On May 31, the Wisconsin Supreme Court issued the latest in a series of cases addressing the complicated issue of grandparent rights to visitation. Family court advocates throughout the state hoped the ruling would bring clarity to the question. They were disappointed.
Grandparent visitation cases come about because two well- established principles in the law collide. The first principle is that parents have a liberty interest in raising their children, and this liberty interest should not be disturbed except in the most serious cases. It means that parents are to be left alone to make decisions about their children, provided they are not exposing their children to physical or serious emotional harm.
The second principle is that courts are to protect the best interests of children. This is the principle that guides the Court in most disputes between parents. In many of these cases, the parents cannot agree on an outcome, but both have sound logical reasons for preferring one outcome over another. In those cases, the Court cannot recognize the liberty interest of both parents, and is forced to choose a plan that is best for the child.
Things began to get messy with United States Supreme Court case, Troxel v. Granville. The decision from 2000 starts out strongly in favor of parent:
The fundamental liberty interest protected includes the right of parents to establish a home and bring up children, direct upbringing and education of the children under their control. Freedom of personal choice in matters of family life is a fundamental liberty interests. There is a private realm of family life which the state cannot enter. . . . So long as a parent adequately cares for his or her children, there will normally be no reason for the state to inject itself from the private realm of the family to question the ability of that parent.
However, the Supreme Court went on to say that a parent’s liberty interest was not unlimited, and that, in some circumstances, a court could give visitation to a third party, like grandparents, even if the parents didn’t want the visitation to take place. Rather than spelling out when a court could grant such visitation, the Supreme Court left it up to the states to figure out when and how it could happen.
Wisconsin’s effort to answer that question is section 767.483 of the Wisconsin statutes. The statute, though, leaves much to be desired, and has generated many questions.
One of the first questions is, who is actually entitled to ask for visitation? The list of people named in the statute concludes with “or a person who has maintained a relationship similar to a parent-child relationship with the child.” Over time, a dispute arose whether that phrase applied to anyone who is asking for visitation, or if that phrase described a group of people in addition to the others named in the statute.
This question was answered by the Wisconsin Supreme Court in 2016 in S.A.M. v. Meister. In that case, the Wisconsin Supreme Court concluded that the phrase referred to a group of people in addition to grandparents, great-grandparents, and stepparents. The Supreme Court said that the phrase was intended to expand the number of people who might be able to seek third-party visitation, rather than restrict it.
Having resolved the question of who can ask for third party visitation, the next question is what do you have to show to get visitation? Section 767.483 simply says that the Court may grant reasonable visitation if the Court determines that visitation is in the best interest of the child.
In most cases “best interests” is something that needs to only be proven by a preponderance of the evidence. However, in Michaels v. Lyons, Wisconsin Supreme Court held that proof by a preponderance of the evidence did not provide enough protection to the liberty interest of the parents, because it did not respect the presumption in favor of a fit parent’s visitation decision. The Supreme Court said a circuit court could not consider a request for grandparent visitation unless the grandparent overcomes the presumption in favor of a fit parent’s visitation decision with clear and convincing evidence that the parent’s decision is not in the child’s best interests.
The decision fails to provide clarity though, because of the nature of family court decisions. In virtually every case where third-party visitation is requested, there will be an argument that the child will benefit from involvement of the third party in the child’s life. Thus, whether grandparent or other person seeking third-party visitation meets the standard will be left up to judicial discretion; two different judges can look at exactly the same evidence and come up with totally opposite rulings as to whether the “clear and convincing” standard has been met.
Family law attorneys hoped that the Michaels ruling would help clear things up in this type of case, because this sort of litigation can be very damaging to children. Rather than bringing things into sharper focus, the Wisconsin Supreme Court’s decision leaves things no better off than before.