Michels v. Lyons (In re Visitation of A. A. L.), No. 2017AP1142

CourtUnited States State Supreme Court of Wisconsin
Writing for the CourtREBECCA FRANK DALLET, J.
Citation387 Wis.2d 1,927 N.W.2d 486,2019 WI 57
Docket NumberNo. 2017AP1142
Decision Date24 May 2019
Parties In the MATTER OF the Grandparental VISITATION OF A. A. L.: In re the Paternity of A. A. L.: Cacie M. Michels, Petitioner-Appellant, v. Keaton L. Lyons, Respondent-Appellant, Jill R. Kelsey, Petitioner-Respondent.

387 Wis.2d 1
927 N.W.2d 486
2019 WI 57

In the MATTER OF the Grandparental VISITATION OF A. A. L.:

In re the Paternity of A. A. L.:

Cacie M. Michels, Petitioner-Appellant,
v.
Keaton L. Lyons, Respondent-Appellant,

Jill R. Kelsey, Petitioner-Respondent.

No. 2017AP1142

Supreme Court of Wisconsin.

Oral Argument: November 7, 2018
Opinion Filed: May 24, 2019


ON CERTIFICATION FROM THE COURT OF APPEALS

REBECCA FRANK DALLET, J.

927 N.W.2d 489
387 Wis.2d 8

¶1 We accepted certification from the court of appeals to clarify the standard of proof required for a grandparent to overcome the presumption that a fit parent's visitation decision is in the child's best interest.1 We further resolve an interrelated challenge to the constitutionality of Wis. Stat. § 767.43(3) (2015-16),2 (the "Grandparent Visitation Statute") as applied to a circuit court order granting a petition for visitation over the objection of two fit parents.3

¶2 We recognize that a fit parent has a fundamental liberty interest in the care and upbringing of his or her child and therefore, the Grandparent Visitation Statute must withstand strict scrutiny. We confirm that the Grandparent Visitation Statute is

387 Wis.2d 9

facially constitutional because there are circumstances under which the law can be constitutionally enforced. We determine that the Grandparent Visitation Statute is narrowly tailored to further a compelling state interest because a grandparent must overcome the presumption in favor of a fit parent's visitation decision with clear and convincing evidence that the decision is not in the child's best interest. Lastly, we conclude that the Grandparent Visitation Statute is unconstitutional as applied because Kelsey did not overcome the presumption in favor of Lyons and Michels' visitation decision with clear and convincing evidence that their decision is not in A.A.L.'s best interest. The order of the circuit court is vacated.

I. FACTUAL BACKGROUND AND PROCEDURAL POSTURE

¶3 This case arises out of a dispute between the parents of A.A.L., Cacie Michels and Keaton Lyons, and Lyons' mother Jill Kelsey. Lyons and Michels were never married but lived together when A.A.L. was born in October 2009 until they broke up in late 2011. Since then, Michels has had primary custody of A.A.L. and

927 N.W.2d 490

Lyons has had extended periods of placement. Prior to A.A.L. starting kindergarten in the fall of 2015, A.A.L. spent a significant amount of time with Kelsey, including overnight stays. After A.A.L. started kindergarten, Lyons and Michels agreed to reduce the amount of time A.A.L. spent with Kelsey in order to accommodate A.A.L.'s new commitments with school and friends, as well as her previously agreed upon placement time with Lyons on alternate weekends.

¶4 At the end of 2015, Kelsey's relationship with Lyons and Michels began to deteriorate due to a disagreement over a proposed vacation to Disney World

387 Wis.2d 10

and Kelsey's decreased visitation time with A.A.L. Even though the relationship was deteriorating, Lyons and Michels still arranged for Kelsey to spend time with A.A.L. Shortly thereafter, Kelsey intervened in Michels' paternity action and filed a petition for additional visitation pursuant to the Grandparent Visitation Statute.

¶5 At the court trial, Lyons and Michels testified that they decided to decrease Kelsey's visitation time because of the strain on A.A.L.'s schedule. They also expressed concern over Kelsey's judgment, as she allowed A.A.L. to ride a horse without a safety helmet, contrary to their explicit instructions, and she gave four-year-old A.A.L. a sip of alcohol. Both Lyons and Michels testified that granting Kelsey's petition is not in A.A.L.'s best interest. However, both Lyons and Michels also testified that they would not completely eliminate Kelsey's visitation with A.A.L. unless they felt that visitation was unhealthy for A.A.L. or not in her best interest.

