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  • December 14, 2018

    Brussels Sprouts, Pancakes, and Proof in Grandparent Visitation

    Recent Wisconsin Supreme Court oral arguments in Michels v. Lyons dissected the constitutionality of a grandparent visitation statute. Tiffany Highstrom and Sara Vanden Brook discuss the court’s recent oral arguments regarding the statute and cases involved.

    Tiffany L. Highstrom, Sara M. Vanden Brook

    What must a grandparent show to have visitation with a grandchild, if the parents oppose visitation?

    Michels v. Lyons1 will provide guidance on this question to family law courts and attorneys throughout Wisconsin.

    Jill Kelsey spent time weekly with her granddaughter, Ann, for years. In 2016, Ann’s parents (Cacie Michels and Keaton Lyons) reduced Jill’s visits with Ann. Jill then sought a visitation order under Wis. Stat. section 767.43(3). That statute grants visitation rights to grandparents when, inter alia, the parents of a child are unmarried, the grandparent has maintained a relationship with the child, and visitation is in the best interest of the child.

    Tiffany L. Highstrom Tiffany L. Highstrom, Marquette 2004, is a partner with Stafford Rosenbaum LLP, Madison, where she specializes in all aspects of family law.

    Sara M. Vanden Brook Sara M. Vanden Brook, U.W. 2008, is a partner with The Law Center for Children & Families, in Madison, where she practices in child and family law.

    The circuit court ordered some visitation for Jill, finding that the evidence overcame the presumption that parents’ decisions on such matters were in the best interest of the child. The parents appealed. In May 2018, the Wisconsin District III Court of Appeals then sought guidance on what burden of proof was appropriate.

    The Wisconsin Supreme Court in June, 2018, thus certified the following issue: “to clarify the standard of proof required for a grandparent to overcome the presumption that parents’ decisions regarding the scope and extent of their child’s visitation with the grandparent is in the child’s best interest.”


    Several cases have attempted to resolve similar issues, both in federal and Wisconsin courts.

    In Troxel v. Granville2 the U.S. Supreme Court struck down a Washington state law that allowed any nonparent to petition for visitation rights based only on the best interest of the child. The court found that this bare burden of proof did not sufficiently protect parents’ fundamental right to raise their children. But the court did not provide guidance on what burden a nonparent must satisfy for a court to order visitation. Instead, the plurality simply said that the parents’ rights must receive “special weight.”

    To comply with Troxel, Wisconsin case law has thus far required a grandparent seeking visitation to first offer evidence to rebut the presumption in favor of the parents’ preferences.

    If rebutted, then courts then turn to the best interest of the child. In re the Paternity of Roger D.H. upheld this rebuttable presumption analysis.3 That court asserted that the plurality in Troxel was most concerned with the lack of any special weight given to the parents’ interests and preferences, and that the rebuttable presumption analysis sufficiently addressed this concern.4

    That logic was followed in In re Nicholas L., wherein the court found that the rebuttable presumption analysis is a constitutional way to give the parent’s decision special legal weight.5

    The Wisconsin Supreme Court reached this issue on a comparable statute – Wis. Stat. section 767.43 (1) – in In re Marriage of Meister.6 There, the court upheld grandparents’ rights to petition for visitation, finding both that the statute did not impermissibly infringe on parents’ rights to raise their children, and that the questions raised in Troxel were appropriately dealt with in Roger D.H.7

    The Briefs

    The parents’ attorney, Ryan Steffes of Weld Riley, S.C., argued that the presumption analysis, as applied in Wisconsin, was “a clunky restatement of the best-interest-of-the-child standard,” and thus unconstitutional under Troxel. That is because any evidence can rebut the presumption; the analysis thus gives no special weight to the parents’ rights, shifting neither the burden of production nor persuasion.

    Steffes argues that a grandparent’s petition should be subject to strict scrutiny, because the parents’ fundamental rights are at issue in these cases. He also urges addition of a “harm to the child” standard (as opposed to a best interest of the child analysis) to further vindicate the parents’ fundamental rights.

