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    Third-party Visitation: A Historical Perspective

    When crafting an approach to third-party visitation, Wisconsin appellate courts should keep in mind the harm to children's interests created by litigation itself.

    Mark R. Fremgen & Gregg M. Herman

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    “Ours is by no means a tradition limited to respect for the bonds uniting the members of the nuclear family. The tradition of uncles, aunts, cousins, and especially grandparents sharing a household along with parents and children has roots equally venerable and equally deserving of constitutional recognition.”1

    The ideal of the nuclear family – a mother, a father, and two children – has never truly been an accurate portrayal of the family. From generation to generation, in one culture to the next, family structures have never been so limited. Many families are defined by multiple generations within one household, especially including grandparents. Grandparents have historically been involved in, if not entrusted with, raising the grandchildren.

    But third-party laws, sometimes colloquially referred to as “grandparents’ rights” statutes, although present in some degree or another in every state, are very limited. From the perspective that the position of a third party, for example a grandparent, should not be equal to or greater than that of a parent, except in unique circumstances, the limitations in these statutes is understandable. From a historical perspective, these statutory limitations are unusually dismissive of the importance of third parties, grandparents in particular.

    Mark R. Fremgengov mark.fremgen wicourts Mark R. Fremgen, John Marshall 1990, is a Dane County Circuit Court commissioner, Madison.

    Gregg M. Hermancom gherman loebherman Gregg M. Herman, U.W. 1977, is a family law attorney with Loeb & Herman S.C., Milwaukee.

    On the other hand, allowing expansive (or perhaps, any) rights to third parties to litigate over children runs the danger of a cure being worse than the disease. Litigation is inimically harmful to children. The danger is not only because of the initial litigation; once the door is open, the children could easily be the center of ongoing battles to modify court orders for years in the future.

    And worse, the fighting would occur not only with the initial motion to force parents to share children, but over and over given that motions to modify are inevitably litigated over the years. As stated by the Texas Supreme Court: “For the children themselves, the conflict associated with the litigation itself is often much greater than the conflict that led to a divorce or custody dispute … because children suffer needlessly from traditional litigation, the amicable resolution of child-related disputes should be promoted forcefully.”2

    Regardless of the dynamics of the individual personalities, the crux of most disputes involving a fit parent’s determination to deny a grandparent (or other third party) any period of visitation with their minor children is the perceived presumption that fit parents have an unquestionable right to raise their children in any reasonable manner of their choosing. This includes the determination as to whether grandparents should be allowed any contact, let alone significant periods of visitation.

    Unfortunately, there is little (or perhaps more accurately, no) authority in Wisconsin that recognizes the detrimental effect of litigation on children. On issues such as prohibiting contingent-placement orders and refusing to honor stipulations freezing child support, Wisconsin courts consistently ignore the harm to children created by litigation itself. That is unfortunate, as frequently the best interests of children are best served not by money, but by peace.

    The potential disruption to families is important as well. It is not far-fetched to imagine both sets of grandparents being alive and all four having remarried. If each “new” set gets one weekend per month, there are not a lot of weekends left over for the intact family to have together. And this does not even account for other weekends for third parties other than grandparents, who also might have formed a parent-child relationship with the children.

    U.S. Supreme Court Precedent

    Although a number of older cases have addressed the rights of parents in directing the care, custody, and management of their children,3 the issue of third-party visitation, and in particular, grandparent visitation, was addressed primarily in a U.S. Supreme Court case, Troxel v. Granville. In Troxel, the plurality opinion noted that parents have a constitutionally protected right to raise their children without governmental interference. This right is based in the privacy protections of the U.S. Constitution, derived from the 14th Amendment, which generally prohibits governmental interference with a person’s liberty without due process. To award visitation to a third party over a parent’s objection is to interfere with the parent’s constitutionally protected right to make decisions regarding the “care, custody, and control” of his or her children.4

    In the plurality opinion by Justice O’Connor, joined by Justice Ginsburg, Justice Breyer, and Chief Justice Rehnquist, the Court held that the Washington state law pertaining to grandparent visitation violated the “fundamental right” of parents to make decisions about their children. Six opinions in all were written by nine justices.

