2016 WI 22
SUPREME COURT OF WISCONSIN
CASE NO.: 2014AP1283
COMPLETE TITLE: In re the marriage of: Nancy M. Meister and
Jay E. Meister:
S. A. M., A. L. M., O. M. M. and J. E. M.,
minors, by their guardian ad litem, Jennifer
Weber,
Appellants-Petitioners,
v.
Nancy M. Meister,
Respondent.
REVIEW OF A DECISION OF THE COURT OF APPEALS
(Reported at 361 Wis. 2d 286, 862 N.W.2d 619)
(Ct. App. 2015 – Unpublished)
OPINION FILED: April 7, 2016
SUBMITTED ON BRIEFS:
ORAL ARGUMENT: October 6, 2015
SOURCE OF APPEAL:
COURT: Circuit
COUNTY: Jefferson
JUDGE: William F. Hue
JUSTICES:
CONCURRED: ABRAHAMSON, J. concurs
ZIEGLER, J., joined by GABLEMAN, J. concur
DISSENTED:
NOT PARTICIPATING: BRADLEY, R. G., J. did not participate
ATTORNEYS:
For the appellants-petitioners, there were briefs by
Jennifer Weber and Zick & Weber Law Offices, LLP, Johnson Creek,
and oral argument by Jennifer Weber.
For the respondent, there was a brief by Andrew R. Griggs,
Neuberger, Griggs, Sweet & Smith, LLP, Watertown, and oral
argument by Andrew R. Griggs.
2016 WI 22
NOTICE
This opinion is subject to further
editing and modification. The final
version will appear in the bound
volume of the official reports.
No. 2014AP1283
(L.C. No. 2011FA335)
STATE OF WISCONSIN : IN SUPREME COURT
In re the marriage of: Nancy M. Meister and
Jay E. Meister:
S.A.M., A.L.M., O.M.M. and J.E.M., minors, by
their guardian ad litem, Jennifer Weber, FILED
Appellants-Petitioners, APR 7, 2016
v. Diane M. Fremgen
Clerk of Supreme Court
Nancy M. Meister,
Respondent.
REVIEW of a decision of the Court of Appeals. Reversed.
¶1 DAVID T. PROSSER, J. This is a review of an
unpublished decision of the court of appeals affirming a circuit
court order denying a grandmother's motion for visitation
rights.1
1
S.A.M. v. Meister, No. 2014AP1283, unpublished slip op.
(Wis. Ct. App. Feb. 5, 2015).
No. 2014AP1283
¶2 The case requires us to interpret Wis. Stat.
§ 767.43(1) (2013-14),2 which allows certain categories of
individuals to petition for the right to visit children——usually
following the dissolution of a marriage. Under the statute, a
"grandparent, greatgrandparent, stepparent or person who has
maintained a relationship similar to a parent-child relationship
with the child" may file a motion for visitation rights. We
must determine whether the "parent-child relationship"
requirement applies only to the "person" category listed in the
statute, or whether it applies to a "grandparent,
greatgrandparent, [and] stepparent" as well.
¶3 The case arose after Carol Meister filed a motion for
the right to visit her four grandchildren in the wake of her son
Jay Meister's divorce from Nancy Meister.3 A family court
commissioner for the Jefferson County Circuit Court initially
granted the motion, but the circuit court denied the motion on
de novo review. Reading Wis. Stat. § 767.43(1) as requiring
every petitioner under this subsection to demonstrate a parent-
child relationship with the child, the circuit court concluded
that Carol's supportive relationship with the children did not
elevate her to a parent-like role in their lives.
2
All subsequent references to the Wisconsin Statutes are to
the 2013-14 version unless otherwise indicated.
3
Given that Carol, Jay, and Nancy share a surname, we will
refer to them by first name throughout the opinion.
2
No. 2014AP1283
¶4 The Meister children appealed, and the court of
appeals affirmed, citing its decision in Rogers v. Rogers, 2007
WI App 50, 300 Wis. 2d 532, 731 N.W.2d 347, as controlling. In
Rogers, the court of appeals stated that grandparents filing a
motion under Wis. Stat. § 767.43(1) must prove "a parent-like
relationship" with the child in order to secure visitation
rights. Rogers, 300 Wis. 2d 532, ¶11.
¶5 Before this court, the Meister children argue that the
court of appeals misinterpreted Wis. Stat. § 767.43(1) in
Rogers. They assert that the phrase "who has maintained a
relationship similar to a parent-child relationship with the
child" applies only to a person other than a grandparent,
greatgrandparent, or stepparent filing a motion for visitation
under the subsection. Nancy counters that reading the
subsection to allow courts to grant visitation rights to
grandparents, greatgrandparents, and stepparents based solely on
a best interest of the child determination would intrude on
parents' fundamental due process rights to direct the care,
custody, and control of their children.
¶6 We conclude that Wis. Stat. § 767.43(1) does not
require a grandparent, greatgrandparent, or stepparent who files
a motion for visitation rights under this subsection to prove
that he or she "has maintained a relationship similar to a
parent-child relationship with the child." Rather, the parent-
child relationship element applies only to a "person" seeking
visitation rights who is not a grandparent, greatgrandparent, or
stepparent. Additionally, we conclude that the legislature's
3
No. 2014AP1283
decision to allow courts to grant visitation rights to
grandparents, greatgrandparents, and stepparents when visitation
is in the best interest of the child does not unconstitutionally
infringe on parents' constitutional rights because any best
interest determination must give special weight to a fit
parent's decisions regarding the child's best interest.
Consequently, the decision of the court of appeals is reversed.
I. FACTUAL BACKGROUND AND PROCEDURAL HISTORY
¶7 Nancy and Jay Meister married in February 2002. They
were divorced in Jefferson County Circuit Court in February
2013. Nancy and Jay are parents of four minor children: S.A.M.,
A.L.M., O.M.M., and J.E.M.
¶8 By the terms of their divorce judgment and
incorporated marital settlement agreement, Nancy and Jay agreed
to joint legal custody of their children. Nancy received
impasse-breaking authority and primary physical placement, while
Jay received regular weekday and weekend placement. In addition
to the weekly plan, Nancy and Jay agreed to an extensive
placement schedule for holidays, special occasions, and
vacations. The agreement included an approximately equal
division of major holidays between Nancy and Jay each year;
Nancy and Jay switch between various holidays in even and odd
years. The plan also guaranteed a week of exclusive time with
the children for each parent during the summer.
¶9 In July 2013 the children's paternal grandmother,
Carol Meister, filed a motion asking that the court establish
visitation rights for her under Wis. Stat. § 767.43(1) on the
4
No. 2014AP1283
basis of her grandparent relationship with the children. Her
motion indicated that she decided to file the petition in
response to changes Nancy had made to Carol's informal
visitation with them.4 Carol sought six visits per year, the
right to arrange visits with Jay and Nancy using an online
family scheduling portal, and the right to regular phone calls
with the children.
