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Third Party Visitation in Wisconsin
March 1, 2001
The following article was co-written with Assistant Family Court Commissioner Lucy Cooper.
In June 2000 the U.S. Supreme Court waded into the emotionally charged issue of grandparent visitation and, by implication, other third-party visitation, where a child lives with a fit parent or parents. Third-party vistation cases frequently pit well-meaning grandparents against well-meaning parents in situations of historical conflict. Neither side is necessarily wrong, but their positions are irreconcilable. These cases will have an impact in Wisconsin as our courts and Legislature grapple with similar issues.
U.S. Supreme Court Ruling
The U.S. Supreme Court ruling in Troxel v. Granville 1 involved a woman named Tommie Granville – the mother of two daughters whose father had committed suicide. The father’s parents sought and obtained court-ordered visitation. On appeal, the Washington Supreme Court invalidated its state’s statute on federal constitutional grounds.2 The Washington Supreme Court held that any third-party visitation statute that allowed a court to contravene the decision of a fit parent as to her child’s association with third parties, without a showing of some harm to the child necessitating such an order, would be an unconstitutional interference with a parent’s right to raise her child free from unwarranted government interference.3
In Troxel, the Supreme Court upheld the result, without fully endorsing the rationale of the Washington Supreme Court. The U.S. Court did not adopt the “harm” test, although Justice Souter, writing in concurrence, urged that it do so. Rather, Justice O’Connor, writing for the plurality, authored a wide-ranging criticism of the Washington law. In the end, the Court held only that the statute was unconstitutional, as applied, because it failed to accord the decision making of a fit parent any material weight or deference. The plurality specifically rejected the “harm” test, stating:
“We do not, and need not, define today the precise scope of the parental due process right in the visitation context:
” [W]e would be hesitant to hold that specific nonparental visitation statutes violate the Due Process Clause as a matter of law.” 4
Thus, the U.S. Supreme Court essentially threw the hot button issue of third-party visitation rights back to the 50 state legislatures and appellate courts with the admonition to make sure fit parents are given due deference. The Court recognized that these issues are not just driven by constitutional rights but by policy determinations best left to legislatures. Just because a law may be constitutional does not, of course, mean that it is good policy, and the U.S. Supreme Court lacks the collective expertise to make policy in the law of domestic relations.
State Court Decisions Post Troxel
Two state supreme courts, Illinois and Maine, have ruled on the constitutionality of grandparent visitation statutes since Troxel. 5 Both courts have been every bit as cautious as the U.S. Supreme Court. In the two decisions discussed here, the courts have each taken the “as applied” route, much to the consternation of their own concurring and dissenting colleagues. In both cases, the facts illustrate a pattern of deep and long-term intra-family conflict that drives many of these disputes. Similar to the U.S. Supreme Court decision in Troxel, the effect of these decisions is to require the legislatures to undertake the politically explosive review of their third-party visitation laws.
In the Illinois case of Lulay v. Lulay, 6 Michael and Kiley Lulay, the parents, were divorced from each other, but shared legal custody. Michael’s mother, Gail Lulay, petitioned for visitation with her grandchildren. Both parents, though divorced and living separately, joined in their opposition to court-ordered visitation for Michael’s parents.
The Illinois statute, unlike the statute addressed in Troxel, limited standing to grandparents, great grandparents, and siblings of a minor child. Also, unlike the Washington statute, the Illinois law allowed a petition to be filed only under limited circumstances – if the parents were not currently cohabiting or if one of the parents was deceased. Similar to the Washington statute, however, the Illinois standard was “best interests of the child,” with no presumption that parental choice should govern, absent some compelling interest to the contrary.
The Illinois court, looking to the plain wording of the statute, swept aside the argument that the statute did not apply if the petitioner’s own child opposed the petition. Having determined that the statute permitted grandparents to seek visitation with their grandchildren where both parents oppose such visitation, the court then held that the statute violates the fundamental constitutional rights of parents to make decisions regarding their children. The court left for another day the issue of the application of the balance of the statute.
In the Maine case of Rideout v. Riendeau, 7 the maternal grandparents, the Rideouts, sought visitation with their daughter’s three children. The daughter, Heaven, had a conflicted relationship with her parents for years but also had relied upon them for substantial help in raising her children, particularly the oldest child, who had resided with the grandparents for more than a third of her life by the time the petition was filed. Heaven’s husband of eight years, Jeffrey Riendeau, was the father of Heaven’s youngest child. The Rideouts acted after Heaven returned to her husband following allegations of domestic abuse, taking all three of her children into the now intact marriage. Heaven eventually cut off her parents from contact with the grandchildren they had lived with and helped raise.
