2019 WI 57
SUPREME COURT OF WISCONSIN
CASE NO.: 2017AP1142
COMPLETE TITLE: In the matter of the grandparental visitation of
A. A. L.:
In re the Paternity of A. A. L.:
Cacie M. Michels,
Petitioner-Appellant,
v.
Keaton L. Lyons,
Respondent-Appellant,
Jill R. Kelsey,
Petitioner-Respondent.
ON CERTIFICATION FROM THE COURT OF APPEALS
OPINION FILED: May 24, 2019
SUBMITTED ON BRIEFS:
ORAL ARGUMENT: November 7, 2018
SOURCE OF APPEAL:
COURT: Circuit
COUNTY: Chippewa
JUDGE: James M. Isaacson
JUSTICES:
CONCURRED: R.G. BRADLEY, J. concurs, joined by KELLY, J.
(opinion filed).
DISSENTED:
NOT PARTICIPATING:
ATTORNEYS:
For the petitioner-appellant and respondent-appellant,
there were briefs filed by Ryan J. Steffes and Weld Riley, S.C.,
Eau Claire. There was an oral argument by Ryan J. Steffes.
For the petitioner-respondent, there was a brief filed by
Jeffrey A. Mandell, Eileen M. Kelley, Anthony J. Menting, and
Stafford Rosenbaum LLP, Madison. There was an oral argument by
Jeffrey A. Mandell.
An amicus curiae brief was filed on behalf of State of
Wisconsin by Kevin M. LeRoy, deputy solicitor general, with whom
on the brief was Brad D. Schimel, attorney general, and Misha
Tseytlin, solicitor general. There was an oral argument by Kevin
M. LeRoy.
An amicus curiae brief was filed on behalf of Legal Aid
Society of Milwaukee, Inc. by Karen Kotecki and Legal Aid
Society of Milwaukee, Milwaukee.
An amicus curiae brief was filed in the court of appeal on
behalf of National Association of Parents, Inc. by Janet
McDonough and National Association of Parents, Inc., Chippewa
Falls.
An amicus curiae brief was filed on behalf of Cato
Institute by Joseph S. Diedrich and Husch Blackwell LLP,
Madison; with whom on the brief was Ilya Shapiro, Washington,
District of Columbia.
An amicus curiae brief was filed on behalf of Grandparents
Advocate of America, Inc. and Alienated Grandparents Anonymous,
Incorporated by John S. Skilton, David R. Pekarek Krohn, Emily
J. Greb, and Perkins Coie LLP, Madison.
2
2019 WI 57
NOTICE
This opinion is subject to further
editing and modification. The final
version will appear in the bound
volume of the official reports.
No. 2017AP1142
(L.C. No. 2010FA206)
STATE OF WISCONSIN : IN SUPREME COURT
In the matter of the grandparental visitation
of A. A. L.:
In re the Paternity of A. A. L.:
Cacie M. Michels,
Petitioner-Appellant,
FILED
v. MAY 24, 2019
Keaton L. Lyons, Sheila T. Reiff
Clerk of Supreme Court
Respondent-Appellant,
Jill R. Kelsey,
Petitioner-Respondent.
APPEAL from an order of the Circuit Court for Chippewa
County, James M. Isaacson, Judge. Vacated.
¶1 REBECCA FRANK DALLET, J. We accepted certification
from the court of appeals to clarify the standard of proof
required for a grandparent to overcome the presumption that a
fit parent's visitation decision is in the child's best
No. 2017AP1142
interest.1 We further resolve an interrelated challenge to the
constitutionality of Wis. Stat. § 767.43(3)(2015-16),2 (the
"Grandparent Visitation Statute") as applied to a circuit court
order granting a petition for visitation over the objection of
two fit parents.3
¶2 We recognize that a fit parent has a fundamental
liberty interest in the care and upbringing of his or her child
and therefore, the Grandparent Visitation Statute must withstand
strict scrutiny. We confirm that the Grandparent Visitation
Statute is facially constitutional because there are
circumstances under which the law can be constitutionally
enforced. We determine that the Grandparent Visitation Statute
is narrowly tailored to further a compelling state interest
because a grandparent must overcome the presumption in favor of
a fit parent's visitation decision with clear and convincing
evidence that the decision is not in the child's best interest.
Lastly, we conclude that the Grandparent Visitation 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
1Michels v. Lyons, No. 2017AP1142, unpublished
certification (Wis. Ct. App. May 8, 2018).
2All subsequent references to the Wisconsin Statutes are to
the 2015-16 version unless otherwise indicated.
3The Honorable James M. Isaacson of Chippewa County Circuit
Court presided.
2
No. 2017AP1142
A.A.L.'s best interest. The order of the circuit court is
vacated.
I. FACTUAL BACKGROUND AND PROCEDURAL POSTURE
¶3 This case arises out of a dispute between the parents
of A.A.L., Cacie Michels and Keaton Lyons, and Lyons' mother
Jill Kelsey. Lyons and Michels were never married but lived
together when A.A.L. was born in October 2009 until they broke
up in late 2011. Since then, Michels has had primary custody of
A.A.L. and Lyons has had extended periods of placement. Prior
to A.A.L. starting kindergarten in the fall of 2015, A.A.L.
spent a significant amount of time with Kelsey, including
overnight stays. After A.A.L. started kindergarten, Lyons and
Michels agreed to reduce the amount of time A.A.L. spent with
Kelsey in order to accommodate A.A.L.'s new commitments with
school and friends, as well as her previously agreed upon
placement time with Lyons on alternate weekends.
¶4 At the end of 2015, Kelsey's relationship with Lyons
and Michels began to deteriorate due to a disagreement over a
proposed vacation to Disney World and Kelsey's decreased
visitation time with A.A.L. Even though the relationship was
deteriorating, Lyons and Michels still arranged for Kelsey to
spend time with A.A.L. Shortly thereafter, Kelsey intervened in
Michels' paternity action and filed a petition for additional
visitation pursuant to the Grandparent Visitation Statute.
¶5 At the court trial, Lyons and Michels testified that
they decided to decrease Kelsey's visitation time because of the
strain on A.A.L.'s schedule. They also expressed concern over
3
No. 2017AP1142
Kelsey's judgment, as she allowed A.A.L. to ride a horse without
a safety helmet, contrary to their explicit instructions, and
she gave four-year-old A.A.L. a sip of alcohol. Both Lyons and
Michels testified that granting Kelsey's petition is not in
A.A.L.'s best interest. However, both Lyons and Michels also
testified that they would not completely eliminate Kelsey's
visitation with A.A.L. unless they felt that visitation was
unhealthy for A.A.L. or not in her best interest.
¶6 Lyons and Michels also testified at the court trial
about a gentleman's agreement that the parties had in place
after September 2016. Kelsey was allowed to see A.A.L. every
other weekend for five hours, which occurred during the weekends
when Lyons had his placement time with A.A.L. Lyons and Michels
expressed their frustration with A.A.L. splitting time between
three households, as it was difficult and exhausting for her.
Lyons also testified about his frustration with the schedule
because it was not beneficial for his relationship with A.A.L.
Both Lyons and Michels indicated that they preferred an informal
schedule they could set themselves to accommodate all of
A.A.L.'s commitments and let them "make decisions for [their
child] as parents do."
¶7 Despite finding that Lyons and Michels were not only
fit parents but "good parents," the circuit court granted
Kelsey's petition. The circuit court ordered visitation at
least one Sunday each month for five hours and granted Kelsey "a
seven-day period during [A.A.L.'s] summer vacation whereby she
may take [A.A.L.] to Disney World or other vacation."
4
No. 2017AP1142
¶8 Lyons and Michels moved for reconsideration of the
circuit court's order, asserting that the order violated their
due process rights. The circuit court denied the motion and
decided that pursuant to Roger D.H. v. Virginia O., 2002 WI App
35, 250 Wis. 2d 747, 641 N.W.2d 440, it could constitutionally
overrule Lyons and Michels' visitation decision as long as it
applied a presumption in their favor and determined that
visitation was in A.A.L.'s best interest.4
¶9 The court of appeals certified an appeal to this court
to clarify the standard of proof required for a grandparent to
overcome the presumption that a fit parent's visitation decision
is in the child's best interest. Additionally, the court of
appeals asked for clarification as to the impact this court's
holding would have on the Meister, Martin L., and Roger D.H.
cases. S.A.M. v. Meister, 2016 WI 22, 367 Wis. 2d 447, 876
N.W.2d 746; Martin L. v. Julie R.L., 2007 WI App 37, 299
Wis. 2d 768, 731 N.W.2d 288; Roger D.H., 250 Wis. 2d 747. In
addition to answering these questions, we resolve Lyons and
Michels' challenge to the constitutionality of the Grandparent
Visitation Statute as applied to the circuit court order
overruling their decision regarding the care and upbringing of
A.A.L.
4 In its order regarding Lyons and Michels' motion for
reconsideration, the circuit court limited the date range for
Kelsey's summer trip with A.A.L. and provided some guidelines as
to the trip.