¶10 After holding a hearing on the motion, a family court
commissioner5 issued an order in November 2013 granting Carol's
motion for visitation. The commissioner read Wis. Stat.
§ 767.43(1) as "requir[ing] that the grandparent have a
relationship similar to a parent-child relationship" in order to
secure visitation rights. However, the commissioner found that
a relationship similar to a parent-child relationship existed
between Carol and her grandchildren, and he granted Carol one
week of placement at her home in Ohio each summer, four three-
day placements in Wisconsin throughout the year, and access to
the online portal to arrange her visits with Nancy and Jay.6
4
For example, after filing her July 2013 motion for
visitation rights, Carol wrote an October 2013 letter to the
family court commissioner alleging that Nancy objected to
Carol's presence at the children's elementary school when Carol
attempted to see the children at a September 2013 event that was
open to the public.
5
Michael D. Onheiber, Family Court Commissioner.
6
The family court commissioner's order granting Carol's
motion used the terms "placement" and "visitation"
interchangeably. Recent decisions by the court of appeals have
examined the extent to which the Wisconsin Statutes contemplate
a consequential difference between placement and visitation.
(continued)
5
No. 2014AP1283
¶11 Pursuant to Wis. Stat. § 767.17, Nancy requested that
the circuit court review the commissioner's order. On review,
the circuit court7 conducted a hearing to expand the record
regarding Carol's relationship with her grandchildren. Carol
traveled from Ohio to Wisconsin to testify at the hearing.
Appearing without an attorney, she engaged in an extended
conversation with the circuit court regarding her relationship
with the children.
¶12 Over the course of her testimony, Carol described the
supportive role she played in her grandchildren's lives. She
began by explaining how, drawing on her own experience as a
teacher, she tutored them in various subjects during a vacation
to Florida in 2012 and during the children's spring break in
2013. As she continued, she mentioned that she frequently
purchased food and clothing for them when they visited her in
Ohio and when she visited them in Wisconsin. She emphasized
that, even when she was physically distant from the children,
she played an important consultative role for them and for their
father, helping the children with homework by phone and
providing Jay with general parenting advice. The children
See Rick v. Opichka, 2010 WI App 23, 323 Wis. 2d 510, 780
N.W.2d 159; Lubinski v. Lubinski, 2008 WI App 151, 314
Wis. 2d 395, 761 N.W.2d 676. Because the parties in this case
have not argued that the order improperly differentiated between
placement and visitation, this opinion makes no comment on the
extent of any difference between the two.
7
William F. Hue, Judge.
6
No. 2014AP1283
called her "frequently, almost daily sometimes," when staying
with their father.
¶13 Given that Carol appeared pro se and that the
children's guardian ad litem——who supported the commissioner's
order——was unable to attend the hearing, the circuit court
helped to guide Carol's testimony by asking multiple questions
about whether Carol had ever lived with the children. The
questions focused on determining whether Carol's was the type of
case in which "the parents [had] . . . relinquish[ed] their
parental duties to the grandparent for some prolonged period of
time and . . . the grandparent then [was] acting as the parent."
After hearing Carol's testimony, the circuit court expressed
concern about taking the "extraordinary step" of concluding that
a parent-child relationship sufficient for visitation existed
where a grandmother had such a "staggered" relationship with the
grandchildren. But, reluctant to reverse the commissioner
without hearing from an attorney advocating in favor of Carol's
visitation motion, the circuit court decided to schedule a
second hearing so that the children's guardian ad litem could
attend.
¶14 At the second hearing in January 2014, the guardian ad
litem argued that, although Carol may not be a primary parent,
she nevertheless had a relationship with the children similar to
that of a parent who lived out of state. Arguing that "[t]he
statute does not require [Carol] to elevate to the status of
primary parent," the guardian ad litem observed that "if Mr.
Meister relocated to the State of Ohio and had that same
7
No. 2014AP1283
relationship that his mother [had] . . . with the children, he's
still a parent."
¶15 After taking the matter under consideration, the
circuit court issued a May 2014 order denying Carol's motion.
An accompanying memorandum decision explained that the court
concluded that Carol was "ineligible for an award of grandparent
visitation" because she "did not have a relationship similar to
a parent-child relationship" with her grandchildren.
¶16 The children, by their guardian ad litem, appealed the
circuit court's denial of their grandmother's motion.8 Before
the court of appeals, the children argued that "the circuit
court applied the wrong legal standard when it required that the
grandmother, in order to be eligible to receive visitation
rights, show that she had a relationship similar to a parent-
child relationship with them." S.A.M. v. Meister, No.
2014AP1283, unpublished slip op., ¶12 (Wis. Ct. App. Feb. 5,
2015).
¶17 Relying on its previous interpretation of Wis. Stat.
§ 767.43(1) in Rogers v. Rogers, 2007 WI App 50, 300
8
As noted above, Carol Meister filed the motion for
visitation under Wis. Stat. § 767.43(1). She acted pro se. The
grandchildren were represented on the motion by the guardian ad
litem who had represented them from the beginning of the
divorce. When Nancy Meister sought de novo review in circuit
court and prevailed, the guardian ad litem appealed to the court
of appeals on behalf of the children. The guardian ad litem
also sought review in this court on their behalf.
Standing has not been an issue in this case, and we do not
see any prudential reason to make it an issue in this opinion.
8
No. 2014AP1283
Wis. 2d 532, 731 N.W.2d 347, the court of appeals disagreed with
the children. Meister, unpublished slip op., ¶15. In Rogers,
the court of appeals stated that Wis. Stat. § 767.245 (now
§ 767.43(1)9) requires, among other things, that "grandparents
must have a parent-like relationship with the child" in order to
qualify for visitation rights. Rogers, 300 Wis. 2d 532, ¶11.
The court of appeals in the present case treated that language
from Rogers as "a clear declaration that any person seeking
visitation rights under Wis. Stat. § 767.43(1) must first show
that he or she has a relationship similar to a parent-child
relationship in order to establish that he or she is eligible to
receive visitation rights." Meister, unpublished slip op., ¶15
(emphasis added). "[B]ound by that declaration" from Rogers,
id. (citing Cook v. Cook, 208 Wis. 2d 166, 190, 560 N.W.2d 246
(1997)), the court of appeals affirmed the circuit court's
conclusion that Carol had not demonstrated that she maintained a
relationship with the children similar to a parent-child
relationship, id., ¶¶21-22.
¶18 The court of appeals issued its decision on February
5, 2015. Shortly afterward, on February 25, 2015, Carol passed
9
Rogers v. Rogers, 2007 WI App 50, 300 Wis. 2d 532, 731
N.W.2d 347, refers to Wis. Stat. § 767.245, the statute in
effect at the time the visitation petition was filed. In 2006
the legislature renumbered Wis. Stat. § 767.245 as Wis. Stat.
