April 8, 2016 – After her son and daughter-in-law divorced, Carol Meister, who lived in Ohio, filed a motion seeking court-ordered rights to visit her four grandchildren. Recently, the Wisconsin Supreme Court clarified the standard to determine such rights.
Wis. Stat. section 767.43(1) governs who may petition for child visitation rights. A “grandparent, greatgrandparent, stepparent or person who has maintained a relationship similar to a parent-child relationship with the child” may petition the court.
“If the parents have notice of the hearing and if the court determines that visitation is in the best interest of the child,” the court “may grant reasonable visitation rights.”
The circuit court ruled that Meister’s relationship with four grandchildren was not “similar to a parent-child relationship,” and denied her motion for visitation rights.
An appeals court affirmed. But in S.A.M. v. Meister, 2016 WI 22 (April 7, 2016), the Wisconsin Supreme Court reversed, with two concurrences filed.
“We conclude that Wis. Stat. § 767.43(1) does not require a grandparent, greatgrandparent, or stepparent who files a motion for visitation rights … to prove that he or she ‘has maintained a relationship similar to a parent-child relationship with the child,’” wrote Justice David Prosser in the majority opinion of the court.
In other words, the supreme court ruled that persons other than a grandparent, greatgrandparent, or stepparent, must prove a “parent-child” like relationship.
In addition, the court ruled that granting visitation rights that are in the best interest of children does not infringe on a constitutional right of parents to direct the care, custody, and control of their kids because “any best interest determination must give special weight to a fit parent’s decisions regarding the child’s best interest.”
Meister filed the petition after her former daughter-in-law changed an informal visitation arrangement. She sought the right to see the grandchildren six times per year, and have regular phone calls with them. The family court commissioner granted her request.
The commissioner had ruled that Meister proved a relationship with the grandchildren that was similar to a parent-child relationship. The commissioner granted one week of visitation in Ohio every summer, four three-day visitations in Wisconsin, and access to an online portal that allowed her to schedule the visits with the grandchildren’s parents.
Nancy Meister, the former daughter-in-law, asked the circuit court in Jefferson County to review the commissioner’s order. A guardian ad litem for the children supported the commissioner’s order, arguing that Meister’s relationship was similar to that of a parent who lived out of state. But the circuit court took a narrower view of the visitation statute, and ruled that Meister did not show a relationship similar to a parent-child relationship.
The children, through the guardian ad litem (GAL), appealed. The GAL argued that the circuit court applied the wrong legal standard when determining visitation rights.
The court of appeals affirmed, noting prior case law holding that grandparents and other persons must prove the parent-like relationship in order to qualify for visitation rights.
Carol Meister passed away 20 days after the appeals court released its decision. But the Meister children proceeded with a petition for review, and it was granted despite the mootness issue.
Supreme Court Reverses
The supreme court concluded that the statute specifying who may petition the court for visitation rights only requires a “person” who is not a grandparent, greatgrandparent, or stepparent to prove the parent-like relationship in order to receive visitation rights.
It makes sense to require proof of relationship by people without a direct family tie to a child’s parent, the majority observed. But “[r]equiring 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,” Justice David Prosser wrote.
The court applied the “last-antecedent rule” to determine that the word “who” in the statute only applies to a “person.” Again, the statute says “a grandparent, greatgrandparent, stepparent or person who has maintained a relationship similar to a parent-child relationship with the child” may petition the court for visitation rights.
The court also noted that a related “special grandparent visitation provision” – which governs when a child is born to parents who are not married – does not require grandparents to show a parent-like relationship to get visitation rights.
That statute, section 767.43(3) says grandparents can obtain visitation rights if, in addition to other requirements, the “grandparent has maintained a relationship with the child or has attempted to maintain a relationship with the child. …”
The court noted that section 767.43(1), enacted in 1988, expanded the category of people who could petition for visitation rights. But it did not place more stringent requirements on grandparents in order to receive visitation rights to grandchildren.
Care, Custody, and Control
The children’s mother argued that grandparent visitation without proof of a parent-like relationship infringes on her constitutional right to raise her children how she wants.
The supreme court acknowledged that parents have a constitutional right to direct the “care, custody, and control” of their children.
But Prosser’s opinion of the court also explained that courts may grant visitation to nonparents if the court determines that doing so “would be in the child’s best interest.”
Under a U.S. Supreme Court decision, Troxel v. Granville, 530 U.S. 57 (2000), the majority noted that that non-parent visitation rulings do not infringe upon constitutional parenting rights so long as courts apply a presumption “that a fit parent’s decision regarding non-parental visitation is in the best interest of the child.”
Courts must apply the presumption when determining whether visitation is in the child’s best interest, but may grant visitation even if a parent objects, Justice Prosser noted.
“We think it important to note that while our decision eliminates one unintended impediment for grandparents, greatgrandparents, and stepparents who seek visitation rights … it does not guarantee that they will prevail,” Justice Prosser wrote.
“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.”
Justice Shirley Abrahamson wrote a concurring opinion. She agreed with the court’s interpretation of section 767.43(1). But she said that statutory provision did not allow the children (through the guardian ad litem) to challenge the circuit court’s order.
“[T]his court does not have any statutory or other basis to consider the petition for review filed by a person not identified in the statute as having the power to seek visitation with the children,” Justice Abrahamson wrote.
She also said the court’s interpretation of the “special grandparent visitation” provision, section 767.43(3), puts the constitutionality of that provision in doubt.
Abrahamson said the burden that section 767.43(3) imposes on grandparents seeking visitation rights to children born to unmarried parents is now “significantly greater than” the burden it imposes on a grandparents with children born to married couples. That could violate constitutional protections under the Equal Protection Clause, she warned.
Justice Annette Ziegler, joined by Justice Michael Gableman, also wrote a one-page concurrence. They agreed with the court’s interpretation of 767.43(1), but said further analysis was not necessary because the statute was wholly “unambiguous.”
Justice Rebecca Bradley did not participate.