                                                                  2019 WI 57

                  SUPREME COURT             OF   WISCONSIN
CASE NO.:               2017AP1142
COMPLETE TITLE:         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.

                           ON CERTIFICATION FROM THE COURT OF APPEALS


OPINION FILED:          May 24, 2019
SUBMITTED ON BRIEFS:
ORAL ARGUMENT:          November 7, 2018

SOURCE OF APPEAL:
   COURT:               Circuit
   COUNTY:              Chippewa
   JUDGE:               James M. Isaacson

JUSTICES:
   CONCURRED:           R.G. BRADLEY, J. concurs, joined by KELLY, J.
                        (opinion filed).
  DISSENTED:
  NOT PARTICIPATING:


ATTORNEYS:


       For        the   petitioner-appellant     and   respondent-appellant,
there were briefs filed by Ryan J. Steffes and Weld Riley, S.C.,
Eau Claire. There was an oral argument by Ryan J. Steffes.


       For the petitioner-respondent, there was a brief filed by
Jeffrey A. Mandell, Eileen M. Kelley, Anthony J. Menting, and
Stafford Rosenbaum LLP, Madison. There was an oral argument by
Jeffrey A. Mandell.
     An amicus curiae brief was filed on behalf of State of
Wisconsin by Kevin M. LeRoy, deputy solicitor general, with whom
on the brief was Brad D. Schimel, attorney general, and Misha
Tseytlin, solicitor general. There was an oral argument by Kevin
M. LeRoy.


     An amicus curiae brief was filed on behalf of Legal Aid
Society   of    Milwaukee,      Inc.    by   Karen        Kotecki    and     Legal    Aid
Society of Milwaukee, Milwaukee.


     An amicus curiae brief was filed in the court of appeal on
behalf    of    National      Association      of     Parents,      Inc.     by    Janet
McDonough and National Association of Parents, Inc., Chippewa
Falls.


    An      amicus    curiae    brief    was        filed    on     behalf    of     Cato
Institute      by    Joseph    S.   Diedrich        and     Husch    Blackwell       LLP,
Madison; with whom on the brief was Ilya Shapiro, Washington,
District of Columbia.


     An amicus curiae brief was filed on behalf of Grandparents
Advocate of America, Inc. and Alienated Grandparents Anonymous,
Incorporated by John S. Skilton, David R. Pekarek Krohn, Emily
J. Greb, and Perkins Coie LLP, Madison.




                                         2
                                                                            2019 WI 57
                                                                    NOTICE
                                                     This opinion is subject to further
                                                     editing and modification.   The final
                                                     version will appear in the bound
                                                     volume of the official reports.
No.    2017AP1142
(L.C. No.    2010FA206)

STATE OF WISCONSIN                              :             IN SUPREME COURT

In the matter of the grandparental visitation
of A. A. L.:
In re the Paternity of A. A. L.:

Cacie M. Michels,

             Petitioner-Appellant,
                                                                         FILED
       v.                                                           MAY 24, 2019

Keaton L. Lyons,                                                       Sheila T. Reiff
                                                                    Clerk of Supreme Court

             Respondent-Appellant,

Jill R. Kelsey,

             Petitioner-Respondent.




       APPEAL from an        order    of the    Circuit Court           for Chippewa
County, James M. Isaacson, Judge.           Vacated.


       ¶1    REBECCA FRANK DALLET, J.            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
                                                                         No.    2017AP1142



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      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



      1Michels   v.    Lyons,    No.   2017AP1142,                           unpublished
certification (Wis. Ct. App. May 8, 2018).
      2All subsequent references to the Wisconsin Statutes are to
the 2015-16 version unless otherwise indicated.
      3The Honorable James M. Isaacson of Chippewa County Circuit
Court presided.


                                             2
                                                                               No.   2017AP1142



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 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     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
                                                3
                                                                        No.        2017AP1142



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."
      ¶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."
                                            4
                                                                       No.    2017AP1142



     ¶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 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.                              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.



     4 In its order regarding Lyons and Michels' motion for
reconsideration, the circuit court limited the date range for
Kelsey's summer trip with A.A.L. and provided some guidelines as
to the trip.


                                          5
                                                                          No.     2017AP1142



                            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 (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.                   "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
                                            6
                                                                           No.     2017AP1142



she   must    show    that       the   law       cannot    be    enforced     'under      any
circumstances.'"            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.
      ¶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.                 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.           To prevail on an as-applied challenge, the
challenging party "must prove beyond a reasonable doubt that as
applied to him or her the statute is unconstitutional."                                  Mayo,
383 Wis. 2d 1, ¶58.             If successful, the operation of law is void
only as to the challenging party.                  Wood, 323 Wis. 2d 321, ¶13.
      ¶13    Lyons    and       Michels     challenge       the    interpretation         and
application of the Grandparent Visitation Statute, which reads:

      (3) 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.




                                             7
                                                                      No.        2017AP1142


       (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.
Wis.   Stat.     § 767.43(3).        The       meaning    and   application            of   a
statute are questions of law that this court reviews de novo.
Meister, 367 Wis. 2d 447, ¶19.
                                III.      ANALYSIS
       ¶14   We first recognize the fundamental liberty interest at
stake and establish the appropriate level of scrutiny to apply
to the Grandparent Visitation Statute.                    We then determine the
constitutionality of the Grandparent Visitation Statute facially
and as applied and, as a part of the analysis, we answer the
certified question.
             A. Lyons and Michels have a fundamental liberty
              interest in the care and upbringing of A.A.L.
       ¶15   Lyons and Michels assert that they have a fundamental
liberty      interest   in    the      care       and     upbringing        of     A.A.L.
and contend that the circuit court infringed upon this interest
when it overruled their decision regarding A.A.L.'s visitation


                                           8
                                                                      No.    2017AP1142



with Kelsey.          "[T]he interest of parents in the care, custody,
and control of their children [] is perhaps the oldest of the
fundamental liberty interests recognized" by the United States
Supreme Court.          Troxel v. Granville, 530 U.S. 57, 65 (2000).

This fundamental liberty protected by the Due Process Clause
includes the right of parents to "establish a home and bring up
children," Meyer v. Nebraska, 262 U.S. 390, 399 (1923), and "to
direct    the      upbringing   and    education     of    children    under       their
control."          Pierce v. Society of Sisters, 268 U.S. 510, 534-35
(1925).       See also Santosky v. Kramer, 455 U.S. 745, 753 (1982)
(noting        the     United      States       Supreme    Court's      "historical
recognition that freedom of personal choice in matters of family

life     is    a     fundamental    liberty       interest    protected       by    the
Fourteenth Amendment"); Prince v. Massachusetts, 321 U.S. 158,
166 (1944) (acknowledging the existence of a "private realm of
family life which the state cannot enter.")
       ¶16     In Troxel, a plurality of the United States Supreme
Court concluded that a Washington statute allowing a court to
grant third-party visitation whenever "visitation may serve the
best interest of the child" violated a fit parent's due process
right    to     make    decisions     concerning     the     care,    custody,      and
control of her daughters.             Troxel, 530 U.S. at 61.               The Troxel
court held that "so long as a parent adequately cares for his or
her children (i.e., is fit), there will normally be no reason
for the State to inject itself into the private realm of the
family to further question the ability of that parent."                        Id. at
68-69.        A majority of the United States Supreme Court Justices
                                            9
                                                                                    No.     2017AP1142



in Troxel recognized that a fit parent's fundamental right to

direct the upbringing of his or her child is implicated where a
non-parent third-party petitions for visitation.5
        ¶17       When faced with the question of whether a parent who
has    developed          a    relationship         with    his        or    her    child        has    a
fundamental liberty interest in the child's care and upbringing,
this court has answered in the affirmative.                                   See, e.g., Tammy
W-G.,       333    Wis.       2d    273,    ¶52    ("Parents       who       have      developed       a
relationship         with          their    children      have     a    fundamental          liberty
interest in the 'care, custody, and control of their children.'"
(quoted source omitted)); Kenosha Cty. Dep't of Human Servs. v.
Jodie W., 2006 WI 93, ¶41, 293 Wis. 2d 530, 716 N.W.2d 845

("Because [the mother] has a fundamental liberty interest in
parenting         [her        son],    any    statute       that       infringes          upon    this
interest is subject to strict scrutiny review"); Kelli B., 271
Wis. 2d 51, ¶23 ("[T]he question is whether a parent who has a
substantial relationship with his or her child has a fundamental
liberty interest in parenting the child. Our case law recognizes
this        fundamental        liberty       interest.").              We    conclude       that       in
accordance         with       jurisprudence        from     the    United          States    Supreme
Court       and    this       court,       Lyons   and     Michels          have   a   fundamental
liberty interest in the care and upbringing of A.A.L.



