927 N.W.2d 486
Wis.2019Background
- A child's paternal grandmother, Kelsey, petitioned under Wis. Stat. § 767.43(3) for court-ordered visitation over the objections of the child's fit parents, Lyons and Michels.
- Lyons and Michels had shared a prior, substantial relationship between the child and Kelsey but reduced visitation when the child began school; they did not seek to cut Kelsey off entirely.
- The circuit court found the parents fit and "good parents" but granted Kelsey limited visitation (one Sunday/month for five hours and one week in summer). Parents moved for reconsideration asserting a due process violation. The motion was denied.
- The court of appeals certified the case to the Wisconsin Supreme Court to clarify the standard of proof required for grandparents to rebut the presumption favoring a fit parent's visitation decision and to address related precedent.
- The Wisconsin Supreme Court held that a fit parent's liberty interest in childrearing triggers strict scrutiny, required that a grandparent overcome the presumption in favor of the parent's visitation decision by clear and convincing evidence, and concluded the statute is facially constitutional but unconstitutional as applied because Kelsey failed to meet that burden.
Issues
| Issue | Plaintiff's Argument (Kelsey) | Defendant's Argument (Lyons & Michels) | Held |
|---|---|---|---|
| Does Wis. Stat. § 767.43(3) implicate a fundamental parental liberty interest and what level of scrutiny applies? | Statute is permissible; courts may weigh best interests. | Parents: intrusion on fundamental right to raise children; strict scrutiny required. | The statute implicates a fundamental parental liberty interest; strict scrutiny applies. |
| Is the statute facially unconstitutional? | Kelsey: statute is constitutional when applied with a presumption favoring parents (as in Roger D.H.). | Parents: facially invalid because it allows state intrusion without a compelling interest. | Statute is facially constitutional—there are circumstances it can be applied constitutionally. |
| What burden must a grandparent meet to overcome the presumption favoring a fit parent? | Kelsey: lower civil standard (preponderance) or flexible best-interests review. | Parents: require heightened proof (clear and convincing) to protect parental liberty. | Grandparent must rebut the presumption with clear and convincing evidence that the parent's decision is not in the child's best interest. |
| Was the statute unconstitutional as applied to these parents? | Kelsey: her testimony and GAL recommendations justified visitation order. | Parents: Kelsey failed to prove parent's decision was contrary to child's best interest by clear and convincing evidence. | Statute unconstitutional as applied—Kelsey failed to meet the clear-and-convincing burden; the visitation order vacated. |
Key Cases Cited
- Troxel v. Granville, 530 U.S. 57 (2000) (plurality: fit parents' determinations about visitation merit "special weight" and parental autonomy is a fundamental liberty interest)
- Santosky v. Kramer, 455 U.S. 745 (1982) (heightened proof required where fundamental parental interests are at stake)
- Addington v. Texas, 441 U.S. 418 (1979) (establishes clear-and-convincing standard where important individual interests are implicated)
- Roger D.H. v. Virginia O., 250 Wis. 2d 747 (Wis. Ct. App. 2002) (court of appeals read a presumption into the Wisconsin grandparent-visitation statute to conform with Troxel)
- S.A.M. v. Meister, 367 Wis. 2d 447 (Wis. 2016) (Wisconsin Supreme Court precedent addressing interpretation of Wis. Stat. § 767.43 provisions and rejecting facial invalidation of related visitation statutes)
- Mayo v. Wisconsin Injured Patients & Families Comp. Fund, 383 Wis. 2d 1 (Wis. 2018) (describes the heavy burden for a successful facial constitutional challenge)