    Through a survey of many states’ similar laws, Steffes concludes that nearly all have a higher burden of proof than Wisconsin and/or a harm to the child standard. Therefore, he asks the court to overrule Nicholas L., and to determine what standard of proof is most appropriate moving forward.

    In contrast, the grandmother’s attorney, Jeff Mandell of Stafford Rosenbaum, LLP, asserts that Wisconsin law is clear, and complies with Troxel. Mandell argues that a preponderance of the evidence standard (implied in Roger D.H. and Meister8), plus “special weight” to the parents’ rights (through the rebuttable presumption analysis), is constitutionally sufficient. Mandell finds 12 states that use the best interests of the child standard (rather than the harm to the child standard) and do not require a higher burden of proof.

    Thus, he asserts Wisconsin’s standard is not especially strict, but consistent with other states’ procedures.

    Mandell finally argues that the parents’ citations to termination of parental rights (TPR) cases are inapposite, as such cases involve a much higher deprivation of parents’ fundamental rights than a grant of visitation.

    Oral Arguments

    At turns jovial and piercing, the court enjoyed sifting through this complex case during the hearing on Nov. 7, 2018.

    On Behalf of the Parents
    After some discussion about the implications of liberty associated with familial relations under the Wisconsin Constitution raised by Justice Rebecca Bradley, Justice Daniel Kelly began the substantive questioning of Steffes, wondering if the court could rule for the parents without overruling Meister. Steffes said yes, as while similar, Meister dealt with a separate statute, and did not consider key issues such as whether strict scrutiny applied.

    Justice Ann Walsh Bradley then tried to sort out what standard of proof would satisfy the parents. Steffes responded that, while clear and convincing would get Wisconsin close to complying with Troxel, that strict scrutiny, plus harm to the child, is the best solution.

    Chief Justice Patience Roggensack added to the harm questioning, attempting to understand how courts would implement such an analysis. Neither the justices nor Steffes could name a situation where a harm to the child standard is currently applied in Wisconsin. Nonetheless, Steffes argued that expert testimony could make the analysis proceed smoothly, allowing a case-by-case determination consistent with family law principles, only at a higher burden of proof than the best interest of the child standard.

    Justice Kelly wondered why Steffes was not arguing that, when two fit parents agree, it would be unconstitutional to then interfere with the decision making of the two fit parents. Steffes responded by citing to the amicus brief filed by Legal Aid that demonstrated how circuit courts have struggled with these types of case. Steffes concluded that protecting children from harm is a compelling state interest in which strict scrutiny applies, and that the harm standard he proposed was the method to best protect children.

    On Behalf of the Grandmother
    Mandell began by reiterating his brief’s conclusion that the constitutional issue was already decided in Meister. Justice Kelly rejected this conclusion, arguing that the Troxel “special weight” conclusion was a mere plurality, and that Meister did not deal with two fit parents who agreed to deny visitation to a grandparent. Mandell responded that “special weight” was incorporated into Wisconsin law by Meister, and that the fitness and agreement of parents influences the legislature’s policy choices, without altering parents’ fundamental rights.

    Justice Rebecca Dallet then inquired whether “special weight” has teeth in practice. Mandell argued that overcoming the presumption is a sufficient burden in a visitation case, but that a higher burden would be appropriate in a TPR case. Justice Rebecca Bradley commented that it seemed to her that the circuit court’s decision to grant the grandparent one week of unhindered contact with the child, without giving the parents any say about the circumstances, was a substantial intrusion.

    Chief Justice Roggensack asked why a clear and convincing evidence standard would be objectionable, as the court knows exactly how to apply it. Mandell responded that the legislature also knows how to require that standard, but that they did not do so here.

    Mandell ended with a discussion of the fundamental right to continuity that should be considered alongside the fundamental right to parenting. Justice Kelly questioned whose interests are implicated in that right. Mandell responded that the child was the primary beneficiary, but that the statute did not require a vindication of the child’s interests. More generally, the CATO Institute’s amicus brief argued that individuals besides the parents have relevant interests in such an action.

