Supreme Court Sides with Parents in Grandparent Visitation Case:
In 2015, the parents denied Kelsey’s request to take her granddaughter to Disney World and began limiting her visitation time, citing Kelsey’s questionable supervision.
For instance, Kelsey allowed her granddaughter to ride a horse without a helmet and gave her a sip of alcohol. Kelsey intervened in a paternity action and sought additional visitation under Wisconsin’s grandparent visitation statute, Wis. Stat. section 767.43(3).
That statute says “[t]he court may grant reasonable visitation rights, with respect to a child, to a grandparent of the child if the child’s parents” are not married and the grandparent seeking visitation is a parent of the child’s father.
Additionally, the court must be satisfied that 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.”
The circuit court sided with Kelsey, ordering visitation rights at least one Sunday per month and allowed a seven-day vacation period during summer breaks. The parents moved for reconsideration on due process grounds, but the motion was denied.
The Wisconsin Appeals Court certified the case for review by the Wisconsin Supreme Court. And in Michels v. Lyons, 2019 WI 57 (May 24, 2019), the unanimous court vacated the circuit court’s order, concluding it violated the parent’s constitutional rights.
The court, in a majority opinion by Justice Rebecca Dallet, concluded that the grandparent visitation statute is facially constitutional. Four other justices agreed.
But the majority also ruled the statute “is unconstitutional as applied because Kelsey did not overcome the presumption in favor of Lyons and Michels’ visitation decision with clear and convincing evidence that their decision is not in [their child’s] best interest.”
Justice Dallet explained that parents have a “fundamental liberty interest” in the care and upbringing of their children and the circuit court infringed on this fundamental right when it ordered more visitation rights to Kelsey, despite the parents’ objection.
“We conclude that because the Grandparent Visitation Statute directly and substantially implicates a fit parent’s fundamental liberty interest in the care and upbringing of his or her child, it is subject to strict scrutiny review,” Justice Dallet wrote.
Visitation statutes, the majority opinion explained, exist to allow relatives to petition for visitation when a family unit is dissolving and maintaining continuity would be in the best interest of the child. Clear and convincing evidence must support the argument. That is, a grandparent must show the parents’ decision is not in the child’s best interest.
The majority said Kelsey did not present clear and convincing evidence that overruling the parents’ decision regarding visitation would not be in their child’s best interest. The majority noted that the parents did not intend to eliminate Kelsey’s visitation rights.
“Kelsey’s desire to merely secure a more generous and predictable visitation schedule is not enough to overcome the presumption in favor of Lyons and Michel’s visitation decision and demonstrate that their decision is not in [their child’s] best interest.”
“A circuit court should not substitute its judgment for the judgment of a fit parent even if it disagrees with the parent’s decisions,” Justice Dallet wrote.
Justice Rebecca Bradley wrote a concurring opinion, joined by Justice Daniel Kelly. They agreed that the Grandparent Visitation Statute, and the circuit court’s order, was unconstitutional as-applied to the parenting decisions of Michels and Lyons.
But the concurring justices also argued that the visitation statute is facially unconstitutional and should not be allowed to stand at all.
“Because the majority upholds the constitutionality of § 767.43(3), except as applied to parents in this particular case, fit parents’ fundamental liberty interest in raising their children free from governmental interference remains at risk,” Justice R. Bradley wrote.