00-3333 In Re: the Paternity of Roger D.H. v. Virginia O.

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“The circuit court may have believed that the United States Supreme Court imposed such a requirement in Troxel [v. Granville, 530 U.S. 57 (2000). If so, we disagree. There is no suggestion in Troxel that a court may only interfere with a parent’s decision regarding visitation if the parent is shown to be unfit. Rather, the Troxel Court’s parental fitness discussion is in the context of explaining that there is a presumption that fit parents act in the best interest of their children.

With regard to the mother’s argument that the statute is facially unconstitutional, “we hold that when applying Wis. Stat. § 767.245(3), circuit courts must apply the presumption that a fit parent’s decision regarding grandparent visitation is in the best interest of the child. At 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. See § 767.245(3)(f). What the Due Process Clause does not tolerate is a court giving no ‘special weight’ to a fit parent’s determination, but instead basing its decision on ‘mere disagreement’ with the parent.”

Accordingly, because we conclude that the circuit court applied an erroneous legal standard, we reverse and remand for further proceedings. On remand, the circuit court should consider the grandmother request for visitation under Wis. Stat. Sec. 767.245(3), giving presumptive weight to the mother’s decision regarding non-parental visitation.

Reversed and remanded.

Recommended for publication in the official reports.

Dist IV, Juneau County, Brady, J., Lundsten, J.

Attorneys:

For Appellant: Rebecca M. Richards-Bria, Mauston

For Respondent: Daniel M. Berkos, Mauston