound weight of the decision to relinquish parental rights, as it can significantly impact a child’s life.

How do I terminate parental rights in Wisconsin?

Wisconsin law does allow an individual to ask a court to voluntarily terminate their parental rights.  There are several procedural requirements to this process.  The parent in question must present a petition to the court requesting a voluntary termination of parental rights.  The court will only grant voluntary termination if they believe the parent who is relinquishing their rights fully understands all the implications of doing so.  The most straightforward way to accomplish this is a court hearing in which the parent in question will be subject to a series of questions by the presiding judge.  The point of this questioning is to prove the parent fully comprehends the consequences of ending their parental rights and is competent to make such a decision.  Should the parent in question prove to be mentally unsound, the court will be unwilling to grant their request.  If for some reason an in-person court hearing is not possible, the parent seeking to relinquish their parental rights may submit their consent to termination in writing.

Even though both parents are potentially consenting to the termination of parental rights, you may be surprised to learn that voluntary termination of parental rights is not routinely granted in Wisconsin.  This is because, regardless of the intentions of the parents, when a Wisconsin court is considering an issue that affects the disposition of a child, they must apply the standard of the best interest of the child.  This is a decision a court must come to independently, and while they can consider the wishes of the parents, they must always be put in the context of the child’s best interest.  The court will consider the stability of the child’s life following termination, and whether any family members are willing to care for the child in their parent’s absence.  As part of this process, the court will likely appoint a guardian ad litem.  This is an attorney who acts on behalf of the court as their investigator, gathering information through interviews with the parents and the child to try and gain an understanding of the situation.  They will then prepare a report they present to the court, advising them on what they believe to be in the best interest of the child given what they have discovered.  

Wisconsin law strongly prefers that a child have two parents.  This is to provide added stability, both in terms of the child’s mental well-being, as well as their financial well-being.  If the court believes a parent to be terminating their parental rights purely as a strategy to avoid paying out child support payments, they will be unlikely to grant the request.  Courts will also likely refuse in situations where a child losing their parent will mean they are likely to require public assistance.  However, Wisconsin law only allows a maximum of two legal parents for a child.  This means that if someone is seeking to adopt the child, voluntary termination is far more likely to be granted, as this creates space for the willing incoming parent, and potentially avoids the financial adversity faced by a child losing their parent.  

How do I adopt my spouse’s child in Wisconsin?

The Wisconsin Department of Children and Families refers to this type of arrangement as Stepparent adoption, and has a process in place to facilitate this.  Note Wisconsin statute allows a spouse to adopt a child when they live with both the child and the parent with custody, so you must technically live with the child to qualify for this process.  There are four steps to stepparent adoption in Wisconsin, first termination of parental rights in the event the child already has two legal parents.  This is a necessary step as Wisconsin law allows a maximum of two legal parents for each child.  Termination of parental rights can come about in three ways.  One, the parent voluntarily terminates their rights, covered above in greater detail this is a difficult process but can be aided if someone if a stepparent is willing to adopt the child. Second, the parent’s rights are involuntarily terminated by a court after a proceeding in which the court determines this action would be in the child’s best interest, this process is covered in more detail below but note courts are often very reluctant to grant such an order.  Third, parental rights are automatically terminated when a parent passes away.  The second step in the stepparent adoption process is submitting a petition to adopt and order for investigation to a circuit court with jurisdiction over the child.  This step officially begins the process of adoption by formally requesting the court to consider your request and initiates the court procedure.  Be sure to have qualified legal representation during this process, as with any court proceeding being advised by someone experienced with the process can help you reach a favorable outcome.  After the petition is submitted, the third step of the stepparent adoption will be an investigation into the child’s potential living situation by the adoption agency.  This is ultimately followed by a hearing on the adoption, in which a decision will be reached.

On what grounds can a parent’s parental rights be terminated in Wisconsin?