§ 767.43. 2005 Wis. Act. 443, § 101.
9
No. 2014AP1283
away.10 The children filed a petition for review on March 2,
2015, which we granted on June 12, 2015.
II. STANDARD OF REVIEW
¶19 This case requires us to interpret Wisconsin's
grandparent visitation statute. "The interpretation and
application of a statute are questions of law that we review
10
After the court became aware of Carol's passing, we
ordered the parties to submit briefs addressing whether the case
should proceed despite Carol's death. "Ordinarily, this court,
like courts in general, will not consider a question the answer
to which cannot have any practical effect upon an existing
controversy." State ex rel. La Crosse Tribune v. Circuit Court
for La Crosse Cty., 115 Wis. 2d 220, 228, 340 N.W.2d 460 (1983).
Both Nancy and the Meister children argue that this case
qualifies for an exception to the general mootness rule. We
agree. This court may decide an otherwise moot issue if the
issue
(1) is of great public importance; (2) occurs so
frequently that a definitive decision is necessary to
guide circuit courts; (3) is likely to arise again and
a decision of the court would alleviate uncertainty;
or (4) will likely be repeated, but evades appellate
review because the appellate review process cannot be
completed or even undertaken in time to have a
practical effect on the parties.
State v. Morford, 2004 WI 5, ¶7, 268 Wis. 2d 300, 674
N.W.2d 349; see also La Crosse Tribune, 115 Wis. 2d at 229.
Because the interpretation of Wis. Stat. § 767.43(1) applies to
every visitation petition by a grandparent, greatgrandparent, or
stepparent under this subsection, we conclude that this case
presents a question of great public importance that will occur
frequently in the future. Given the disjuncture between the
plain language of § 767.43(1) and the Rogers court's treatment
of that language, a decision from this court resolves any
uncertainty as to this particular facet of the statute's
interpretation.
10
No. 2014AP1283
independently, 'but benefiting from the analyses of the court of
appeals and the circuit court.'" Richards v. Badger Mut. Ins.
Co., 2008 WI 52, ¶14, 309 Wis. 2d 541, 749 N.W.2d 581 (quoting
Marder v. Bd. of Regents of the Univ. of Wis. Sys., 2005 WI 159,
¶19, 286 Wis. 2d 252, 706 N.W.2d 110).
III. DISCUSSION
A. Interpreting Wis. Stat. § 767.43(1)
¶20 We begin our analysis by interpreting Wis. Stat.
§ 767.43(1). When interpreting statutes, this court
consistently begins with the statutory language. State ex rel.
Kalal v. Circuit Court for Dane Cty., 2004 WI 58, ¶45, 271
Wis. 2d 633, 681 N.W.2d 110. "Statutory language is given its
common, ordinary, and accepted meaning, except that technical or
specially-defined words or phrases are given their technical or
special definitional meaning." Id.
¶21 "Context is important to meaning. So, too, is the
structure of the statute in which the operative language
appears." Id., ¶46. Consequently, "statutory language is
interpreted in the context in which it is used; not in isolation
but as part of a whole; in relation to the language of
surrounding or closely-related statutes; and reasonably, to
avoid absurd or unreasonable results." Id. "It is certainly
not inconsistent with the plain-meaning rule to consider the
intrinsic context in which statutory language is used; a plain-
meaning interpretation cannot contravene a textually or
contextually manifest statutory purpose." Id., ¶49. A review
of the statutory history——meaning "previously enacted and
11
No. 2014AP1283
repealed statutory provisions"——also can play a helpful role in
the contextual analysis of a statute's language. Id., ¶52 n.9.
Analysis of unambiguous statutory text does not require the
court to resort to extrinsic sources of meaning such as
legislative history, "although legislative history is sometimes
consulted to confirm or verify a plain-meaning interpretation."
Id., ¶51.
¶22 Applying this interpretive methodology, we conclude
that the phrase "who has maintained a relationship similar to a
parent-child relationship with the child" applies only to an
otherwise undefined "person" who petitions for visitation rights
under Wis. Stat. § 767.43(1), not to a grandparent,
greatgrandparent, or stepparent. A grandparent,
greatgrandparent, or stepparent need not prove a parent-child
relationship to succeed on a petition for visitation. By this
we mean that "maintain[ing] a relationship similar to a parent-
child relationship with the child" is not the sine qua non of a
visitation petition by a grandparent, greatgrandparent, or
stepparent under § 767.43(1). It is, however, the sine qua non
for a petitioner who is not a grandparent, greatgrandparent, or
stepparent under § 767.43(1).
¶23 We acknowledge that subsection (1) is not wholly
unambiguous. In other words, reasonable people have read it in
different ways. Nonetheless, we confidently reach the
conclusion stated above after reviewing the arguments pro and
con, carefully examining the language of Wis. Stat. § 767.43(1),
and then reviewing that language in context with surrounding
12
No. 2014AP1283
language and with the statute's history. A brief review of the
statute's legislative history confirms our interpretation.
¶24 In its current form, the relevant portion of Wis.
Stat. § 767.43(1) reads as follows:
[U]pon petition by a grandparent, greatgrandparent,
stepparent or person who has maintained a relationship
similar to a parent-child relationship with the child,
the court may grant reasonable visitation rights to
that person if the parents have notice of the hearing
and if the court determines that visitation is in the
best interest of the child.11
¶25 The Meister children argue that the court of appeals
incorrectly applied § 767.43(1) in Rogers, 300 Wis. 2d 532,.
When discussing the grandparent visitation statute in Rogers,
the court of appeals made the following declaration:
The grandparents correctly state that Wis. Stat.
§ 767.245 requires that three conditions must be
satisfied before a circuit court may grant visitation:
(1) the grandparents must have a parent-like
relationship with the child, (2) the parents must have
notice of the hearing, and (3) the court must
determine that grandparent visitation is in the
child's best interest.
Rogers, 300 Wis. 2d 532, ¶11. The court did not support this
statement with an exercise of formal statutory interpretation.
It simply agreed with the grandparents in the case, whom the
11
Subsection (1)'s use of the phrase "that person" to refer
back to any person who files a visitation motion under Wis.
Stat. § 767.43(1) contributes to the ambiguity of the
subsection. However, we view use of that phrase as unfortunate
drafting rather than an indication of legislative intent because
of the plethora of other writings by drafters that reveal and
explain the language of the subsection.
13
No. 2014AP1283
circuit court found to have had a parent-like relationship with
the grandchildren.12 Elsewhere in the opinion, the court of
appeals cited Holtzman v. Knott, 193 Wis. 2d 649, 658, 533
N.W.2d 419 (1995), which used the same language in a visitation
case that did not apply that statute.
