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In re Grandparental Visitation of A. A. L.

Supreme Court of Wisconsin

May 24, 2019

In the matter of the grandparental visitation of A. A. L.
v.
Keaton L. Lyons, Respondent-Appellant, In re the Paternity of A. A. L. Cacie M. Michels, Petitioner-Appellant, Jill R. Kelsey, Petitioner-Respondent.

          SUBMITTED ON BRIEFS: ORAL ARGUMENT: November 7, 2018

         ON CERTIFICATION FROM THE COURT OF APPEALS

          APPEAL from an order of the Circuit Court for Chippewa County L.C. No. 2010FA206, James M. Isaacson, Judge. Vacated.

          For the petitioner-appellant and respondent-appellant, there were briefs filed by Ryan J. Steffes and Weld Riley, S.C., Eau Claire. There was an oral argument by Ryan J. Steffes.

          For the petitioner-respondent, there was a brief filed by Jeffrey A. Mandell, Eileen M. Kelley, Anthony J. Menting, and Stafford Rosenbaum LLP, Madison. There was an oral argument by Jeffrey A. Mandell.

          An amicus curiae brief was filed on behalf of State of Wisconsin by Kevin M. LeRoy, deputy solicitor general, with whom on the brief was Brad D. Schimel, attorney general, and Misha Tseytlin, solicitor general. There was an oral argument by Kevin M. LeRoy.

          An amicus curiae brief was filed on behalf of Legal Aid Society of Milwaukee, Inc. by Karen Kotecki and Legal Aid Society of Milwaukee, Milwaukee.

          An amicus curiae brief was filed in the court of appeal on behalf of National Association of Parents, Inc. by Janet McDonough and National Association of Parents, Inc., Chippewa Falls.

          An amicus curiae brief was filed on behalf of Cato Institute by Joseph S. Diedrich and Husch Blackwell LLP, Madison; with whom on the brief was Ilya Shapiro, Washington, District of Columbia.

          An amicus curiae brief was filed on behalf of Grandparents Advocate of America, Inc. and Alienated Grandparents Anonymous, Incorporated by John S. Skilton, David R. Pekarek Krohn, Emily J. Greb, and Perkins Coie LLP, Madison.

          REBECCA FRANK DALLET, J.

         ¶1 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.[1] We further resolve an interrelated challenge to the constitutionality of Wis.Stat. § 767.43(3) (2015-16), [2] (the "Grandparent Visitation Statute") as applied to a circuit court order granting a petition for visitation over the objection of two fit parents.[3]

         ¶2 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.

         I. FACTUAL BACKGROUND AND PROCEDURAL POSTURE

         ¶3 This case arises out of a dispute between the parents of A.A.L., Cacie Michels and Keaton Lyons, and Lyons' mother Jill Kelsey. Lyons and Michels were never married but lived together when A.A.L. was born in October 2009 until they broke up in late 2011. Since then, Michels has had primary custody of A.A.L. and Lyons has had extended periods of placement. Prior to A.A.L. starting kindergarten in the fall of 2015, A.A.L. spent a significant amount of time with Kelsey, including overnight stays. After A.A.L. started kindergarten, Lyons and Michels agreed to reduce the amount of time A.A.L. spent with Kelsey in order to accommodate A.A.L.'s new commitments with school and friends, as well as her previously agreed upon placement time with Lyons on alternate weekends.

         ¶4 At the end of 2015, Kelsey's relationship with Lyons and Michels began to deteriorate due to a disagreement over a proposed vacation to Disney World and Kelsey's decreased visitation time with A.A.L. Even though the relationship was deteriorating, Lyons and Michels still arranged for Kelsey to spend time with A.A.L. Shortly thereafter, Kelsey intervened in Michels' paternity action and filed a petition for additional visitation pursuant to the Grandparent Visitation Statute.

