Although the Wisconsin Supreme Court rarely hears family law cases, this year it heard Michels v. Lyons, which involved Wisconsin Statutes Section 767.43(3), also known as the Grandparent Visitation Statute.
There, a child’s maternal grandmother filed a petition for visitation after the parents, who never married and were no longer together, chose to reduce the amount of time the child spent with the grandmother. The circuit court granted visitation rights to the grandmother, and the court of appeals certified the matter to the Wisconsin Supreme Court to clarify the standard of proof that is required for a grandparent to overcome a fit parent’s decision regarding visitation.
Clarifying the standard of proof necessary, Justice Rebecca Dallett, writing for the majority, vacated the order granting the grandmother visitation and discussed the constitutionality of the Grandparent Visitation Statute itself.
The United States Supreme Court has long held that there is a fundamental liberty interest in the care and upbringing of one’s children. (See, e.g., Troxel v. Granville, 530 U.S. 57, Meyer v. Nebraska, 262 U.S. 390, Pierce v. Society of Sisters, 268 U.S. 510.) Because this fundamental liberty interest exists, the court engaged in a strict scrutiny analysis of the statute where it found the Grandparent Visitation Statute to be facially constitutional, but unconstitutional as applied.
The Wisconsin Supreme Court reasoned that because a grandparent is required to overcome a presumption that a fit parent’s visitation decision is in the child’s best interests by clear and convincing evidence, the statute is narrowly tailored. Thus, Michels cleared up the required standard of proof and directed lower courts to hold grandparents to the higher burden of clear and convincing evidence if the parents of the child disagree with the grandparent regarding the visitation schedule.
While reaching its decision, the lower court relied on the grandmother’s significant contact with the child and the guardian ad litem’s recommendation that the grandmother have visitation and stated that it did not think that it would be fair to the child to cut off contact with the grandmother outright.
However, the Wisconsin Supreme Court held that it was clear that the lower court had failed to hold the grandmother to the higher standard. Moreover, the court noted that the lower court’s decision exemplified a court substituting its own judgment for that of fit parents. Thus, the circuit court’s decision to grant visitation to the grandparents over the fit parents’ objection was unconstitutional as applied.
Notwithstanding Michels predictable outcome to the particular facts in that case, it creates uncertainty as to whether any evidence will be sufficiently clear and convincing to overcome any fit parent’s visitation decision. Further uncertainty also remains as to whether this higher burden applies to other third-party individuals petitioning the court for visitation under Section 767.43.
Moreover, it raises the question whether merely allowing a possible, albeit unlikely, option for grandparents to petition for visitation is harmful to children who may feel impacted by litigation. If it is hard to imagine what set of circumstances would allow for a grandparent to meet this bar and one believes litigation involving children among family members is harmful to children, should there be an option?