        5
       Troxel v. Granville, 530 U.S. 57, 67-68 (2000) (O'Connor,
J., Rehnquist, J., Ginsburg, J., Breyer, J.), 77-79 (Souter, J.,
concurring), 80 (Thomas, J., concurring), 95 (Kennedy, J.,
dissenting).


                                                   10
                                                                     No.    2017AP1142


      B. The Grandparent Visitation Statute must withstand strict
        scrutiny because it directly and substantially infringes
                  upon a fundamental liberty interest.
        ¶18    A statute which directly and substantially infringes
upon     a    fundamental     liberty    interest        must   withstand       strict
scrutiny:        it must be narrowly tailored to serve a compelling
state interest.         See, e.g., Reno v. Flores, 507 U.S. 292, 302
(1993).       Although Kelsey seemingly acknowledges that Lyons and
Michels       have a fundamental        liberty    interest     in the      care and
upbringing of A.A.L., she asserts that this court should not

apply strict scrutiny because this was a "minor intrusion" on a
fundamental       liberty    interest.         Kelsey    relies     on    the   Troxel
plurality, which avoided "the precise scope of the parental due
process right in the visitation context."                     Troxel, 530 U.S. at
73.
        ¶19    Because matters involving visitation occur on a case-
by-case       basis,   the   Troxel   court     was     "hesitant    to    hold   that
specific nonparental visitation statutes violate the Due Process
Clause as a per se matter."              Id.    The plurality in Troxel thus
left    the    constitutionality        of   any   specific     statute     awarding

visitation to be determined by a state court based upon the
manner in which the statute is applied.                 Id.
        ¶20    Although the Troxel plurality did not employ a strict
scrutiny analysis in striking down a broad-sweeping third-party




                                         11
                                                                          No.     2017AP1142



visitation statute,6 the United States Supreme Court reaffirmed
in Troxel that "the Due Process Clause does not permit a State

to infringe on the fundamental right of parents to make child
rearing     decisions       simply    because       a    state    judge     believes       a
'better' decision could be made."                   Id. at 72-73.               The Troxel
court held that if a fit parent's decision regarding grandparent
visitation becomes subject to judicial review, a court must give
"special weight" to a parent's determination of what is in the
child's best interest.          Id. at 68-70.
      ¶21   Post-Troxel,        the     majority         of      courts         that    have
considered this issue have concluded that statutes permitting a
grandparent      to    petition       for    visitation          infringe        upon   the

fundamental right to parental autonomy and therefore are subject
to strict scrutiny.          See, e.g., Moriarty v. Bradt, 827 A.2d 203,
222 (N.J. 2003) ("Because the Grandparent Visitation Statute is
an   incursion    on    a    fundamental         right   (the     right    to     parental
autonomy) . . . it is subject to strict scrutiny and must be
narrowly tailored to advance a compelling state interest"); see
also Doe v. Doe, 172 P.3d 1067 (Haw. 2007); Koshko v. Haining,
921 A.2d 171 (Md. 2007); Howard v. Howard, 661 N.W.2d 183 (Iowa
2003); Roth v. Weston, 789 A.2d 431 (Conn. 2002).



      6However, Justice Clarence Thomas in his Troxel concurrence
made clear that he would apply strict scrutiny: "[T]he State of
Washington lacks even a legitimate governmental interest——to say
nothing of a compelling one——in second-guessing a fit parent's
decision regarding visitation with third parties." Troxel, 530
U.S. at 80.


                                            12
                                                                       No.     2017AP1142



       ¶22    We conclude that        because   the       Grandparent        Visitation
Statute      directly   and   substantially     implicates         a     fit   parent's
fundamental liberty interest in the care and upbringing of his
or her child, it is subject to strict scrutiny review.

     C. We confirm that the Grandparent Visitation Statute is
  facially constitutional because there are circumstances under
          which the law can be constitutionally enforced.
       ¶23    When we apply strict scrutiny to a statute, we will
conclude it is facially constitutional only if it is narrowly

tailored to further a compelling state interest.                       See Milwaukee

Branch of NAACP v. Walker, 2014 WI 98, ¶22, 357 Wis. 2d 469, 851
N.W.2d 262.       Kelsey      asserts   that    the       Grandparent        Visitation
Statute furthers a compelling state interest "to contribute to
the   child's     well-being     by   providing       a    sense    of    continuity"
within a non-intact family.7            Kelsey further maintains that the
rebuttable presumption that a fit parent's decision regarding
grandparent visitation is in the best interest of the child as
set forth in Roger D.H., 250 Wis. 2d 747, ¶¶19-21, ensures that
visitation orders are narrowly tailored to achieve this purpose.
In    Roger    D.H.,    the   court   of    appeals       saved    the    Grandparent
Visitation Statute from facial invalidity by reading into the
statute a requirement that circuit courts apply the presumption

       7
       We recognize that there may be substantial benefits to a
child to have close and sustained ties with extended family and
that grandparents can serve an important role in a child's life.
See, e.g., Roth v. Weston, 789 A.2d 431, 447 (Conn. 2002). We
also recognize that in many families the preservation of
intergenerational relationships has value as a social ideal.
See Herbst v. Sayre, 971 P.2d 395, 399 (Okla. 1998).


                                           13
                                                                                 No.     2017AP1142



that a fit parent's visitation decision is in the best interest
of his or her child, in accordance with Troxel.8                                 Roger D.H, 250

Wis.       2d   747,       ¶12.      According         to      Kelsey,    the      presumption,
followed by the best interest inquiry, resulted in a grandparent
visitation order in this                   case       that was narrowly tailored                to
protect Lyons and Michels' fundamental liberty interest in the
care and upbringing of A.A.L.
       ¶24      The    State       must    respect         a   fit   parent's       fundamental
liberty interest to make decisions regarding the care, custody,
and    control        of     his   or     her    child,        yet   also       recognize     when
intervention           may    be     necessary         to      protect      a    child's      best
interest.        Where a child's physical or mental health or welfare

is    in    jeopardy,        the    State       has    a    well-established           legitimate
interest        under       its    parens       patriae         power,    acting       from    the
viewpoint and in the interest of the child.                               See Santosky, 455
U.S. at 766; see also Parham v. J.R., 442 U.S. 584, 603 (1979)
("[A] state is not without constitutional control over parental
discretion       in     dealing         with    children         when    their     physical     or
mental      health      is    jeopardized.").                  Pursuant     to    this    court's
jurisprudence, visitation law is "concerned with identifying the
triggering events that may justify state intervention," which



       8
       In Roger D.H. v. Virginia O., 2002 WI App 35, ¶19, 250
Wis. 2d 747, 641 N.W.2d 440, the court of appeals concluded that
the circuit court improperly read into Wis. Stat. § 767.245(3),
the prior version of the Grandparent Visitation Statute, a
requirement that a circuit court find a parent unfit prior to
interfering with the parent's visitation decision.


                                                 14
                                                          No.   2017AP1142



must be more than a claim that third-party visitation is in a
child's best interest.     See Holtzman v. Knott, 193 Wis. 2d 649,
668, 533 N.W.2d 419 (1995).
     ¶25    Historically, there have been three main avenues to
achieving grandparent visitation, now codified at:              (1) Wis.
Stat. § 48.925, which allows a relative who has maintained a
relationship with a child similar to a parent-child relationship
to   seek   visitation   after   a   child   has   been   adopted   by   a
stepparent or relative;9 (2) Wis. Stat. § 54.56, which allows a

     9   Wisconsin Stat. § 48.925, in pertinent part, reads:

     Upon petition by a relative who has maintained a
     relationship similar to a parent-child relationship
     with a child who has been adopted by a stepparent or
     relative, the court, subject to subs. (1m) and (2),
     may grant reasonable visitation rights to that person
     if the petitioner has maintained such a relationship
     within 2 years prior to the filing of the petition, if
     the adoptive parent or parents, or, if a birth parent
     is the spouse of an adoptive parent, the adoptive
     parent and birth parent, have notice of the hearing
     and if the court determines all of the following:

     (a) That visitation is in the best interest of the
     child.

     (b) That the petitioner will not undermine the
     adoptive parent's or parents' relationship with the
     child or, if a birth parent is the spouse of an
     adoptive parent, the adoptive parent's and birth
     parent's relationship with the child.

     (c) That the petitioner will not act in a manner that
     is contrary to parenting decisions that are related to
     the   child's  physical,  emotional,   educational  or
     spiritual welfare and that are made by the adoptive
     parent or parents or, if a birth parent is the spouse
     of an adoptive parent, by the adoptive parent and
     birth parent.


