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Should grandparents have visitation rights?

Judge Jean DiMotto retired in 2013 after16 years on the Milwaukee County Circuit bench and now serves as a reserve judge. She also is of counsel with Nistler Law office SC. She can be reached at jeandimotto@gmail.com

Judge Jean DiMotto retired in 2013 after 16 years on the Milwaukee County Circuit bench and now serves as a reserve judge. She also is of counsel with Nistler Law office SC. She can be reached at [email protected]

In a rare unanimous decision, the Wisconsin Supreme Court construed the meaning of the statute on grandparents’ visitation rights after a divorce.

At issue in this case of who can petition for visitation rights was the meaning of the statutory phrase, “grandparent, great-grandparent, step-parent or person who has maintained a relationship similar to a parent-child relationship with the child.”

Petition for visitation rights

In their divorce, Nancy and Jay Meister agreed to joint legal custody of their four minor children. The mother received primary physical placement as well as impasse-breaking authority.

Five months after the divorce, the children’s paternal grandmother petitioned for visitation rights. She indicated that her petition was coming in response to Nancy Meister’s changes in the grandmother’s informal visitation with the children.

The grandmother, who lived in Ohio, sought six visits a year with the children, the right to arrange the visits using an online scheduling portal, and the right to make regular phone calls to the children.

A family court commissioner granted the petition. Dissatisfied with the decision, the mother requested a review from the circuit court.

Circuit court review

Jefferson County Circuit Judge William Hue conducted a hearing to flesh out the record concerning the grandmother’s relationship with her grandchildren. The grandmother, representing herself, described a supportive relationship.

For example, as a former teacher, she had tutored the children in various subjects both during a vacation that took place the year before the divorce and during the spring break that followed soon after the divorce had been made final. She frequently purchased food and clothing for the children, either when they visited her in Ohio or she them in Wisconsin.

She emphasized that even though she lived in Ohio, she played an important consultative role, helping the children with their homework by phone and giving her son general parenting advice. The children called her frequently, “almost daily sometimes,” when staying with their father.

The children’s guardian ad litem argued that the grandmother had a relationship with the children similar to that of parent who lived out of state.

Nonetheless, Judge Hue ruled against the grandmother. He construed sec. 767.43(1) in accordance with a 2007 court of appeals case, Rogers v. Rogers, which also dealt with the visitation rights of grandparents. He concluded that a grandmother’s relationship could not be characterized as “similar to a parent-child relationship” as required by Rogers.

Appeal

The guardian ad litem for the Meister children appealed Judge Hue’s order. In an unpublished decision in S.A.M. v. Nancy M. Meister, the District 4 Court of Appeals, bound by the Rogers case, affirmed Judge Hue.

Less than three weeks after that decision was issued, the grandmother died.

Nonetheless, the guardian ad litem filed a petition for review, and the petition was accepted.

Supreme Court opinion

In a 28-page decision written by Justice David Prosser, the state Supreme Court decided it was issuing an opinion despite the grandmother’s death because the subject matter was of great public importance and would appear frequently in the future.

The court then took up the question of the correct interpretation of the statutory phrase, “grandparent, greatgrandparent, stepparent or person who has maintained a relationship similar to a parent-child relationship with the child.”

On one hand, it could mean that all the persons designated in the statute have to demonstrate a parent-child relationship. This was the Rogers court’s interpretation.

On the other hand, the phrase could mean that the first three categories of persons designated in the statute could petition for visitation based solely on their status as grandparent, great-grandparent or step-parent, while anyone not designated in one of those ways would have to show they had maintained a relationship with the child similar to a parent-child relationship.

The Supreme Court chose the second interpretation. As justification, the court cited the last-antecedent canon of statutory construction, finding that the words “who has maintained a relationship similar to a parent-child relationship with the child” modifies only the word “person.”

Thus, only a person who is not a grandparent, great-grandparent or step-parent has to demonstrate a relationship similar to a parent-child relationship.

In contrast, the mere fact of a relationship to the child as a grandparent, great-grandparent or step-parent is sufficient in itself to entitle any of these people to petition for visitation rights.

The court also weighed the implications of its interpretation of parents’ due process rights to direct the care, custody and control of their children. In the end, it found that parents’ liberty interest was not being infringed upon. Still, the opinion ends by noting that in considering a petition for visitation rights, a court must consider not only the constitutional rights of the parents but also the best interests of the child.

Concurrences

Justice Shirley Abrahamson noted that only the grandmother, not the guardian ad litem, was statutorily permitted to bring this appeal. She also indicated that even though she agreed with the interpretation of sec. 767.43(1), she believed it cast doubt on the statute’s constitutionality.

Justice Annette Ziegler concluded the statute had not needed interpretation because it was unambiguous. Prosser sidestepped this argument by writing that the statute was “not wholly unambiguous. In other words, reasonable people have read it in different ways.” Not least the two levels of appellate courts.

Commentary

This decision makes good semantic sense. While the statutory phrase here was not necessarily unambiguous, one wonders whether an Oxford comma by the drafters might have made it so.

The court’s interpretation of the statute also makes good common sense. After all, there aren’t many great-grandparents who are able to have “a parent-child relationship” with a great-grandchild. And grandparents will not have to pay the price for an acrimonious divorce.

Above all, the best interests of the child in relationship to a grandparent, great-grandparent or step-parent will be the priority in judicial considerations of visitation rights.

It is a bit remarkable that the star of this case, the guardian ad litem, had no standing to bring the appeal. Although noted in Abrahamson’s concurrence, the court dispensed with this point in a footnote by observing that standing had not been an issue in the appeal “and we do not see a prudential reason to make it an issue in this opinion.”


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