    By the State
    Wisconsin Deputy Solicitor General Kevin LeRoy, who sat with Mandell, was granted a few minutes to argue before the court. He indicated that the state’s position is that neither the Wisconsin nor Federal Constitutions control, as grandparent visitation does not always infringe on the fundamental rights of parents.

    Justice Roggensack took issue with this, pointing out that if a child decides to spend an hour with grandma, and the parents say no, that the parents’ liberty interest would be infringed upon. LeRoy countered that grandparent visitation is a narrow infringement versus an absolute one, and that the standard employed in Troxel and Meister, giving the parents’ decisions special weight, offers adequate protection.

    Justice Kelly focused his questions on which level of interference with parental autonomy ought to require a heightened level of scrutiny. After LeRoy pointed out that the Troxel court specifically declined to apply strict scrutiny to visitation cases, Justice Kelly questioned what would happen if the legislature passed a law requiring parents to feed their children Brussels sprouts two times per week. LeRoy responded by saying that while such a law would be an infringement, it would still not rise to the level of strict scrutiny.

    Then, Justice Kelly asked about a law that required parents to feed their children pancakes on Saturday mornings, pointing out that the legislature could subvert the liberty interest of parents one small step at a time. LeRoy responded that grandparent visitation is not an additive burden, but rather a narrow issue that has been subject to sensitive legislative judgment.

    Justice Dallet continued the hypothetical inquiries by investigating which level of relationship with a child would allow an individual to petition for visitation rights. What about a neighbor or a teacher? LeRoy thought that visitation requests by those outside the familial relationship could be subject to a different standard, but this line of questioning caused important reflection on who can form a parent-child relationship, and what rights should flow from that.

    In the end, the LeRoy acknowledged that a higher burden of proof may result from this case; however, he argued against adding a “harm” standard: it is nowhere in the Constitution or the statute, and thus would, he believed, constitute legislating from the bench.


    Steffes argued that the presumption in Roger D.H. was a clunky restatement of the best interest standard and did not clearly articulate the parents are entitled to a presumption that their decisions are in the child’s best interest.

    Justice Dallet engaged Steffes in discussion about other states that have injected a harm standard into their statutes to pass constitutional muster. Steffes indicated that Wisconsin has a very permissive visitation statute compared to many other states, and argued that only a statute with the harm standard should be considered constitutional. While it was pointed out that no other Wisconsin case employs such a standard, Steffes stated that other cases have indicated that the state has a compelling interest in preventing harm. Without the harm standard, he argued, the legislature would be free to second guess all decisions of fit parents, even those like not making children eat vegetables.

    Coming to a Resolution

    Wisconsin currently has one of the more permissive standards of proof nationwide for a grandparent seeking visitation rights. The justices seem uncomfortable with continuing this practice. While the statute is unlikely to be found unconstitutional on its face, it likely will be found unconstitutional as applied by the circuit court.

    The justices will then need to decide what resolution constitutionally balances parents’ rights with the language of the statute. Most justices appeared amenable to a higher burden of proof, especially clear and convincing evidence. A few justices dove into the harm to the child standard, both theoretically (J. Kelly) and practically (J. Roggensack), but no one seemed particularly adamant about adding this burden to the analysis.

    While none of the justices tipped their hand, expect this case to change how courts must apply section 767.43(3) moving forward.

    We expect a decision this spring.

    Editors' note: This post is written by members of the Family Law and Children and the Law sections, and is shared by both sections.


    1 2017AP1142

    2 530 U.S. 57 (2000)

    3 2002 WI App 35, ¶¶13-20, 250 Wis. 2d 747, 641 N.W.2d 440

    4 2002 WI App 35 at ¶19.

    5 2007 WI App 37, ¶12, 299 Wis. 2d 768, 731 N.W.2d 288.

    6 2016 WI 22

    7 2016 WI 22 at ¶40

    8 See Wis. Stat. section 903.01


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