Mark Twain once stated, upon reading his own obituary, “Reports of my death are highly exaggerated.” The same is true for third-party visitation claims in Wisconsin, despite the recent Wisconsin Supreme Court decision, Michels v. Lyons,¹ in which the court held that a grandparent who wishes to have visitation rights to a grandchild in opposition to the fit parents’ wishes must establish by clear and convincing evidence that the parents’ decision regarding the visitation is not in the child’s best interests.² Because the clear and convincing standard of evidence is not commonly applied in the context of family law, and many family law attorneys might not know which evidence is necessary to meet this higher evidentiary standard, some family law attorneys are predicting that this higher evidentiary threshold is, in effect, the death knell of grandparent-visitation claims.

No doubt the ability for grandparents and other significant people in a child’s life to seek visitation of the child has become more difficult as a result of Michels. Before Michels, the case law and the Family Code visitation statute were silent on the evidentiary threshold required for a grandparent seeking visitation, and the courts had relied on the default rule of the preponderance of evidence standard.³ Nonetheless, this article is intended to reassure practitioners that fears of such a death knell might be exaggerated and to offer insights into the effect of Michels on future visitation claims.

Michels v. Lyons Facts

The facts in Michels are relatively straightforward. The child’s parents were not married to each other but lived together for the first three years of the child’s life. After separating, the mother had primary placement and the father had extended periods of placement. In addition, the child spent significant time, including overnight stays, with the child’s paternal grandmother.

Once the child started kindergarten, both parents agreed that due to the child’s new commitments with school and friends, the grandmother’s time with the child would be reduced. In time, the relationship between the parents and the grandmother deteriorated, and there was a significant dispute regarding the grandmother’s desire to take the grandchild on a trip to Disney World. This disagreement seemed to set the stage for the grandmother to intervene in the parents’ paternity action and seek visitation under Wis. Stat. section 767.43(3).⁴

The circuit court granted the grandmother’s petition and awarded her visitation of one Sunday each month for five hours and one week of summer vacation each year. The parents appealed, and the Wisconsin Court of Appeals certified the appeal to the Wisconsin Supreme Court.

In a unanimous decision, authored by Justice Rebecca Dallet, the supreme court held that the visitation statute infringes on a parent’s fundamental right to raise his or her child without state interference, a right protected under the U.S. Constitution. Despite the statute’s infringement on this fundamental right, the supreme court determined that the state has a compelling interest regarding the visitation statute. Specifically, the state has an interest in continuity of a child’s relationship with the grandparent or other significant persons specified in the visitation statute, as well as an interest in protecting the children from harm that might result from the termination of those relationships.⁵

The majority opinion did not strike down the statute as being facially unconstitutional, because it could envision circumstances in which the statute could be applied constitutionally. However, the court decided the statute was applied to this case in an unconstitutional manner, namely, that the circuit court did not use the heightened legal standard of clear and convincing evidence in determining that the parents’ wishes were not in the child’s best interests.⁶ To save the visitation statute on constitutional grounds, the supreme court held that circuit courts must use a clear and convincing legal standard and not the lower preponderance of evidence standard commonly used in civil litigation when fundamental rights are not impinged.⁷

Clear and Convincing Evidence Standard Is Unusual in Family Law

Family law attorneys who do not work within the juvenile court system rarely need to argue a clear and convincing evidence legal standard. Justice Roggensack stated during the oral arguments for Michels that circuit courts commonly rely on the clear and convincing standard, and the judicial system is familiar with its application.⁸ This may be true for civil litigation attorneys in fields in which the standard is regularly used, such as cases involving civil commitments, fraud, undue influence, and prosecution of civil ordinances.⁹ In the family law context, it is far less common.

The clear and convincing standard is cited only five times in the Wisconsin Family Code.¹⁰ Four of the five statutory provisions involve the rare situation in which a person kills the parent of a child and seeks visitation with the deceased parent’s child. In such a situation, the person must establish by a clear and convincing standard that despite the fact that the person has killed the parent, it is still in the child’s best interest for the person to have visitation or placement of the child. The fifth provision requires proof by clear and convincing evidence to establish an agreement that a recipient of child support accepted funds in lieu of child support payments. Aside from these unusual circumstances, the family law attorney is rarely required to put forth a case meeting the higher burden of proof involved with the clear and convincing standard.

