Signing Away Parental Rights in Wisconsin

The phrase “signing away parental rights” makes the process sound much simpler than it is. A parent may wish to give up their own rights to their child, or the other parent may seek to have those rights terminated, but neither can happen through a signature or private agreement alone.

In Wisconsin, parental rights can only be terminated through a court proceeding.

What Does It Mean to Terminate Parental Rights?

Termination of parental rights permanently ends the legal parent-child relationship. Wisconsin law defines it as a court-ordered severance of:

“all rights, powers, privileges, immunities, duties and obligations existing between parent and child.” Wis. Stat. § 48.40(2).

Once these rights are terminated, a parent is stripped of their decision-making authority, but they are also completely relieved of legal liability for the child. For example, the individual could no longer be held legally or financially responsible if the child were to face municipal citations under local Wisconsin curfew laws or other minor-related ordinances.

Can a Parent Give Up Custody or Placement Without Terminating Parental Rights?

Changing legal custody or physical placement is not the same as terminating parental rights. A parent may have limited decision-making authority or less time with the child yet still remain the child’s parent in the eyes of the law. In re Marriage of D.L.J., 162 Wis. 2d 420, 426, 469 N.W.2d 877 (Ct. App. 1991).

Although parents may informally follow a different placement schedule than what the court originally ordered, their agreement does not change the existing court order or create a new schedule that can be enforced in court. Culligan v. Cindric, 2003 WI App 180, ¶ 13, 266 Wis. 2d 534, 669 N.W.2d 175.

To make an agreed-upon change enforceable, the parents may file a stipulation, or agreement, with the court. The court will incorporate the agreement into a revised order unless it finds that the change is not in the child’s best interests. Wis. Stat. § 767.461.

Can a Parent Voluntarily Terminate Parental Rights in Wisconsin?

A parent may consent to the termination of their parental rights, but they cannot end those rights on their own. In most cases, the parent must give consent in person before a judge. The judge then explains what termination means and determines whether the parent fully understands their decision and is acting on a voluntary basis. Wis. Stat. § 48.41(2)(a).

Even then, the court is not required to terminate parental rights solely because the parent consents. Wis. Stat. § 48.41(1).

Can Parental Rights Be Terminated Without the Parent’s Consent?

Parental rights may be terminated without the parent’s consent only if at least one statutory ground for involuntary termination is proven.

The child’s other parent, an agency, or another person permitted by Wisconsin law may ask the court to terminate a parent’s rights. Wis. Stat. § 48.42(1).

The grounds for involuntary termination are listed in Wis. Stat. § 48.415:

• Abandonment;
• Relinquishment under Wisconsin’s safe-haven law;
• Continuing need of protection or services;
• Continuing parental disability;
• Continuing denial of periods of physical placement or visitation;
• Child abuse;
• Failure to assume parental responsibility;
• Incestuous parenthood;
• Homicide or solicitation to commit homicide of the child’s other parent;
• Parenthood resulting from sexual assault;
• Commission of a serious felony against one of the parent’s children or child trafficking involving any child; and
• A prior involuntary termination of parental rights to another child under the circumstances specified in the statute.

Each ground has its own required elements. For example, limited contact between a parent and child does not automatically establish abandonment, and “continuing parental disability” does not allow termination merely because a parent has a disability. The specific requirements of the applicable ground must be proven. Wis. Stat. § 48.415(1), (3).

The Two Stages of Involuntary Termination

An involuntary termination case has two stages. During the first stage, the court or jury decides whether at least one statutory ground for termination has been proven by clear and convincing evidence. If a ground is established, the court must find the parent unfit. Wis. Stat. §§ 48.31(1), 48.424(4).

Importantly, a finding of unfitness does not by itself terminate parental rights. The judge may still dismiss the case or enter an order terminating the parent’s rights. Wis. Stat. § 48.427(2)–(3).

What Does the Court Consider Before Terminating Parental Rights?

Whether a parent consents to the termination of their rights or a ground for involuntary termination has been established, the court’s final decision is based on the child’s best interests. Wis. Stat. § 48.426(2).

The court considers the following factors under Wis. Stat. § 48.426(3):

• The likelihood that the child will be adopted after termination;
• The child’s age and health at the time of the court’s decision, and, if applicable, when the child was removed from the home;
• Whether the child has substantial relationships with the parent or other family members and whether severing those relationships would be harmful;
• The child’s wishes;
• How long the child has been separated from the parent; and
• Whether termination would allow the child to enter a more stable and permanent family relationship.

The court may also consider other relevant factors, but no single factor controls the decision. State v. Margaret H., 2000 WI 42, ¶ 35, 234 Wis. 2d 606, 610 N.W.2d 475.

Additionally, special federal and state rules apply in these cases when the child meets the legal definition of an “Indian child.” See Wis. Stat. § 48.02(8g), 48.028.

Adoption and Termination of Parental Rights

Before an adoption can be finalized in Wisconsin, the parental rights of any parent who will no longer remain the child’s legal parent generally must be terminated, unless that parent is deceased. Wis. Stat. § 48.81.

Termination and adoption are separate legal steps. A parent may consent to having their rights terminated even if an adoption has not yet been arranged. However, terminating parental rights does not guarantee that an adoption will follow. Wis. Stat. §§ 48.41(1), 48.426(3)(a).

The court may approve an adoption only if it finds that doing so is in the child’s best interests. Wis. Stat. § 48.91(3).

How Does Termination of Parental Rights Affect Child Support?

A child support obligation does not end solely because a termination petition has been filed or because the parent no longer has custody, placement, or contact with the child.

Once the court enters an order terminating parental rights, the parent’s obligation to pay future child support ends. Wis. Stat. § 48.43(2).

However, termination does not wipe out past-due child support, and any amount already owed remains enforceable. Hernandez v. Allen, 2005 WI App 247, ¶¶ 24, 27, 288 Wis. 2d 111, 707 N.W.2d 557.

Can a Parent Challenge a Termination Order?

A parent cannot regain terminated rights simply because their situation improves or they later regret the outcome. Although Wisconsin law allows a termination order to be challenged in certain circumstances, strict deadlines apply, and some challenges must be started within 30 days. Wis. Stat. §§ 48.46(2), 808.04(7m).