and by the way, try doing a bit deeper research:
"By limiting the risk and establishing factors, including standing, each of the Wisconsin provisions is more narrow than the Washington statute. Whether the Wisconsin statutes are, in fact, narrow enough to pass constitutional muster is something only time - and future litigation - will tell."
High Court Invalidates Grandparents' Rights Law," Wisconsin Opinions, June 21, 2000.
Now read the following, not as a grandparent, but as a disinterested party, and let's see if you hit on the salient points.
Section 767.245 of the Wisconsin Statutes allows third-party visitation in divorce and paternity cases. There are really two separate statutes here, enacted at different times (1975 for sub (1), 1995 for sub (3)), but combined in the same statutory section in the family code.
Sub. (1) of the statute applies to third parties seeking visitation when parents are going through a divorce, legal separation, annulment, or independent custody action. In Van Cleve v. Hemminger,10 the requirement was added that there must be an underlying family court action pending when an action under this statute is initiated. In Van Cleve, a far-seeing trial and appellate court questioned whether the Legislature could enact a law that allowed interference in an intact family by third parties. The court answered "no" and, except for statutory changes enacted later in the case of deceased parents and a Wisconsin Supreme Court case11 creating standing for de facto parents with no place else to go, the ruling has stood.
Under sub. (1), standing is limited to a grandparent, great grandparent, stepparent or a person who has maintained a relationship similar to a parent-child relationship with the child. The "or" is important, as it appears that any of the three described relatives may petition, but that anyone else who petitions under this statute must show that she or he had maintained a relationship similar to a parent?child relationship. Thus, de facto parent status need not be shown unless the petitioner fails to meet the relationship test.
Under sub. (1), once the petitioner has cleared the standing hurdle, the standard for imposing court-ordered visitation on an unwilling, but otherwise competent parent, is simple best interest. This is the standard that the U.S. Supreme Court in Troxel held violated a fit parent's fundamental right to direct his or her child's upbringing. Unless the Legislature changes the statute, the Wisconsin appellate courts eventually will be confronted with a well-pled challenge to this law. At that point, the court can 1) ignore Troxel and invite an appeal, 2) give the statute a saving construction by defining best interest in such a way that it includes a strong presumption in favor of parental decision making, or 3) hold that the statute is simply unconstitutional and toss the issue back to the Legislature.
Sub. (3) governs grandparent petitions in paternity cases. The standing requirements, intended to reverse specific court cases, allow a petition by any grandparent so long as the parents have not married each other and the child has not been adopted. In the case of a paternal grandparent, paternity must have been established, either separately or in the visitation action itself. The statute also requires that the grandparent has maintained or attempted to maintain "a relationship" with the child, but has been prevented from doing so by the legal custodian. There is no requirement that the grandparent show that she or he has acted as a de facto parent.
As to the standard, it is something more than best interest. There is a requirement that the court find that "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."12
This standard, combined with the limited standing - grandparents only - probably will allow the statute to survive constitutional challenge, even though there is no explicit presumption in favor of deferring to the parent's wishes regarding the placement itself.
Section 767.245 also contains a recently enacted prohibition against allowing placement to a grandparent who has killed one of the parents, absent the meeting of a very high burden. That prohibition also should survive judicial scrutiny,13 because the burden is on the grandparent to prove by clear and convincing evidence that the visitation is in the child's best interests.