¶6 Lyons and Michels also testified at the court trial about a gentleman's agreement that the parties had in place after September 2016. Kelsey was allowed to see A.A.L. every other weekend for five hours, which occurred during the weekends when Lyons had his placement time with A.A.L. Lyons and Michels expressed their frustration with A.A.L. splitting time between three households, as it was difficult and exhausting for her. Lyons also testified about his frustration with the schedule because it was not beneficial for his relationship with A.A.L. Both Lyons and Michels indicated that they preferred an informal schedule they could set themselves to accommodate all of A.A.L.'s commitments and let them "make decisions for [their child] as parents do."

387 Wis.2d 11

¶7 Despite finding that Lyons and Michels were not only fit parents but "good parents," the circuit court granted Kelsey's petition. The circuit court ordered visitation at least one Sunday each month for five hours and granted Kelsey "a seven-day period during [A.A.L.'s] summer vacation whereby she may take [A.A.L.] to Disney World or other vacation."

¶8 Lyons and Michels moved for reconsideration of the circuit court's order, asserting that the order violated their due process rights. The circuit court denied the motion and decided that pursuant to Roger D.H. v. Virginia O., 2002 WI App 35, 250 Wis. 2d 747, 641 N.W.2d 440, it could constitutionally overrule Lyons and Michels' visitation decision as long as it applied a presumption in their favor and determined that visitation was in A.A.L.'s best interest.4

¶9 The court of appeals certified an appeal to this court to clarify the standard of proof required for a grandparent to overcome the presumption that a fit parent's visitation decision is in the child's best

927 N.W.2d 491

interest. Additionally, the court of appeals asked for clarification as to the impact this court's holding would have on the Meister, Martin L., and Roger D.H. cases. S.A.M. v. Meister, 2016 WI 22, 367 Wis. 2d 447, 876 N.W.2d 746 ; Martin L. v. Julie R.L., 2007 WI App 37, 299 Wis. 2d 768, 731 N.W.2d 288 ; Roger D.H., 250 Wis. 2d 747, 641 N.W.2d 440. In addition to answering these questions, we resolve Lyons and Michels' challenge to the constitutionality of the Grandparent Visitation Statute as applied to the circuit court order overruling their decision regarding the care and upbringing of A.A.L.

387 Wis.2d 12

II. STANDARD OF REVIEW

¶10 Lyons and Michels assert that the Grandparent Visitation Statute is unconstitutional as applied because it violates their substantive due process rights protected by the Fourteenth Amendment to the United States Constitution. State v. Wood, 2010 WI 17, ¶17, 323 Wis. 2d 321, 780 N.W.2d 63. The Fourteenth Amendment provides that no State shall "deprive any person of life, liberty, or property, without due process of law." U.S. Const. amend. XIV. The United States Supreme Court has long recognized that the Fourteenth Amendment's Due Process Clause includes a substantive component that "provides heightened protection against government interference with certain fundamental rights and liberty interests." Washington v. Glucksberg, 521 U.S. 702, 720, 117 S. Ct. 2258, 138 L.Ed.2d 772 (1997) ; see also Monroe Cty. Dep't of Human Servs. v. Kelli B., 2004 WI 48, ¶19, 271 Wis. 2d 51, 678 N.W.2d 831. "An individual's substantive due process rights protect against a state action that is arbitrary, wrong, or oppressive ...." Wood, 323 Wis. 2d 321, ¶17, 780 N.W.2d 63. "A court's task in a challenge based on substantive due process ‘involves a definition of th[e] protected constitutional interest, as well as identification of the conditions under which competing state interests might outweigh it.’ " Id., ¶18 (quoted source omitted).

¶11 There are two major types of constitutional challenges: facial and as-applied. Tammy W-G. v. Jacob T., 2011 WI 30, ¶46, 333 Wis. 2d 273, 797 N.W.2d 854. "When a party challenges a law as being unconstitutional on its face, he or she must show that the law cannot be enforced ‘under any circumstances.’ "

387 Wis.2d 13

Mayo v. Wisconsin Injured Patients and Families Comp. Fund, 2018 WI 78, ¶33, 383 Wis. 2d 1, 914 N.W.2d 678 (quoted source omitted). On the other hand, in an as-applied challenge, we consider the facts of the particular case in front of us and "the challenger must show that his or her constitutional rights were actually violated." Wood, 323 Wis. 2d 321, ¶13, 780 N.W.2d 63.

