In 2000, the United States Supreme Court found in Troxel v. Granville that parents have a constitutionally protected interest in the care, custody, and control of their children. The Supreme Court concluded that a trial court must give some special weight or consideration to a parent’s decision regarding who their child spends time with. The Court did not go so far, however, to decide whether or not the constitutional right required non-parent visitation statutes to require a showing of harm or potential harm to a child before the Court could award third parties, such as grandparents, visitation rights over the objection of the child’s parents.

Since the U.S. Supreme Court case was entered, most states have required that a Court find harm to a child before it can interfere with a fit parent’s decision regarding grandparent visitation. To date, Wisconsin has not applied that same standard and has adopted a less restrictive standard of proof. The question of whether or not grandparents should have to show harm to a child when a fit parent decides that their child should not spend time with them is currently before the Wisconsin Supreme Court in a case entitled Michels v. Lyons. Also, at issue in this case is to determine whether or not the presumption that a fit parent acts in their child’s best interest when deciding who should spend time with their children must be overcome by clear and convincing evidence or a lower standard.

In certifying the issue to the Wisconsin Supreme Court, the Wisconsin Court of Appeals District III concluded that “we anticipate numerous cases involving grandparent visitation rights. We believe Circuit Courts, parents, and grandparents would greatly benefit from the Wisconsin Supreme Court’s definitive clarification of the standard of proof on this issue involving a fundamental right.”

I could not agree more with the Court of Appeals about the necessity for the Supreme Court to offer clarification on these issues. As an attorney who has represented both grandparents seeking visitation with their grandchild, as well parents opposing grandparent visitation petitions, clarity on these issues is critical. Whatever decision the Wisconsin Supreme Court reaches, it will certainly impact the rights of grandparents and parents in this type of litigation, and it will provide a framework for consistent application of the law across the state by various family courts.

At this time, the Michels v. Lyons case has been argued and briefed before the Wisconsin Supreme Court and is waiting a decision by the Court. An update to this article will be provided after the Supreme Court issues its decision. In the meantime, if you are considering petitioning the Court as a non-parent seeking visitation rights with a child, or if you are a parent who has been sued for third-party visitation, the law firm encourages you to speak with a family law attorney who has experience in the area of grandparent or other third-party visitation.


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