5
No. 2017AP1142
II. STANDARD OF REVIEW
¶10 Lyons and Michels assert that the Grandparent
Visitation Statute is unconstitutional as applied because it
violates their substantive due process rights protected by the
Fourteenth Amendment to the United States Constitution. State
v. Wood, 2010 WI 17, ¶17, 323 Wis. 2d 321, 780 N.W.2d 63. The
Fourteenth Amendment provides that no State shall "deprive any
person of life, liberty, or property, without due process of
law." U.S. Const. amend. XIV. The United States Supreme Court
has long recognized that the Fourteenth Amendment's Due Process
Clause includes a substantive component that "provides
heightened protection against government interference with
certain fundamental rights and liberty interests." Washington
v. Glucksberg, 521 U.S. 702, 720 (1997); see also Monroe Cty.
Dep't of Human Servs. v. Kelli B., 2004 WI 48, ¶19, 271 Wis. 2d
51, 678 N.W.2d 831. "An individual's substantive due process
rights protect against a state action that is arbitrary, wrong,
or oppressive . . . ." Wood, 323 Wis. 2d 321, ¶17. "A court's
task in a challenge based on substantive due process 'involves a
definition of th[e] protected constitutional interest, as well
as identification of the conditions under which competing
state interests might outweigh it.'" Id., ¶18 (quoted source
omitted).
¶11 There are two major types of constitutional
challenges: facial and as-applied. Tammy W-G. v. Jacob T.,
2011 WI 30, ¶46, 333 Wis. 2d 273, 797 N.W.2d 854. "When a party
challenges a law as being unconstitutional on its face, he or
6
No. 2017AP1142
she must show that the law cannot be enforced 'under any
circumstances.'" Mayo v. Wisconsin Injured Patients and
Families Comp. Fund, 2018 WI 78, ¶33, 383 Wis. 2d 1, 914
N.W.2d 678 (quoted source omitted). On the other hand, in an
as-applied challenge, we consider the facts of the particular
case in front of us and "the challenger must show that his or
her constitutional rights were actually violated." Wood, 323
Wis. 2d 321, ¶13.
¶12 Whether a statute, as applied, violates the
constitutional right to due process is a question of law that
this court reviews de novo. Kelli B., 271 Wis. 2d 51, ¶16. In
an as-applied challenge, this court presumes that the statute is
constitutional, but does not presume that the State applied the
statute in a constitutional manner. Tammy W-G., 333
Wis. 2d 273, ¶48. To prevail on an as-applied challenge, the
challenging party "must prove beyond a reasonable doubt that as
applied to him or her the statute is unconstitutional." Mayo,
383 Wis. 2d 1, ¶58. If successful, the operation of law is void
only as to the challenging party. Wood, 323 Wis. 2d 321, ¶13.
¶13 Lyons and Michels challenge the interpretation and
application of the Grandparent Visitation Statute, which reads:
(3) The court may grant reasonable 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:
(a) The child is a nonmarital child whose parents have
not subsequently married each other.
7
No. 2017AP1142
(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.
Wis. Stat. § 767.43(3). The meaning and application of a
statute are questions of law that this court reviews de novo.
Meister, 367 Wis. 2d 447, ¶19.
III. ANALYSIS
¶14 We first recognize the fundamental liberty interest at
stake and establish the appropriate level of scrutiny to apply
to the Grandparent Visitation Statute. We then determine the
constitutionality of the Grandparent Visitation Statute facially
and as applied and, as a part of the analysis, we answer the
certified question.
A. Lyons and Michels have a fundamental liberty
interest in the care and upbringing of A.A.L.
¶15 Lyons and Michels assert that they have a fundamental
liberty interest in the care and upbringing of A.A.L.
and contend that the circuit court infringed upon this interest
when it overruled their decision regarding A.A.L.'s visitation
8
No. 2017AP1142
with Kelsey. "[T]he interest of parents in the care, custody,
and control of their children [] is perhaps the oldest of the
fundamental liberty interests recognized" by the United States
Supreme Court. Troxel v. Granville, 530 U.S. 57, 65 (2000).
This fundamental liberty protected by the Due Process Clause
includes the right of parents to "establish a home and bring up
children," Meyer v. Nebraska, 262 U.S. 390, 399 (1923), and "to
direct the upbringing and education of children under their
control." Pierce v. Society of Sisters, 268 U.S. 510, 534-35
(1925). See also Santosky v. Kramer, 455 U.S. 745, 753 (1982)
(noting the United States Supreme Court's "historical
recognition that freedom of personal choice in matters of family
life is a fundamental liberty interest protected by the
Fourteenth Amendment"); Prince v. Massachusetts, 321 U.S. 158,
166 (1944) (acknowledging the existence of a "private realm of
family life which the state cannot enter.")
¶16 In Troxel, a plurality of the United States Supreme
Court concluded that a Washington statute allowing a court to
grant third-party visitation whenever "visitation may serve the
best interest of the child" violated a fit parent's due process
right to make decisions concerning the care, custody, and
control of her daughters. Troxel, 530 U.S. at 61. The Troxel
court held that "so long as a parent adequately cares for his or
her children (i.e., is fit), there will normally be no reason
for the State to inject itself into the private realm of the
family to further question the ability of that parent." Id. at
68-69. A majority of the United States Supreme Court Justices
9
No. 2017AP1142
in Troxel recognized that a fit parent's fundamental right to
direct the upbringing of his or her child is implicated where a
non-parent third-party petitions for visitation.5
¶17 When faced with the question of whether a parent who
has developed a relationship with his or her child has a
fundamental liberty interest in the child's care and upbringing,
this court has answered in the affirmative. See, e.g., Tammy
W-G., 333 Wis. 2d 273, ¶52 ("Parents who have developed a
relationship with their children have a fundamental liberty
interest in the 'care, custody, and control of their children.'"
(quoted source omitted)); Kenosha Cty. Dep't of Human Servs. v.
Jodie W., 2006 WI 93, ¶41, 293 Wis. 2d 530, 716 N.W.2d 845
("Because [the mother] has a fundamental liberty interest in
parenting [her son], any statute that infringes upon this
interest is subject to strict scrutiny review"); Kelli B., 271
Wis. 2d 51, ¶23 ("[T]he question is whether a parent who has a
substantial relationship with his or her child has a fundamental
liberty interest in parenting the child. Our case law recognizes
this fundamental liberty interest."). We conclude that in
accordance with jurisprudence from the United States Supreme
Court and this court, Lyons and Michels have a fundamental
liberty interest in the care and upbringing of A.A.L.
5
Troxel v. Granville, 530 U.S. 57, 67-68 (2000) (O'Connor,
J., Rehnquist, J., Ginsburg, J., Breyer, J.), 77-79 (Souter, J.,
concurring), 80 (Thomas, J., concurring), 95 (Kennedy, J.,
dissenting).
10
No. 2017AP1142
B. The Grandparent Visitation Statute must withstand strict
scrutiny because it directly and substantially infringes
upon a fundamental liberty interest.
¶18 A statute which directly and substantially infringes
upon a fundamental liberty interest must withstand strict
scrutiny: it must be narrowly tailored to serve a compelling
state interest. See, e.g., Reno v. Flores, 507 U.S. 292, 302
(1993). Although Kelsey seemingly acknowledges that Lyons and
Michels have a fundamental liberty interest in the care and
upbringing of A.A.L., she asserts that this court should not
apply strict scrutiny because this was a "minor intrusion" on a
fundamental liberty interest. Kelsey relies on the Troxel
plurality, which avoided "the precise scope of the parental due
process right in the visitation context." Troxel, 530 U.S. at
73.
¶19 Because matters involving visitation occur on a case-
by-case basis, the Troxel court was "hesitant to hold that
specific nonparental visitation statutes violate the Due Process
Clause as a per se matter." Id. The plurality in Troxel thus
left the constitutionality of any specific statute awarding
visitation to be determined by a state court based upon the
manner in which the statute is applied. Id.
¶20 Although the Troxel plurality did not employ a strict
scrutiny analysis in striking down a broad-sweeping third-party
11
No. 2017AP1142
visitation statute,6 the United States Supreme Court reaffirmed
in Troxel that "the Due Process Clause does not permit a State
to infringe on the fundamental right of parents to make child
rearing decisions simply because a state judge believes a
'better' decision could be made." Id. at 72-73. The Troxel
court held that if a fit parent's decision regarding grandparent
visitation becomes subject to judicial review, a court must give
"special weight" to a parent's determination of what is in the
child's best interest. Id. at 68-70.
