Jan. 13, 2010 – A divided Wisconsin Court of Appeals struggled with the scope of grandparents’ visitation rights when a father argued that an order designating dates at which his children will be with their maternal grandparents is more like the physical placement order of a divorce judgment.

In Rick v. Opichka, 2009AP40, the court held that a family court may order a quantity of time for grandparents that is the same as the amount of time provided by a physical placement order. In either situation, “children go out of the custodial home, away from the parent with whom the children reside.”

But the court said that the two types of orders differ “qualitatively” because a family court drafting a physical placement order is required to allocate periods of physical placement between parents unless it finds that such allocation is not in the best interest of the child. By contrast, the presumption of a visitation order is that the grandparents are only entitled to what the natural parent wants to give them unless the grandparents can show that the children’s best interests are better served otherwise.

A dissenting opinion faulted the court majority for not finding a distinction between the quantities of time spent outside the custodial home under the two types of orders. The dissent argued that a visitation order that grants extensive physical placement and control with the grandparents “mimics” a physical placement order which exceeds the scope of “reasonable visitation” provided by Wis. Stat. sec. 54.56 (2).

Deceased mother

Jennifer and Jeffrey Opienka allowed their two children to spend at least one weekend a month and some weeknights with Jennifer’s parents, Michael and Mary Rick. After Jennifer died in 2006, Jeffrey Opienka allowed the Ricks to visit the children less and less. Eventually, the Ricks petitioned for grandparent visitation and Opienka objected.

After a bench trial, the family court granted the Ricks visitation during the second weekend of each month, the last Wednesday evening of each month, and one week each summer. Opienka appealed, arguing that the statute did not allow for such expansive visitation rights.

Not a Troxel case

In an opinion authored by Chief Judge Richard S. Brown, the court of appeals determined that the family court properly began its consideration of the grandparents’ petition by presuming that Jeffrey was acting in the best interests of the children. Accordingly, the court rejected Opienka’s assertion that the court had violated his fundamental right to raise his children as set forth in Troxel v. Granville, 530 U.S. 57 (2000).

In finding that the best interests of the child are served by grandparent visitation greater than that Opienka preferred, the family court looked to the evidence showing a “significant and regularly occurring relationship” between the children and the Ricks. “For example, in 2005 the boys spent at least one weekend per month sometimes more with the Ricks and these included overnights,” the family court stated.

The court of appeals explained that it would defer to the family court’s discretionary decision “so long as it examines the relevant facts, applies the proper legal standard, and uses a demonstrated rational process to reach a conclusion that a reasonable judge could reach.” In this case, the court of appeals found that there was no erroneous exercise of discretion.

Visitation versus placement

Opienka argued that the award of overnights and a week during the summer amounted to a physical placement award, putting the grandparents on equal footing with a divorced parent who does not have primary placement of the children.

“Jeffrey takes the wrong road from the start by thinking that there is a difference between the quantity of ‘physical placement’ as that term is used in Wis. Stat. § 767.001 (5) and the quantity of ‘visitation’ as that word is used in the grandparent visitation statute Wis. Stat. § 54.56,” the court of appeals said. “There is no difference.”

The court explained that neither statute discussed quantity. “Rather, physical placement and visitation are both situations where children go out of the custodial home, away from the parent with whom the children reside.”

In dissent, Judge Harry G. Snyder criticized the majority for citing no authoritative source in support of its conclusion that no difference exists between the quantities of time under the two types of orders. Snyder said that the court had distinguished between them in Lubinski v. Lubinski, 2008 WI App 151. Within that decision, Snyder noted, the court remarked, “Visitation … does not incorporate the rights associated with legal custody or physical placement.”

But the expansive visitation rights granted in this case, Snyder said, “coalesce into something indistinguishable from physical placement.”

Right to control upbringing

Within the visitation rights, the court of appeals said that the grandparents “have the responsibility to make routine daily decisions regarding the child’s care but may not make any decisions inconsistent with the major decisions made by a person having legal custody.”

Opienka argued that the family court erred by delegating major care decisions to the grandparents. The court of appeals remanded the case for clarification of the order because it was “concerned” that the order might have gone too far by authorizing the grandparents to take the children wherever they wanted – even across state lines – so long as they notified Opienka.

“We remand to the family court to clarify whether the grandparents have authority to make only the routine daily decisions and, if so, what those routine daily decisions may be,” the court wrote.

Equal protection claim

Opienka argued that sec. 54.56 violates the equal protection clause in that it unfairly treats a surviving parent differently than families in which both parents are living. Specifically, the statute permits the state to interfere with visitation of children of a surviving parent but not with those of two living parents.

The court of appeals agreed that Opienka stated a fundamental liberty interest in raising his children, but the court rejected the argument that these two types of parents are “similarly situated” for the purposes of an equal protection challenge. “[A] widowed parent has suffered the loss of his or her spouse, and therefore, the surviving parent’s family, after the loss of a spouse, is no longer a traditional intact family,” the court wrote.

“The death of a parent is the triggering event that creates a compelling state interest to protect a child’s best interest. And we conclude that this is what grandparent visitation addresses,” the court continued, addressing the strict scrutiny standard used to evaluate the state’s interference with a  parent’s fundamental right to raise children.

“Visitation allows grandparents, who have previously had a meaningful relationship with the child, to contribute to the child’s well-being by providing a sense of continuity,” the court explained. “That is why court-ordered visitation focuses on the best interests of the child, which may include visitation when the family functions as an extended family, with grandparents who have had a significant, continuing and predictable relationship with the child before the parent’s death.”

The rebuttable presumption in favor of the parent’s decision regarding visitation ensures that the visitation orders are closely tailored to further the state’s compelling interest, the court added.

By Alex De Grand, Legal Writer, State Bar of Wisconsin