                                     15
                                                                   No.    2017AP1142



grandparent to file a petition for visitation upon the death of
a parent of the child;10 and (3) Wis. Stat. § 767.43, which
encompasses the Grandparent Visitation Statute at issue in this
case.
      ¶26     An analysis of the Wisconsin statutes that allow a
grandparent     to    petition    for   visitation       illustrates     that   the
events triggering intervention by the State historically related
to circumstances separating families.                See Holtzman, 193 Wis. 2d
at   680.     This court has         previously      detailed    the   legislative
history of the current Wis. Stat. ch. 767 visitation statute,
which      began with the     enactment of          Wis. Stat.   § 247.24(1)(c)
(1975-76).11        Id. at 668-78.      Section 247.24(1)(c) permitted the

circuit     court    to   grant   grandparent       visitation    only   upon   the
rendering      of    a    judgment    of        annulment,   divorce     or   legal

      10
       Wisconsin Stat. § 54.56, in pertinent part, reads:   "If
one or both parents of a minor are deceased and the minor is in
the custody of the surviving parent or any other person, a
grandparent or stepparent of the minor may petition for
visitation privileges    with respect to the minor . . . ."
Pursuant to the statute, the circuit court must determine that
the visitation is in the best interest of the minor.

      11   Wisconsin Stat. § 247.24(1)(c) (1975-76) reads:

      (1) In rendering a judgment of annulment, divorce or
      legal separation, the court may:

      ....

      (c) Grant reasonable visitation privileges to a
      grandparent of any minor child if the court determines
      that it is in the best interest and welfare of the
      child and issue any necessary order to enforce the
      same.


                                           16
                                                                          No.     2017AP1142



separation.           Id.      Even     after    this         limiting    language       was
eliminated        with   the   codification        of    Wis.     Stat.    § 767.245(4)
(1977-78), the legislative history demonstrates an intent by the
legislature to address visitation issues prompted by the divorce
or legal separation of a married couple.                      Id. at 670-73.12
       ¶27    The    Grandparent       Visitation        Statute     was    enacted       to
provide grandparents with the ability to petition for visitation
outside of a divorce or visitation proceeding.                             See Drafting
File   for 1995 Act 68,              Analysis by        the    Legislative       Reference
Bureau of 1995 S.B. 55, Legislative Reference Bureau, Madison,
Wis.    It is still limited, however, to a family unit involving a
"nonmarital child" whose parents have not subsequently married

each    other      and   who   has    not   been    adopted.         See        Wis.   Stat.
§§ 767.43(3)(a) and (c).
       ¶28        In cases interpreting visitation statutes, Wisconsin
courts have permitted intervention by the State to protect the
child's best interest in circumstances where a child is being
separated from a parent.              See Holtzman, 193 Wis. 2d at 680; see
also Cox v. Williams, 177 Wis. 2d 433, 502 N.W.2d 128 (1993);
Sporleder v. Hermes, 162 Wis. 2d 1002, 471 N.W.2d 202 (1991);
Soergel      v.    Raufman,    154    Wis. 2d 564,        453     N.W.2d 624       (1990).

       12
        According to a Legislative Reference Bureau analysis, the
1975 precursor to the Wisconsin Stat. ch. 767 grandparent
visitation statute "codifies the authority of the court in
actions affecting marriage to grant visitation privileges to
grandparents where it is in the best interest of the child."
See Holtzman v. Knott, 193 Wis. 2d 649, 682 n.28, 533 N.W.2d 419
(1995).


                                            17
                                                                              No.    2017AP1142



More recently, in upholding Wis. Stat. § 54.56(2) against an
equal protection challenge, the court of appeals reasoned that
maintaining the contiguity of a relationship with a grandparent
when   a     parent      dies   creates       a     compelling      state      interest     to
protect a child's best interest.                     Rick v. Opichka, 2010 WI App
23, ¶22, 323 Wis. 2d 510, 780 N.W.2d 159.                               The Opichka court
also reasoned that the rebuttable presumption in favor of the
surviving parent ensures that the statute is narrowly tailored
to achieve this compelling interest.                   Id.
       ¶29    Similarly,            other         jurisdictions          recognize         the
appropriateness          of     a    court     interfering         in     a    parent-child
relationship        to     protect      the        child's       best     interest       under

circumstances where a family unit is dissolving and a parent
seeks to sever the child's relationship with a grandparent with
whom the child is emotionally attached.                           Prior to granting a
petition      for     grandparent           visitation,      a     majority         of   state
statutes require a triggering event dissolving the family unit,
such as the death or abandonment of a parent, divorce, or the
child residing with a third party prior to granting a petition
for grandparent visitation.                  See, e.g., Ala. Code 1975 § 30-3-
4.2    (Alabama);        A.R.S.      § 25-409       (Arizona);      A.C.A.          § 9-13-103
(Arkansas);         C.R.S.A.        § 19-1-117         (Colorado);            IC     31-17-5-1
(Indiana); M.G.L.A. 119 § 39D (Massachusetts); M.C.L.A. 722.27b
(Michigan); 23 Pa.C.S.A. § 5325 (Pennsylvania); V.T.C.A., Family
Code    § 153.433        (Texas).            Like     the    Grandparent            Visitation
Statute, some states include a child born out of wedlock as a
triggering event to a petition for grandparent visitation.                                See,
                                              18
                                                                      No.     2017AP1142



e.g., Ala.      Code       1975   §    30-3-4.2     (Alabama);      A.R.S.        §25-409
(Arizona);        IC       31-17-5-1      (Indiana);       M.G.L.A.        119     § 39D
(Massachusetts); 43 Okl.St.Ann. § 109.4 (Oklahoma).
     ¶30    In addition to the statutory precursor of a dissolving
family     unit,     the     majority     of    jurisdictions       also    require     a
grandparent     to     demonstrate      that     absent    visitation,       the    child
will suffer some form of emotional harm.                    This harm requirement
appears either within state statutes or has been read into the
statutes     by        courts     in    order      to     survive     constitutional
challenges.13
     ¶31    A     review     of   cases    where    other    courts        have    upheld
grandparent        visitation      orders       indicate    the     presence       of   a

relationship similar to that of a primary caregiver between the
grandparents and grandchildren and a parent's abrupt attempt to
end that relationship.            See, e.g., Smith v. Wilson, 90 So.3d 51
(Miss. 2012) (visitation order upheld where children lived with
maternal grandparents for several years after mother's death and
father ended visitation once remarried); Uzelac v. Thurgood, 144
P.3d 1083 (Ut. 2006) (visitation order upheld where child lived
with maternal grandparents for three years and was regularly

     13See, e.g., Jones v. Jones, 2013 UT App 174, 307 P.3d 598
(Utah Ct. App. 2013); Doe v. Doe, 172 P.3d 1067 (Haw. 2007);
Koshko v. Haining, 921 A.2d 171 (Md. 2007); Howard v. Howard,
661 N.W.2d 183 (Iowa 2003); Moriarty v. Bradt, 827 A.2d 203
(N.J. 2003); Glidden v. Conley, 820 A.2d 197 (Vt. 2003); Roth,
789 A.2d 431 (Conn. 2002), superseded by statute, Conn. Gen.
Stat. § 46b-59 (2018); Williams v. Williams, 501 S.E.2d 417 (Va.
1998); Brooks v. Parkerson, 454 S.E.2d 769 (Ga. 1995); Hawk v.
Hawk, 855 S.W.2d 573 (Tenn. 1993).