¶21 Post-Troxel, the majority of courts that have
considered this issue have concluded that statutes permitting a
grandparent to petition for visitation infringe upon the
fundamental right to parental autonomy and therefore are subject
to strict scrutiny. See, e.g., Moriarty v. Bradt, 827 A.2d 203,
222 (N.J. 2003) ("Because the Grandparent Visitation Statute is
an incursion on a fundamental right (the right to parental
autonomy) . . . it is subject to strict scrutiny and must be
narrowly tailored to advance a compelling state interest"); see
also Doe v. Doe, 172 P.3d 1067 (Haw. 2007); Koshko v. Haining,
921 A.2d 171 (Md. 2007); Howard v. Howard, 661 N.W.2d 183 (Iowa
2003); Roth v. Weston, 789 A.2d 431 (Conn. 2002).
6However, Justice Clarence Thomas in his Troxel concurrence
made clear that he would apply strict scrutiny: "[T]he State of
Washington lacks even a legitimate governmental interest——to say
nothing of a compelling one——in second-guessing a fit parent's
decision regarding visitation with third parties." Troxel, 530
U.S. at 80.
12
No. 2017AP1142
¶22 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.
C. We confirm that the Grandparent Visitation Statute is
facially constitutional because there are circumstances under
which the law can be constitutionally enforced.
¶23 When we apply strict scrutiny to a statute, we will
conclude it is facially constitutional only if it is narrowly
tailored to further a compelling state interest. See Milwaukee
Branch of NAACP v. Walker, 2014 WI 98, ¶22, 357 Wis. 2d 469, 851
N.W.2d 262. Kelsey asserts that the Grandparent Visitation
Statute furthers a compelling state interest "to contribute to
the child's well-being by providing a sense of continuity"
within a non-intact family.7 Kelsey further maintains that the
rebuttable presumption that a fit parent's decision regarding
grandparent visitation is in the best interest of the child as
set forth in Roger D.H., 250 Wis. 2d 747, ¶¶19-21, ensures that
visitation orders are narrowly tailored to achieve this purpose.
In Roger D.H., the court of appeals saved the Grandparent
Visitation Statute from facial invalidity by reading into the
statute a requirement that circuit courts apply the presumption
7
We recognize that there may be substantial benefits to a
child to have close and sustained ties with extended family and
that grandparents can serve an important role in a child's life.
See, e.g., Roth v. Weston, 789 A.2d 431, 447 (Conn. 2002). We
also recognize that in many families the preservation of
intergenerational relationships has value as a social ideal.
See Herbst v. Sayre, 971 P.2d 395, 399 (Okla. 1998).
13
No. 2017AP1142
that a fit parent's visitation decision is in the best interest
of his or her child, in accordance with Troxel.8 Roger D.H, 250
Wis. 2d 747, ¶12. According to Kelsey, the presumption,
followed by the best interest inquiry, resulted in a grandparent
visitation order in this case that was narrowly tailored to
protect Lyons and Michels' fundamental liberty interest in the
care and upbringing of A.A.L.
¶24 The State must respect a fit parent's fundamental
liberty interest to make decisions regarding the care, custody,
and control of his or her child, yet also recognize when
intervention may be necessary to protect a child's best
interest. Where a child's physical or mental health or welfare
is in jeopardy, the State has a well-established legitimate
interest under its parens patriae power, acting from the
viewpoint and in the interest of the child. See Santosky, 455
U.S. at 766; see also Parham v. J.R., 442 U.S. 584, 603 (1979)
("[A] state is not without constitutional control over parental
discretion in dealing with children when their physical or
mental health is jeopardized."). Pursuant to this court's
jurisprudence, visitation law is "concerned with identifying the
triggering events that may justify state intervention," which
8
In Roger D.H. v. Virginia O., 2002 WI App 35, ¶19, 250
Wis. 2d 747, 641 N.W.2d 440, the court of appeals concluded that
the circuit court improperly read into Wis. Stat. § 767.245(3),
the prior version of the Grandparent Visitation Statute, a
requirement that a circuit court find a parent unfit prior to
interfering with the parent's visitation decision.
14
No. 2017AP1142
must be more than a claim that third-party visitation is in a
child's best interest. See Holtzman v. Knott, 193 Wis. 2d 649,
668, 533 N.W.2d 419 (1995).
¶25 Historically, there have been three main avenues to
achieving grandparent visitation, now codified at: (1) Wis.
Stat. § 48.925, which allows a relative who has maintained a
relationship with a child similar to a parent-child relationship
to seek visitation after a child has been adopted by a
stepparent or relative;9 (2) Wis. Stat. § 54.56, which allows a
9 Wisconsin Stat. § 48.925, in pertinent part, reads:
Upon petition by a relative who has maintained a
relationship similar to a parent-child relationship
with a child who has been adopted by a stepparent or
relative, the court, subject to subs. (1m) and (2),
may grant reasonable visitation rights to that person
if the petitioner has maintained such a relationship
within 2 years prior to the filing of the petition, if
the adoptive parent or parents, or, if a birth parent
is the spouse of an adoptive parent, the adoptive
parent and birth parent, have notice of the hearing
and if the court determines all of the following:
(a) That visitation is in the best interest of the
child.
(b) That the petitioner will not undermine the
adoptive parent's or parents' relationship with the
child or, if a birth parent is the spouse of an
adoptive parent, the adoptive parent's and birth
parent's relationship with the child.
(c) That the petitioner will not act in a manner that
is contrary to parenting decisions that are related to
the child's physical, emotional, educational or
spiritual welfare and that are made by the adoptive
parent or parents or, if a birth parent is the spouse
of an adoptive parent, by the adoptive parent and
birth parent.
15
No. 2017AP1142
grandparent to file a petition for visitation upon the death of
a parent of the child;10 and (3) Wis. Stat. § 767.43, which
encompasses the Grandparent Visitation Statute at issue in this
case.
¶26 An analysis of the Wisconsin statutes that allow a
grandparent to petition for visitation illustrates that the
events triggering intervention by the State historically related
to circumstances separating families. See Holtzman, 193 Wis. 2d
at 680. This court has previously detailed the legislative
history of the current Wis. Stat. ch. 767 visitation statute,
which began with the enactment of Wis. Stat. § 247.24(1)(c)
(1975-76).11 Id. at 668-78. Section 247.24(1)(c) permitted the
circuit court to grant grandparent visitation only upon the
rendering of a judgment of annulment, divorce or legal
10
Wisconsin Stat. § 54.56, in pertinent part, reads: "If
one or both parents of a minor are deceased and the minor is in
the custody of the surviving parent or any other person, a
grandparent or stepparent of the minor may petition for
visitation privileges with respect to the minor . . . ."
Pursuant to the statute, the circuit court must determine that
the visitation is in the best interest of the minor.
11 Wisconsin Stat. § 247.24(1)(c) (1975-76) reads:
(1) In rendering a judgment of annulment, divorce or
legal separation, the court may:
....
(c) Grant reasonable visitation privileges to a
grandparent of any minor child if the court determines
that it is in the best interest and welfare of the
child and issue any necessary order to enforce the
same.
16
No. 2017AP1142
separation. Id. Even after this limiting language was
eliminated with the codification of Wis. Stat. § 767.245(4)
(1977-78), the legislative history demonstrates an intent by the
legislature to address visitation issues prompted by the divorce
or legal separation of a married couple. Id. at 670-73.12
¶27 The Grandparent Visitation Statute was enacted to
provide grandparents with the ability to petition for visitation
outside of a divorce or visitation proceeding. See Drafting
File for 1995 Act 68, Analysis by the Legislative Reference
Bureau of 1995 S.B. 55, Legislative Reference Bureau, Madison,
Wis. It is still limited, however, to a family unit involving a
"nonmarital child" whose parents have not subsequently married
each other and who has not been adopted. See Wis. Stat.
§§ 767.43(3)(a) and (c).
¶28 In cases interpreting visitation statutes, Wisconsin
courts have permitted intervention by the State to protect the
child's best interest in circumstances where a child is being
separated from a parent. See Holtzman, 193 Wis. 2d at 680; see
also Cox v. Williams, 177 Wis. 2d 433, 502 N.W.2d 128 (1993);
Sporleder v. Hermes, 162 Wis. 2d 1002, 471 N.W.2d 202 (1991);
Soergel v. Raufman, 154 Wis. 2d 564, 453 N.W.2d 624 (1990).
12
According to a Legislative Reference Bureau analysis, the
1975 precursor to the Wisconsin Stat. ch. 767 grandparent
visitation statute "codifies the authority of the court in
actions affecting marriage to grant visitation privileges to
grandparents where it is in the best interest of the child."
See Holtzman v. Knott, 193 Wis. 2d 649, 682 n.28, 533 N.W.2d 419
(1995).
17
No. 2017AP1142
More recently, in upholding Wis. Stat. § 54.56(2) against an
equal protection challenge, the court of appeals reasoned that
maintaining the contiguity of a relationship with a grandparent
when a parent dies creates a compelling state interest to
protect a child's best interest. Rick v. Opichka, 2010 WI App
23, ¶22, 323 Wis. 2d 510, 780 N.W.2d 159. The Opichka court
also reasoned that the rebuttable presumption in favor of the
surviving parent ensures that the statute is narrowly tailored
to achieve this compelling interest. Id.