    Although this state law was found unconstitutional, the Court indicated that more limited laws aimed at preserving grandparents’ rights might be valid. The plurality opinion reaffirmed the parents’ freedom to provide for the custody and care of their children under the Due Process Clause of the 14th Amendment, noting that the state courts must afford a parent’s decision “special weight.”5 In doing so, the Troxel Court noted that it is not the “fit custodial parent’s” burden to disprove “that visitation would be in the best interest” of their child.6

    Wisconsin Visitation-related Statutes

    In Wisconsin, three statutes address visitation with third parties. One is in Wis. Stat. chapter 54, which addresses guardianships; one is in Wis. Stat. chapter 48, the Children’s Code; and one is in Wis. Stat. chapter 767, the Family Code. Terminology is important to note. In each of these statutes, but in particular the Family Code that will be discussed, time with a third party, including a grandparent, is referred to as “visitation,” compared to periods of “placement” attributed to time with a parent. By definition, the time that a grandparent may be awarded to spend with a grandchild is not the same as that with a parent, regardless of the historical relationship between the grandparent and the child.7

    Although limited, and different from parental placement, Wis. Stat. section 767.43 provides grandparents and other third parties the opportunity to pursue some form of visitation. However, there is no per se “right” to visitation. “The statute’s stated conditions do not guarantee that a visitation order will issue where the statutory elements are satisfied. To the contrary, the decision clearly remains within the court’s discretion even where the statutory elements are met.”8 The third-party visitation statute – Wis. Stat. section 767.43 – includes not only grandparents but also a “great-grandparent, stepparent or person who has maintained a relationship similar to a parent-child relationship with the child.”9

    As noted, third-party visitation statutes are generally quite limited, and the terms specifically differentiate between nonparental relative placement and primary parent placement, yet the Wisconsin statute may be considered more advanced in that it expands the opportunities for visitation not only to grandparents and great-grandparents but also to step-parents and other potentially unrelated third parties who have had a “parent-child relationship with the child.” In theory this could be a long-time friend of the family or an individual from a dissolved long-term significant relationship. This nontraditional provision has been the basis of standing in cases involving same-sex relationships, in which Wisconsin appellate courts have held that a same-sex, non-adoptive partner is not a “parent” as it is defined in Wisconsin.10

    Learn More

    Join authors Mark Fremgen and Gregg Herman as they present, “Grandparent Visitation – and the Legal Standard Is …,” during the State Bar of Wisconsin 2019 Annual Meeting & Conference in Green Bay, Friday, June 11, 8-9:15 a.m.

    Michels v. Lyons is a significant Wisconsin case affecting the fundamental liberty interest in parenting the child. A panel of attorneys, family court commissioners, and judges will discuss the case, its importance, and the standards for grandparent visitation going forward. From this session, you will:

    • Understand the evolution of parental rights and grandparent visitation in Wisconsin
    • Recognize key points to granting grandparent visitation as determined in Troxel v. Granville
    • Comprehend the changes to granting grandparent visitation in the wake of Michels v. Lyons

    To register, go to www.wisbar.org/AMC/2019/.

    <iframe src="//www.youtube.com/embed/n3UIn7VX3TQ" width="525" height="295" frameborder="0" allowfullscreen></iframe>

    Wisconsin Third-party Visitation Case Law

    Unlike a grandparent, great-grandparent, or step-parent, whom the court has determined need not meet the criteria of a “parent-child-like” relationship,11 a non-adoptive individual from a significant relationship must meet a higher level of scrutiny before the court is likely to entertain a petition for third-party visitation. Such parties must prove four elements: 1) the biological or adoptive parent consented to, and fostered, the petitioner’s formation and establishment of a parent-like relationship with the child; 2) the petitioner and the child lived together in the same household; 3) the petitioner assumed obligations of parenthood by taking significant responsibility for the child’s care, education, and development, including contributing toward the child’s support, without expectation of financial compensation; and 4) the petitioner has been in a parental role for a length of time sufficient to have established with the child a bonded, dependent relationship parental in nature.12

    Yet, no different than any other visitation petition under Wis. Stat. section 767.43, there is no guarantee that were one to meet the above criteria that the court would grant the petitioner any visitation.13 Equally accurate is the fact that the biological parent does not have an absolute right to deny the petitioner visitation.14

    Although the biological parents do not have an absolute right as to issues affecting their children, as noted in Troxel, the positions of parents are to be afforded “special weight.” Although the Supreme Court failed to specify what amounts to “special weight,” the Troxel Court clearly was concerned with the Washington state trial court’s findings in which the trial court substituted its own views about the benefits of visiting a grandparent for the parent’s reasons for denying grandparental visits.15

    There is little (or perhaps more accurately, no) authority in Wisconsin that recognizes the detrimental effect of litigation on children.