The definition of “clear and convincing evidence” set forth in case law offers the family law attorney little guidance. While the lower burden of proof for preponderance of evidence “requires the litigant to demonstrate by the greater weight of credible evidence the certainty of his or her claim,” the clear and convincing standard requires “evidentiary proof to a reasonable certainty by evidence that is clear and convincing.”¹¹

Each judge will assess and determine individually whether, based on that judge’s own understanding of the evidentiary standard and appreciation of the facts, the evidence is clear and convincing.

In terms of percentages, a litigant in a typical family law case simply needs to establish by a 50.1 percent or higher percentage that the evidence supports his or her claim to meet the preponderance of evidence standard. The court simply needs to find that claim is more likely than not to be true.

In contrast, there is no percentage threshold of what needs to be established for the court to determine whether the evidence is “reasonably certain” and “clear and convincing.” Even so, this higher clear and convincing standard is not necessarily fatal to visitation cases. Unlike in most civil litigation cases, which rely on a jury to make this determination, in family court matters, the determination is entirely within the discretion of the judge. Each judge will assess and determine individually whether, based on that judge’s own understanding of the evidentiary standard and appreciation of the facts, the evidence is clear and convincing.

The general visitation statute states that “upon petition by a grandparent, greatgrandparent, stepparent or person who has maintained a relationship similar to a parent-child relationship with the child, the court may grant reasonable visitation rights to that person if the parents have notice of the hearing and if the court determines that visitation is in the best interest of the child.”¹² A grandparent or any of the other people referenced in the statute must now establish by clear and convincing evidence that the parent’s decision regarding visitation is not in the best interests of the child. As most family law attorneys realize by practice and experience, what constitutes a child’s best interests is a discretionary determination that is specific to each case.

The Michels decision will not necessarily preclude grandparents or other persons referenced in the visitation statute from seeking visitation rights to a child. Admittedly, the cards are stacked against them, but the highly discretionary determination of what constitutes a child’s best interests and which evidence is deemed clear and convincing still leaves the door open for third-party-visitation orders that would be upheld on appeal.

The family court judge can still order visitation despite the parents’ objection, if the judge determines that his or her visitation order is based on facts that are reasonably certain and clear and that convince the judge that the parents are not acting in the child’s best interests. As the sole fact finder, the family court judge can employ the higher threshold requirement of clear and convincing evidence and still determine that visitation is in the child’s best interests in many different types of visitation cases.

Some family law attorneys have misconstrued this higher evidentiary standard as requiring an element of “harm” in the analysis, that is, the petitioner must establish that the parent’s decision regarding visitation causes harm to the child’s emotional or physical welfare. Although the harm element was advanced by the parents’ lawyer in Michels, it was not adopted as a requisite of awarding visitation.¹³ A petitioner can establish that the parent is not acting in the child’s best interest with regard to visitation without establishing that the decision is harming the child.

Establishing Right to Third-party Visitation Under New Standard

The question then becomes what is necessary to establish, by clear and convincing evidence, a right to third-party visitation. The answer is that many of the same facts and circumstances present in cases before the Michels decision could substantiate a finding that the clear and convincing standard has been met. Undoubtedly, the burden of proof is higher and the facts must be more compelling than a mere disagreement between the parent and the grandparent, but many of the facts and circumstances warranting a visitation order under the preponderance of evidence standard could still be elevated and relied on to meet the clear and convincing standard, given the highly discretionary determination afforded family court judges in determining what is in the child’s best interests.

The analysis has turned from the family court judge determining whether the visitation is in the child’s best interests to whether the parent’s decision regarding visitation is not in the child’s best interests. But the family court judge must still determine what is in the child’s best interests and whether the parents’ decision is contrary to those best interests. It is this determination of best interests that remains discretionary and an avenue for petitioners to obtain visitation before and after the Michels decision.