¶29 Similarly, other jurisdictions recognize the
appropriateness of a court interfering in a parent-child
relationship to protect the child's best interest under
circumstances where a family unit is dissolving and a parent
seeks to sever the child's relationship with a grandparent with
whom the child is emotionally attached. Prior to granting a
petition for grandparent visitation, a majority of state
statutes require a triggering event dissolving the family unit,
such as the death or abandonment of a parent, divorce, or the
child residing with a third party prior to granting a petition
for grandparent visitation. See, e.g., Ala. Code 1975 § 30-3-
4.2 (Alabama); A.R.S. § 25-409 (Arizona); A.C.A. § 9-13-103
(Arkansas); C.R.S.A. § 19-1-117 (Colorado); IC 31-17-5-1
(Indiana); M.G.L.A. 119 § 39D (Massachusetts); M.C.L.A. 722.27b
(Michigan); 23 Pa.C.S.A. § 5325 (Pennsylvania); V.T.C.A., Family
Code § 153.433 (Texas). Like the Grandparent Visitation
Statute, some states include a child born out of wedlock as a
triggering event to a petition for grandparent visitation. See,
18
No. 2017AP1142
e.g., Ala. Code 1975 § 30-3-4.2 (Alabama); A.R.S. §25-409
(Arizona); IC 31-17-5-1 (Indiana); M.G.L.A. 119 § 39D
(Massachusetts); 43 Okl.St.Ann. § 109.4 (Oklahoma).
¶30 In addition to the statutory precursor of a dissolving
family unit, the majority of jurisdictions also require a
grandparent to demonstrate that absent visitation, the child
will suffer some form of emotional harm. This harm requirement
appears either within state statutes or has been read into the
statutes by courts in order to survive constitutional
challenges.13
¶31 A review of cases where other courts have upheld
grandparent visitation orders indicate the presence of a
relationship similar to that of a primary caregiver between the
grandparents and grandchildren and a parent's abrupt attempt to
end that relationship. See, e.g., Smith v. Wilson, 90 So.3d 51
(Miss. 2012) (visitation order upheld where children lived with
maternal grandparents for several years after mother's death and
father ended visitation once remarried); Uzelac v. Thurgood, 144
P.3d 1083 (Ut. 2006) (visitation order upheld where child lived
with maternal grandparents for three years and was regularly
13See, e.g., Jones v. Jones, 2013 UT App 174, 307 P.3d 598
(Utah Ct. App. 2013); Doe v. Doe, 172 P.3d 1067 (Haw. 2007);
Koshko v. Haining, 921 A.2d 171 (Md. 2007); Howard v. Howard,
661 N.W.2d 183 (Iowa 2003); Moriarty v. Bradt, 827 A.2d 203
(N.J. 2003); Glidden v. Conley, 820 A.2d 197 (Vt. 2003); Roth,
789 A.2d 431 (Conn. 2002), superseded by statute, Conn. Gen.
Stat. § 46b-59 (2018); Williams v. Williams, 501 S.E.2d 417 (Va.
1998); Brooks v. Parkerson, 454 S.E.2d 769 (Ga. 1995); Hawk v.
Hawk, 855 S.W.2d 573 (Tenn. 1993).
19
No. 2017AP1142
cared for by her grandparents throughout her life and father
denied grandparent visitation following mother's sudden death);
Spaulding v. Williams, 793 N.E.2d 252 (Ind. Ct. App. 2003)
(visitation order upheld where the child and mother lived with
maternal grandparents and they took care of the child on a daily
basis but father denied visitation for five months after
mother's death).
¶32 The concurrence asserts that the Grandparent
Visitation Statute is facially unconstitutional but fails to
meet the high burden required for a facial challenge. In order
to succeed on a facial challenge, the "challenger must meet the
highest level of proof, beyond a reasonable doubt." Mayo, 383
Wis. 2d 1, ¶33; see also ¶72 ("A facial challenge requires near-
absolute proof that any application of the statute is
unconstitutional.") (R.G. Bradley, J., concurring). A facial
challenge therefore "attacks the law itself as drafted by the
legislature, claiming the law is void from its beginning to the
end and that it cannot be constitutionally enforced under any
circumstances." Society Ins. v. LIRC, 2010 WI 68, ¶26, 326
Wis. 2d 444, 786 N.W.2d 385. The concurrence acknowledges a
compelling state interest for state intervention where parental
unwillingness results in a substantial risk of emotional harm to
the child, concurrence, ¶¶52-54, and thus fails to demonstrate
that "the law cannot be enforced 'under any circumstances.'"
Mayo, 383 Wis. 2d 1, ¶33 (quoted source omitted).
¶33 Furthermore, a determination that the Grandparent
Visitation Statute is facially unconstitutional would
20
No. 2017AP1142
necessarily require us to overturn our 2016 decision in Meister,
367 Wis. 2d 447. In Meister, we denied a facial challenge to
Wis. Stat. § 767.43(1), a provision that broadly allows
reasonable grandparent visitation with marital children upon a
circuit court's determination that the visitation is in the
child's best interest.14 In so doing, we concluded that the
reasoning employed in Roger D.H. upholding the facial validity
of the Grandparent Visitation Statute was "equally appropriate
with regard [to] [] § 767.43(1)." Id., ¶45. We do not disturb
Meister and Roger D.H. to the extent that they upheld the
Grandparent Visitation Statute as facially constitutional.15
Because there are circumstances under which the Grandparent
Visitation Statute can be constitutionally enforced, as
14
In S.A.M. v. Meister, 2016 WI 22, ¶2, 367 Wis. 2d
447, 876 N.W.2d 746, this court analyzed the statutory text
of Wis. Stat. § 767.43(1), which allowed a "'grandparent,
greatgrandparent, stepparent or person who has maintained a
relationship similar to a parent-child relationship with the
child'" to file for visitation. This court concluded that the
"parent-child relationship" requirement applied only to the
"'person'" category and not to grandparents, great-grandparents,
and stepparents. Id.
15
The doctrine of stare decisis is of particularly
important concern here where this court "has authoritatively
interpreted a statute" and the legislature "remains free to
alter its construction" if it believes that we interpreted the
statute incorrectly. Progressive N. Ins. Co. v. Romanshek, 2005
WI 67, ¶45, 281 Wis. 2d 300, 697 N.W.2d 417. To overturn a
prior interpretation there must be a showing that the decision
was "'mistaken but also that it was objectively wrong, so that
the court has a compelling reason to overrule it.'" Id. (citing
Wenke v. Gehl Co., 2004 WI 103, ¶21, 274 Wis. 2d 220, 682
N.W.2d 405).
21
No. 2017AP1142
acknowledged by the concurrence, the Grandparent Visitation
Statute remains constitutional on its face.
D. The Grandparent Visitation Statute is narrowly tailored to
further a compelling state interest because a grandparent must
overcome the presumption in favor of a fit parent's visitation
decision with clear and convincing evidence that the decision is
not in the child's best interest.
¶34 We turn to the certified question in the context of
the constitutional challenge and ask: is the Grandparent
Visitation Statute narrowly tailored to further a compelling
state interest where a grandparent is required to overcome the
presumption in favor of a fit parent's visitation decision with
clear and convincing evidence that the decision is not in the
child's best interest? The degree of proof in a particular
proceeding is traditionally for the judiciary to decide. Woodby
v. Immigration and Naturalization Serv., 385 U.S. 276, 284
(1966). We have previously identified two different burdens of
proof that apply in civil actions: "preponderance of the
evidence" and "clear and convincing evidence." State v.
Walberg, 109 Wis. 2d 96, 102, 325 N.W.2d 687 (1982). The
preponderance of the evidence standard applies in ordinary civil
actions. Id. The clear and convincing standard applies in
cases where public policy requires a higher standard of proof
than in the ordinary civil action. Id. This so-called middle
burden of proof has been required in cases where the individual
interests at stake are "'particularly important'" and "'more
substantial than mere loss of money.'" Santosky, 455 U.S. at
756 (quoting Addington v. Texas, 441 U.S. 418, 424 (1979)). For
22
No. 2017AP1142
example, Wisconsin courts have applied a clear and convincing
standard in cases involving fraud, undue influence, prosecutions
of civil ordinance violations, and civil commitment. See
Wahlberg, 109 Wis. 2d at 102; see also State v. West, 2011 WI
83, ¶¶76-77, 336 Wis. 2d 578, 800 N.W.2d 929.
¶35 A number of courts require clear and convincing
evidence to overcome the presumption that a fit parent's
visitation decision is in the child's best interest.16 These
courts maintain that the elevated standard of proof is necessary
to protect the rights of parents. See, e.g., Polasek v. Omura,
136 P.3d 519, 523 (Mt. 2006) (reasoning that the close scrutiny
that applies to any infringement on a person's right to parent a
child requires a clear and convincing standard); N.F. v. R.A.,
137 P.3d 318, 319 (Colo. 2006) (maintaining that the clear and
convincing evidence standard will accord due process to parents
as it does in the parental rights termination context); Vibbert
v. Vibbert, 144 S.W.3d 292, 295 (Ky. Ct. App. 2004) (noting that
the clear and convincing evidence standard applies because "'the
individual interests at stake . . . are both particularly
important and more substantial than mere loss of money'"); Evans
16See, e.g., Walker v. Blair, 382 S.W.3d 862, 871 (Ky.
