In the matter of the grandparental visitation of A. A. L.
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
CERTIFICATION FROM THE COURT OF APPEALS
from an order of the Circuit Court for Chippewa County L.C.
No. 2010FA206, James M. Isaacson, Judge. Vacated.
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.
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.
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.
amicus curiae brief was filed on behalf of Legal Aid Society
of Milwaukee, Inc. by Karen Kotecki and Legal Aid Society of
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
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
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.
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
FACTUAL BACKGROUND AND PROCEDURAL POSTURE
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
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
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.
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
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."
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
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.
STANDARD OF REVIEW
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
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.
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.
Lyons and Michels challenge the interpretation and
application of the Grandparent Visitation Statute, which
(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.
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.
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.
Lyons and Michels have a fundamental liberty interest in the
care and upbringing of A.A.L.
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.")
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
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.
Grandparent Visitation Statute must withstand strict scrutiny
because it directly and substantially infringes upon a
fundamental liberty interest.
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.
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.
Although the Troxel plurality did not employ a
strict scrutiny analysis in striking down a broad-sweeping
third-party visitation statute,  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.
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 ...