                                           19
                                                                            No.     2017AP1142



cared for by her grandparents throughout her life and father
denied grandparent visitation following mother's sudden death);
Spaulding     v.    Williams,         793    N.E.2d     252   (Ind.    Ct.        App.   2003)

(visitation order upheld where the child and mother lived with
maternal grandparents and they took care of the child on a daily
basis   but    father      denied           visitation    for      five      months      after
mother's death).
     ¶32    The       concurrence            asserts      that        the      Grandparent
Visitation     Statute       is   facially          unconstitutional        but     fails   to
meet the high burden required for a facial challenge.                               In order
to succeed on a facial challenge, the "challenger must meet the
highest level of proof, beyond a reasonable doubt."                                Mayo, 383
Wis. 2d 1, ¶33; see also ¶72 ("A facial challenge requires near-
absolute      proof      that     any        application      of      the     statute       is
unconstitutional.") (R.G. Bradley, J., concurring).                                 A facial
challenge therefore "attacks the law itself as drafted by the
legislature, claiming the law is void from its beginning to the
end and that it cannot be constitutionally enforced under any
circumstances."          Society Ins. v. LIRC, 2010 WI 68, ¶26, 326
Wis. 2d 444,       786   N.W.2d 385.            The    concurrence        acknowledges       a
compelling state interest for state intervention where parental
unwillingness results in a substantial risk of emotional harm to
the child, concurrence, ¶¶52-54, and thus fails to demonstrate
that "the law cannot be enforced 'under any circumstances.'"
Mayo, 383 Wis. 2d 1, ¶33 (quoted source omitted).
     ¶33    Furthermore,          a     determination         that     the     Grandparent
Visitation         Statute        is        facially      unconstitutional               would
                                               20
                                                                           No.        2017AP1142



necessarily require us to overturn our 2016 decision in Meister,

367 Wis. 2d 447.             In Meister, we denied a facial challenge to
Wis.        Stat.     § 767.43(1),        a    provision       that      broadly        allows
reasonable grandparent visitation with marital children upon a
circuit       court's    determination          that     the   visitation        is    in   the
child's best interest.14               In so doing, we concluded that the
reasoning employed in Roger D.H. upholding the facial validity
of the Grandparent Visitation Statute was "equally appropriate
with regard [to] [] § 767.43(1)."                    Id., ¶45.         We do not disturb
Meister       and   Roger     D.H.   to       the   extent     that    they      upheld     the
Grandparent         Visitation       Statute        as   facially       constitutional.15
Because       there    are    circumstances          under     which    the   Grandparent

Visitation          Statute    can     be       constitutionally          enforced,          as


       14
       In S.A.M. v. Meister, 2016 WI 22, ¶2, 367 Wis. 2d
447, 876 N.W.2d 746, this court analyzed the statutory text
of Wis. Stat. § 767.43(1), which allowed a "'grandparent,
greatgrandparent, stepparent or person who has maintained a
relationship similar to a parent-child relationship with the
child'" to file for visitation.   This court concluded that the
"parent-child relationship" requirement applied only to the
"'person'" category and not to grandparents, great-grandparents,
and stepparents. Id.
       15
       The doctrine of stare decisis is of particularly
important concern here where this court "has authoritatively
interpreted a statute" and the legislature "remains free to
alter its construction" if it believes that we interpreted the
statute incorrectly. Progressive N. Ins. Co. v. Romanshek, 2005
WI 67, ¶45, 281 Wis. 2d 300, 697 N.W.2d 417.      To overturn a
prior interpretation there must be a showing that the decision
was "'mistaken but also that it was objectively wrong, so that
the court has a compelling reason to overrule it.'" Id. (citing
Wenke v. Gehl Co., 2004 WI 103, ¶21, 274 Wis. 2d 220, 682
N.W.2d 405).


                                               21
                                                                                No.     2017AP1142



acknowledged         by     the     concurrence,            the    Grandparent        Visitation
Statute remains constitutional on its face.

 D. 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.
        ¶34   We turn to the certified question in the context of
the     constitutional            challenge      and        ask:      is    the       Grandparent
Visitation      Statute         narrowly       tailored       to     further      a    compelling

state interest where a grandparent is required to 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?                    The degree of proof in a particular
proceeding is traditionally for the judiciary to decide.                                    Woodby

v.    Immigration         and      Naturalization           Serv.,    385     U.S.      276,     284
(1966).       We have previously identified two different burdens of
proof    that       apply     in    civil       actions:           "preponderance           of   the

evidence"       and       "clear        and    convincing          evidence."          State      v.
Walberg, 109         Wis.     2d    96,       102,    325    N.W.2d     687    (1982).           The
preponderance of the evidence standard applies in ordinary civil
actions.        Id.        The clear and convincing standard applies in
cases where public policy requires a higher standard of proof
than in the ordinary civil action.                          Id.     This so-called middle
burden of proof has been required in cases where the individual
interests      at     stake       are    "'particularly            important'"        and   "'more
substantial than mere loss of money.'"                              Santosky, 455 U.S. at
756 (quoting Addington v. Texas, 441 U.S. 418, 424 (1979)).                                      For


                                                 22
                                                                        No.     2017AP1142



example, Wisconsin courts have applied a clear and convincing
standard in cases involving fraud, undue influence, prosecutions
of   civil       ordinance    violations,         and   civil     commitment.         See

Wahlberg, 109 Wis. 2d at 102; see also State v. West, 2011 WI
83, ¶¶76-77, 336 Wis. 2d 578, 800 N.W.2d 929.
     ¶35     A     number    of    courts        require   clear       and     convincing
evidence     to     overcome      the   presumption        that    a     fit    parent's
visitation decision is in the child's best interest.16                             These
courts maintain that the elevated standard of proof is necessary
to protect the rights of parents.                  See, e.g., Polasek v. Omura,
136 P.3d 519, 523 (Mt. 2006) (reasoning that the close scrutiny
that applies to any infringement on a person's right to parent a

child requires a clear and convincing standard); N.F. v. R.A.,
137 P.3d 318, 319 (Colo. 2006) (maintaining that the clear and
convincing evidence standard will accord due process to parents
as it does in the parental rights termination context); Vibbert
v. Vibbert, 144 S.W.3d 292, 295 (Ky. Ct. App. 2004) (noting that
the clear and convincing evidence standard applies because "'the
individual        interests       at    stake . . . are         both         particularly
important and more substantial than mere loss of money'"); Evans


     16See, e.g., Walker v. Blair, 382 S.W.3d 862, 871 (Ky.
2012); Zimmer v. Zimmer, 781 N.W.2d 482, 488 (S.D. 2010); SooHoo
v. Johnson, 731 N.W.2d 815, 824 (Minn. 2007); N.F. v. R.A., 137
P.3d 318, 327 (Colo. 2006); Polasek v. Omura, 136 P.3d 519, 523
(Mont. 2006); Hamit v. Hamit, 715 N.W.2d 512 (Neb. 2006);
Vibbert v. Vibbert, 144 S.W.3d 292, 295 (Ky. Ct. App. 2004);
Camburn v. Smith, 586 S.E.2d 565, 580 (S.C. 2003); L.B.S. v.
L.M.S., 826 So.2d 178, 186 (Ala. 2002).


                                            23
                                                                         No.       2017AP1142



v. McTaggart, 88 P.3d 1078, 1089 (Alaska 2004) (holding that a

clear     and    convincing       evidence         standard     provides           effective
protection for a parent's choice).17
     ¶36    "In        cases     involving         individual         rights,        whether
criminal    or     civil,      '[t]he    standard      of     proof    [at     a    minimum]
reflects     the       value    society       places     on    individual          liberty."
Addington,       441    U.S.     at     425    (quoted      source     omitted).          As
recognized by the Troxel court, a fit parent's interest in the
care, custody, and control of his or her child "is perhaps the
oldest of the fundamental liberty interests recognized by [the
United States Supreme] Court."                     Troxel, 530 U.S. at 65.                We
therefore conclude 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.


     17Most of these courts construe their statutes to also
require proof of a significant bond between a grandparent and
grandchild that, if severed, would threaten the welfare of the
child.   See, e.g., Walker, 382 S.W.3d at 871-72 (Ky. 2012)
(reasoning that a grandparent must show that they "shared such a
close bond that to sever contact would cause distress to the
child," and that there was a harm standard "implicit" in the
statutory factors); Zimmer, 781 N.W.2d at 489 (S.D. 2010)
(holding that the circuit court can rely on "special factors"
such as "physical or emotional harm to the grandchild if
visitation is denied or limited"); Camburn, 586 S.E.2d at 579-80
(S.C. 2003) (requiring a grandparent to show by clear and
convincing evidence that the parent is unfit or that there are
"compelling circumstances, such as significant harm to the
child").


                                              24
                                                                             No.     2017AP1142


                   E.   We modify and clarify the holdings in
                             Martin L. and Roger D.H.
       ¶37    We    next   explain         the    impact     of    this      constitutional
analysis on the holdings in Martin L. and Roger D.H.                                We modify
the holding in Roger D.H. to require a grandparent to 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.                 While the court of appeals in Roger
D.H. articulated the appropriate presumption in favor of a fit
parent's decision, the court of appeals went on to state that
"[a]t the same time, we observe that this is only a presumption
and    the    circuit      court      is   still       obligated       to    make    its     own
assessment of the best interest of the child."                              Roger D.H., 250
Wis. 2d 747, ¶19.              We determine that a circuit court should
consider the nature and extent of grandparent visitation only if
a   grandparent         overcomes      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.         A
circuit       court     should     not     substitute        its       judgment      for     the
judgment of a fit parent even if it disagrees with the parent's
decision.
       ¶38    Likewise, we must clarify Martin L., 299 Wis. 2d 768,
a case involving a petition for grandparent visitation following
the death of a parent pursuant to Wis. Stat. § 54.56.                               In Martin
L., the court of appeals applied the analysis as stated in Roger
D.H.,    implying       that     in   deciding         a   petition      for    grandparent
visitation, a circuit court must always apply its own assessment


                                                25
                                                                               No.    2017AP1142



of   what       is     in   the       child's      best    interest.         Martin    L.,    299

Wis. 2d 768, ¶12.                 The rebuttable presumption, as set forth in
Roger D.H. and applied by the court in Martin L., was merely a
restatement          of     the       best    interest     of   the   child    standard       and
allowed a circuit court to easily intervene to second guess a
fit parent's decision.                       We clarify Martin L., as we did Roger
D.H.,      to    require          a    petitioning        grandparent    to    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.             We   emphasize     that    a    circuit     court
assesses the nature and extent of visitation only after that
burden has been met.