    One Wisconsin court has referred to this standard as creating a “rebuttable presumption” that a fit parent’s decision is in the best interests of the child.16 In an effort to define “rebuttable presumption,” that court held that once a parent has granted or acquiesced to some form of visitation with a third party, even if later withdrawn by that same parent, the parent has established the minimum level of visitation for the third party absent other evidence contrary to the best interests of the child.17

    Arguably, however, this presumption has not been applied consistently by Wisconsin courts. In Rogers v. Rogers,18 for example, the court of appeals applied the Troxel analysis to affirm denying grandparents court-ordered visitation. Three years later, in Rick v. Opichka,19 the court of appeals affirmed an order granting grandparent visitation pursuant to Wis. Stat. section 54.56, rejecting claims that it is unconstitutional and violates the Equal Protection Clause of the U.S. Constitution. The Rick decision does not distinguish, nor even cite, Rogers.

    Pending Grandparent Visitation Case

    The pending Wisconsin Supreme Court case, Michels v. Lyon,20 may potentially address, with more specificity, the parameters of grandparent visitation petitions, and in particular what constitutes special weight. The court of appeals certified the issue of what “standard of proof [is] required” to overcome the special weight afforded to parents under Troxel for a court to award visitation rights under the Wisconsin third-party visitation statute.

    In Michels, the grandmother filed a petition to compel her son (the child’s father) and the child’s mother to provide her with additional visitation time with her granddaughter. The grandmother had been allowed visitation with the granddaughter but, over time, it had been reduced. The circuit court granted the grandmother some extended visitation despite the opposition from presumably fit parents. The parents argue that before a court can overrule the parents’ determination as to grandparent visitation, the court must find that the child would be harmed.

    The supreme court’s ruling is likely to offer courts a better understanding of how the presumption applies in third-party visitation petitions and what evidence may be necessary to overcome such presumptions. However, based on the realities of family court, and in this case, grandparent visitation petitions, it seems likely that the court’s ruling will fail to properly address the issue of “harm” to children; the harm that children have faced before, face currently, and will likely continue to face from being placed in the middle of parental and grandparental family disputes is unlikely to be eliminated in its entirety.

    Meet Our Contributors

    How do you overcome challenges and obstacles?

    Mark R. FremgenThe number one problem facing our profession is the lack of a proper work-life balance. Studies suggest a higher than average alcohol and drug dependency rate, suicide rate, and burnout for members of the legal profession compared to other professions.

    I do not believe that this is the case because the legal profession is any more dangerous than law enforcement, firefighting, or the medical profession. I think lawyers tend to become too entangled in clients’ matters, work beyond a normal schedule (including weekends and holidays), and fail to "let go" at the end of the day.

    For me, at the end of the day, I leave my work at the office. I know it will be there again in the morning. When I leave for the day, I relax at home by reading, playing with our dog, or watching a movie (we are late to the game, but have started binge-watching “Game of Thrones”). In the summer, my wife and I like to get out around Madison on our bikes and spend weekends visiting our kids in Chicago.

    Maintaining a good balance keeps me centered, and for the most part even-keeled, which is important when interacting with individuals in court who are dealing with difficult problems.

    gov mark.fremgen wicourts Mark R. Fremgen, Dane County Circuit Court, Madison.

    Become a contributor! Are you working on an interesting case? Have a practice tip to share? There are several ways to contribute to Wisconsin Lawyer. To discuss a topic idea, contact Managing Editor Karlé Lester at (800) 444-9404, ext. 6127, or email org klester wisbar wisbar klester org. Check out our writing and submission guidelines.

    Endnotes

    1 Moore v. City of East Cleveland, 431 U.S. 494, 504 (1977).

    2 In re Lee, 411 S.W.3d 445 (Tex. 2013).

    3 Myers v. Nebraska, 262 U.S. 390, 399-400 (1923) (holding that 14th Amendment’s liberty guarantee included right to “bring up children,” which includes “natural duty of the parent to give his children education suitable to their station in life”); Pierce v. Society of Sisters, 268 U.S. 510, 534-35 (1925) (invalidating Oregon law that required compulsory public school attendance, finding “it unreasonably interferes with the liberty of parents and guardians to direct the upbringing and education of children under their control”); Wisconsin v. Yoder, 406 U.S. 205 (1972) (reaffirming parental liberty interest in education of children); Santosky v. Kramer, 455 U.S. 745, 753, 760 (1982) (holding that natural parents’ fundamental liberty interest in care, custody, and management of their child does not evaporate simply because they have not been model parents or have lost temporary custody of their child to the state; “until the State proves parental unfitness, the child and his parents share a vital interest in preventing erroneous termination of their natural relationship”).

