The Wisconsin Court of Appeals recently certified a case to the Wisconsin Supreme Court, which accepted, could impact on grandparent’s visitation rights in the state of Wisconsin. The case is Michels v. Lyons, 2017 AP 1142 and the issue as pointed out in the certification is to clarify the standard of proof required for a grandparent to overcome the presumption that parent’s decisions regarding the scope and extentof their child’s visitation with the grandparent is in the child’s best interest.”
In this case, both parents objected to the grandparents having visitation with their minor child. At the trial court level, the court granted the grandparents visitation one Sunday each month and for a seven day period each summer, with no restricitions on where the grandparent could take the child. The parents filed a motion for reconsideration before the court. The court concluded that it could constitutionally overrule the parents’ visitation decision as long as it applied a presumption in their favor and determined visitation was in the child’s best interest. The court denied the motion for reconsidertaion.
In the famous United States Supreme Court case of Troxel v. Granville, 530 U.S. 57 (2000), the court imposed limits on the states’ abilioty to interfere with parental decision regarding grandparent visitation. The majority of states require a showing of harm to the child before the court can interfere with a fit parent’s decision regarding grandparent visitation. A minority of states allow the court to overturn the parent’s decision upon a showing of clear and convincing evidence that grandparent’s visitation is in the child’s best interest.
Wisconsin court have not yet determined the standard for what is required to overcome the presumption in favor of the parent’s decision. There has not been a determination legally in this state whether Wisconsin would join the majority of states that require a showing of harm to the child if the parent’s wishes are upheld. Wisconsin cases further have also not determined whether the presumption favoring the parent must be overcomeby clear and convincing evidence. The Court of Appeals has certified the case to the WI Supreme court for specific clarifiction of the standard of proof required for a grandparent to overcome the presumption favoring the parent’s visitation decisiion not to allow visitaiton. In anticipation of many cases involving grandparent’s visitation rights, the Court of Appeals is asking the Wisconsin Supreme Court to tackle this very important issue.
Look to our web site for further discussion as the case progresses as to (a) whether the WI Supreme Court accepts certification and (b) if so, what ultimately, the decision of the court may be.
Until than, if you have questions pertaining to grandparent’s visitations rights in the state of Wisconsin, contact the experienced family lawyers at Karp & Iancu, S.C. today.
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