¶26 Implicitly, under Rogers, any person——whether a
grandparent, greatgrandparent, stepparent, or person having a
different relationship with the child——must prove the existence
of a parent-like relationship with the child in order to secure
visitation rights under Wis. Stat. § 767.43(1). This would
likely place an extremely heavy burden on grandparents who
reside any significant distance from the children. It would
disqualify grandparents who because of geography or other
factors have been prevented from developing a close
relationship.
¶27 According to the Meister children, the phrase "who has
maintained a relationship similar to a parent-child relationship
with the child" should apply only to a "person" other than a
12
The grandparents' brief in Rogers made a similar
statement of the law without providing additional explanation:
Section 767.245(1), Wisconsin Statutes, provides
that a grandparent, among others, can petition the
court for visitation rights where that grandparent has
maintained a relationship similar to a parent-child
relationship and the court may grant reasonable
visitation rights to that person if the parents have
notice of the hearing and if the court determines that
the visitation was in the best interests of the child.
14
No. 2014AP1283
grandparent, greatgrandparent, or stepparent seeking visitation
rights under Wis. Stat. § 767.43(1). They argue in their
principal brief that "what the statute seems to ask for is that
persons who are not grandparents or stepparents prove up a
relationship similar to the one grandparents and stepparents
already enjoy by virtue of their biological or legal connection
to the child." To evaluate the Meister children's challenge to
the Rogers court's language, we conduct an independent
assessment of § 767.43(1).
¶28 The Meister children's focus on relationships has an
intuitive appeal. Wisconsin Stat. § 767.43(1) applies to
grandparents of a child of a married or formerly married couple.
This means that these grandparents and greatgrandparents have a
direct family tie to one of the parents of the child. A
stepparent, under this subsection, is or was married to one of
the parents of the child. On the other hand, the "person"
category is undefined so that it is hard to anticipate the
nature of the relationship that the "person" has to the child.
The "person" could be a sister or brother, but it could also be
an aunt or uncle, cousin, former foster parent, neighbor, or
friend. Requiring proof of a significant supportive
relationship from persons in this undefined category makes good
policy sense. Requiring the same proof from a grandparent is
unnatural, and it would clearly make a successful petition for
visitation much more difficult for some grandparents than for
others.
15
No. 2014AP1283
¶29 Our interpretation of the statutory language begins
with an examination of its syntax. The Meister children urge us
to apply the last-antecedent canon of statutory construction,
under which "qualifying or limiting clauses in a statute are to
be referred to the next preceding antecedent, unless the context
or plain meaning dictates otherwise." Vandervelde v. City of
Green Lake, 72 Wis. 2d 210, 215, 240 N.W.2d 399 (1976)
(concluding that a statute's minimum population requirement
affected towns but not cities where statute applied to "any city
or village or any town having a population of more than 7,500");
see also Antonin Scalia & Bryan A. Garner, Reading Law 144
(2012) ("A pronoun, relative pronoun, or demonstrative adjective
generally refers to the nearest reasonable antecedent."
(emphasis omitted)); 2A Norman J. Singer & Shambie Singer,
Statutes and Statutory Construction § 47:33, at 494-97 (7th ed.
2014) ("Referential and qualifying words and phrases, where no
contrary intention appears, refer solely to the last antecedent.
The last antecedent is 'the last word, phrase, or clause that
can be made an antecedent without impairing the meaning of the
sentence.'" (footnote omitted)).13
13
Black's Law Dictionary provides a similar definition: "An
interpretive principle by which a court determines that
qualifying words or phrases modify the words or phrases
immediately preceding them and not words of phrases more remote,
unless the extension is necessary from the context or the spirit
of the entire writing." Rule of the Last Antecedent, Black's
Law Dictionary 1532-33 (10th ed. 2014). As an example, Black's
explains that, "in the phrase Texas courts, New Mexico courts,
and New York courts in the federal system, the words in the
federal system might be held to modify only New York courts and
(continued)
16
No. 2014AP1283
not Texas courts or New Mexico courts." Id.
In his critique of the canons of interpretation, Karl
Llewellyn presented the rule as two competing canons:
"Qualifying or limiting words or clauses are to be referred to
the next preceding antecedent," but "[n]ot when evident sense
and meaning require a different construction." Karl N.
Llewellyn, Remarks on the Theory of Appellate Decision and the
Rules or Canons About How Statutes Are to Be Construed, 3 Vand.
L. Rev. 395, 405 (1950).
More recently, Justice Scalia and Bryan Garner examined the
rule's application in their book Reading Law. See Scalia &
Garner 144-46. Their discussion included contemporary and
historic examples of the rule's use at the Supreme Court of the
United States. Id. (first citing Barnhart v. Thomas, 540 U.S.
20, 27-28 (2003); then citing Sim's Lessee v. Irvine, 3 U.S. (3.
Dall.) 425, 444 n.* (1799)). For a more recent example of the
Supreme Court's application of the canon, in which the Court
quoted from Black's and from Reading Law, see the Court's
decision on March 1, 2016 in Lockhart v. United States, 136 S.
Ct. 958 (2016).
In addition to the Vandervelde case cited in the text
above, this court also has periodically applied the last-
antecedent rule when interpreting statutes. See, e.g., Fuller
v. Spieker, 265 Wis. 601, 603-05, 62 N.W.2d 713 (1954)
(interpreting county ordinance to place time limit on mandatory
but not discretionary leave for deputy sheriff where time limit
language followed mandatory leave requirement); Serv. Inv. Co.
v. Dorst, 232 Wis. 574, 576-78, 288 N.W. 169 (1939) (applying
context exception where comma evinced intent for clause to
modify all preceding clauses in list, rather than only the
immediately preceding clause); cf. Stoker v. Milwaukee Cty.,
2014 WI 130, ¶¶23-24, 359 Wis. 2d 347, 857 N.W.2d 102 (declining
to apply last-antecedent canon in order to avoid absurd result).
Finally, the Legislative Reference Bureau's Wisconsin Bill
Drafting Manual 2015-2016 (2014) (Bill Drafting Manual) suggests
drafting with the last antecedent canon in mind. A section
providing guidance with regard to word choice and phrasing
encourages drafters to "modify only the words that you intend to
modify." Bill Drafting Manual § 2.01(17m)(a), at 39. It
explains that the phrase "'licensees may hunt moose, deer, or
ducks that are not on the endangered species list' is
ambiguous." Id. After suggesting alternative sentence
(continued)
17
No. 2014AP1283
¶30 Here, interpreting Wis. Stat. § 767.43(1) requires us
to determine whether the pronoun "who" in the qualifying clause
applies only to a "person" or also applies to grandparents,
greatgrandparents, and stepparents. The list "grandparent,
greatgrandparent, stepparent or person" immediately precedes the
limiting clause "who has maintained a relationship similar to a
parent-child relationship with the child." Applying the last-
antecedent rule to the list limits "who" to the final item in
the list——"person." Consequently, reading § 767.43(1) according
to the last-antecedent canon supports the interpretation that a
person seeking visitation rights under the subsection needs to
prove that he or she has a parent-child relationship with the
child only if the person is not a grandparent, greatgrandparent,
or stepparent. We think this is the more natural reading of the
phrase.