    The Supreme Court has ruled in numerous cases that although parents have a fundamental right to parent their children, it is weighed against the state’s “compelling interests.” Palmore v. Sidoti, 466 U.S. 429 (1984) (holding that state had compelling interest against basing custody decisions on racial classification); Lassiter v. DSS, 452 U.S. 18, 27 (1981) (stating that a parent’s right to custody and care of his or her children “undeniably warrants deference…, absent a powerful countervailing interest protection”); Barstad v. Frazier, 118 Wis. 2d 549, 569, 348 N.W.2d 749 (1984) (in regard to custody disputes between parents and third parties, recognizing that parents have preeminent right to custody of their children absent finding of unfitness, inability, or compelling reasons due to dissolution of parent-child relationship or dereliction of parental responsibilities; compelling reasons include abandonment, persistent neglect of parental responsibilities, extended disruption of parental custody, or other similar extraordinary circumstances that would drastically affect child’s welfare). See also Ford v. Ford, 371 U.S. 187 (1962) (“Unfortunately, experience has shown that the question of custody, so vital to a child’s happiness and wellbeing, frequently cannot be left to the discretion of parents. This is particularly true where, as here, the estrangement of husband and wife beclouds parental judgment with emotion and prejudice.”).

    4 Troxel v. Granville, 530 U.S. 57, 67 (2000).

    5 Id. at 68-70.

    6 Id. at 69.

    7 Rick v. Opichka, 2010 WI App 23, 323 Wis. 2d 510, 780 N.W.2d 159. The times the children stay with a grandparent are “visits” and not “placement,” even when the visitation is more expansive than simply a few hours or one overnight on an infrequent basis.

    8 Rogers v. Rogers, 2007 WI App 50, 300 Wis. 2d 532, 731 N.W.2d 347 (“the court may grant reasonable visitation rights” to the petitioner).

    9 Wis. Stat. § 767.43(1).

    10 In Wendy M v. Helen E.K. (In re Guardianship of O.G.M-K), 2010 WI App 90, 327 Wis. 2d 749, 787 N.W.2d 848, in the context of a guardianship case, filed after the dissolution of a long-term same-sex relationship, the appellate court held that a same-sex significant other (non-adoptive partner) is not a “parent” as it is defined by statute. In Dustardy H. v. Bethany H. (In re Paternity of Christian R.H.), 2011 WI App 2, 331 Wis. 2d 158, 794 N.W.2d 230, the court noted, though not the focus of the appeal, that a same-sex partner is not a parent under Wis. Stat. section 891.40 (artificial-insemination statute), because that statute applies only to the “husband” of the artificially inseminated woman.

    11 Meister v. Meister, 2016 WI 22, 367 Wis. 2d 447, 876 N.W.2d 746.

    12 Holtzman v. Knott (In re Custody of H.S.H.-K), 193 Wis. 2d 649, 694-95, 533 N.W.2d 419 (1995).

    13 Due process requires courts to presume that a fit parent’s decision regarding nonparental visitation is in the child’s best interest, Roger D.H. v. Virginia O. (In re Paternity of Roger D.H.), 2002 WI App 35, 250 Wis. 2d 747, 641 N.W.2d 440, although this is only a presumption and the trial court must make its own assessment of the child’s best interests.

    14 In re Custody of H.S.H.-K, 193 Wis. 2d at 692. The law directs the court to respect and protect parental autonomy, serve the best interest of the child, and recognize the important role of a nonparent who has a parent-like relationship with a child when the child’s life is disrupted by the dissolution of a marriage. Id. at 693.

    15 It is not enough for a trial court to think that, absent evidence that the grandparent’s lifestyle is going to negatively affect the child, any visit with a grandparent is beneficial. See Troxel, 530 U.S. at 69, 72-73 (noting with disapproval the verbatim ruling from the Washington trial court: “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”). Nor is it proper for a court to ignore the determination of a fit parent and to base its opinion on a “mere disagreement” with the parents, Roger D.H., 2002 WI App 35, ¶ 19, 250 Wis. 2d 747.

    16 Martin L. v. Julie R.L. (In Interest of Nicholas L.), 2007 WI App 37, 299 Wis.2d 768, 731 N.W.2d 288.

    17 Id. ¶¶ 12-15.

    18 Rogers, 2007 WI App 50, 300 Wis. 2d 532.

    19 Rick, 2010 WI App 23, 323 Wis. 2d 510.

    20 Michels v. Lyons, No. 2017AP1142.




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