The Maine Supreme Judicial Court upheld the constitutionality of Maine’s grandparent visitation law, as applied to a de facto parent. The court concluded that an “urgent reason” exists where grandparents who have functioned as parents to the child seek continued contact. The court held that the cessation of such contact may have a dramatic and even traumatic effect upon the child’s well-being.
The Maine court, like the Illinois court, left other considerations in other fact situations for a later day.
The two state court decisions are not all that helpful because they only address two specific situations, and their statutes differ from those in Wisconsin. All we really know is that Illinois will not let a lower court impose grandparent visitation where both divorced parents oppose it, absent a compelling reason, and that Maine will allow a grandparent, who has at some time in the past functioned as a de facto parent, to make a case for visitation, even over the strong objections of the grandchildren’s parents.
Wisconsin’s Third-party Visitation Law
How these cases affect us in Wisconsin is not an academic question. 8 Wisconsin has a medley of statutes, and at least one court-created remedy, allowing courts to order third-party visitation. Inevitably, one of the many trial court challenges to the law will be well pled and will be decided by Wisconsin’s appellate courts. As one of these authors previously wrote:
“By limiting the risk and establishing factors, including standing, each of the Wisconsin provisions is more narrow than the Washington statute. Whether the Wisconsin statutes are, in fact, narrow enough to pass constitutional muster is something only time – and future litigation – will tell.” 9
In Wisconsin, there are four statutes and at least one recent court-created equitable remedy for de facto parents who do not find themselves fitting in under any of the four statutes. The statutes were enacted over the course of the past 25 years, often in reaction to a court decision that limited access for third parties and resulted in publicity that upset opinion makers and legislators. The common law or equitable rules were crafted in response to very specific social issues. Scrutinizing Wisconsin law in light of Troxel reveals two things:
1) Unlimited standing makes the U.S. Supreme Court very nervous. Justice O’Connor emphasized the constitutional problems of allowing standing to anyone, anytime, to bring a case, but ultimately did not decide the case on the basis of standing at all. Still, the paragraphs criticizing the extremely liberal standing allotted interested third parties must be considered in analyzing the import of the decision.
2) Whatever third-party access law a state enacts, the standard for imposing visitation upon an unwilling but fit parent must include some requirement that the parent’s wishes be accorded due deference and material weight.
With this in mind, here’s a look at Wisconsin law.
Chapter 767 – Actions Affecting the Family
Section 767.245 of the Wisconsin Statutes allows third-party visitation in divorce and paternity cases. There are really two separate statutes here, enacted at different times (1975 for sub (1), 1995 for sub (3)), but combined in the same statutory section in the family code.
Sub. (1) of the statute applies to third parties seeking visitation when parents are going through a divorce, legal separation, annulment, or independent custody action. In Van Cleve v. Hemminger,10 the requirement was added that there must be an underlying family court action pending when an action under this statute is initiated. In Van Cleve, a far-seeing trial and appellate court questioned whether the Legislature could enact a law that allowed interference in an intact family by third parties. The court answered “no” and, except for statutory changes enacted later in the case of deceased parents and a Wisconsin Supreme Court case 11 creating standing for de facto parents with no place else to go, the ruling has stood.
Under sub. (1), standing is limited to a grandparent, great grandparent, stepparent or a person who has maintained a relationship similar to a parent-child relationship with the child. The “or” is important, as it appears that any of the three described relatives may petition, but that anyone else who petitions under this statute must show that she or he had maintained a relationship similar to a parent/child relationship. Thus, de facto parent status need not be shown unless the petitioner fails to meet the relationship test.
Under sub. (1), once the petitioner has cleared the standing hurdle, the standard for imposing court-ordered visitation on an unwilling, but otherwise competent parent, is simple best interest. This is the standard that the U.S. Supreme Court in Troxel held violated a fit parent’s fundamental right to direct his or her child’s upbringing. Unless the Legislature changes the statute, the Wisconsin appellate courts eventually will be confronted with a well-pled challenge to this law. At that point, the court can 1) ignore Troxel and invite an appeal, 2) give the statute a saving construction by defining best interest in such a way that it includes a strong presumption in favor of parental decision making, or 3) hold that the statute is simply unconstitutional and toss the issue back to the Legislature.