  F. 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.
      ¶39        Finally, we assess the merits of Lyons and Michels'

as-applied challenge by considering the facts of this case, not
hypothetical           facts      from       different     situations.         See    State    v.
Hamdan, 2003 WI 113, ¶43, 264 Wis. 2d 433, 665 N.W.2d 785.
There is no dispute that Lyons and Michels are fit parents and

the circuit court found them to be "good parents."18                                  The issue
is whether under these circumstances the circuit court infringed
upon Lyons and Michels' fundamental liberty interest in the care


      18
       If parental fitness were an issue, Wis. Stat. ch. 48 may
be implicated.


                                                   26
                                                                             No.    2017AP1142



and upbringing of A.A.L. when it granted Kelsey's petition for
grandparent visitation.
     ¶40       At     the    hearing       on    Lyons      and    Michels'     motion    for
reconsideration,            the    circuit       court      stated    that    according    to
Roger     D.H.,      it     had    "applied      the     presumption     a    fit    parent's

decision       on     placement        is       in    the    child's     best       interest,
rebuttable in the Court's discretion."19                           In deciding to grant
Kelsey's petition over the objection of Lyons and Michels, the
circuit       court       relied    upon    A.A.L.'s         significant      contact    with
Kelsey        over        the      years        and    the        guardian    ad      litem's
recommendation.             The circuit court also stated that it did not
"think it was fair to [A.A.L.] then or now to just cut off cold

turkey her contact with grandma."                        The circuit court concluded
that the "bare bones" schedule it set forth was therefore in
A.A.L.'s best interest.20
        ¶41    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


     19The circuit court did not reference the factors laid out
in the Grandparent Visitation Statute in its oral ruling on
Kelsey's petition.    It was not until the hearing on Lyons and
Michels' motion for reconsideration that the circuit court
articulated its reasons for granting Kelsey's petition and the
required presumption.
     20Although the circuit court referred to the schedule as
"bare bones," a minimum of five hours a month and one week every
summer with no travel restrictions is not insignificant.


                                                 27
                                                                                     No.     2017AP1142



interest.      Although the circuit court asserted that it applied a
presumption that Lyons and Michels' decision was in A.A.L.'s
best interest, the decision of the circuit court exemplifies a
circuit court improperly substituting its judgment for that of
fit    parents.          Lyons     and     Michels          did    not    seek       to     eliminate
Kelsey's visitation entirely and there is no indication that
they would deprive A.A.L. of having a relationship with Kelsey.
In fact, they testified that they would not eliminate Kelsey's
visitation with A.A.L. unless they felt that it was unhealthy
for A.A.L. or not in her best interest.                                   At the time Kelsey
petitioned        for        visitation         there        had        been    no         change     in
circumstances       involving            A.A.L.'s          family       unit,    as        Lyons     and

Michels had not lived together since A.A.L. was a small child.
Kelsey's desire to merely secure a more generous and predictable
visitation schedule is not enough to overcome the presumption in
favor of Lyons and Michels' visitation decision and demonstrate
that   their      decision         is    not    in        A.A.L.'s      best    interest,           thus
barring intervention by the State.                           See Rogers v. Rogers, 2007
WI App 50, 300 Wis. 2d 532, 731 N.W.2d 347 (holding that state
interference        in       the    form       of        court    ordered       placement           with
grandparents        was       unwarranted            where        the     parents          maintained
considerable contact between their child and her grandparents,
just not as much as the grandparents desired).
                                        IV.    CONCLUSION
       ¶42   In     sum,       a    fit       parent       has     a     fundamental          liberty
interest in the care and upbringing of his or her child and
therefore      to       be    applied          constitutionally,               the     Grandparent
                                                    28
                                                              No.        2017AP1142



Visitation Decision must withstand strict scrutiny.                 We confirm
that      the    Grandparent       Visitation    Statute      is         facially
constitutional because there are circumstances under which the
law    can   be constitutionally enforced.         We   conclude     that the
Grandparent Visitation Statute is narrowly tailored to further a
compelling state interest because it requires a grandparent to
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.
       ¶43    Based upon the record below, we decline to remand the
case to the circuit court.           The visitation order violated the
constitutional rights of Lyons and Michels and we decline to
force the parties into additional litigation that would further
burden Lyons and Michels' fundamental liberty interest in the

care and upbringing of A.A.L.
       By the Court.—Order of the circuit court is vacated.




                                      29
                                                                            No.    2017AP1142.rgb


       ¶44        REBECCA     GRASSL          BRADLEY, J.       (concurring).          I agree
with       the    majority         that   Wisconsin       Stat.     § 767.43(3)       infringes
upon parents' fundamental liberty interest in the care, custody,
and upbringing of their children and therefore must withstand
strict scrutiny in order to be constitutional.                                 Majority op.,
¶2.    I also agree that the circuit court's visitation order in
this case violated the constitutional rights of the parents and
I join the mandate vacating the circuit court's order.                                  I write
separately because when subjected to a strict scrutiny analysis,

§ 767.43(3) must fall as facially unconstitutional, not merely
unconstitutional as applied to the parents in this case as the
majority          decides.              The     State    "lacks      even      a     legitimate
governmental interest——to say nothing of a compelling one——in
second-guessing               []        fit     parent[s']        decision[s]         regarding
visitation with third parties."                         Troxel v. Granville, 530 U.S.

57, 80 (2000) (Thomas, J., concurring).                              I would strike down
§ 767.43(3) because it tramples upon "perhaps the oldest of the

fundamental liberty interests recognized by th[e] Court."                                    See
Troxel,          530   U.S.    at       65.      Because    the     majority       upholds   the
constitutionality              of       § 767.43(3),       except    as   applied       to   the
parents          in    this    particular         case,     fit     parents'       fundamental
liberty           interest         in     raising       their       children       free      from
governmental interference remains at risk.1

       1
       Because the majority's opinion applies only to the parents
in this case, it will force fit parents to expend significant
financial resources (which many parents lack) in order to
litigate anew the very issues presented to this court, the
adverse emotional impact of which is often suffered most acutely
by the child.   In this case, the parents' attorney advised the
                                                      (continued)
                                1
                                                   No.   2017AP1142.rgb


                                 I
     ¶45   The   parents    in       this   case   challenge       the
constitutionality of Wis. Stat. § 767.43(3), which provides:

          (3) Special grandparent visitation provision. 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



circuit court that: "My clients have no money left. They both
are completely taxed out."    The circuit court acknowledged the
parents "spen[t] a lot of money that could be used for [the
child] or other reasons than trying to defend themselves in
court[.]"   Some courts recognize that the very initiation of a
lawsuit where fundamental rights are at stake violates the
Constitution, improperly intrudes into the family, and causes
trauma, "expense, stress, and [the] pain of litigation."    See,
e.g., Roth v. Weston, 789 A.2d 431, 442 (Conn. 2002) (quoted
source omitted); Brooks v. Parkerson, 454 S.E.2d 769, 773 (Ga.
1995) (noting even when child has bond with grandparent, "the
impact of a lawsuit to enforce maintenance of the bond over the
parents' objection can only have a deleterious effect on the
child." (quoted source omitted)).


                                 2
                                                                     No.   2017AP1142.rgb

     are related to the child's physical,                             emotional,
     educational or spiritual welfare.

