In re Marriage of Meister, 040716 WISC, 2014AP1283

Court:Supreme Court of Wisconsin
Attorney:For the appellants-petitioners, there were briefs by Jennifer Weber and Zick & Weber Law Offices, LLP, Johnson Creek, and oral argument by Jennifer Weber. For the respondent, there was a brief by Andrew R. Griggs, Neuberger, Griggs, Sweet & Smith, LLP, Watertown, and oral argument by Andrew R. Gr...
Judge Panel:REBECCA G. BRADLEY, J., did not participate. SHIRLEY S. ABRAHAMSON, J. (concurring). ANNETTE KINGSLAND ZIEGLER, J. (concurring).
Opinion Judge:DAVID T. PROSSER, J.
Party Name:In re the marriage of: Nancy M. Meister and Jay E. Meister: v. Nancy M. Meister, Respondent. S.A.M., A.L.M., O.M.M. and J.E.M., minors, by their guardian ad litem, Jennifer Weber, Appellants-Petitioners,
Case Date:April 07, 2016
Docket Nº:2014AP1283
 
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2016 WI 22

In re the marriage of: Nancy M. Meister and Jay E. Meister:

S.A.M., A.L.M., O.M.M. and J.E.M., minors, by their guardian ad litem, Jennifer Weber, Appellants-Petitioners,

v.

Nancy M. Meister, Respondent.

No. 2014AP1283

Supreme Court of Wisconsin

April 7, 2016

          ORAL ARGUMENT: October 6, 2015

         CIRCUIT COURT JEFFERSON COUNTY, (L.C. No. 2011FA335) WILLIAM F. HUE JUDGE

          For the appellants-petitioners, there were briefs by Jennifer Weber and Zick & Weber Law Offices, LLP, Johnson Creek, and oral argument by Jennifer Weber.

          For the respondent, there was a brief by Andrew R. Griggs, Neuberger, Griggs, Sweet & Smith, LLP, Watertown, and oral argument by Andrew R. Griggs.

          DAVID T. PROSSER, J.

         ¶1 This is a review of an unpublished decision of the court of appeals affirming a circuit court order denying a grandmother's motion for visitation rights.1

         ¶2 The case requires us to interpret Wis.Stat. § 767.43(1) (2013-14), 2 which allows certain categories of individuals to petition for the right to visit children--usually following the dissolution of a marriage. Under the statute, a "grandparent, greatgrandparent, stepparent or person who has maintained a relationship similar to a parent-child relationship with the child" may file a motion for visitation rights. We must determine whether the "parent-child relationship" requirement applies only to the "person" category listed in the statute, or whether it applies to a "grandparent, greatgrandparent, [and] stepparent" as well.

         ¶3 The case arose after Carol Meister filed a motion for the right to visit her four grandchildren in the wake of her son Jay Meister's divorce from Nancy Meister.3 A family court commissioner for the Jefferson County Circuit Court initially granted the motion, but the circuit court denied the motion on de novo review. Reading Wis.Stat. § 767.43(1) as requiring every petitioner under this subsection to demonstrate a parent-child relationship with the child, the circuit court concluded that Carol's supportive relationship with the children did not elevate her to a parent-like role in their lives.

         ¶4 The Meister children appealed, and the court of appeals affirmed, citing its decision in Rogers v. Rogers, 2007 WI App. 50, 300 Wis.2d 532, 731 N.W.2d 347, as controlling. In Rogers, the court of appeals stated that grandparents filing a motion under Wis.Stat. § 767.43(1) must prove "a parent-like relationship" with the child in order to secure visitation rights. Rogers, 300 Wis.2d 532, ¶11.

         ¶5 Before this court, the Meister children argue that the court of appeals misinterpreted Wis.Stat. § 767.43(1) in Rogers. They assert that the phrase "who has maintained a relationship similar to a parent-child relationship with the child" applies only to a person other than a grandparent, greatgrandparent, or stepparent filing a motion for visitation under the subsection. Nancy counters that reading the subsection to allow courts to grant visitation rights to grandparents, greatgrandparents, and stepparents based solely on a best interest of the child determination would intrude on parents' fundamental due process rights to direct the care, custody, and control of their children.

         ¶6 We conclude that Wis.Stat. § 767.43(1) does not require a grandparent, greatgrandparent, or stepparent who files a motion for visitation rights under this subsection to prove that he or she "has maintained a relationship similar to a parent-child relationship with the child." Rather, the parent-child relationship element applies only to a "person" seeking visitation rights who is not a grandparent, greatgrandparent, or stepparent. Additionally, we conclude that the legislature's decision to allow courts to grant visitation rights to grandparents, greatgrandparents, and stepparents when visitation is in the best interest of the child does not unconstitutionally infringe on parents' constitutional rights because any best interest determination must give special weight to a fit parent's decisions regarding the child's best interest. Consequently, the decision of the court of appeals is reversed.