2012); Zimmer v. Zimmer, 781 N.W.2d 482, 488 (S.D. 2010); SooHoo
v. Johnson, 731 N.W.2d 815, 824 (Minn. 2007); N.F. v. R.A., 137
P.3d 318, 327 (Colo. 2006); Polasek v. Omura, 136 P.3d 519, 523
(Mont. 2006); Hamit v. Hamit, 715 N.W.2d 512 (Neb. 2006);
Vibbert v. Vibbert, 144 S.W.3d 292, 295 (Ky. Ct. App. 2004);
Camburn v. Smith, 586 S.E.2d 565, 580 (S.C. 2003); L.B.S. v.
L.M.S., 826 So.2d 178, 186 (Ala. 2002).
23
No. 2017AP1142
v. McTaggart, 88 P.3d 1078, 1089 (Alaska 2004) (holding that a
clear and convincing evidence standard provides effective
protection for a parent's choice).17
¶36 "In cases involving individual rights, whether
criminal or civil, '[t]he standard of proof [at a minimum]
reflects the value society places on individual liberty."
Addington, 441 U.S. at 425 (quoted source omitted). As
recognized by the Troxel court, a fit parent's interest in the
care, custody, and control of his or her child "is perhaps the
oldest of the fundamental liberty interests recognized by [the
United States Supreme] Court." Troxel, 530 U.S. at 65. We
therefore conclude that the Grandparent Visitation Statute is
narrowly tailored to further a compelling state interest because
a grandparent must overcome the presumption in favor of a fit
parent's visitation decision with clear and convincing evidence
that the decision is not in the child's best interest.
17Most of these courts construe their statutes to also
require proof of a significant bond between a grandparent and
grandchild that, if severed, would threaten the welfare of the
child. See, e.g., Walker, 382 S.W.3d at 871-72 (Ky. 2012)
(reasoning that a grandparent must show that they "shared such a
close bond that to sever contact would cause distress to the
child," and that there was a harm standard "implicit" in the
statutory factors); Zimmer, 781 N.W.2d at 489 (S.D. 2010)
(holding that the circuit court can rely on "special factors"
such as "physical or emotional harm to the grandchild if
visitation is denied or limited"); Camburn, 586 S.E.2d at 579-80
(S.C. 2003) (requiring a grandparent to show by clear and
convincing evidence that the parent is unfit or that there are
"compelling circumstances, such as significant harm to the
child").
24
No. 2017AP1142
E. We modify and clarify the holdings in
Martin L. and Roger D.H.
¶37 We next explain the impact of this constitutional
analysis on the holdings in Martin L. and Roger D.H. We modify
the holding in Roger D.H. to require a grandparent to overcome
the presumption in favor of a fit parent's visitation decision
with clear and convincing evidence that the decision is not in
the child's best interest. While the court of appeals in Roger
D.H. articulated the appropriate presumption in favor of a fit
parent's decision, the court of appeals went on to state that
"[a]t 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." Roger D.H., 250
Wis. 2d 747, ¶19. We determine that a circuit court should
consider the nature and extent of grandparent visitation only if
a grandparent overcomes the presumption in favor of a fit
parent's visitation decision with clear and convincing evidence
that the decision is not in the 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
decision.
¶38 Likewise, we must clarify Martin L., 299 Wis. 2d 768,
a case involving a petition for grandparent visitation following
the death of a parent pursuant to Wis. Stat. § 54.56. In Martin
L., the court of appeals applied the analysis as stated in Roger
D.H., implying that in deciding a petition for grandparent
visitation, a circuit court must always apply its own assessment
25
No. 2017AP1142
of what is in the child's best interest. Martin L., 299
Wis. 2d 768, ¶12. The rebuttable presumption, as set forth in
Roger D.H. and applied by the court in Martin L., was merely a
restatement of the best interest of the child standard and
allowed a circuit court to easily intervene to second guess a
fit parent's decision. We clarify Martin L., as we did Roger
D.H., to require a petitioning grandparent to overcome the
presumption in favor of a fit parent's visitation decision with
clear and convincing evidence that the decision is not in the
child's best interest. We emphasize that a circuit court
assesses the nature and extent of visitation only after that
burden has been met.
F. The Grandparent Visitation 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 A.A.L.'s best
interest.
¶39 Finally, we assess the merits of Lyons and Michels'
as-applied challenge by considering the facts of this case, not
hypothetical facts from different situations. See State v.
Hamdan, 2003 WI 113, ¶43, 264 Wis. 2d 433, 665 N.W.2d 785.
There is no dispute that Lyons and Michels are fit parents and
the circuit court found them to be "good parents."18 The issue
is whether under these circumstances the circuit court infringed
upon Lyons and Michels' fundamental liberty interest in the care
18
If parental fitness were an issue, Wis. Stat. ch. 48 may
be implicated.
26
No. 2017AP1142
and upbringing of A.A.L. when it granted Kelsey's petition for
grandparent visitation.
¶40 At the hearing on Lyons and Michels' motion for
reconsideration, the circuit court stated that according to
Roger D.H., it had "applied the presumption a fit parent's
decision on placement is in the child's best interest,
rebuttable in the Court's discretion."19 In deciding to grant
Kelsey's petition over the objection of Lyons and Michels, the
circuit court relied upon A.A.L.'s significant contact with
Kelsey over the years and the guardian ad litem's
recommendation. The circuit court also stated that it did not
"think it was fair to [A.A.L.] then or now to just cut off cold
turkey her contact with grandma." The circuit court concluded
that the "bare bones" schedule it set forth was therefore in
A.A.L.'s best interest.20
¶41 The Grandparent Visitation 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 A.A.L.'s best
19The circuit court did not reference the factors laid out
in the Grandparent Visitation Statute in its oral ruling on
Kelsey's petition. It was not until the hearing on Lyons and
Michels' motion for reconsideration that the circuit court
articulated its reasons for granting Kelsey's petition and the
required presumption.
20Although the circuit court referred to the schedule as
"bare bones," a minimum of five hours a month and one week every
summer with no travel restrictions is not insignificant.
27
No. 2017AP1142
interest. Although the circuit court asserted that it applied a
presumption that Lyons and Michels' decision was in A.A.L.'s
best interest, the decision of the circuit court exemplifies a
circuit court improperly substituting its judgment for that of
fit parents. Lyons and Michels did not seek to eliminate
Kelsey's visitation entirely and there is no indication that
they would deprive A.A.L. of having a relationship with Kelsey.
In fact, they testified that they would not eliminate Kelsey's
visitation with A.A.L. unless they felt that it was unhealthy
for A.A.L. or not in her best interest. At the time Kelsey
petitioned for visitation there had been no change in
circumstances involving A.A.L.'s family unit, as Lyons and
Michels had not lived together since A.A.L. was a small child.
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 Michels' visitation decision and demonstrate
that their decision is not in A.A.L.'s best interest, thus
barring intervention by the State. See Rogers v. Rogers, 2007
WI App 50, 300 Wis. 2d 532, 731 N.W.2d 347 (holding that state
interference in the form of court ordered placement with
grandparents was unwarranted where the parents maintained
considerable contact between their child and her grandparents,
just not as much as the grandparents desired).
IV. CONCLUSION
¶42 In sum, a fit parent has a fundamental liberty
interest in the care and upbringing of his or her child and
therefore to be applied constitutionally, the Grandparent
28
No. 2017AP1142
Visitation Decision must withstand strict scrutiny. We confirm
that the Grandparent Visitation Statute is facially
constitutional because there are circumstances under which the
law can be constitutionally enforced. We conclude that the
Grandparent Visitation Statute is narrowly tailored to further a
compelling state interest because it requires a grandparent to
overcome the presumption in favor of a fit parent's visitation
decision with clear and convincing evidence that the decision is
not in the child's best interest. Lastly, we conclude that the
Grandparent Visitation 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 A.A.L.'s best interest.
¶43 Based upon the record below, we decline to remand the
case to the circuit court. The visitation order violated the
constitutional rights of Lyons and Michels and we decline to
force the parties into additional litigation that would further
burden Lyons and Michels' fundamental liberty interest in the
care and upbringing of A.A.L.
By the Court.—Order of the circuit court is vacated.