¶31 Next, we expand the analysis of Wis. Stat. § 767.43 to
consider subsection (1) in context with subsection (3).
Subsection (3) reads as follows:
(3) Special Grandparent Visitation Provision.
The court may grant visitation rights, with respect to
a child, to a grandparent of the child if the child's
parents have notice of the hearing and the court
determines all of the following:
constructions that would avoid ambiguity, the manual cites state
and federal cases in Wisconsin that interpreted statutes with
unclear modifiers. Id. § 2.01(17m)(b)-(d), at 40. First among
the cited cases is Vandervelde, which the manual cites for the
proposition that "qualifying or limiting words in a statute
generally refer to the nearest antecedent only." Id.
§ 2.01(17m)(d), at 40.
18
No. 2014AP1283
(a) The child is a nonmarital child whose
parents have not subsequently married each other.
(b) Except as provided in sub. (4), the
paternity of the child has been determined under the
laws of this state or another jurisdiction if the
grandparent filing the petition is a parent of the
child's father.
(c) The child has not been adopted.
(d) 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.
(e) The grandparent is not likely to act in a
manner that is contrary to decisions that are made by
a parent who has legal custody of the child and that
are related to the child's physical, emotional,
educational or spiritual welfare.
(f) The visitation is in the best interest of
the child.
(Capitalization omitted; emphasis added.)
¶32 The legislature explicitly included a relationship
requirement for grandparents in subsection (3) but declined to
do so in subsection (1). Under subsection (3), a court may
grant visitation rights only if it determines, among other
things, that "[t]he 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."
§ 767.43(3)(d). Reading subsection (1) as requiring proof of a
"parent-child relationship" would place a heavier burden on
grandparents of marital children than subsection (3)'s mere
"relationship" requirement for grandparents of non-marital
children——despite the absence of the type of clear requirement
19
No. 2014AP1283
that appears in subsection (3). This suggests that the Rogers
interpretation of subsection (1) was not correct.
¶33 A review of the statutory history of Wis. Stat.
§ 767.43(1) further indicates that the legislature did not
intend to require grandparents to prove a parent-child
relationship with the child when petitioning for visitation. An
earlier version of the grandparent visitation statute provided:
The court may grant reasonable visitation
privileges to a grandparent or greatgrandparent of any
minor child upon the grandparent's or
greatgrandparent's petition to the court with notice
to the parties if the court determines that it is in
the best interests and welfare of the child and issue
any necessary order to enforce the same.
Wis. Stat. § 767.245(4) (1985-86). Under this version of the
statute, only a grandparent or greatgrandparent could petition
for visitation rights——there was no provision for stepparents or
other persons——and a grandparent or greatgrandparent petitioner
did not need to prove the existence of any kind of relationship
with the child.
¶34 In 1988 the legislature passed 1987 Wis. Act. 355.
Section 38 of Act 355 amended the visitation statute to bring it
closer to its current form. As amended, the statute read:
Upon petition by a grandparent, greatgrandparent,
stepparent or person who has maintained a relationship
similar to a parent-child relationship with the child,
the court may grant reasonable visitation rights to
that person if the parents have notice of the hearing
and if the court determines that visitation is in the
best interest of the child.
Wis. Stat. § 767.245(1) (1987-88). An inline note, authored by
the Legislative Council, accompanied section 38 of Act 355 and
20
No. 2014AP1283
explained that the amendment "[e]xtend[ed] the current law
permitting the court, upon petition, to grant visitation rights
to a grandparent or greatgrandparent to: (1) a stepparent; and
(2) any person who has maintained a relationship similar to a
parent-child relationship with the child."
¶35 Taken together, the change to the language of the
statute and the Legislative Council note provide compelling
evidence that the legislature intended that the phrase "who has
maintained a relationship similar to a parent-child relationship
with the child" should apply only to a "person" petitioning for
visitation under the statute. Rather than placing more
stringent requirements on grandparents and greatgrandparents
filing motions under the statute, the legislature actually
expanded the categories of people who might petition for
visitation in any particular case by allowing stepparents and
other persons to do so. The Legislative Council note then
confirmed the expansive nature of the changes, making clear that
the phrase "who has maintained a relationship similar to a
parent-child relationship with the child" attaches only to a
"person" petitioning for visitation rights while placing no such
condition on petitions by grandparents, greatgrandparents, and
stepparents.
¶36 This characterization of Wis. Stat. § 767.43(1) and
the accompanying Legislative Council note is consistent with
this court's previous discussions of the statute's history,
which have focused on the legislature's gradual expansion of
visitation rights. In Holtzman, the court quoted the same note
21
No. 2014AP1283
and indicated that "[t]he major change in 1988, as explained by
the Legislative Council's Special Committee notes, was to extend
the current law." Holtzman, 193 Wis. 2d at 672 (internal
quotation mark omitted). Similarly, our discussion in Sporleder
v. Hermes, 162 Wis. 2d 1002, 471 N.W.2d 202 (1991), overruled on
other grounds by Holtzman, 193 Wis. 2d 659, implicitly
associated the parent-child relationship requirement only with a
"person" petitioning for visitation when noting that Wis. Stat.
§ 767.43(1) had been "amended to include a 'person who has
maintained a relationship similar to a parent-child relationship
with the child,' as persons who may petition for visitation
rights." Sporleder, 162 Wis. 2d at 1016.
¶37 Nothing in Act 355's legislative history contradicts
our reading of § 767.43(1). A review of the Act's drafting file
indicates that the language at issue remained consistent with
its present form throughout the drafting and amendment process.
Additionally, an Analysis by the Legislative Reference Bureau——
originally appended to a draft at the beginning of the
legislation but later replaced by the Legislative Council notes
already discussed——confirms our understanding of the
legislature's intended change:
Under current law . . . the court may provide
visitation privileges to a grandparent or
greatgrandparent if that is in the child's best
interest. Under this bill, the current law permitting
visitation by grandparents and greatgrandparents is
extended to apply to stepparents, persons who have
maintained a relationship similar to a parent-child
relationship with the child and, under certain
circumstances, any other person.
22
No. 2014AP1283
Drafting File for 1987 Wis. Act. 355, Analysis by the
Legislative Reference Bureau of 1987 A.B. 205, Legislative
Reference Bureau, Madison, Wis. Although this analysis did not
appear with the final Act, it nevertheless indicates that——
throughout the drafting process——the phrase "who has maintained
a relationship similar to a parent-child relationship with the
child" attached only to a person other than a grandparent,
greatgrandparent, or stepparent.
¶38 Collectively, these aspects of the context and history
of Wis. Stat. § 767.43(1) support our reading of its language:
the phrase "who has maintained a relationship similar to a
parent-child relationship with the child" applies to a "person"
seeking visitation but not to a grandparent, greatgrandparent,
or stepparent.