          (f) The visitation is in the best interest of the
     child.
A constitutional challenge to a statute presents a question of
law reviewed de novo.          Nankin v. Vill. of Shorewood, 2001 WI 92,

¶10, 245 Wis. 2d 86, 630 N.W.2d 141.               If the statute implicates
a fundamental right, this court applies strict scrutiny review
and the statute will be upheld only if "narrowly tailored toward
furthering [a] compelling state interest."                 Mayo v. Wis. Injured
Patients    and    Families      Comp.    Fund,     2018       WI     78,    ¶28,    383

Wis. 2d 1, 914 N.W.2d 678.
     ¶46    Both the United States Supreme Court as well as this
court recognize parents' fundamental liberty interest in raising
their    children.       See   Troxel,    530    U.S.     at    65     ("The    liberty
interest at issue in this case——the interest of parents in the
care, custody, and control of their children——is perhaps the
oldest of the fundamental liberty interests recognized by this
Court."); Washington v. Glucksberg, 521 U.S. 702, 720 (1997)
("[T]he 'liberty' specially protected by the Due Process Clause
includes    . . . the     right[]. . . to         direct       the     education     and
upbringing of one's children"); Santosky v. Kramer, 455 U.S.
745, 753 (1982) ("[F]reedom of personal choice in matters of

family life is a fundamental liberty interest protected by the
Fourteenth Amendment."); Quilloin v. Walcott, 434 U.S. 246, 255
(1978)    ("We    have   recognized      on    numerous    occasions          that   the
relationship      between      parent    and    child      is        constitutionally
protected."); Wisconsin v. Yoder, 406 U.S. 205, 231-33 (1972)
(The "primary role of the parents in the upbringing of their
                              3
                                                                           No.    2017AP1142.rgb


children       is     now        established     beyond      debate    as        an    enduring
American tradition."); Prince v. Massachusetts, 321 U.S. 158,

166 (1944) ("It is cardinal with us that the custody, care and
nurture of the child reside first in the parents, whose primary
function    and       freedom       include     preparation     for        obligations        the
state can neither supply nor hinder."); Pierce v. Society of the
Sisters, 268 U.S. 510, 534-35 (1925) (recognizing "the liberty
of parents and guardians to direct the upbringing and education
of children under their control" among those "rights guaranteed

by the Constitution" that "may not be abridged by legislation
which    has no reasonable                relation     to   some purpose           within the
competency of the State"); Meyer v. Nebraska, 262 U.S. 390, 399

(1923)         ("[L]iberty              guaranteed . . . by            the            Fourteenth
Amendment . . . include[s] . . . the                    right     of       the        individual
to . . . establish a home and bring up children."); Tammy W-G v.
Jacob    T.,    2011        WI    30,    ¶52,   333    Wis. 2d 272,         797       N.W.2d 854
("Parents who have developed a relationship with their children

have a fundamental liberty interest in the 'care, custody, and
control of their children.'") (quoting Troxel, 530 U.S. at 57);
Monroe Cty. Dep't of Human Servs. v. Kelli B., 2004 WI 48, ¶19,
271     Wis. 2d 51,          678        N.W.2d 831;     Barstad       v.     Frazier,         118
Wis. 2d 549,        567-68,         348    N.W.2d 479       (1984)     ("Under          ordinary
circumstances, a natural parent has a protected right under both
state law and the United States Constitution to rear his or her
children       free     from         governmental       intervention.");               Rick    v.
Opichka,       2010     WI        App    23,    ¶¶5,   21,    323      Wis. 2d 510,           780
N.W.2d 159; Lubinski v. Lubinski, 2008 WI App 151, ¶¶6, 13, 314

                                                4
                                                              No.   2017AP1142.rgb


Wis. 2d 395, 761 N.W.2d 676; Rogers v. Rogers, 2007 WI App 50,

¶18, 300 Wis. 2d 532, 731 N.W.2d 347.
     ¶47   Wisconsin        Stat.      § 767.43(3)         implicates        this
fundamental    right   of    parents       by   interfering     with     parents'
decisions regarding who may spend time with their children and
to what extent.     Accordingly, strict scrutiny review applies and
the statute's constitutionality depends upon the State's ability
to identify a compelling interest furthered by the statute and
to demonstrate how the statute is narrowly tailored to meet that

compelling state interest.           If the statute fails this test, it
violates the Constitution.
     ¶48   What    compelling    state      interest   warrants        overruling
parents'   fundamental      rights   to    decide   with   whom     their   child
spends time?      The text of Wis. Stat. § 767.43(3) does not say.
It allows the circuit court to supplant parents' judgment with
its own if the statutory conditions are satisfied.                  Our court of
appeals implicitly recognized the facial unconstitutionality of

this statute in Roger D.H., but "saved" the statute from "facial
invalidation" by reading into its text Troxel's requirement that
a "fit parent's determination" as to what is best for his child
must be presumed correct and given "special weight."                   Roger D.H.
v. Virginia O., 2002 WI App 35, ¶¶13, 18-20, 250 Wis. 2d 747,




                                       5
                                                                 No.    2017AP1142.rgb


641 N.W. 2d 440.2        The statute contains no such presumption nor
does it direct the circuit court to give any weight whatsoever
to the parents' determination.               More importantly, even if the
requirements of Troxel are (however inappropriately)3 read into

the statute, no compelling state interest warrants the State's
intrusion    in    the   first     place.         Consequently,        even   reading
Troxel's    requirements        into   § 767.43(3)        will   not     render    the
statute constitutional.
     ¶49    The    majority     neglects     to    identify      any     "compelling

state interest" justifying judicial meddling in the decision-
making of two fit parents regarding visitation.                        In conclusory
fashion, it asserts that Wis. Stat. § 767.43(3) "is narrowly
tailored    to    further   a    compelling       state    interest      because   it
requires a grandparent to overcome the presumption in favor of a

     2 This court accepted Roger D.H.'s reading of the statute in
S.A.M. v. Meister, 2016 WI 22, ¶45, 367 Wis. 2d 447, 876
N.W.2d 746 (referencing Roger D.H. v. Virgina O., 2002 Wi App
35, 250 Wis. 2d 747, 641 N.W.2d 440).        Meister analyzed a
different subsection of the statute——Wis. Stat. § 767.43(1).
The majority maintains that declaring Wis. Stat. § 767.43(3)
unconstitutional "would necessarily require us to overturn our
2016 decision in Meister." Majority op., ¶33. There is no need
to do so because we analyze a different subsection of the
statute in this case.
     3 A fundamental canon of statutory construction instructs
that "[n]othing is to be added to what the text states or
reasonably implies (casus omissus pro omisso habendus est).
That is, a matter not covered is to be treated as not covered."
Antonin   Scalia  &   Bryan A.   Garner,  Reading   Law:    The
Interpretation of Legal Texts 93 (2012).    This canon has been
described as a "principle . . . so obvious that it seems absurd
to recite it" because it "is not [the judge's] function or
within his power to enlarge or improve or change the law." Id.
(quoted source omitted).


                                         6
                                                               No.     2017AP1142.rgb


fit    parent's     visitation     decision    with    clear     and     convincing
evidence that the decision is not in the child's best interest."
Majority op., ¶42.          This purported requirement appears nowhere
in the text of the statute and it is not the judiciary's job to
"tailor" a statute in order to render it constitutional.                          In
similar fashion, the majority invokes the State's interest in
acting when "a child's physical or mental health or welfare is
in jeopardy."        Majority op., ¶24.       However, § 767.43(3) contains
no requirement that a child's health or welfare be in jeopardy

before authorizing the circuit court to grant visitation rights.
The majority then mentions "triggering events" that may warrant
State intervention such as adoption, death of a parent, divorce,
legal separation of married couples, and separation of a child
from       a   parent.     See    majority    op.,    ¶¶26,    28-31.        Again,

§ 767.43(3) incorporates none of these triggering events.                        The
majority proceeds to cite a litany of foreign statutes in which
a compelling state interest appears or into which one has been

read by the courts, such as harm to the child.                       Majority op.,
¶¶29-31.         Nowhere   does    the   majority     actually       identify    the
compelling state interest supporting § 767.43(3), understandably
so because there is none.4




       4
       The majority's reliance on Rick v. Opichka, 2010 WI App
23, 323 Wis. 2d 510, 780 N.W.2d 159 is misplaced. Opichka dealt
with Wis. Stat. § 54.56 (2007-08), which involves grandparent
visitation after a parent dies.    Opichka, 323 Wis. 2d 510, ¶3.
Opichka does not establish a compelling state interest for Wis.
Stat. § 767.43(3).


                                         7
                                                                      No.     2017AP1142.rgb


      ¶50    The United States Supreme Court declared nearly two
decades ago that "so long as a parent adequately cares for his
or her children (i.e., is fit), there will normally be no reason
for the State to inject itself into the private realm of the
family to further question the ability of that parent to make
the   best   decisions        concerning           the    rearing    of   that    parent's
children."          Troxel,       530    U.S.       at     68-69.     Wisconsin       Stat.