29
No. 2017AP1142.rgb
¶44 REBECCA GRASSL BRADLEY, J. (concurring). I agree
with the majority that Wisconsin Stat. § 767.43(3) infringes
upon parents' fundamental liberty interest in the care, custody,
and upbringing of their children and therefore must withstand
strict scrutiny in order to be constitutional. Majority op.,
¶2. I also agree that the circuit court's visitation order in
this case violated the constitutional rights of the parents and
I join the mandate vacating the circuit court's order. I write
separately because when subjected to a strict scrutiny analysis,
§ 767.43(3) must fall as facially unconstitutional, not merely
unconstitutional as applied to the parents in this case as the
majority decides. The State "lacks even a legitimate
governmental interest——to say nothing of a compelling one——in
second-guessing [] fit parent[s'] decision[s] regarding
visitation with third parties." Troxel v. Granville, 530 U.S.
57, 80 (2000) (Thomas, J., concurring). I would strike down
§ 767.43(3) because it tramples upon "perhaps the oldest of the
fundamental liberty interests recognized by th[e] Court." See
Troxel, 530 U.S. at 65. Because the majority upholds the
constitutionality of § 767.43(3), except as applied to the
parents in this particular case, fit parents' fundamental
liberty interest in raising their children free from
governmental interference remains at risk.1
1
Because the majority's opinion applies only to the parents
in this case, it will force fit parents to expend significant
financial resources (which many parents lack) in order to
litigate anew the very issues presented to this court, the
adverse emotional impact of which is often suffered most acutely
by the child. In this case, the parents' attorney advised the
(continued)
1
No. 2017AP1142.rgb
I
¶45 The parents in this case challenge the
constitutionality of Wis. Stat. § 767.43(3), which provides:
(3) Special grandparent visitation provision. The
court may grant reasonable 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:
(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
circuit court that: "My clients have no money left. They both
are completely taxed out." The circuit court acknowledged the
parents "spen[t] a lot of money that could be used for [the
child] or other reasons than trying to defend themselves in
court[.]" Some courts recognize that the very initiation of a
lawsuit where fundamental rights are at stake violates the
Constitution, improperly intrudes into the family, and causes
trauma, "expense, stress, and [the] pain of litigation." See,
e.g., Roth v. Weston, 789 A.2d 431, 442 (Conn. 2002) (quoted
source omitted); Brooks v. Parkerson, 454 S.E.2d 769, 773 (Ga.
1995) (noting even when child has bond with grandparent, "the
impact of a lawsuit to enforce maintenance of the bond over the
parents' objection can only have a deleterious effect on the
child." (quoted source omitted)).
2
No. 2017AP1142.rgb
are related to the child's physical, emotional,
educational or spiritual welfare.
(f) The visitation is in the best interest of the
child.
A constitutional challenge to a statute presents a question of
law reviewed de novo. Nankin v. Vill. of Shorewood, 2001 WI 92,
¶10, 245 Wis. 2d 86, 630 N.W.2d 141. If the statute implicates
a fundamental right, this court applies strict scrutiny review
and the statute will be upheld only if "narrowly tailored toward
furthering [a] compelling state interest." Mayo v. Wis. Injured
Patients and Families Comp. Fund, 2018 WI 78, ¶28, 383
Wis. 2d 1, 914 N.W.2d 678.
¶46 Both the United States Supreme Court as well as this
court recognize parents' fundamental liberty interest in raising
their children. See Troxel, 530 U.S. at 65 ("The liberty
interest at issue in this case——the interest of parents in the
care, custody, and control of their children——is perhaps the
oldest of the fundamental liberty interests recognized by this
Court."); Washington v. Glucksberg, 521 U.S. 702, 720 (1997)
("[T]he 'liberty' specially protected by the Due Process Clause
includes . . . the right[]. . . to direct the education and
upbringing of one's children"); Santosky v. Kramer, 455 U.S.
745, 753 (1982) ("[F]reedom of personal choice in matters of
family life is a fundamental liberty interest protected by the
Fourteenth Amendment."); Quilloin v. Walcott, 434 U.S. 246, 255
(1978) ("We have recognized on numerous occasions that the
relationship between parent and child is constitutionally
protected."); Wisconsin v. Yoder, 406 U.S. 205, 231-33 (1972)
(The "primary role of the parents in the upbringing of their
3
No. 2017AP1142.rgb
children is now established beyond debate as an enduring
American tradition."); Prince v. Massachusetts, 321 U.S. 158,
166 (1944) ("It is cardinal with us that the custody, care and
nurture of the child reside first in the parents, whose primary
function and freedom include preparation for obligations the
state can neither supply nor hinder."); Pierce v. Society of the
Sisters, 268 U.S. 510, 534-35 (1925) (recognizing "the liberty
of parents and guardians to direct the upbringing and education
of children under their control" among those "rights guaranteed
by the Constitution" that "may not be abridged by legislation
which has no reasonable relation to some purpose within the
competency of the State"); Meyer v. Nebraska, 262 U.S. 390, 399
(1923) ("[L]iberty guaranteed . . . by the Fourteenth
Amendment . . . include[s] . . . the right of the individual
to . . . establish a home and bring up children."); Tammy W-G v.
Jacob T., 2011 WI 30, ¶52, 333 Wis. 2d 272, 797 N.W.2d 854
("Parents who have developed a relationship with their children
have a fundamental liberty interest in the 'care, custody, and
control of their children.'") (quoting Troxel, 530 U.S. at 57);
Monroe Cty. Dep't of Human Servs. v. Kelli B., 2004 WI 48, ¶19,
271 Wis. 2d 51, 678 N.W.2d 831; Barstad v. Frazier, 118
Wis. 2d 549, 567-68, 348 N.W.2d 479 (1984) ("Under ordinary
circumstances, a natural parent has a protected right under both
state law and the United States Constitution to rear his or her
children free from governmental intervention."); Rick v.
Opichka, 2010 WI App 23, ¶¶5, 21, 323 Wis. 2d 510, 780
N.W.2d 159; Lubinski v. Lubinski, 2008 WI App 151, ¶¶6, 13, 314
4
No. 2017AP1142.rgb
Wis. 2d 395, 761 N.W.2d 676; Rogers v. Rogers, 2007 WI App 50,
¶18, 300 Wis. 2d 532, 731 N.W.2d 347.
¶47 Wisconsin Stat. § 767.43(3) implicates this
fundamental right of parents by interfering with parents'
decisions regarding who may spend time with their children and
to what extent. Accordingly, strict scrutiny review applies and
the statute's constitutionality depends upon the State's ability
to identify a compelling interest furthered by the statute and
to demonstrate how the statute is narrowly tailored to meet that
compelling state interest. If the statute fails this test, it
violates the Constitution.
¶48 What compelling state interest warrants overruling
parents' fundamental rights to decide with whom their child
spends time? The text of Wis. Stat. § 767.43(3) does not say.
It allows the circuit court to supplant parents' judgment with
its own if the statutory conditions are satisfied. Our court of
appeals implicitly recognized the facial unconstitutionality of
this statute in Roger D.H., but "saved" the statute from "facial
invalidation" by reading into its text Troxel's requirement that
a "fit parent's determination" as to what is best for his child
must be presumed correct and given "special weight." Roger D.H.
v. Virginia O., 2002 WI App 35, ¶¶13, 18-20, 250 Wis. 2d 747,
5
No. 2017AP1142.rgb
641 N.W. 2d 440.2 The statute contains no such presumption nor
does it direct the circuit court to give any weight whatsoever
to the parents' determination. More importantly, even if the
requirements of Troxel are (however inappropriately)3 read into
the statute, no compelling state interest warrants the State's
intrusion in the first place. Consequently, even reading
Troxel's requirements into § 767.43(3) will not render the
statute constitutional.
¶49 The majority neglects to identify any "compelling
state interest" justifying judicial meddling in the decision-
making of two fit parents regarding visitation. In conclusory
fashion, it asserts that Wis. Stat. § 767.43(3) "is narrowly
tailored to further a compelling state interest because it
requires a grandparent to overcome the presumption in favor of a
2 This court accepted Roger D.H.'s reading of the statute in
S.A.M. v. Meister, 2016 WI 22, ¶45, 367 Wis. 2d 447, 876
N.W.2d 746 (referencing Roger D.H. v. Virgina O., 2002 Wi App
35, 250 Wis. 2d 747, 641 N.W.2d 440). Meister analyzed a
different subsection of the statute——Wis. Stat. § 767.43(1).
The majority maintains that declaring Wis. Stat. § 767.43(3)
unconstitutional "would necessarily require us to overturn our
2016 decision in Meister." Majority op., ¶33. There is no need
to do so because we analyze a different subsection of the
statute in this case.
3 A fundamental canon of statutory construction instructs
that "[n]othing is to be added to what the text states or
reasonably implies (casus omissus pro omisso habendus est).
That is, a matter not covered is to be treated as not covered."
Antonin Scalia & Bryan A. Garner, Reading Law: The
Interpretation of Legal Texts 93 (2012). This canon has been
described as a "principle . . . so obvious that it seems absurd
to recite it" because it "is not [the judge's] function or
within his power to enlarge or improve or change the law." Id.
(quoted source omitted).
6
No. 2017AP1142.rgb
fit parent's visitation decision with clear and convincing
evidence that the decision is not in the child's best interest."