¶39 We now evaluate the implications of this
interpretation for parents' constitutional rights to direct the
care, custody, and control of their children.
B. Wis. Stat. § 767.43(1) Does Not Unconstitutionally Infringe
on Parents' Due Process Rights
¶40 In her brief and at oral argument, Nancy argued that
interpreting the statute not to require grandparents,
greatgrandparents, and stepparents to prove a parent-child
relationship when seeking visitation would unconstitutionally
interfere with parents' rights to raise their children. Citing
Troxel v. Granville, 530 U.S. 57 (2000), she suggests that "[i]n
order to respect the constitutionally protected liberty interest
parents have, there must be a larger barrier to usurping
23
No. 2014AP1283
parents' control than notice of hearing and a best interest
inquiry." We conclude that the court of appeals appropriately
addressed and resolved this contention in Roger D.H. v. Virginia
O., 2002 WI App 35, 250 Wis. 2d 747, 641 N.W.2d 440.
¶41 In Troxel, the Supreme Court of the United States
reaffirmed that the "Due Process Clause of the Fourteenth
Amendment protects the fundamental right of parents to make
decisions concerning the care, custody, and control of their
children." Troxel, 530 U.S. at 66. The case involved a State
of Washington statute, which provided, "Any person may petition
the court for visitation rights at any time including, but not
limited to, custody proceedings. The court may order visitation
rights for any person when visitation may serve the best
interest of the child whether or not there has been any change
of circumstances." Id. at 61 (quoting Wash. Rev. Code
§ 26.10.160(3) (1994)). Under that statute, the children's
paternal grandparents sought an extensive visitation order
following their son's death, but the children's mother opposed
the request, favoring short, monthly visits with the
grandparents. Id. at 60-61. A state trial court had entered a
visitation order after concluding that visitation with the
grandparents would be in the children's best interest. Id. at
61-62.
¶42 A Plurality of the Supreme Court stopped short of
holding the statute facially unconstitutional but did conclude
that, as applied by the Washington court, the statute
unconstitutionally interfered with the mother's rights to define
24
No. 2014AP1283
the care, custody, and control of her children. Id. at 67, 73
(plurality opinion). The Plurality explained the important role
that parents play in defining the best interests of their
children:
The problem here is not that the Washington
Superior Court intervened, but that when it did so, it
gave no special weight at all to [the mother's]
determination of her daughters' best interests. . . .
In effect, the judge placed on [the mother], the fit
custodial parent, the burden of disproving that
visitation would be in the best interest of her
daughters.
Id. at 69. In limiting its determination to an as applied
analysis, the Plurality commented, "Because much state-court
adjudication in this context occurs on a case-by-case basis, we
would be hesitant to hold that specific nonparental visitation
statutes violate the Due Process Clause as a per se matter."
Id. at 73.
¶43 Shortly after the Court decided Troxel, Wisconsin's
court of appeals considered a facial challenge to Wis. Stat.
§ 767.43(1) in Roger D.H. A child's mother sought to vacate a
court-approved stipulation granting visitation rights to the
child's paternal grandmother. Roger D.H., 250 Wis. 2d 747, ¶¶4-
5. She asserted that "Wis. Stat. § 767.245 is facially
unconstitutional under Troxel because the statute does not
require that courts give presumptive weight to a fit parent's
decision regarding non-parental visitation." Id., ¶13.
¶44 The court of appeals rejected the facial challenge:
We glean from Troxel two propositions relevant to
the issue before us. First, due process requires that
25
No. 2014AP1283
courts apply a presumption that a fit parent's
decision regarding non-parental visitation is in the
best interest of the child. Second, a state court may
read this requirement into a non-parental visitation
statute, even when the statute is silent on the topic.
Accordingly, we hold that when applying Wis.
Stat. § 767.245(3), circuit courts must apply the
presumption that a fit parent's decision regarding
grandparent visitation is in the best interest of the
child. At the same time, we observe that this is only
a presumption and the circuit court is still obligated
to make its own assessment of the best interest of the
child. What the Due Process Clause does not tolerate
is a court giving no "special weight" to a fit
parent's determination, but instead basing its
decision on "mere disagreement" with the parent.
Id., ¶¶18-19 (citation omitted).
¶45 Although Roger D.H. involved the statute now codified
at Wis. Stat. § 767.43(3), we conclude that the court of
appeals' reasoning is equally appropriate with regard Wis. Stat.
§ 767.43(1). As under subsection (3), a court may grant
visitation under subsection (1) only if the court determines
that doing so would be in the child's best interest. The
Supreme Court indicated in Troxel that any examination of a
child's best interest must give special weight to a fit parent's
own best interest determination. Troxel, 530 U.S. at 69-70
("The decisional framework employed by the Superior Court
directly contravened the traditional presumption that a fit
parent will act in the best interest of his or her child. In
that respect, the court's presumption failed to provide any
protection for [the mother's] fundamental constitutional right
to make decisions concerning the rearing of her own
daughters."). Troxel's presumption in favor of a fit parent's
26
No. 2014AP1283
determination would apply to a court's evaluation of a
§ 767.43(1) visitation petition as a part of the best interest
analysis——and the presumption would apply regardless of whether
the petitioner proved a parent-child relationship with the
child.
¶46 Thus, our holding——that the phrase "who has maintained
a relationship similar to a parent-child relationship with the
child" does not apply to a grandparent, greatgrandparent, or
stepparent petitioning for visitation rights under § 767.43(1)——
does not conflict with parental constitutional rights as set
forth in Troxel. Whenever someone brings a visitation petition
under § 767.43(1)——whether the petitioner is a grandparent,
greatgrandparent, stepparent, or other person——Troxel requires
that the deciding court give special weight to a fit parent's
opinions regarding the child's best interest as part of any best
interest determination.
¶47 We think it important to note that while our decision
eliminates one unintended impediment for grandparents,
greatgrandparents, and stepparents who seek visitation rights
under Wis. Stat. § 767.43(1), it does not guarantee that they
will prevail. The court must not only consider the
constitutional rights of the parents but also decide, in its
sound discretion, whether the facts and circumstances of the
case warrant granting, modifying, or denying a visitation
petition in the best interest of the child.
IV. CONCLUSION
27
No. 2014AP1283
¶48 Examining Wis. Stat. § 767.43(1) in its present form,
it is clear that the legislature has gradually expanded the
number of persons who may petition for visitation rights. The
current statute allows grandparents, greatgrandparents, and
stepparents to petition for visitation rights, and it allows
other persons to seek visitation as well, so long as they have
"maintained a relationship similar to a parent-child
relationship with the child." Given the legislature's history
of expanding visitation rights and the fact that any court
considering a child's best interests under Wis. Stat.