§ 767.43(3) does not distinguish between fit and unfit parents;
instead,     it     allows    a    circuit         court    to    grant   a   grandparent

visitation rights with respect to a nonmarital child5 so long as
such visitation is in the best interest of the child and the
other statutory conditions exist.                        Unlike other Wisconsin laws
implicating parental rights, Chapter 767 fails to identify any
compelling         state      interest             justifying        this       particular
governmental intrusion into family matters.
      ¶51    For      example,          Chapter      48——The        Children's      Code——
explicitly proclaims its purpose is to protect children from

parents     whose    actions      or     inaction        subject    their     children    or
unborn children to an actual or substantial risk of physical or
emotional harm and to protect children's "health and safety" by,
among other State actions, remedying "any circumstances in the
home which might harm the child" or removing a child from the
parental home when necessary "to ensure that the needs of a
child" are met, including "the need for adequate food, clothing
and   shelter;      the    need    to     be    free       from   physical,      sexual   or

      5Married couples and their children are spared the State's
intrusion provided the parents are fit.


                                               8
                                                                   No.    2017AP1142.rgb


emotional      injury      or      exploitation;        the      need     to      develop
physically, mentally and emotionally to their potential; and the
need for a safe and permanent family."                  Wis. Stat. § 48.01(1)(a)
and   (ag).      Under     these    and    other      circumstances       detailed      in
Chapter 48, a circuit court may take jurisdiction over a child
alleged to be in need of protection or services.                           Wis. Stat.
§ 48.13.
      ¶52     Protecting        children       from     either     an      actual       or
substantial risk of physical or emotional harm stemming from

parental inability or unwillingness to provide for children's
basic needs presents a compelling interest:                   in the face of such
parental deficits, the children's survival depends on the State
stepping in.         See In re TPR to Diana P., 2005 WI 32, ¶¶20, 32,

279   Wis. 2d 169,       694     N.W.2d 344      (holding        the     State    has   a
compelling     interest     to     protect     children    from    unfit       parents).
Likewise, in Chapter 767, the State intervenes in family matters
upon marital dissolution when the parents are unable to resolve

disputes      over    custody     and     physical     placement.          Wis.    Stat.
§ 767.41.      It is the parents' disagreement (which is absent in
this case) that leads to State intervention.6                     In contrast, the
special grandparent visitation provision set forth in Wis. Stat.
§ 767.43(3) serves neither to protect a child from harm, nor

      6In this case, nothing warranted the State meddling with
this family. There was no pending family law matter between the
parents.    There was no placement or custody battle.       Both
parents are alive and actively present in their daughter's life.
The   parents,   although  living   separately, amicably   share
placement of their daughter and both agreed to keep the
grandmother involved in their daughter's life.


                                           9
                                                                          No.   2017AP1142.rgb


resolve a dispute between feuding parents.                         The State intercedes
not    to    protect    or   remove     the      child      from    harm,       nor    at     the
invitation of parents unable to resolve their differences, but
whenever      the    circuit    court      deems      the   "best     interest         of     the
child" warrants the nanny state overriding the joint decision of
two fit parents.
       ¶53    Other    jurisdictions        reviewing        third-party          visitation
statutes have determined that the only compelling state interest
justifying interference with parents' fundamental rights is harm

to the child or unfit parents.                See Moriarty v. Bradt, 827 A.2d

203,    222    (N.J.    2003)    ("[w]hen        no    harm     threatens         a    child's
welfare, the State lacks a sufficiently compelling justification
for    the    infringement on        the    fundamental right              of    parents       to
raise    their      children    as   they     see     fit.");       see    also       Jones    v.
Jones, 2013 UT App 174, ¶¶25-27, 307 P.3d 598 (citing Roth v.
Weston, 789 A.2d 431, 445 (Conn. 2002); Beagle v. Beagle, 678
So. 2d 1271, 1276 (Fla. 1996); Brooks v. Parkerson, 454 S.E.2d

769, 772-74 (Ga. 1995); Doe v. Doe, 172 P.3d 1067, 1079-80 (Haw.
2007); Howard v. Howard, 661 N.W.2d 183, 190 (Iowa 2003); Koshko
v. Haining, 921 A.2d 171, 191 (Md. 2007); Herbst v. Sayre, 971
P.2d 395, 398 (Okla. 1998); Hawk v. Hawk, 855 S.W.2d 573, 577
(Tenn. 1993); Appel v. Appel, 109 P.3d 405, 410 (Wash. 2005)).
See also E.H.G. v. E.R.G., 73 So. 3d 634, 649-50 (Ala. 2011);
Blixt v. Blixt, 774 N.E.2d 1052, 1059 (Mass. 2002); Camburn v.
Smith, 586 S.E.2d 565, 580 (S.C. 2003); Glidden v. Conley, 2003
VT 12, ¶21, 820 A.2d 197.



                                            10
                                                                      No.   2017AP1142.rgb


       ¶54       I agree with these other jurisdictions in concluding
that       the    only        compelling      interest    warranting        the    State's
intrusion upon two parents' fundamental right to raise their
child as they mutually see fit is harm to the child.                              Wisconsin
already has expansive statutory provisions set forth in Chapter
48   governing          the    State's     intervention     in   family      matters    to
protect children from harm that has been or may be inflicted
upon       them    as    a     result    of    their     parents'     incapacities       or
unfitness.             Regardless,       nothing    in   the   text    of    Wis.     Stat.

§ 767.43(3) suggests its purpose is to protect children from
harm.       When two fit parents agree on the manner in which they
raise their child, the child must be in danger in order for the
State to inject itself into the private realm of a family.                                A
statute permitting such governmental intrusion based solely on
the best interests of a child without being tethered to any
compelling interest is constitutionally infirm.7
       ¶55       The    majority     endeavors      to    "save"      the    grandparent

visitation statute from facial invalidation by concluding that


       7
       The majority misrepresents my recognition of "a compelling
state    interest   for   state   intervention   where   parental
unwillingness results in a substantial risk of emotional harm to
the child" in other Wisconsin statutes as an acknowledgment that
"there are circumstances under which the Grandparent Visitation
Statute can be constitutionally enforced." Majority op., ¶¶32-
33 (emphasis added).    The textual identification of harm to a
child as a compelling state interest cannot be imported from
other Wisconsin statutes into Wis. Stat. § 767.43(3) in order to
save it from facial unconstitutionality. To the contrary, it is
because § 767.43(3) fails to express any compelling state
interest in interfering with fit parents' fundamental right to
raise their children that it violates the Constitution.


                                               11
                                                                     No.    2017AP1142.rgb


Wis.       Stat.     § 767.43(3)    "is     narrowly     tailored      to     further    a
compelling state interest" but only if a grandparent overcomes
"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."8         Under   the    majority's        logic,
§ 767.43(3) lacks a compelling state interest——except when it
doesn't.       The majority attempts to reconcile this inconsistency
by     deciding       that   "[t]he    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."9             The majority does not explain how the
constitutionality of a statute could possibly be dependent upon
the    strength of a party's presentation                  of evidence.           Merely
maintaining that under certain circumstances the State may have
a compelling interest in interfering with the fundamental right
at stake in this case, when the State expresses no compelling

interest within the text of the statute itself, cannot "save" a
statute subject to strict scrutiny, under any circumstances.
       ¶56     The    majority     goes     on   to   caution    a     circuit      court
against "improperly substituting its judgment for that of fit
parents,"10        but   then      allows    a   petitioning     "grandparent           to
overcome the presumption in favor of a fit parent's visitation


       8    Majority op., ¶2.
       9    Majority op., ¶41.
       10   Majority op., ¶41.


                                            12
                                                                       No.    2017AP1142.rgb


decision with clear and convincing evidence that the decision is
not in the child's best interest,"11 apparently preserving the
ability of courts to substitute their judgment for the judgment
of fit parents so long as the petitioning grandparents surmount
the heightened evidentiary hurdle imposed by the majority here.
       ¶57    Even    if      a     compelling         state    interest        could    be
identified, Wisconsin's                grandparent visitation          statute       is not
narrowly tailored.            The text of Wis. Stat. § 767.43(3) rather
broadly affords circuit courts the discretion to override the

wishes of nonmarital parents if the circuit court determines a
different visitation schedule is in the best interests of the
child.       In comparison, other jurisdictions narrowly tailor their
statutes      to    apply    only       when   a    grandparent       has    functionally
served as the child's parent for a lengthy period of time so
that severing that relationship would cause significant harm to
the child's health or well-being.                      See, e.g., Conn. Gen. Stat.

