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Is the Wisconsin so-called “grandparents visitation statute” unconstitutional?

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Family lawyers through out the state of Wisconsin have been closely following a case before the Wisconsin Supreme Court dealing with grandparent’s visitation rights in the state of Wisconsin. On May 24, 2019, the Wisconsin Supreme Court issued it’s decision in the Michels v. Kelsey case, 2019 WI 57.

The Wisconsin Supreme Court accepted certification of the case from the Court of Appeals to clarify the standard of proof that is required for a grandparent to overcome the presumption that a fit parent’s visitation decision is in the child’s best interest. It further considered the constitutionality of the “grandparent visitation statute.”

The court stated that “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.” The court stated further that “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 int he child’s best interest.” The court finally went on to state that, “lastly, we conclude that the Grandparent Visitation Statute is unconstitutional as applied because (in this case), Kelsey did not overcome the presumption in favor of Lyons and Michel’s visitation decision with clear and convincing evidence that their decision is not in (A.A.L’s) the minor child’s best interest.” As such, the order of the court was vacated.

In this case, the parties were never married. They agreed that the grandmother should not have court ordered visitation with the parties’ daughter. At the trial court level, the judge granted the grandmother’s request to allow visitation with the granddaughter consisting of at least one Sunday per month for five hours and granted the grandmother a seven day period during the summer for the grandmother to have vacation time to take the child on trip or Disney world.

The parents appealed to the Court of Appeals. The court of appeals certified an appeal to the WI Supreme Court 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.

So, what are the takeaways from this landmark grandparent’s visitation case? The bottom line is that grandparent’s visitation law has taken a hit, making it harder for grandparent’s to secure visitation rights with their grandchildren in the state of Wisconsin, but the statute itself has not been found to be unconstitutional, which would mean, grandparents would have no right to petition to see their grandchildren. While it was found unconstitutionally applied in this case, it doesn’t mean it is unconstitutional in every case, although two of the Supreme Court justices called the grandparent’s visitation law unconstitutional in all cases.

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