A couple months ago I discussed the current law relating to visitation rights for like-parent relationships. Like-parent relationships include grandparents and step-parents. At that time, I explained that grandparents and step-parents could secure visitation if a relationship was proven and if the court determines visitation to be in the child’s best interest.
Recent decision from the Supreme Court of Wisconsin
A recent decision from the Supreme Court of Wisconsin could change the landscape of our current process for like-parents to receive visitation rights. In order to better understand how the landscape may be affected, I will briefly review the case and its outcome.
The case is in question is Michels v. Lyons which was published on May 24, 2019 by the Wisconsin Supreme Court. See Michels v. Lyons (In re A.A.L), 2019 WI 57, 927 N.W.2d 486. In Michels, the paternal grandmother of a child intervened in a paternity action requesting grandparent visitation pursuant to Wis. Stat. §767.43. Michels at P5.
Both parents sought to decrease the grandmother’s visitation time due to strain on the child’s schedule and questionable decisions that the grandmother made with the child These decisions included letting the 4-year-old child have a sip of alcohol and letting the child ride a horse without a helmet. The grandmother received explicit instructions to have the child wear the helmet. Id.
The petitioning grandmother also requested a visitation period of a full week. She and the child would travel to Disney World. Trial court awarded the visitation in favor of the paternal grandmother, even though both parents were deemed fit. Id. at P7.
The Wisconsin Supreme Court overturned the lower court’s holding. The basis of this decision was that parents have a fundamental liberty interest to raise their children in a manner the parents see fit. Michels at P15. The rule instituted by the Court is that in a case where a grandparent moves for visitation contrary to the wishes of a fit parent, the grandparent must show by clear and convincing evidence that the parent’s decision to resist visitation is contrary to the best interest of the child. Id. at P36.
Potential implications on visitation rights
This decision is extremely new, so we have yet to see how expansive the decision will be. The decision could certainly impact future cases for like-parents. For example, this specific court case dealt with two fit parents who resisted the visitation motion. What if only one fit parent contests the role of a grandparent and the other fit parent joins in the motion? Another interesting question is what constitutes a fit parent? Often this is assumed in the law. The only case with a clear finding of unfitness is a termination of parental rights. Will we need to determine the fitness of a parent before reviewing a visitation order? Future case law may be necessary to address these issues.
A shift in procedure for grandparent visitation cases
The biggest take-away from the Michels decision is that a grandparent should be prepared to present evidence not only as to why visitation should occur, but why not having visitation is contrary to the best interest of the child. This evidence should be strong since it is at the highest burden of proof allowed in civil law. Previously, these family members merely needed to prove a relationship and that the relationship is in the best interest of the child. Typically, this required a lower burden of proof.
How to navigate the recent Supreme Court decision
In light of the Michels decision, it is more important than ever to talk to a family law attorney. Perhaps you are a parent contesting the visitation of a like-parent. Maybe you are a grandparent hoping to find out your rights. An attorney will help you navigate your unique situation and potential outcomes. In addition, an attorney can present a strong legal case in court. For guidance in these matters, contact me for a free initial consultation.
About Us: Attorney Devin Shanley is the approachable expert clients can trust. A native of Green Bay, Wisconsin, Devin has been developing legal solutions in his beloved hometown since 2012. Married to Mo and dad to two rambunctious kids, he has a soft spot for the Green Bay Packers, grilling out, and playing with his kids. His areas of practice are Estate Planning, Family Law, Business Law, and Non-Profit Organization Law. Schedule your free consultation by calling 920-471-4337.