Grandparent visitation affirmed

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When one parent dies, the family is no longer “intact” and a court can award a set of grandparents overnight visitation with the children.

On Jan. 13, The Wisconsin Court of Appeals affirmed a circuit court’s order that the deceased spouse’s parents have visitation for one weekend per month, and one week in the summer.

Jennifer and Jeffrey Opichka married and had two children. In 2006, Jennifer died of cancer. Jennifer’s parents, Michael and Mary Rick, petitioned for visitation with the children, which the circuit court granted.

Jeffrey Opichka appealed, but the Court of Appeals affirmed in an opinion by Judge Richard S. Brown.

Section 54.56(2) (http://nxt.legis.state.wi.us/nxt/gateway.dll?f=templates&fn=default.htm&d=stats&jd=54.56) authorizes grandparent visitation if a parent of a minor is deceased, and it is in the best interests of the minor.

Opichka argued that the overnight stays ordered in this case were not visitation as contemplated by the statute, but physical placement.

However, the court found the distinction to be without basis, relying on a dictionary definition of “visitation” that includes “to stay with as a guest.”

The court concluded, “the amount of time spent on the visit, whether for a few hours or an overnight, is still a visit.”

The court noted that prior precedents have found overnight visitation to be not unreasonable.

However, the court did remand the case to the district court to clarify that the grandparents have no authority to make major care decisions for the children.

Opichka also argued that the order violated the equal protection clause, because it unfairly treats parents with a deceased spouse differently from parents who are both still alive. Opichka contended that this distinction violated his fundamental liberty interest in the care and custody of his children.

But the court disagreed, concluding that sec. 54.56 furthered important state interests: “We agree with the Ricks that these two classes of parents are different: a widowed parent has suffered the loss of his or her spouse, and therefore, the surviving parent’s family, after the loss of a spouse, is no longer a traditional intact family. The death of a parent is the triggering event that creates a compelling state interest to protect a child’s best interest.”

Judge Harry G. Snyder dissented, concluding that the order in this case was indistinguishable from physical placement, and exceeded the “visitation” contemplated by the statute.

“The quality and quantity of time afforded to the Ricks by the circuit court coalesce into something indistinguishable from physical placement,” Snyder explained. “A visitation order that mimics a physical placement order cannot be condoned under the statute. The court’s order grants extensive physical placement and control of the children away from the custodial oversight of the father. Thus, the court exceeded its statutory authority to grant ‘reasonable visitation’ under sec. 54.56(2).”