Majority op., ¶42. This purported requirement appears nowhere
in the text of the statute and it is not the judiciary's job to
"tailor" a statute in order to render it constitutional. In
similar fashion, the majority invokes the State's interest in
acting when "a child's physical or mental health or welfare is
in jeopardy." Majority op., ¶24. However, § 767.43(3) contains
no requirement that a child's health or welfare be in jeopardy
before authorizing the circuit court to grant visitation rights.
The majority then mentions "triggering events" that may warrant
State intervention such as adoption, death of a parent, divorce,
legal separation of married couples, and separation of a child
from a parent. See majority op., ¶¶26, 28-31. Again,
§ 767.43(3) incorporates none of these triggering events. The
majority proceeds to cite a litany of foreign statutes in which
a compelling state interest appears or into which one has been
read by the courts, such as harm to the child. Majority op.,
¶¶29-31. Nowhere does the majority actually identify the
compelling state interest supporting § 767.43(3), understandably
so because there is none.4
4
The majority's reliance on Rick v. Opichka, 2010 WI App
23, 323 Wis. 2d 510, 780 N.W.2d 159 is misplaced. Opichka dealt
with Wis. Stat. § 54.56 (2007-08), which involves grandparent
visitation after a parent dies. Opichka, 323 Wis. 2d 510, ¶3.
Opichka does not establish a compelling state interest for Wis.
Stat. § 767.43(3).
7
No. 2017AP1142.rgb
¶50 The United States Supreme Court declared nearly two
decades ago that "so long as a parent adequately cares for his
or her children (i.e., is fit), there will normally be no reason
for the State to inject itself into the private realm of the
family to further question the ability of that parent to make
the best decisions concerning the rearing of that parent's
children." Troxel, 530 U.S. at 68-69. Wisconsin Stat.
§ 767.43(3) does not distinguish between fit and unfit parents;
instead, it allows a circuit court to grant a grandparent
visitation rights with respect to a nonmarital child5 so long as
such visitation is in the best interest of the child and the
other statutory conditions exist. Unlike other Wisconsin laws
implicating parental rights, Chapter 767 fails to identify any
compelling state interest justifying this particular
governmental intrusion into family matters.
¶51 For example, Chapter 48——The Children's Code——
explicitly proclaims its purpose is to protect children from
parents whose actions or inaction subject their children or
unborn children to an actual or substantial risk of physical or
emotional harm and to protect children's "health and safety" by,
among other State actions, remedying "any circumstances in the
home which might harm the child" or removing a child from the
parental home when necessary "to ensure that the needs of a
child" are met, including "the need for adequate food, clothing
and shelter; the need to be free from physical, sexual or
5Married couples and their children are spared the State's
intrusion provided the parents are fit.
8
No. 2017AP1142.rgb
emotional injury or exploitation; the need to develop
physically, mentally and emotionally to their potential; and the
need for a safe and permanent family." Wis. Stat. § 48.01(1)(a)
and (ag). Under these and other circumstances detailed in
Chapter 48, a circuit court may take jurisdiction over a child
alleged to be in need of protection or services. Wis. Stat.
§ 48.13.
¶52 Protecting children from either an actual or
substantial risk of physical or emotional harm stemming from
parental inability or unwillingness to provide for children's
basic needs presents a compelling interest: in the face of such
parental deficits, the children's survival depends on the State
stepping in. See In re TPR to Diana P., 2005 WI 32, ¶¶20, 32,
279 Wis. 2d 169, 694 N.W.2d 344 (holding the State has a
compelling interest to protect children from unfit parents).
Likewise, in Chapter 767, the State intervenes in family matters
upon marital dissolution when the parents are unable to resolve
disputes over custody and physical placement. Wis. Stat.
§ 767.41. It is the parents' disagreement (which is absent in
this case) that leads to State intervention.6 In contrast, the
special grandparent visitation provision set forth in Wis. Stat.
§ 767.43(3) serves neither to protect a child from harm, nor
6In this case, nothing warranted the State meddling with
this family. There was no pending family law matter between the
parents. There was no placement or custody battle. Both
parents are alive and actively present in their daughter's life.
The parents, although living separately, amicably share
placement of their daughter and both agreed to keep the
grandmother involved in their daughter's life.
9
No. 2017AP1142.rgb
resolve a dispute between feuding parents. The State intercedes
not to protect or remove the child from harm, nor at the
invitation of parents unable to resolve their differences, but
whenever the circuit court deems the "best interest of the
child" warrants the nanny state overriding the joint decision of
two fit parents.
¶53 Other jurisdictions reviewing third-party visitation
statutes have determined that the only compelling state interest
justifying interference with parents' fundamental rights is harm
to the child or unfit parents. See Moriarty v. Bradt, 827 A.2d
203, 222 (N.J. 2003) ("[w]hen no harm threatens a child's
welfare, the State lacks a sufficiently compelling justification
for the infringement on the fundamental right of parents to
raise their children as they see fit."); see also Jones v.
Jones, 2013 UT App 174, ¶¶25-27, 307 P.3d 598 (citing Roth v.
Weston, 789 A.2d 431, 445 (Conn. 2002); Beagle v. Beagle, 678
So. 2d 1271, 1276 (Fla. 1996); Brooks v. Parkerson, 454 S.E.2d
769, 772-74 (Ga. 1995); Doe v. Doe, 172 P.3d 1067, 1079-80 (Haw.
2007); Howard v. Howard, 661 N.W.2d 183, 190 (Iowa 2003); Koshko
v. Haining, 921 A.2d 171, 191 (Md. 2007); Herbst v. Sayre, 971
P.2d 395, 398 (Okla. 1998); Hawk v. Hawk, 855 S.W.2d 573, 577
(Tenn. 1993); Appel v. Appel, 109 P.3d 405, 410 (Wash. 2005)).
See also E.H.G. v. E.R.G., 73 So. 3d 634, 649-50 (Ala. 2011);
Blixt v. Blixt, 774 N.E.2d 1052, 1059 (Mass. 2002); Camburn v.
Smith, 586 S.E.2d 565, 580 (S.C. 2003); Glidden v. Conley, 2003
VT 12, ¶21, 820 A.2d 197.
10
No. 2017AP1142.rgb
¶54 I agree with these other jurisdictions in concluding
that the only compelling interest warranting the State's
intrusion upon two parents' fundamental right to raise their
child as they mutually see fit is harm to the child. Wisconsin
already has expansive statutory provisions set forth in Chapter
48 governing the State's intervention in family matters to
protect children from harm that has been or may be inflicted
upon them as a result of their parents' incapacities or
unfitness. Regardless, nothing in the text of Wis. Stat.
§ 767.43(3) suggests its purpose is to protect children from
harm. When two fit parents agree on the manner in which they
raise their child, the child must be in danger in order for the
State to inject itself into the private realm of a family. A
statute permitting such governmental intrusion based solely on
the best interests of a child without being tethered to any
compelling interest is constitutionally infirm.7
¶55 The majority endeavors to "save" the grandparent
visitation statute from facial invalidation by concluding that
7
The majority misrepresents my recognition of "a compelling
state interest for state intervention where parental
unwillingness results in a substantial risk of emotional harm to
the child" in other Wisconsin statutes as an acknowledgment that
"there are circumstances under which the Grandparent Visitation
Statute can be constitutionally enforced." Majority op., ¶¶32-
33 (emphasis added). The textual identification of harm to a
child as a compelling state interest cannot be imported from
other Wisconsin statutes into Wis. Stat. § 767.43(3) in order to
save it from facial unconstitutionality. To the contrary, it is
because § 767.43(3) fails to express any compelling state
interest in interfering with fit parents' fundamental right to
raise their children that it violates the Constitution.
11
No. 2017AP1142.rgb
Wis. Stat. § 767.43(3) "is narrowly tailored to further a
compelling state interest" but only if a grandparent overcomes
"the presumption in favor of a fit parent's visitation decision
with clear and convincing evidence that the decision is not in
the child's best interest."8 Under the majority's logic,
§ 767.43(3) lacks a compelling state interest——except when it
doesn't. The majority attempts to reconcile this inconsistency
by deciding that "[t]he Grandparent Visitation 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
A.A.L.'s best interest."9 The majority does not explain how the
constitutionality of a statute could possibly be dependent upon
the strength of a party's presentation of evidence. Merely
maintaining that under certain circumstances the State may have
a compelling interest in interfering with the fundamental right
at stake in this case, when the State expresses no compelling
interest within the text of the statute itself, cannot "save" a
statute subject to strict scrutiny, under any circumstances.
¶56 The majority goes on to caution a circuit court
against "improperly substituting its judgment for that of fit
parents,"10 but then allows a petitioning "grandparent to
overcome the presumption in favor of a fit parent's visitation
8 Majority op., ¶2.
9 Majority op., ¶41.
10 Majority op., ¶41.
12
No. 2017AP1142.rgb
decision with clear and convincing evidence that the decision is
not in the child's best interest,"11 apparently preserving the
ability of courts to substitute their judgment for the judgment
of fit parents so long as the petitioning grandparents surmount
the heightened evidentiary hurdle imposed by the majority here.