Sub. (3) governs grandparent petitions in paternity cases. The standing requirements, intended to reverse specific court cases, allow a petition by any grandparent so long as the parents have not married each other and the child has not been adopted. In the case of a paternal grandparent, paternity must have been established, either separately or in the visitation action itself. The statute also requires that the grandparent has maintained or attempted to maintain “a relationship” with the child, but has been prevented from doing so by the legal custodian. There is no requirement that the grandparent show that she or he has acted as a de facto parent.
As to the standard, it is something more than best interest. There is a requirement that the court find that “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.” 12
This standard, combined with the limited standing – grandparents only — probably will allow the statute to survive constitutional challenge, even though there is no explicit presumption in favor of deferring to the parent’s wishes regarding the placement itself.
Section 767.245 also contains a recently enacted prohibition against allowing placement to a grandparent who has killed one of the parents, absent the meeting of a very high burden. That prohibition also should survive judicial scrutiny,13 because the burden is on the grandparent to prove by clear and convincing evidence that the visitation is in the child’s best interests.
Probate Law: Deceased Parent, No Adoption
Section 880.155 of the Wisconsin Statutes has been through several revisions, each one expanding the standing of grandparents and others following the death of a parent. As the law stands now, grandparents and stepparents have standing to petition following the death of one of the parents where the child is in the custody of the surviving parent or other person, whether or not the surviving parent has remarried. A stepparent explicitly retains standing even where the surviving parent has remarried, as does a grandparent.
There is no requirement that the petitioning grandparent or stepparent must have acted as a de facto parent. The standard is best interest, with a requirement to consider the child’s wishes. There is no statutory requirement that the wishes of the custodial parent be given any particular deference.
Except for the somewhat limited standing – grandparents and stepparents only – this statute deals with the same fact situation presented in Troxel. This statute may be vulnerable to constitutional attack because of the same broad “best interest” standard as under the Washington statute in Troxel. 1
Children’s Code: Adoption
In Soergel v. Soergel Raufman, 15 the Wisconsin Supreme Court held that the voluntary termination of parental rights by a father, combined with an adoption by a stepparent, ended the visitation rights of the paternal grandparents. This holding is certainly in line with the law treating adoptive families identically to biologically created intact families. The Legislature reacted to this decision by enacting section 48.925. In doing so, the law created a very strict standing requirement allowing certain relatives to seek visitation following a stepparent or other relative adoption.
Under that statute, standing is limited to relatives who, within the two years preceding the petition, have maintained a parent-child relationship with the child. The standard also is protective of the adoptive family. In addition to the usual requirement for a finding of best interest, and a requirement that the child’s wishes be considered, there are two more required findings:
- that the petitioner will not undermine the adoptive parent’s or parents’ relationship with the child, or if a birth parent is the spouse of an adoptive parent, the adoptive parent’s and birth parent’s relationship with the child.
- that the petitioner will not act in a manner that is contrary to the parenting decisions that are related to the child’s physical, emotional, educational, or spiritual welfare and that are made by the adoptive parent or parents, or, if the birth parent is the spouse of an adoptive parent, by the adoptive parent and the birth parent.
So, after a stepparent or relative adoption, certain relatives — but only those who have been de facto parents within two years of petitioning — have standing to seek continued contact with the child. This limited standing should satisfy any constitutionally mandated standing requirement. Further, the standard itself goes beyond best interest to require both a finding that the visitor will not try to undermine the adoption and will not act in a manner contrary to the decisions of the new family. While the statute lacks an explicit presumption against forcing visitation on fit parents, the standard is very protective of the adoptive family.
Of all the third-party statutes in Wisconsin, this one is the most restrictive, and, therefore, the one most deserving of passing constitutional muster under Troxel, even though it also is the only statute that allows court intervention in an intact, two-parent family, where both parents are legal parents of the subject child.
Equitable Actions: Court-created Remedy for De Facto Parents
In 1995 the Wisconsin Supreme Court recognized an equitable cause of action, independent of any statute, allowing a de facto parent to petition for visitation if that person’s relationship with the legal parent(s) deteriorated to the point where the parent(s) disallowed contact, and the contact was found by a court to be in the child’s best interest. 16
While the term “de facto parent” does not appear in the court’s opinion, it is clear that that is what the decision requires. The court also held that a petition must be made within a “reasonable time” after the “triggering event” (break-up and breakdown of amicable relations regarding the child). The court also made clear that this equitable remedy only applies where the petitioner has no statutory remedy.
