Statutory Interpretation – Grandparent Visitation

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WI Supreme Court

Case Name: Cacie M. Michels v. Keaton L. Lyons, et al.

Case No.: 2019 WI 57

Focus: Statutory Interpretation – Grandparent Visitation

We accepted certification from the court of appeals to clarify the standard of proof required for a grandparent to overcome the presumption that a fit parent’s visitation decision is in the child’s best interest. We further resolve an interrelated challenge to the constitutionality of Wis. Stat. § 767.43(3)(2015-16), (the “Grandparent Visitation Statute”) as applied to a circuit court order granting a petition for visitation over the objection of two fit parents.

We recognize that a fit parent has a fundamental liberty interest in the care and upbringing of his or her child and therefore, the Grandparent Visitation Statute must withstand strict scrutiny. We confirm that the Grandparent Visitation Statute is facially constitutional because there are circumstances under which the law can be constitutionally enforced. We determine that the Grandparent Visitation Statute is narrowly tailored to further a compelling state interest because a grandparent must overcome the presumption in favor of a fit parent’s visitation decision with clear and convincing evidence that the decision is not in the child’s best interest. Lastly, we conclude that the Grandparent Visitation Statute is unconstitutional as applied because Kelsey did not overcome the presumption in favor of Lyons and Michels’ visitation decision with clear and convincing evidence that their decision is not in A.A.L.’s best interest. The order of the circuit court is vacated.

Vacated

Concur: R.G. BRADLEY, J. concurs, joined by KELLY, J. (opinion filed).

Dissent:

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Derek A Hawkins is trademark corporate counsel for Harley-Davidson. Hawkins oversees the prosecution and maintenance of the Harley-Davidson’s international trademark portfolio in emerging markets.