         ¶5 At the court trial, Lyons and Michels testified that they decided to decrease Kelsey's visitation time because of the strain on A.A.L.'s schedule. They also expressed concern over Kelsey's judgment, as she allowed A.A.L. to ride a horse without a safety helmet, contrary to their explicit instructions, and she gave four-year-old A.A.L. a sip of alcohol. Both Lyons and Michels testified that granting Kelsey's petition is not in A.A.L.'s best interest. However, both Lyons and Michels also testified that they would not completely eliminate Kelsey's visitation with A.A.L. unless they felt that visitation was unhealthy for A.A.L. or not in her best interest.

         ¶6 Lyons and Michels also testified at the court trial about a gentleman's agreement that the parties had in place after September 2016. Kelsey was allowed to see A.A.L. every other weekend for five hours, which occurred during the weekends when Lyons had his placement time with A.A.L. Lyons and Michels expressed their frustration with A.A.L. splitting time between three households, as it was difficult and exhausting for her. Lyons also testified about his frustration with the schedule because it was not beneficial for his relationship with A.A.L. Both Lyons and Michels indicated that they preferred an informal schedule they could set themselves to accommodate all of A.A.L.'s commitments and let them "make decisions for [their child] as parents do."

         ¶7 Despite finding that Lyons and Michels were not only fit parents but "good parents," the circuit court granted Kelsey's petition. The circuit court ordered visitation at least one Sunday each month for five hours and granted Kelsey "a seven-day period during [A.A.L.'s] summer vacation whereby she may take [A.A.L.] to Disney World or other vacation."

         ¶8 Lyons and Michels moved for reconsideration of the circuit court's order, asserting that the order violated their due process rights. The circuit court denied the motion and decided that pursuant to Roger D.H. v. Virginia 0., 2002 WI.App. 35, 250 Wis.2d 747, 641 N.W.2d 440');">641 N.W.2d 440, it could constitutionally overrule Lyons and Michels' visitation decision as long as it applied a presumption in their favor and determined that visitation was in A.A.L.'s best interest.[4]

         ¶9 The court of appeals certified an appeal to this 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. Additionally, the court of appeals asked for clarification as to the impact this court's holding would have on the Meister, Martin L., and Roger D.H. cases. S.A.M. v. Meister, 2016 WI 22, 367 Wis.2d 447, 876 N.W.2d 746');">876 N.W.2d 746; Martin L. v. Julie R.L., 2007 WI.App. 37, 299 Wis.2d 768, 731 N.W.2d 288; Roger D.H., 250 Wis.2d 747. In addition to answering these questions, we resolve Lyons and Michels' challenge to the constitutionality of the Grandparent Visitation Statute as applied to the circuit court order overruling their decision regarding the care and upbringing of A.A.L.

         II. STANDARD OF REVIEW

         ¶10 Lyons and Michels assert that the Grandparent Visitation Statute is unconstitutional as applied because it violates their substantive due process rights protected by the Fourteenth Amendment to the United States Constitution. State v. Wood, 2010 WI 17, ¶17, 323 Wis.2d 321, 780 N.W.2d 63. The Fourteenth Amendment provides that no State shall "deprive any person of life, liberty, or property, without due process of law." U.S. Const, amend. XIV. The United States Supreme Court has long recognized that the Fourteenth Amendment's Due Process Clause includes a substantive component that "provides heightened protection against government interference with certain fundamental rights and liberty interests." Washington v. Glucksberg, 521 U.S. 702, 720 (1997); see also Monroe Cty. Dep't of Human Servs. v. Kelli B., 2004 WI 48, ¶19, 271 Wis.2d 51, 678 N.W.2d 831. "An individual's substantive due process rights protect against a state action that is arbitrary, wrong, or oppressive . . . ." Wood, 323 Wis.2d 321, ¶17. "A court's task in a challenge based on substantive due process 'involves a definition of th[e] protected constitutional interest, as well as identification of the conditions under which competing state interests might outweigh it.'" Id., ¶18 (quoted source omitted).