§ 767.43(1) must give special weight to fit parents' best
interest determinations, we conclude that a grandparent,
greatgrandparent, or stepparent need not prove a parent-child
relationship in order to secure visitation rights under that
subsection.
By the Court.—The decision of the court of appeals is
reversed.
¶49 REBECCA G. BRADLEY, J., did not participate.
28
No. 2014AP1283.ssa
¶50 SHIRLEY S. ABRAHAMSON, J. (concurring). This is a
statutory interpretation case. The statute at issue is Wis.
Stat. § 767.43(1). Wisconsin Stat. § 767.43(1) provides that a
"grandparent, greatgrandparent, stepparent or person who has
maintained a relationship similar to a parent-child
relationship" may petition the court to seek visitation rights
to the child; the court may grant visitation if visitation is in
the child's best interests.
¶51 In the instant case, Carol Meister, the paternal
grandmother of four minor children, S.A.M., A.L.M., O.M.M., and
J.E.M., filed a motion in the children's parents' divorce action
to establish visitation with the children.
¶52 The circuit court denied the grandmother's motion for
visitation, concluding that the grandmother failed to show a
"relationship similar to a parent-child relationship" as
required under the court of appeals' interpretation of Wis.
Stat. § 767.43(1) in Rogers v. Rogers, 2007 WI App 50, ¶11, 300
Wis. 2d 532, 731 N.W.2d 347.
¶53 The court of appeals affirmed the circuit court's
order in an unpublished decision. It too relied on the Rogers
v. Rogers case.1 The majority opinion disagrees with the court
of appeals' interpretation of Wis. Stat. § 767.43(1).
¶54 I write separately to make two points.
¶55 I. First, although I happen to agree with this
court's interpretation of Wis. Stat. § 767.43(1), I conclude
1
S.A.M. v. Meister, No. 2014AP1283, unpublished slip op.,
¶¶13-14 (Wis. Ct. App. Feb. 5, 2015).
1
No. 2014AP1283.ssa
that this court violates the plain language of § 767.43(1) by
deciding the instant case.2
¶56 Wisconsin Stat. § 767.43(1), entitled "Petition, who
may file" provides (with added emphasis):
Except as provided in subs. (1m) and (2m), upon
petition by a grandparent, greatgrandparent,
stepparent or person who has maintained a relationship
similar to a parent-child relationship with the child,
the court may grant reasonable visitation rights to
that person if the parents have notice of the hearing
and if the court determines that visitation is in the
best interest of the child.
¶57 The grandmother did not appeal the circuit court's
denial of visitation or pursue the review in this court. The
guardian ad litem (and the children whom the guardian ad litem
represents) pursued the appeal and review.
¶58 Under the plain text of the statute, only a
grandparent (or other named individual not relevant in the
instant case) may seek visitation with a child and a court may
grant visitation only to these identified persons.
¶59 Neither the guardian ad litem nor the children argue
that they fall within the ambit of Wis. Stat. § 767.43(1). Thus
the right parties are not before the court. Accordingly, this
court does not have any statutory or other basis to consider the
petition for review filed by a person not identified in the
2
Members of the court do not always agree about the
methodology to be used in interpreting statutes. See, e.g.,
Justice Ziegler's concurrence, ¶80 (concluding ¶23 of the
majority opinion is unnecessary because Wis. Stat. § 767.43(1)
is unambiguous); see also Anderson v. Aul, 2015 WI 19, 361
Wis. 2d 63, 862 N.W.2d 304.
2
No. 2014AP1283.ssa
statute as having the power to seek visitation with the
children.3
¶60 II. Second, I am concerned that the statutory
interpretation set forth in the instant case puts the
constitutionality of Wis. Stat. § 767.43(3) in doubt.
¶61 The burden that Wis. Stat. § 767.43(3) imposes on a
grandparent seeking visitation rights to children born to
unmarried parents is significantly greater than the burden
§ 767.43(1) imposes on a grandparent seeking visitation rights
to children born to a married couple.
3
This issue might be framed as a question of "standing,"
see majority op., ¶16 n.8, but it is easier to frame and analyze
the issue as one of statutory interpretation, namely whether the
children and guardian ad litem may initiate and pursue the
proceeding under the statute. The concept of standing has
numerous dimensions. Standing and statutory interpretation are
distinct and should not be conflated. See Foley-Ciccantelli v.
Bishop's Grove Condo Ass'n, Inc., 2011 WI 36, ¶¶5, 54, 333
Wis. 2d 402, 797 N.W.2d 789 ("There is no single longstanding or
uniform test to determine standing in the case law. . . . The
essence of the question of standing . . . is . . . whether the
injured interest of the party whose standing is challenged falls
within the ambit of the statute or constitutional provision
involved."); see also William A. Fletcher, The Structure of
Standing, 98 Yale L.J. 221, 236 (1988) ("'When a plaintiff seeks
standing on the basis that an interest is protected by statute,
the question whether that interest is legally protected for
standing purposes is the same as the question whether plaintiff
(assuming his or her factual allegations are true) has a claim
on the merits.'") (quoting Stephen G. Breyer & Richard B.
Stewart, Administrative Law and Regulatory Policy: Problems,
Text, and Cases 1094 (2d ed. 1985) (footnote omitted));
Wisconsin's Envt'l Decade, Inc. v. Pub. Serv. Comm'n of Wis., 69
Wis. 2d 1, 11, 230 N.W.2d 243 (1975) (describing cases resolved
"on the notion that the statute relied upon by the person
seeking review did not give legal recognition to the interest
asserted" as "rest[ing] upon statutory interpretation rather
than the law of standing itself.").
3
No. 2014AP1283.ssa
¶62 Statutory classifications based on the child being a
nonmarital child are subjected to a heightened level of
scrutiny.4 A statutory classification based on the status of a
child as a nonmarital child will be struck down under the Equal
Protection Clause if the "classification is justified by no
legitimate state interest, compelling or otherwise."5
¶63 For the reasons set forth, I write separately.
I
¶64 Wisconsin Stat. § 767.43(1), entitled "Petition, who
may file," states (in relevant part): "[U]pon petition by a
grandparent, greatgrandparent, stepparent or person who has
maintained a relationship similar to a parent-child relationship
with the child, the court may grant reasonable visitation rights
to that person if the parents have notice of the hearing and if
the court determines that visitation is in the best interests of
the child."
¶65 In the instant case, the children's paternal
grandmother, Carol, filed a motion seeking visitation with the
children. The grandmother represented herself in the visitation
proceedings.
¶66 The children's guardian ad litem agreed with the
grandmother that visitation was in the children's best interest.
The circuit court noted that the guardian ad litem "took the
4
Pickett v. Brown, 462 U.S. 1, 7 (1983).
5
Weber v. Aetna Cas. & Sur. Co., 406 U.S. 164, 175-76
(1972).
