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  • Inside Track
    July 18, 2018

    On Family Law:
    Revisiting Standard for Grandparent Visitation

    The Wisconsin Supreme Court has accepted certification of a case involving the standard for determining court-ordered grandparent visitation, giving the court the opportunity to clarify this area of law.

    Gregg M. Herman

    grandparent and child

    July 18, 2018 – Few issues are as significant – and as emotional – to families as grandparent visitation. Unlike most placement and financial disputes, which can be resolved by splitting differences between numbers, the result can be an ultimate one. In addition, unlike many other legal disputes, in most cases, neither party is wrong. Rather, the court is required to weigh the merits between two parties both asserting positions with a great deal of merit.

    In 2000, the U.S. Supreme Court decided Traxel v. Granville, 530 U.S. 57 (2000), in which a majority of justices concluded that parents have a substantive due process interest in the care, custody, and control of their children. Therefore, a court must apply a presumption that a fit parent acts in the child’s best interest. This presumption has been applied in numerous cases since Traxel to deny grandparents visitation, including a Wisconsin case, Rogers v. Rogers, 2007 WI App 50, 300 Wis. 2d 532, 731 N.W.2d 347. However, other Wisconsin cases have found grounds to grant grandparents visitation, even though there were fit parents. Rick v. Opichka, 2010 WI App 23, 323 Wis. 2d 510, 780 N.W.2d 159.

    An Opportunity to Clarify Standard of Proof to Overcome Presumption

    On June 11, 2018, the Wisconsin Supreme Court accepted certification in Michels v. Lyons, 2017AP1142. In the case, Jill Kelsey filed a petition to compel her son (the child’s father) and the mother to provide her with additional visitation time. Kelsey had been afforded time with her grandchild but, apparently by agreement of the parents, it had been reduced.

    Gregg HermanGregg Herman is a family law attorney with Loeb & Herman S.C. His primary office is in Milwaukee. Gregg is the co-editor of the System Book for Family Law, published by the State Bar of Wisconsin PINNACLE® and is a former chair of the State Bar and American Bar Association family law sections. Follow Gregg’s opinions on his family law blog.

    There is no allegation that these are not fit parents. Nonetheless, the circuit court granted visitation one Sunday per month and one week each summer. The court held that it could order visitation under Traxel as long as it applied a presumption in favor of the parents and determined that visitation was in the child’s best interests. The court did not require a finding of harm to the child if the parents’ wishes were upheld. The court also did not appear to consider the inherent harm to the child by the litigation itself.

    The parents jointly appealed, arguing that the court applied a preponderance of the evidence standard to overcome the presumption, which is insufficient under Traxel. The court of appeals certified the case to the supreme court, requesting that the higher court clarify the standard of proof “on this important issue involving a fundamental right.”

    Protecting Children Should Come First

    Grandparent visitation is one of those rare issues where no one is wrong and everyone is right. Grandparents can be a highly valuable resource for children – emotionally, financially, and as a source of wisdom. Yet court-ordered visitation can disrupt families. For example, if there are four living grandparents and each is divorced (it happens), the court will run out of weekends for the intact family to be together.

    More importantly, any time a “right” is available, litigation is inevitable. The value of grandparents to children must be carefully weighed against the inherent harm to children caused by fighting over them. Unfortunately, this harm to children is rarely conveyed to the court when the parties have lawyers representing them and the children have, at best, a lawyer representing their “interests.”

    Thank you to the supreme court for accepting certification. It has the opportunity to clarify this area of law which will certainly harm one class of potential parties. Hopefully, that difficult choice will be based on the primacy of protecting children.

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