         ¶11 There are two major types of constitutional challenges: facial and as-applied. Tammy W-G. v. Jacob T., 2011 WI 30, ¶46, 333 Wis.2d 273, 797 N.W.2d 854. "When a party challenges a law as being unconstitutional on its face, he or she must show that the law cannot be enforced 'under any circumstances.'" Mayo v. Wisconsin Injured Patients and Families Comp. Fund, 2018 WI 78, ¶33, 383 Wis.2d 1, 914 N.W.2d 678 (quoted source omitted). On the other hand, in an as-applied challenge, we consider the facts of the particular case in front of us and "the challenger must show that his or her constitutional rights were actually violated." Wood, 323 Wis.2d 321, ¶13.

         ¶12 Whether a statute, as applied, violates the constitutional right to due process is a question of law that this court reviews de novo. Kelli B., 271 Wis.2d 51, ¶16. In an as-applied challenge, this court presumes that the statute is constitutional, but does not presume that the State applied the statute in a constitutional manner. Tammy W-G., 333 Wis.2d 273, ¶48. To prevail on an as-applied challenge, the challenging party "must prove beyond a reasonable doubt that as applied to him or her the statute is unconstitutional." Mayo, 383 Wis.2d 1, ¶58. If successful, the operation of law is void only as to the challenging party. Wood, 323 Wis.2d 321, ¶13.

         ¶13 Lyons and Michels challenge the interpretation and application of the Grandparent Visitation Statute, which reads:

(3) The court may grant reasonable visitation rights, with respect to a child, to a grandparent of the child if the child's parents have notice of the hearing and the court determines all of the following:
(a) The child is a nonmarital child whose parents have not subsequently married each other.
(b) Except as provided in sub. (4), the paternity of the child has been determined under the laws of this state or another jurisdiction if the grandparent filing the petition is a parent of the child's father.
(c) The child has not been adopted.
(d) The grandparent has maintained a relationship with the child or has attempted to maintain a relationship with the child but has been prevented from doing so by a parent who has legal custody of the child.
(e) The grandparent is not likely to act in a manner that is contrary to decisions that are made by a parent who has legal custody of the child and that are related to the child's physical, emotional, educational or spiritual welfare.
(f) The visitation is in the best interest of the child.

         Wis. Stat. § 767.43(3) . The meaning and application of a statute are questions of law that this court reviews de novo. Meister, 367 Wis.2d 447, ¶19.

         III. ANALYSIS

         ¶14 We first recognize the fundamental liberty interest at stake and establish the appropriate level of scrutiny to apply to the Grandparent Visitation Statute. We then determine the constitutionality of the Grandparent Visitation Statute facially and as applied and, as a part of the analysis, we answer the certified question.

         A. Lyons and Michels have a fundamental liberty interest in the care and upbringing of A.A.L.

         ¶15 Lyons and Michels assert that they have a fundamental liberty interest in the care and upbringing of A.A.L. and contend that the circuit court infringed upon this interest when it overruled their decision regarding A.A.L.'s visitation with Kelsey. "[T]he interest of parents in the care, custody, and control of their children [] is perhaps the oldest of the fundamental liberty interests recognized" by the United States Supreme Court. Troxel v. Granville, 530 U.S. 57, 65 (2000) . This fundamental liberty protected by the Due Process Clause includes the right of parents to "establish a home and bring up children," Meyer v. Nebraska, 262 U.S. 390, 399 (1923), and "to direct the upbringing and education of children under their control." Pierce v. Society of Sisters, 268 U.S. 510, 534-35 (1925). See also Santosky v. Kramer, 455 U.S. 745, 753 (1982) (noting the United States Supreme Court's "historical recognition that freedom of personal choice in matters of family life is a fundamental liberty interest protected by the Fourteenth Amendment"); Prince v. Massachusetts, 321 U.S. 158, 166 (1944) (acknowledging the existence of a "private realm of family life which the state cannot enter.")