Admittedly, the parents opposing a visitation order walk into court with a significant advantage. As parents, they have a constitutional right to raise their children as they see fit, including by making decisions regarding visitation. In addition, not only do parents have the constitutional right to parent their child in regard to the child’s visitation schedule, but they also enjoy a rebuttable presumption that their decisions regarding visitation are in the child’s best interests.¹⁴ And, now, on top of the constitutional right and the rebuttable presumption, the parent’s decision can be successfully challenged only if the party seeking visitation can establish that the parent’s decision regarding visitation is not in the child’s best interests under a heightened clear and convincing evidence standard.

A petitioner can establish that the parent is not acting in the child’s best interest with regard to visitation without establishing that the decision is harming the child.

The Michels court went so far as to give the following directive: “A circuit court should not substitute its judgment for that judgment of a fit parent even if it disagrees with the parent’s decision.”¹⁵ In other words, the family court should not second-guess a fit parent’s decision regarding visitation even if the family court believes that it could offer a better decision that meets the best interests of the child. A family court judge must now allow the parent to make what the court deems to be a mistake regarding the child’s visitation unless that mistake rises to the level of being sufficiently clearly and convincingly not in the child’s best interests. Yet, it is the context of that parent’s decision that could still allow the family court to override the parent’s decision regarding visitation. To stay faithful to the remainder of the majority opinion, the directive could have more specifically continued “…unless that decision is clearly and convincingly not in the child’s best interests.”

The fact is, whenever a family court judge determines the best interest of a child contrary to a parent’s belief or wishes, the judge is substituting his or her own judgment for the judgment of a parent. As to whether the court can constitutionally usurp the parent’s authority and rights to make this decision, that issue has been decided repeatedly by the court in upholding the third-party visitation statute as constitutional.¹⁶

The question is no longer whether Wisconsin circuit courts have the authority to order visitation contrary to a parent’s wishes. Rather, the issue is the circumstances in which the judge can order the visitation while maintaining the parent’s fundamental right to raise their child as he or she sees fit. The answer is to afford the parent a rebuttable presumption under the law that his or her decision is in the child’s best interests. Now, under the Michels decision, the petitioner has a higher burden of establishing by clear and convincing evidence that the parent’s decision is not in the child’s best interests.

Facts Are Key

The facts of the Michels case weighed heavily in favor of the parents. The supreme court said that both parents were not only fit parents but “good parents.”¹⁷ The parents were unified in their position about limiting the child’s contact with the grandmother. The parents agreed to continue the child’s relationship with the grandmother, just not to the same extent and degree as in the past nor according to a set schedule. The circuit court ordered visitation with the grandmother for one Sunday every month for five hours and for one week each summer.

It is a matter of perspective whether one deems this to be a very limited or an extensive award of visitation. Ultimately, and, in the author’s view, remarkably, the Wisconsin Supreme Court did not remand the case to the circuit court to apply the clear and convincing standard but vacated the order, to avoid forcing the parents “into additional litigation.”¹⁸

The family court should not second-guess a fit parent’s decision regarding visitation even if the family court believes that it could offer a better decision that meets the best interests of the child.

Circumstances That Might Support Granting of Third-party Visitation Claims

There will be instances when the facts might clearly and convincingly establish that a parent is not acting in the child’s best interests as to visitation with a grandparent, a stepparent, or someone who has acted in a parenting role. A few situations in which the facts may be more supportive of a visitation order include the following:

• Two fit parents disagree with respect to the visitation of the child with the third party. In Michels, the parents agreed to not allow the visitation with the grandmother, but had only one parent advocated for the visitation, this could tip the scales in favor of visitation under the clear and convincing standard.

• There is only one fit parent. The visitation legal analysis in Michels involved two fit parents. If one parent has a history of unfitness, such as by engaging in abuse, neglect, or abandonment, third-party visitation might not only be in the child’s best interests but also be necessary to safeguard the children.

• A parent is a fit parent but has an alcohol or substance abuse issue that presents a safety issue for the child, and the grandparent or past partner of the parent offers the child stability and security. This could rise to the level of the court determining the parent is not acting in the child’s best interests as to the visitation.

