THE WYOMING SUPREME COURT OVERHAULS GRANDPARENTS’ RIGHTS
Grandparents’ visitation rights is a relatively new area of Wyoming law. Originally, at common law, grandparents had no right to visitation with their grandchildren without consent from the children’s parents. However, in 1991 the Wyoming Legislature adopted Wyoming Statute 20-7-101, which allowed grandparents to seek visitation rights to their grandchildren in court. Wyoming courts often state that the Wyoming Legislature transformed grandparent visitation rights from a moral obligation to a legal obligation when it adopted the grandparent rights statute.
The grandparent rights statute went through significant revisions throughout the years. The statute required that the grandparents show that visitation would be in the best interests of the child and that the parents’ rights would not be substantially impaired by allowing the grandparents to have visitation with the children.
The Wyoming Supreme Court has radically changed the way courts must handle grandparent visitation cases. In the 2022 case, Ailport v. Ailport, the Wyoming Supreme Court drew a clear line in the parents’ favor in grandparent visitation cases. In Ailport, the grandparents sought visitation with their five grandchildren. The District Court ruled that the grandparents did not prove their right to visitation (i.e. that visitation was in the best interests of the children and would not substantially impair the parents’ rights). The grandparents appealed the case to the Wyoming Supreme Court.
The Wyoming Supreme Court agreed with the District Court, but used a different analysis to get to that result. The Wyoming Supreme Court focused on the fundamental constitutional right of parents to raise their children as the parents saw fit. The Wyoming Supreme Court held that the way judges were interpreting the grandparent rights statute failed to adequately account for the parents’ constitutional rights. The Wyoming Supreme Court held:
Parents have a fundamental due process right to guide the upbringing of their children, including determining the level of contact with their grandparents. To satisfy strict scrutiny, [the grandparent rights statute] must be interpreted to protect parents’ fundamental right by requiring grandparents to prove parents are unfit to make visitation decisions for their children or the parents’ visitation decisions are or will be harmful to the children. Only after the grandparents make that threshold showing by clear and convincing evidence may the district court determine what visitation is in the best interests of the children.
Ailport v. Ailport, 2022 WY 43, ¶ 43 (Wyo. 2022)(emphasis added).
What does this mean for grandparents? Grandparent visitation will be harder to come by. Showing a parent is unfit to make decisions for a child is tantamount to the court stating that a parent does not possess the proper skills or maturity to be a parent. Essentially, grandparents need to make nearly the same showing as the State does when the State seeks to terminate a parent’s parental rights.