         ¶16 In Troxel, a plurality of the United States Supreme Court concluded that a Washington statute allowing a court to grant third-party visitation whenever "visitation may serve the best interest of the child" violated a fit parent's due process right to make decisions concerning the care, custody, and control of her daughters. Troxel, 530 U.S. at 61. The Troxel court held that "so long as a parent adequately cares for his or her children (i.e., is fit), there will normally be no reason for the State to inject itself into the private realm of the family to further question the ability of that parent." Id. at 68-69. A majority of the United States Supreme Court Justices in Troxel recognized that a fit parent's fundamental right to direct the upbringing of his or her child is implicated where a non-parent third-party petitions for visitation.[5]

         ¶17 When faced with the question of whether a parent who has developed a relationship with his or her child has a fundamental liberty interest in the child's care and upbringing, this court has answered in the affirmative. See, e.g., Tammy W-G., 333 Wis.2d 273, ¶52 ("Parents who have developed a relationship with their children have a fundamental liberty interest in the 'care, custody, and control of their children.'" (quoted source omitted)); Kenosha Cty. Pep't of Human Servs. v. Jodie W., 2006 WI 93, ¶41, 293 Wis.2d 530, 716 N.W.2d 845 ("Because [the mother] has a fundamental liberty interest in parenting [her son], any statute that infringes upon this interest is subject to strict scrutiny review"); Kelli B., 271 Wis.2d 51, ¶23 ("[T]he question is whether a parent who has a substantial relationship with his or her child has a fundamental liberty interest in parenting the child. Our case law recognizes this fundamental liberty interest."). We conclude that in accordance with jurisprudence from the United States Supreme Court and this court, Lyons and Michels have a fundamental liberty interest in the care and upbringing of A.A.L.

         B. The Grandparent Visitation Statute must withstand strict scrutiny because it directly and substantially infringes upon a fundamental liberty interest.

         ¶18 A statute which directly and substantially infringes upon a fundamental liberty interest must withstand strict scrutiny: it must be narrowly tailored to serve a compelling state interest. See, e.g., Reno v. Flores, 507 U.S. 292, 302 (1993). Although Kelsey seemingly acknowledges that Lyons and Michels have a fundamental liberty interest in the care and upbringing of A.A.L., she asserts that this court should not apply strict scrutiny because this was a "minor intrusion" on a fundamental liberty interest. Kelsey relies on the Troxel plurality, which avoided "the precise scope of the parental due process right in the visitation context." Troxel, 530 U.S. at 73.

         ¶19 Because matters involving visitation occur on a case-by-case basis, the Troxel court was "hesitant to hold that specific nonparental visitation statutes violate the Due Process Clause as a per se matter." Id. The plurality in Troxel thus left the constitutionality of any specific statute awarding visitation to be determined by a state court based upon the manner in which the statute is applied. Id.

         ¶20 Although the Troxel plurality did not employ a strict scrutiny analysis in striking down a broad-sweeping third-party visitation statute, [6] the United States Supreme Court reaffirmed in Troxel that "the Due Process Clause does not permit a State to infringe on the fundamental right of parents to make child rearing decisions simply because a state judge believes a 'better' decision could be made." Id. at 72-73. The Troxel court held that if a fit parent's decision regarding grandparent visitation becomes subject to judicial review, a court must give "special weight" to a parent's determination of what is in the child's best interest. Id. at 68-70.

         ¶21 Post-Troxel, the majority of courts that have considered this issue have concluded that statutes permitting a grandparent to petition for visitation infringe upon the fundamental right to parental autonomy and therefore are subject to strict scrutiny. See, e.g., Moriarty v. Bradt, 827 A.2d 203, 222 (N.J. 2003) ("Because the Grandparent Visitation Statute is an incursion on a fundamental right (the right to parental autonomy) ... it is subject to strict scrutiny and must be narrowly tailored to advance a compelling state interest"); see also Doe v. Doe, 172 P.3d 1067 (Haw. 2007); Kosh ...


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