Grandparents need not establish a “significant triggering event” to assert visitation rights

By Joe Forward, Legal Writer, State Bar of Wisconsin

Aug. 5, 2011 – The District IV Wisconsin Court of Appeals clarified that when Wisconsin’s “special grandparent visitation provision” applies, petitioning grandparents need not show a “significant triggering event” occurred in order to seek visitation rights of a nonmarital grandchild.

Shari Broughton was incarcerated when her child was born in 2001. Shari’s parents (the Whites) served as primary caregivers until Steve Wohlers became aware that he may be the child’s father in 2004, and brought a paternity action establishing that he was the father.

Both Wohlers and the Whites agreed to a transition plan that would give Wohler primary placement, but still give the Whites significant visitation to mitigate any harm that would result to the child.

In January 2007, the parties stipulated to an arrangement giving Woehler sole custody, but granting the Whites five days visitation every two weeks. The agreement provided that the parties would develop a new visitation schedule before the child started kindergarten.

Wohler later filed a motion to amend that January 2007 order, and later submitted a plan outlining his proposed schedule for grandparent visitation rights. That schedule would have given the Whites visitation rights one weekend per month, one evening per week, and a week vacation period per year.

However, the Dane County Court Counseling Service and the guardian ad litem recommended that the Whites have visitation rights every other weekend, and the circuit court agreed. Wohlers appealed.

Wohlers argued that the Whites must prove a “significant triggering event” occurred in order for a circuit court to grant visitation rights to them as non-parents at all, and the circuit court erred in not requiring the Whites to make that showing.

Under Holzman v. Knott, 193 Wis. 2d 649, 533 N.W.2d 419 (1995), a circuit court may grant visitation rights to a non-parent if the petitioner demonstrates he or she has a parent-like relationship with the child, and a “significant triggering event” exists to justify state intervention.

That is, the petitioner must demonstrate that the biological or adoptive parent substantially interfered with the petitioner’s parent-like relationship and the petitioner sought court-ordered visitation within a reasonable time after the interference.

But the appeals court in Wohlers v. White, 2009AP488 (Aug. 4, 2011), concluded that the Holzman test requiring a significant triggering event does not apply when the “special grandparent visitation provision,” Wis. Stat. section 767.43(3), does apply. Here, section 767.43(3) applies, the appeals court concluded.

Under section 767.43(3), a 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 that the child’s parents are not married, the paternity of the child is determined (in the case of paternal grandparents), and the child has not been adopted.

Wohlers also argued that the circuit court failed to apply a rebuttable presumption that Wohlers had the best interest of his child in mind when proposing a schedule granting the Whites monthly visitation rights. Under Troxel v. Granville, 530 U.S. 57 (2000), courts must give special weight to a fit parent’s determination of what is in the best interest of his or her child.

But the appeals court – noting expert testimony indicating the child’s best interest would be better served if the Whites had visitation rights every other weekend – ruled the circuit court applied the correct standard and did not disregard the rebuttable presumption in favor of Wohler.