Grandparents’ Case Raises Hard Questions

By Attorney Gregg Herman
February 1, 2010

There is an old Jewish story about two men who go to a Rabbi to decide a dispute.

After the first one told his side, the Rabbi told him: “You’re right.”

“Wait a minute, Rabbi,” said the other, “You haven’t heard my side.”

After telling his side, the Rabbi scratched his beard and told him: “You’re right.”

The Rabbi’s aide tugged on the Rabbi’s sleeve: “Rabbi, Rabbi, they can’t both be right.”

The Rabbi responded, “You know something? You’re right, too!”

Such is the case with grandparents’ rights. On the one hand, the U.S. Constitution protects the rights of fit parents to make decisions regarding their children without interference from the courts. (Troxel v. Granville 530 U.S. 57 (2000).)

Wisconsin courts have read into our statutes a requirement that circuit courts must presume that a fit parent’s decision regarding grandparent visitation is in the best interest of the child. (In re Paternity of Roger D.H., 2002 WI App 35, 250 Wis. 2d 747, 641 N.W.2d 440.)

On the other hand, one’s heart has to go out to grandparents who have lost a child through death and then run the risk of losing their grandchildren due to the capriciousness of the surviving parent.

Yet both sides cannot be right.

Maternal Grandparents

Recently, District II of the Wisconsin Court of Appeals issued its opinion in Rick v. Opichka, No. 2009AP40, which affirmed in part, reversed in part and remanded with directions an order rendered by Racine County Circuit Court Judge John S. Jude.

Jennifer and Jeffrey Opichka had two children and Jennifer’s parents, Michael and Mary Rick, were actively involved in their care.

In 2006, Jennifer died from cancer. After Jeffrey began to limit the time the Ricks spent with their grandchildren, they petitioned for visitation.

The family court granted the Ricks visitation one weekend and one evening every month and one week each summer. Jeffrey appealed.

The Court of Appeals held that the family court had used the appropriate legal standard. The court also found that the family court’s decision was well-reasoned and based on pertinent facts of record. Therefore, it upheld the trial court’s finding that the Ricks overcame the presumption required under Troxel and Roger D.H.

Jeffrey also argued that the award of overnights and a week during the summer was actually a physical placement award, rather than “visitation” as allowed by statute.

The Court of Appeals concluded that grandparent visitation is not a question of the quantity of the visitation, but whether the best interests of the children would be served. However, the court remanded the case to the family court to clarify whether the grandparents have authority to make the routine daily decisions and, if so, what those routine daily decisions may be.

No Easy Answers

Part of the problem – but only a small part – is the semantic difference between “placement” and “visitation.” Where does one start and the other end? If taken literally, does “visitation” mean to see the children while they are in their own home and not removing them?

Apparently not, according to the Court of Appeals. But if “visitation” includes overnights, when does it become “placement?” Does the difference in terminology make any difference or are the two really the same?

None of these questions is answered by the appellate court in this case.

The bigger problem, however, is the concept of courts dictating the lives and decisions of fit parents. The facts of this case – grandparents actively involved with their grandchildren – are not unusual. So when the trial court’s findings focus on the involvement of the grandparents and the children, what prohibits awarding grandparent visitation in most cases of this nature?

After Roger D.H., the answer seemed to be that the presumption in favor of the decisions of fit parents prohibited courts from interfering with the lives of families. Now, the Court of Appeals’ decision in Rick seems to allow courts to overcome that presumption rather easily.

While good for grandparents, is this good for children? Do we want courts dictating the lives of families, even one-parent families?

In addition to grandparents, Wis. Stats. §767.43(1) allows a court to award “reasonable” visitation rights to a great-grandparent, stepparent or “person who has maintained a relationship similar to a parent-child relationship with a child.”

The last category alone could easily incorporate enough people (nannies? older stepsiblings? aunts and uncles?) to prevent an intact family from ever having a weekend together.

None of these questions is easily answered. The grandparents warrant sympathy for wanting to maintain their relationship with the remaining legacy of their child. The surviving parent, of course, suffered his or her own loss and wants to be able to parent his or her child without governmental interference.

Both sides are right.

This article originally appeared in the Wisconsin Law Journal.

Attorney Gregg Herman is a founding partner of Loeb & Herman, LLC in Milwaukee, WI. He practices family law exclusively, and can be reached via e-mail or by calling (414) 272-5632.