4
No. 2014AP1283.ssa
laboring oar" in a hearing regarding the grandmother's motion
for visitation.
¶67 The grandmother did not, however, appeal from the
circuit court's order denying her motion for visitation. Nor
was the grandmother a party in this court.6 See majority op.,
¶18 n.10.
¶68 The instant case poses a question raised at oral
argument but not addressed by the court or the parties' briefs:
May an individual other than a "grandparent, greatgrandparent,
stepparent, or person who has maintained a relationship similar
to a parent-child relationship with the child" initiate and
pursue an appeal or a review of the circuit court's order
denying visitation to a grandparent under Wis. Stat.
§ 767.43(1)? Simply and more specifically stated, may a
guardian ad litem for minor children initiate and pursue a
proceeding in an appellate court regarding a circuit court's
order denying a grandparent's petition for visitation?
¶69 Given the statutory limitations on who may bring a
petition for visitation and to whom a court may grant
visitation, I conclude that the guardian ad litem cannot
6
Indeed, the grandmother passed away before the petition
for review was filed in this court. The grandmother's death was
brought to the court's attention by a letter. Contrary to the
practices and procedures of this court, one justice and a
commissioner, without a vote of the court, unilaterally ordered
supplemental briefing regarding whether the case was moot. The
issue in the present case is not one of mootness. The issue is
whether an appeal or review initiated and pursued by a guardian
ad litem representing the children falls within the purview of
Wis. Stat. § 767.43(1). See majority op., ¶16 n.8.
5
No. 2014AP1283.ssa
initiate and pursue proceedings in an appellate court seeking
review of a circuit court's order denying a grandparent's
petition for visitation.
¶70 The children and their guardian ad litem are not
within the ambit of Wis. Stat. § 767.43(1). Wisconsin Stat.
§ 767.43(1) limits the right to petition the court for
visitation to identified individuals; the statute does not
identify children or their guardian ad litem as petitioners.
The right parties are not before the court.
II
¶71 Given this court's interpretation of Wis. Stat.
§ 767.43(1), I question whether the statutory interpretation set
forth in the instant case puts the constitutionality of Wis.
Stat. § 767.43(3) in doubt.
¶72 Wisconsin Stat. § 767.43(1), entitled "Petition, who
may file," provides (with added emphasis):
Except as provided in subs. (1m) and (2m), upon
petition by a grandparent, greatgrandparent,
stepparent or person who has maintained a relationship
similar to a parent-child relationship with the child,
the court may grant reasonable visitation rights to
that person if the parents have notice of the hearing
and if the court determines that visitation is in the
best interest of the child.
¶73 The court interprets Wis. Stat. § 767.43(1) to mean
that a grandparent need not demonstrate a relationship with the
child to be granted visitation.7 In other words, Wis. Stat.
§ 767.43(1), as interpreted in the instant case, allows a
7
See majority op., ¶6.
6
No. 2014AP1283.ssa
"grandparent" to obtain visitation based solely on the best
interests of the child.8
¶74 In contrast, Wis. Stat. § 767.43(3), entitled "Special
grandparent visitation provision," requires a grandparent of a
child born to unmarried parents to demonstrate a relationship
with the child or efforts to maintain such a relationship.
¶75 Wisconsin Stat. § 767.43(3) provides:
The court may grant reasonable visitation rights, with
respect to a child, to a grandparent of a child if the
child's parents have notice of the hearing and the
court determines all of the following:
(a) The child is a nonmarital child whose parents have
not subsequently married each other.
(b) Except as provided in sub. (4), the paternity of
the child has been determined under the laws of
this state or another jurisdiction if the
grandparent filing the petition is a parent of
the child's father.
(c) The child has not been adopted.
(d) 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.
(e) The grandparent is not likely to act in a manner
that is contrary to decisions that are made by a
parent who has legal custody of the child and
that are related to the child's physical,
emotional, educational or spiritual welfare.
(f) The visitation is in the best interest of the
child.9
8
See majority op., ¶6.
7
No. 2014AP1283.ssa
¶76 Wisconsin Stat. § 767.43(3), the "[s]pecial
grandparent visitation provision" pertaining to a nonmarital
child, allows a grandparent to obtain visitation if the
grandparent demonstrates, among other things, that (1) "[t]he
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;" (2) "[t]he grandparent is not likely to act in a manner
that is contrary to decisions that are made by a parent who has
legal custody of the child and that are related to the child's
physical, emotional, educational, or spiritual welfare;" and (3)
visitation is in the best interest of the child.
¶77 Statutory classifications based on the child being a
nonmarital child are subjected to a heightened level of
scrutiny.10 A statutory classification based on the status of a
child as a nonmarital child will be struck down under the Equal
Protection Clause if the "classification is justified by no
legitimate state interest, compelling or otherwise."11
¶78 What legitimate state interest is served by Wis. Stat.
§ 767.43(3) imposing a substantially higher burden on a
grandparent seeking visitation based solely on the child's
parents' marital status?
9
Wisconsin Stat. § 767.43(3) applies to a grandparent
requesting visitation whenever sub. (a) to (c) apply to the
child. See Wis. Stat. § 767.43(2m).
10
Pickett, 462 U.S. at 7.
11
Weber, 406 U.S. at 175-76.
8
No. 2014AP1283.ssa
¶79 For the reasons set forth, I concur and write
separately.
9
No. 2014AP1283.akz
¶80 ANNETTE KINGSLAND ZIEGLER, J. (concurring). I join
all but ¶23 of the opinion of the court. In my view, the plain
text of Wis. Stat. § 767.43(1) is unambiguous. The court's
further analysis of § 767.43(1) simply confirms that the obvious
interpretation of the statute is the correct one. See, e.g.,
Hirschhorn v. Auto-Owners Ins. Co., 2012 WI 20, ¶¶34-36, 338
Wis. 2d 761, 809 N.W.2d 529 (using canons of construction to
confirm, but not displace, the plain meaning of an unambiguous
term); Anderson v. Aul, 2015 WI 19, ¶¶111, 114, 361 Wis. 2d 63,
862 N.W.2d 304 (Ziegler, J., concurring) (analysis of statutory
history and consideration of absurd results can be used to
confirm an unambiguous statute's plain meaning); Noffke ex rel.
Swenson v. Bakke, 2009 WI 10, ¶18, 315 Wis. 2d 350, 760
N.W.2d 156 (noting that reliance on a dictionary does not render
a word or phrase ambiguous).1
¶81 For the foregoing reasons, I respectfully concur.
¶82 I am authorized to state that Justice MICHAEL J.
GABLEMAN joins this opinion.
1
I write this footnote to briefly confirm that the
methodology applied by Justice Prosser comports with
longstanding precedent as stated in State ex rel. Kalal v.
Circuit Court for Dane Cty., 2004 WI 58, 271 Wis. 2d 633, 681
N.W.2d 110.
1
No. 2014AP1283.akz
1