• A parent must leave for military service for extended periods of time, and the step-parent or grandparent has a substantial relationship with the child. If the other parent refuses any contact or visitation with the step-parent or grandparent during the military parent’s absence, this could be clear and convincing evidence that the parent is not acting in the child’s best interests.

• The child has been raised by both the biological parent and the parent’s same-sex partner, but the relationship ended and the biological parent is refusing any visits between the former partner and the child. If the parent is making this decision based on his or her own anger or hurt feelings for the end of their relationship instead of what is in the child’s best interests, this could rise to the level of rebutting the presumption under the clear and convincing standard that the parent is acting in the child’s best interests.

• A parent denies all contact with the former partner or family member. In this situation, the parent will have a more difficult time substantiating his or her decision than if the parent allows some contact or even limited visitation.

Cases with facts similar to these examples likely occurred in Wisconsin while the preponderance of evidence standard was the rule, but going forward petitioners in such cases likely could meet the clear and convincing standard. Family courts will continue to make these discretionary determinations, and the best-interest analysis will continue to be based on the facts of each case.

Conclusion

The Michels decision is not inherently fatal to third-party visitation claims. Rather, the attorney representing the petitioner must be sure to advocate the correct legal standard now in place – clear and convincing evidence – and the family court must be more detailed in its findings when awarding visitation. Specifically, the court must address the rebuttable presumption in the parent’s favor and must identify the evidence that supports a finding that the petitioner has shown by clear and convincing evidence that the parent is not acting in the child’s best interests as it relates to the child’s visitation with the petitioner. The path toward third-party visitation may be narrower, but it is not entirely closed.

Endnotes

¹ Michels v. Lyons (In re Grandparental Visitation of A.A.L.), 2019 WI 57, 387 Wis. 2d 1, 927 N.W.2d 486.

² Id. ¶ 36.

³ Wisconsin Eye Podcasts, Oral Arguments, Michels v. Lyons, Nov. 7, 2018.

⁴ The grandparent-visitation provision in Wis. Stat. section 767.43(3) provides as follows: “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.”

⁵ Michels, 2019 WI 57, ¶ 28, 387 Wis. 2d 1 (citing Rick v. Opichka, 2010 WI App 23, ¶ 22, 323 Wis. 2d 510, 789 N.W.2d 159).

⁶ Id. ¶¶ 39-41.

⁷ Id. ¶¶ 33, 36.

⁸ Wisconsin Eye Podcasts, Oral Arguments, Michels v. Lyons, Nov. 7, 2018.

⁹ Michels, 2019 WI 57, ¶ 34, 387 Wis. 2d 1.

¹⁰ Wis. Stat. §§ 767.44, 767.43(1m)(b), (6)(b), 767.451(4m)(b), 767.59(1r)(c).

¹¹ Madison v. Geier, 27 Wis. 2d 687, 692, 135 N.W.2d 761 (1965).

¹² Wis. Stat. § 767.43(1). The Michels case involved a subpart of the statute titled “Special Grandparent Visitation.” The decision will affect not only cases involving that subpart but also the entire visitation statute set forth in Wis. Stat. section 767.43, other third-party visitation statutes (Wis. Stat. sections 48.924 and 54.56), and presumably common-law visitation claims such as that set forth in Holtzman v. Knott, 193 Wis. 2d 649, 533 N.W.2d 419 (1995). See Michels, 2019 WI 57, ¶ 25, 387 Wis. 2d 1.

¹³ Wisconsin Eye Podcasts, Oral Arguments, Michels v. Lyons, Nov. 7, 2018; Michels, 2019 WI 57, 387 Wis. 2d 1.

¹⁴ Roger D.H. v. Virginia O., 2002 WI App 35, 250 Wis. 2d 747, 641 N.W.2d 440.

¹⁵ Michels, 2019 WI 57, ¶ 37, 387 Wis. 2d 1.

¹⁶ Roger D.H., 2002 WI App 235, 250 Wis. 2d 747; S.A.M v. Meister, 2016 WI 22, 367 Wis. 2d 447, 876 N.W.2d 746.

¹⁷ Michels, 2019 WI 57, ¶7, 387 Wis. 2d 1.

¹⁸ Id. ¶ 43.