While the decision is painstakingly crafted to avoid the implication that it is targeted at same-sex couples like the one in the case, the inescapable conclusion is that it is same-sex couples whom the decision will primarily affect. Of course, it also applies in the somewhat rare circumstance where the heterosexual partner who never married the parent, but who lived in a household with the child, helped with childrearing and seeks to maintain a relationship after the rift with the parent. Perhaps the result also may be applicable to non-romantic friends or relatives not otherwise covered by the statutes described herein.
While the standing requirements of the case are carefully crafted, the standard is the broad “best interests.” An undefined “best interests” test offers no real protection to a fit legal parent and, in fact, invites judicial meddling in the life of a fragile family at a time of great stress. As such, it is unlikely that the broad holding of Holzman is sustainable after Troxel.
In sum, Wisconsin law is a mixture of different standing requirements and standards for intervention. Some are more protective of the right of a fit parent to raise his or her child as that parent sees fit. As result, some of these statutes are quite vulnerable to constitutional attack in light of Troxel, whereas others seem likely to survive constitutional scrutiny.
Wisconsin should harmonize its statutes in such a manner that they will survive constitutional scrutiny in light of Troxel. In doing so, care must be taken to the extent that third-party visitation laws are good for children and, therefore, good public policy. In making this determination, the Legislature must consider whether sympathy for certain adults and disapproval of others should drive the analysis of what truly benefits children.
Many fit parents, particularly young and unmarried ones, often exasperate courts, which tend to agree with grandparents that the parents need to be overseen by older and wiser adults. What these courts fail to see is that by empowering unwelcome grandparents to force their attentions on the families, the court-ordered contact ultimately may undermine a struggling parent’s authority and create bitter conflict between the adults and chaos for the children.
Certainly, one must have sympathy for the grandparent who is attempting to substitute for a dead or absent parent. On the other hand, serious questions remain about the benefit to a child of ordering grandparent visitation where both parents are alive and available.
The Wisconsin Legislature and judicial system also need to look honestly at the costs to the parties and children of letting these cases go to court in the first place and to the extent that the costs create an imbalance in favor of the party with more economic resources. A court looking only at constitutionality cannot do justice to all of these issues. The Legislature can — and should.
This article originally appeared in Wisconsin Lawyer Magazine.
1 – Troxel v. Granville, 120 S. Ct. 2054 (2000).
2 – 137 WN2d 1 (1998).
3 – By the time Tommie’s case reached the U.S. Supreme Court, she had married and her husband had adopted the girls. But the fact that Tommie and the girls were now in an “intact family” was not stated as a driving rationale for either the Washington Supreme Court nor the U.S. Supreme Court.
4 – Troxel, supra, at 2064.
5 – The California Court of Appeals has held its statute unconstitutional. Kyle O. v. Donald R., et. al., 102 Cal. Rptr. 2d 476 (Cal Ct. App. 2000).
6 – Lulay v. Lulay, 2000 WL 1608769 (Ill. Oct. 26, 2000).
7 – Rideout v. Riendeau, 2000 WL 1707359 (Me. Nov. 13, 2000).
8 – There are at least four third-party visitation disputes currently pending in Wisconsin raising the constitutionality of Wisconsin statutes.
9 – “High Court Invalidates Grandparents’ Rights Law,” Wisconsin Opinions, June 21, 2000.
10 – Van Cleve v. Hemminger, 141 Wis. 2d 543, 415 N.W.2d 571 (Ct. App. 1987).
11 – Holtzman v. Knott, 193 Wis. 2d 649, 533 N.W.2d 419 (1995).
12 – Wis. Stat. § 767.245(3)(e).
13 – Curiously, the statute requires the court to consider the child’s wishes, but accords no specific deference to the wishes of the surviving parent.
14 – The court of appeals addressed this issue in F.R. v. T.B., 225 Wis. 2d 628, 593 N.W.2d 840 (Ct. App. 1999), and found the statute constitutional. However, the court did not have the benefit of the U.S. Supreme Court decision in Troxel.
15 – Soergel v. Soergel Raufman, 154 Wis. 2d 564, 453 N.W.2d 624 (1990).
16 – Holtzman v. Knott, 193 Wis. 2d 649, 533 N.W.2d 419 (1995). There is actually a collection of nonstatutory cases recognizing a court’s power to protect a child’s interest in third-party contact in special situations. One situation is where a third party is really substituting for an absent parent. Gotz v. Gotz, 274 Wis. 472 (1956); Weichman v. Weichman, 50 Wis. 2d 407, 184 N.W.2d 882 (1971). The second situation is where the petitioning third party had functioned as a de facto parent and sought to preserve the relationship after the child’s return to a legal parent. In re DMM, 137 Wis. 2d 375 (1987).