         I. FACTUAL BACKGROUND AND PROCEDURAL HISTORY

         ¶7 Nancy and Jay Meister married in February 2002. They were divorced in Jefferson County Circuit Court in February 2013. Nancy and Jay are parents of four minor children: S.A.M., A.L.M., O.M.M., and J.E.M.

         ¶8 By the terms of their divorce judgment and incorporated marital settlement agreement, Nancy and Jay agreed to joint legal custody of their children. Nancy received impasse-breaking authority and primary physical placement, while Jay received regular weekday and weekend placement. In addition to the weekly plan, Nancy and Jay agreed to an extensive placement schedule for holidays, special occasions, and vacations. The agreement included an approximately equal division of major holidays between Nancy and Jay each year; Nancy and Jay switch between various holidays in even and odd years. The plan also guaranteed a week of exclusive time with the children for each parent during the summer.

         ¶9 In July 2013 the children's paternal grandmother, Carol Meister, filed a motion asking that the court establish visitation rights for her under Wis.Stat. § 767.43(1) on the basis of her grandparent relationship with the children. Her motion indicated that she decided to file the petition in response to changes Nancy had made to Carol's informal visitation with them.4 Carol sought six visits per year, the right to arrange visits with Jay and Nancy using an online family scheduling portal, and the right to regular phone calls with the children.

         ¶10 After holding a hearing on the motion, a family court commissioner5 issued an order in November 2013 granting Carol's motion for visitation. The commissioner read Wis.Stat. § 767.43(1) as "requir[ing] that the grandparent have a relationship similar to a parent-child relationship" in order to secure visitation rights. However, the commissioner found that a relationship similar to a parent-child relationship existed between Carol and her grandchildren, and he granted Carol one week of placement at her home in Ohio each summer, four three-day placements in Wisconsin throughout the year, and access to the online portal to arrange her visits with Nancy and Jay.6

         ¶11 Pursuant to Wis.Stat. § 767.17, Nancy requested that the circuit court review the commissioner's order. On review, the circuit court7 conducted a hearing to expand the record regarding Carol's relationship with her grandchildren. Carol traveled from Ohio to Wisconsin to testify at the hearing. Appearing without an attorney, she engaged in an extended conversation with the circuit court regarding her relationship with the children.

         ¶12 Over the course of her testimony, Carol described the supportive role she played in her grandchildren's lives. She began by explaining how, drawing on her own experience as a teacher, she tutored them in various subjects during a vacation to Florida in 2012 and during the children's spring break in 2013. As she continued, she mentioned that she frequently purchased food and clothing for them when they visited her in Ohio and when she visited them in Wisconsin. She emphasized that, even when she was physically distant from the children, she played an important consultative role for them and for their father, helping the children with homework by phone and providing Jay with general parenting advice. The children called her "frequently, almost daily sometimes, " when staying with their father.

         ¶13 Given that Carol appeared pro se and that the children's guardian ad litem--who supported the commissioner's order--was unable to attend the hearing, the circuit court helped to guide Carol's testimony by asking multiple questions about whether Carol had ever lived with the children. The questions focused on determining whether Carol's was the type of case in which "the parents [had] . . . relinquish[ed] their parental duties to the grandparent for some prolonged period of time and . . . the grandparent then [was] acting as the parent." After hearing Carol's testimony, the circuit court expressed concern about taking the "extraordinary step" of concluding that a parent-child relationship sufficient for visitation existed where a grandmother had such a "staggered" relationship with the grandchildren. But, reluctant to reverse the commissioner without hearing from an attorney advocating in favor of Carol's visitation motion, the circuit court decided to schedule a second hearing so that the children's guardian ad litem could attend.

         ¶14 At the second hearing in January 2014, the guardian ad litem argued that, although Carol may not be a primary parent, she nevertheless had a relationship with the children similar to that of a parent who lived out of state. Arguing that "[t]he statute does not require [Carol] to elevate to the status of primary parent, " the guardian ad litem observed that "if Mr. Meister relocated to the State of Ohio and had that same relationship that his mother [had] . . . with the children, he's still a parent."

         ¶15 After taking the matter under consideration, the circuit court issued a May 2014 order denying Carol's motion. An accompanying memorandum decision explained that the court concluded that Carol was "ineligible for an award of grandparent visitation" because she "did not have a relationship similar to a parent-child relationship" with her grandchildren.

         ¶16 The children, by their guardian ad litem, appealed the circuit court's denial of their grandmother's motion.8 Before the court of appeals, the children...

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