¶12 Whether a statute, as applied, violates the constitutional right to due process is a question of law that this court reviews de novo. Kelli B., 271 Wis. 2d 51, ¶16, 678 N.W.2d 831. In an as-applied challenge, this court presumes that the statute is constitutional, but does not presume that the State applied the statute in a constitutional manner. Tammy W-G., 333 Wis. 2d 273, ¶48, 797 N.W.2d 854. To prevail on an as-applied challenge, the challenging party "must prove beyond a reasonable...

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7 practice notes
  • Winnebago Cnty. v. C.S. (In re C.S.), No. 2016AP1982
    • United States
    • United States State Supreme Court of Wisconsin
    • April 10, 2020
    ...power to justify the involuntary medication of an inmate based on incompetence to refuse medication only.1 See also Michels v. Lyons, 2019 WI 57, ¶60, 387 Wis. 2d 1, 927 N.W.2d 486 (Rebecca Grassl Bradley, J., concurring).2 See National Fed’n of Indep. Bus. v. Sebelius, 567 U.S. 519, 538, 1......
  • State v. Prado, No. 2016AP308-CR
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    ...enforced under any circumstances. State v. Roundtree, 2021 WI 1, ¶17, 395 Wis. 2d 94, 952 N.W.2d 765 (citing Michels v. Lyons, 2019 WI 57, ¶11, 387 Wis. 2d 1, 927 N.W.2d 486 ).13 The Fourth Amendment to the United States Constitution sets forth:The right of the people to be secure in their ......
  • State v. Roundtree, No. 2018AP594-CR
    • United States
    • United States State Supreme Court of Wisconsin
    • January 7, 2021
    ...is unconstitutional as applied to him. There are two major types of constitutional challenges: facial and as-applied. Michels v. Lyons, 2019 WI 57, ¶11, 387 Wis. 2d 1, 927 N.W.2d 486. A party challenging a law as unconstitutional on its face must show that the law cannot be constitutionally......
  • Doe v. Madison Metro. Sch. Dist., 2020AP1032
    • United States
    • United States State Supreme Court of Wisconsin
    • July 8, 2022
    ...right under Article I, Section 1 of the Wisconsin Constitution and the Due Process Clause of the Fourteenth Amendment. Michels v. Lyons, 2019 WI 57, ¶15, 387 Wis. 2d 1, 927 N.W.2d 486 ; Jackson v. Benson, 218 Wis. 2d 835, 879, 578 N.W.2d 602 (1998) ; Wis. Indus. Sch. for Girls v. Clark Cnty......
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6 cases
  • Winnebago Cnty. v. C.S. (In re C.S.), No. 2016AP1982
    • United States
    • United States State Supreme Court of Wisconsin
    • April 10, 2020
    ...power to justify the involuntary medication of an inmate based on incompetence to refuse medication only.1 See also Michels v. Lyons, 2019 WI 57, ¶60, 387 Wis. 2d 1, 927 N.W.2d 486 (Rebecca Grassl Bradley, J., concurring).2 See National Fed’n of Indep. Bus. v. Sebelius, 567 U.S. 519, 538, 1......
  • State v. Prado, No. 2016AP308-CR
    • United States
    • United States State Supreme Court of Wisconsin
    • June 18, 2021
    ...enforced under any circumstances. State v. Roundtree, 2021 WI 1, ¶17, 395 Wis. 2d 94, 952 N.W.2d 765 (citing Michels v. Lyons, 2019 WI 57, ¶11, 387 Wis. 2d 1, 927 N.W.2d 486 ).13 The Fourth Amendment to the United States Constitution sets forth:The right of the people to be secure in their ......
  • State v. Roundtree, No. 2018AP594-CR
    • United States
    • United States State Supreme Court of Wisconsin
    • January 7, 2021
    ...is unconstitutional as applied to him. There are two major types of constitutional challenges: facial and as-applied. Michels v. Lyons, 2019 WI 57, ¶11, 387 Wis. 2d 1, 927 N.W.2d 486. A party challenging a law as unconstitutional on its face must show that the law cannot be constitutionally......
  • Eau Claire Cnty. Dep't of Human Servs. v. S.E. (In re T.L.E.-C.), No. 2019AP894
    • United States
    • United States State Supreme Court of Wisconsin
    • June 10, 2021
    ...Parents have a fundamental right to make decisions as to the "care, custody, and control" of their children. Michels v. Lyons, 2019 WI 57, ¶15, 387 Wis. 2d 1, 927 N.W.2d 486 (adding that this is " ‘perhaps the oldest of the fundamental liberty interests recognized’ by the United States Supr......
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