Ann.    § 46b-59.       Some      require       that    a    grandparent      demonstrate

complete denial of access to the grandchild.                         See, e.g., Neuhoff
v. Ubelhor, 14 N.E.3d 753, 762 (Ind. Ct. App. 2014) (statute
requiring consideration of whether visitation has been denied
entirely       or    simply       limited;         holding     "no    need     for    court
intervention"         when        dispute       involves        grandmother          wanting
visitation on her terms).                 Other statutes set aside the wishes
of the parents only when a grandparent can establish a custodial
parent's       unfitness          or     other       extraordinary           circumstances


       11   Majority op., ¶42.


                                               13
                                                                             No.    2017AP1142.rgb


affecting the welfare of the child, such as abandonment, neglect
or abdication of parental responsibilities.12                           See, e.g., Jones,

307 P.3d 598, ¶8; Roth, 789 A.2d at 444-45.
     ¶58    The    majority's           opinion      in     this    case           changes    very
little     for    families        similarly         situated.           In     future        cases,
circuit courts in Wisconsin must follow Troxel and presume that
the decisions of fit parents as to what is best for their child
is correct, and must give the parents' determinations "special
weight"    (whatever that           means).          Then the circuit court must

merely    find    that   a    petitioning           grandparent         has        overcome     the
Troxel    presumption        by    clear       and       convincing      evidence,            which

affords     the    circuit        court    the       discretion         to         overrule    the
decisions of fit parents and instead impose on the family the
circuit court's view of the best interests of the child.                                  Surely
the fundamental liberty interest of parents in being free from
State interference in the care, custody, and upbringing of their
families——"perhaps           the    oldest          of     the     fundamental           liberty

interests    recognized           by"    the    United         States    Supreme         Court——
deserves much more protection than this.
     ¶59    Of     course,        grandparents           can     play    significant           and
beneficial roles in the lives of their grandchildren.13                                  But "as




     12I cite various factors used in foreign statutes not to
affirm   their   constitutionality,   but  to   illustrate  how
Wisconsin's grandparent visitation statute lacks any tailoring
whatsoever.   Even a narrowly-tailored statute may nevertheless
be unconstitutional.    See, e.g., Jones v. Jones, 2013 UT App
174, 307 P.3d 598.


                                               14
                                                                  No.    2017AP1142.rgb


the constitutional body vested with the power to say 'what the
law is,' the judiciary evaluates a statute for its fidelity to
the constitution, and 'an act of the legislature, repugnant to
the constitution, is void.'               Marbury[ v. Madison], 5 U.S. (1

Cranch)     [137,]    177    [(1802)].         When    a   law    contravenes       the
constitution, it is our duty to say so."                   Mayo, 383 Wis. 2d 1,
¶84 (Rebecca Grassl Bradley, J., concurring).                    The limited reach
of    the    majority's       opinion,      which     declares           Wis.      Stat.
§ 767.43(3) unconstitutional only as applied to the parents in

this case, exposes nonmarital parents to infringement of their
fundamental liberty interests in raising their children as they
mutually      see     fit.         "[T]he         consequences      of         upholding
unconstitutional laws are not confined to a single party in a
single case.        Rather, failure to strike down an unconstitutional
law   harms    all    of     the   people      of   this   state        in   potential
perpetuity."        Mayo, 383 Wis. 2d 1, ¶85 (Rebecca Grassl Bradley,

J., concurring).

                                          II
      ¶60   Federal     and    State      courts      consistently       ground     the
fundamental right of parents to raise their children, without
governmental    interference,        in     the     "substantive"        due    process


      13
       Importantly, and as recognized by the majority, the
record in this matter shows Michels and Lyons did not cut the
grandmother out of their child's life.    The grandmother simply
would not accept the child's changing schedule, which reduced or
eliminated   some   of    the   previous   grandmother-grandchild
activities.   A grandparent's desire for a "better" visitation
schedule is insufficient to warrant state intervention.    Rogers
v. Rogers, 2007 WI App 50, ¶21, 300 Wis. 2d 532, 731 N.W.2d 347.


                                          15
                                                                  No.    2017AP1142.rgb


protection of the Fourteenth Amendment.                 See Troxel, 530 U.S. at

65, 75.        Although application of "substantive" due process in
this        context    has    been     questioned       under     an      originalist
interpretation of the Constitution, in this case, as in Troxel,
"neither party has argued that our substantive due process cases
were wrongly decided and that the original understanding of the
Due     Process        Clause       precludes        judicial     enforcement        of
unenumerated rights under that constitutional provision."                          Id.,
530 U.S. at 80 (Thomas, J., concurring).14                      Because this case,

like    Troxel,       "does   not    involve     a   challenge    based     upon    the

Privileges [or] Immunities Clause and thus does not present an
opportunity to reevaluate the meaning of that Clause," I will
not    undertake       such   an     analysis.        See   id.         (Thomas,    J.,
concurring).15

       14
       In its amicus brief, the Cato Institute suggests "[t]he
Privileges or Immunities Clause contains what should be the
Fourteenth Amendment's primary mechanism for limiting state
infringement of substantive rights."
       15
        Justice Clarence Thomas repeatedly applies an originalist
interpretation    of   the   Privileges   or   Immunities  Clause,
identifying it, rather than the Due Process Clause, as the
proper source for protecting fundamental constitutional rights,
and    noting    that    the    United    States   Supreme   Court
"'marginaliz[ed]' the Privileges or Immunities Clause in the
late 19th century by defining the collection of rights covered
by the Clause 'quite narrowly.'"       Timbs v. Indiana, 586 U.S.
____, 139 S. Ct. 682, 691 (2019) (Thomas, J., concurring),
quoting McDonald v. City of Chicago, 561 U.S. 742, 808-09 (2010)
(Thomas, J., concurring).      "When the Fourteenth Amendment was
ratified, the terms privileges and immunities had an established
meaning as synonyms for rights."     Timbs, 586 U.S. at ____, 139
S. Ct. at 692 (Thomas, J. concurring) (internal quotation marks
omitted).    Historically, people "understood the Privileges or
Immunities Clause to guarantee those 'fundamental principles'
'fixed' by the Constitution." Id.

                                          16
                                                          No.     2017AP1142.rgb


     ¶61   The parents in this case do invoke Article I, Section
1 of the Wisconsin Constitution, suggesting the circuit court's
visitation order may violate the fundamental right of parents to
raise their children under that provision, which provides:

     All people are born equally free and independent, and
     have certain inherent rights; among these are life,
     liberty and the pursuit of happiness; to secure these
     rights, governments are instituted, deriving their
     just powers from the consent of the governed.
The parents do not, however, construe or analyze this section of

Wisconsin's   Constitution,   nor     do   they     offer       any   argument
challenging   Wis.   Stat.    § 767.43(3)         under     the       Wisconsin
Constitution in any respect.        As a result, this case does not
present the opportunity to undertake this analysis.16

     16 Justice Antonin Scalia opined that "[i]n my view, a right
of parents to direct the upbringing of their children is among
the   'unalienable   Rights'  with   which  the   Declaration  of
Independence proclaims 'all men . . . are endowed by their
Creator.' . . . The Declaration of Independence, however, is not
a legal prescription conferring powers upon the courts[.]"
Troxel, 530 U.S. at 91 (Scalia, J., dissenting).     In contrast,
"[t]he Wisconsin Constitution begins with a Declaration of
Rights, echoing language from our nation's Declaration of
Independence" and expressly incorporates the people's "inherent
right" to "liberty" "recognizing that the proper role of
government——the very reason governments are instituted——is to
secure our inherent rights, including liberty."         Porter v.
State, 2018 WI 79, ¶52, 382 Wis. 2d 697, 913 N.W.2d 842 (Rebecca
Grassl Bradley and Kelly, J.J., dissenting) (citing Wis. Const.
art. I, § 1).     Not only do courts have the power to enforce
rights recognized in Wisconsin's Constitution, they are duty
bound to do so.     "While the people empower the legislature to
enact laws and make policy, the constitution compels the
judiciary to protect the liberty of the individual from
intrusion by the majority.      '[C]ourts of justice are to be
considered as bulwarks of a limited Constitution against
legislative encroachments[.]'    The Federalist No. 78, at 469
(Alexander Hamilton) (Clinton Rossiter ed., 1961)." Porter, 382
Wis. 2d 697, ¶53.

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                                       III
     ¶62   I   concur    with   the    majority's        conclusion    that    the
circuit    court's     visitation     order      unconstitutionally     violated
Michels' and Lyons' fundamental right to parent their daughter.
I part with the majority because I would declare Wis. Stat.
§ 767.43(3) facially unconstitutional.                  The statute lacks any
compelling     state    interest    and     is    not   narrowly    tailored    to
overcome fit parents' fundamental right to raise their children
free from governmental intrusion.             I respectfully concur.

     ¶63   I am authorized to state that Justice DANIEL KELLY
joins this concurrence.




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