¶57 Even if a compelling state interest could be
identified, Wisconsin's grandparent visitation statute is not
narrowly tailored. The text of Wis. Stat. § 767.43(3) rather
broadly affords circuit courts the discretion to override the
wishes of nonmarital parents if the circuit court determines a
different visitation schedule is in the best interests of the
child. In comparison, other jurisdictions narrowly tailor their
statutes to apply only when a grandparent has functionally
served as the child's parent for a lengthy period of time so
that severing that relationship would cause significant harm to
the child's health or well-being. See, e.g., Conn. Gen. Stat.
Ann. § 46b-59. Some require that a grandparent demonstrate
complete denial of access to the grandchild. See, e.g., Neuhoff
v. Ubelhor, 14 N.E.3d 753, 762 (Ind. Ct. App. 2014) (statute
requiring consideration of whether visitation has been denied
entirely or simply limited; holding "no need for court
intervention" when dispute involves grandmother wanting
visitation on her terms). Other statutes set aside the wishes
of the parents only when a grandparent can establish a custodial
parent's unfitness or other extraordinary circumstances
11 Majority op., ¶42.
13
No. 2017AP1142.rgb
affecting the welfare of the child, such as abandonment, neglect
or abdication of parental responsibilities.12 See, e.g., Jones,
307 P.3d 598, ¶8; Roth, 789 A.2d at 444-45.
¶58 The majority's opinion in this case changes very
little for families similarly situated. In future cases,
circuit courts in Wisconsin must follow Troxel and presume that
the decisions of fit parents as to what is best for their child
is correct, and must give the parents' determinations "special
weight" (whatever that means). Then the circuit court must
merely find that a petitioning grandparent has overcome the
Troxel presumption by clear and convincing evidence, which
affords the circuit court the discretion to overrule the
decisions of fit parents and instead impose on the family the
circuit court's view of the best interests of the child. Surely
the fundamental liberty interest of parents in being free from
State interference in the care, custody, and upbringing of their
families——"perhaps the oldest of the fundamental liberty
interests recognized by" the United States Supreme Court——
deserves much more protection than this.
¶59 Of course, grandparents can play significant and
beneficial roles in the lives of their grandchildren.13 But "as
12I cite various factors used in foreign statutes not to
affirm their constitutionality, but to illustrate how
Wisconsin's grandparent visitation statute lacks any tailoring
whatsoever. Even a narrowly-tailored statute may nevertheless
be unconstitutional. See, e.g., Jones v. Jones, 2013 UT App
174, 307 P.3d 598.
14
No. 2017AP1142.rgb
the constitutional body vested with the power to say 'what the
law is,' the judiciary evaluates a statute for its fidelity to
the constitution, and 'an act of the legislature, repugnant to
the constitution, is void.' Marbury[ v. Madison], 5 U.S. (1
Cranch) [137,] 177 [(1802)]. When a law contravenes the
constitution, it is our duty to say so." Mayo, 383 Wis. 2d 1,
¶84 (Rebecca Grassl Bradley, J., concurring). The limited reach
of the majority's opinion, which declares Wis. Stat.
§ 767.43(3) unconstitutional only as applied to the parents in
this case, exposes nonmarital parents to infringement of their
fundamental liberty interests in raising their children as they
mutually see fit. "[T]he consequences of upholding
unconstitutional laws are not confined to a single party in a
single case. Rather, failure to strike down an unconstitutional
law harms all of the people of this state in potential
perpetuity." Mayo, 383 Wis. 2d 1, ¶85 (Rebecca Grassl Bradley,
J., concurring).
II
¶60 Federal and State courts consistently ground the
fundamental right of parents to raise their children, without
governmental interference, in the "substantive" due process
13
Importantly, and as recognized by the majority, the
record in this matter shows Michels and Lyons did not cut the
grandmother out of their child's life. The grandmother simply
would not accept the child's changing schedule, which reduced or
eliminated some of the previous grandmother-grandchild
activities. A grandparent's desire for a "better" visitation
schedule is insufficient to warrant state intervention. Rogers
v. Rogers, 2007 WI App 50, ¶21, 300 Wis. 2d 532, 731 N.W.2d 347.
15
No. 2017AP1142.rgb
protection of the Fourteenth Amendment. See Troxel, 530 U.S. at
65, 75. Although application of "substantive" due process in
this context has been questioned under an originalist
interpretation of the Constitution, in this case, as in Troxel,
"neither party has argued that our substantive due process cases
were wrongly decided and that the original understanding of the
Due Process Clause precludes judicial enforcement of
unenumerated rights under that constitutional provision." Id.,
530 U.S. at 80 (Thomas, J., concurring).14 Because this case,
like Troxel, "does not involve a challenge based upon the
Privileges [or] Immunities Clause and thus does not present an
opportunity to reevaluate the meaning of that Clause," I will
not undertake such an analysis. See id. (Thomas, J.,
concurring).15
14
In its amicus brief, the Cato Institute suggests "[t]he
Privileges or Immunities Clause contains what should be the
Fourteenth Amendment's primary mechanism for limiting state
infringement of substantive rights."
15
Justice Clarence Thomas repeatedly applies an originalist
interpretation of the Privileges or Immunities Clause,
identifying it, rather than the Due Process Clause, as the
proper source for protecting fundamental constitutional rights,
and noting that the United States Supreme Court
"'marginaliz[ed]' the Privileges or Immunities Clause in the
late 19th century by defining the collection of rights covered
by the Clause 'quite narrowly.'" Timbs v. Indiana, 586 U.S.
____, 139 S. Ct. 682, 691 (2019) (Thomas, J., concurring),
quoting McDonald v. City of Chicago, 561 U.S. 742, 808-09 (2010)
(Thomas, J., concurring). "When the Fourteenth Amendment was
ratified, the terms privileges and immunities had an established
meaning as synonyms for rights." Timbs, 586 U.S. at ____, 139
S. Ct. at 692 (Thomas, J. concurring) (internal quotation marks
omitted). Historically, people "understood the Privileges or
Immunities Clause to guarantee those 'fundamental principles'
'fixed' by the Constitution." Id.
16
No. 2017AP1142.rgb
¶61 The parents in this case do invoke Article I, Section
1 of the Wisconsin Constitution, suggesting the circuit court's
visitation order may violate the fundamental right of parents to
raise their children under that provision, which provides:
All people are born equally free and independent, and
have certain inherent rights; among these are life,
liberty and the pursuit of happiness; to secure these
rights, governments are instituted, deriving their
just powers from the consent of the governed.
The parents do not, however, construe or analyze this section of
Wisconsin's Constitution, nor do they offer any argument
challenging Wis. Stat. § 767.43(3) under the Wisconsin
Constitution in any respect. As a result, this case does not
present the opportunity to undertake this analysis.16
16 Justice Antonin Scalia opined that "[i]n my view, a right
of parents to direct the upbringing of their children is among
the 'unalienable Rights' with which the Declaration of
Independence proclaims 'all men . . . are endowed by their
Creator.' . . . The Declaration of Independence, however, is not
a legal prescription conferring powers upon the courts[.]"
Troxel, 530 U.S. at 91 (Scalia, J., dissenting). In contrast,
"[t]he Wisconsin Constitution begins with a Declaration of
Rights, echoing language from our nation's Declaration of
Independence" and expressly incorporates the people's "inherent
right" to "liberty" "recognizing that the proper role of
government——the very reason governments are instituted——is to
secure our inherent rights, including liberty." Porter v.
State, 2018 WI 79, ¶52, 382 Wis. 2d 697, 913 N.W.2d 842 (Rebecca
Grassl Bradley and Kelly, J.J., dissenting) (citing Wis. Const.
art. I, § 1). Not only do courts have the power to enforce
rights recognized in Wisconsin's Constitution, they are duty
bound to do so. "While the people empower the legislature to
enact laws and make policy, the constitution compels the
judiciary to protect the liberty of the individual from
intrusion by the majority. '[C]ourts of justice are to be
considered as bulwarks of a limited Constitution against
legislative encroachments[.]' The Federalist No. 78, at 469
(Alexander Hamilton) (Clinton Rossiter ed., 1961)." Porter, 382
Wis. 2d 697, ¶53.
17
No. 2017AP1142.rgb
III
¶62 I concur with the majority's conclusion that the
circuit court's visitation order unconstitutionally violated
Michels' and Lyons' fundamental right to parent their daughter.
I part with the majority because I would declare Wis. Stat.
§ 767.43(3) facially unconstitutional. The statute lacks any
compelling state interest and is not narrowly tailored to
overcome fit parents' fundamental right to raise their children
free from governmental intrusion. I respectfully concur.
¶63 I am authorized to state that Justice DANIEL KELLY
joins this concurrence.
18
No. 2017AP1142.rgb
1