If you are in a situation where a parent is unwilling to voluntarily terminate their parental rights, and you feel their continued exercise of these rights is putting your child at risk, there are grounds on which parental rights can be involuntarily terminated by a court order in Wisconsin.  Total abandonment by a parent of their child, with no interaction or support from the parent, would qualify a parent’s rights to be subject to termination.  Parental disability, in which a parent is unable to continue their responsibilities also qualifies.   A complete failure on the part of a parent to assume their parental responsibilities would be another reason a court would terminate parental rights.  Child abuse by the parent would also seriously motivate a court to terminate a parent’s rights.  Note, this is not an easy process, and courts are often reluctant to deprive a parent of their rights over their child.  As such, be sure to consult with a qualified Wisconsin family law attorney if you are considering bringing an action for involuntary termination of parental rights.  

If I regret terminating parental rights, can I regain them again in Wisconsin?

The reality is a voluntary termination of parenting rights will likely be final in Wisconsin.  Wisconsin is not among the few states with statutes allowing for the reinstatement of parental rights in certain circumstances.  In limited situations, such as if you believe you were a victim of fraud or made the decision to terminate your parental rights under unlawful duress by another party, you may have a path to reinstating your rights as parent, and should consult with a family law attorney.

The Legal Procedure for Voluntary Termination

Legal documents with 'Voluntary Termination of Parental Rights' heading

Traversing the legal procedure for voluntary termination demands a comprehensive understanding of the process. It involves:

  1. Filing a petition
  2. Meeting jurisdictional requirements
  3. Giving notice
  4. Holding a hearing
  5. Considering the potential need for a guardian ad litem for the child

Filing the Petition

To initiate the process of voluntary termination of parental rights in Wisconsin, a parent must follow these steps:

  1. File a petition with the court.
  2. Include detailed personal information about the parent, the child, their relationship, and the specific reasons for seeking the termination of parental rights.
  3. The court will consider the child’s best interests when making a decision.

For the petition to be legitimate, the parent must legally agree to the termination, either by presenting themselves before the court or offering a notarized written statement. It must be demonstrated within the petition that the parent is fully capable of making the decision, not mentally incapacitated, and completely understands all the legal consequences of terminating their parental rights.

Court Hearing and Guardian ad Litem

During the court hearing, a guardian ad litem is appointed by the court when one parent seeks to terminate their parental rights. This guardian conducts an investigation, which includes interviews with the parents and the child, to advise the court on the child’s best interests. The findings and recommendations of the guardian ad litem play a significant role in informing the court’s decision on whether the termination of parental rights serves the child’s best interests.

At the hearing, the judge examines the consenting parent to confirm their understanding of the consequences of voluntarily terminating parental rights. This step guarantees that the parent’s decision is made with complete understanding of its consequences.

Request a consultation with a qualified Wisconsin family law attorney.  

If you are facing a question related to the termination of parental rights, having qualified representation is critical.  Call our office at (630) 324-6666, email, or schedule a consultation with one of our experienced Wisconsin lawyers today. You can also fill out our confidential contact form and we will get back to you shortly.  

Frequently Asked Questions

Does Wisconsin allow voluntary termination of parental rights?

Yes, Wisconsin law allows voluntary termination of parental rights. This can be done voluntarily or involuntarily.

How long does a father have to be absent to lose his rights in Wisconsin?

In Wisconsin, a father can lose his rights if he leaves a child with another person and does not communicate with the child for six months or more. This can also occur if the court places the child in foster care or with another party and the father does not communicate with the child for three months or more.

What amendment is the parental rights?

The parental rights amendment is protected under the Due Process Clause of the Fourteenth Amendment, allowing parents to direct the care, upbringing, and education of their children.

Can parents agree to no child support in Wisconsin?

Yes, parents can agree to no child support in Wisconsin because child support is not required by state law, and neither party has to pay it if they do not want to. And, if the court orders one party to pay it, the receiving party can refuse it.

What is the difference between voluntary and involuntary termination of parental rights?

Voluntary termination of parental rights occurs when a parent willingly gives up their rights, whereas involuntary termination is enforced against the parent's will often due to abuse or abandonment. Both processes differ in their basis of consent.

Disclaimer: The information provided on this blog is intended for general informational purposes only and should not be construed as legal advice on any subject matter. This information is not intended to create, and receipt or viewing does not constitute an attorney-client relationship. Each individual's legal needs are unique, and these materials may not be applicable to your legal situation. Always seek the advice of a competent attorney with any questions you may have regarding a legal issue. Do not disregard professional legal advice or delay in seeking it because of something you have read on this blog.

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