Barstad v. Frazier

• Decision Date: 24 July 1984
• Docket Number: No. 82-1182,82-1182
• Citation: 348 N.W.2d 479,118 Wis.2d 549
• Parties: Theol A. BARSTAD, Plaintiff-Respondent, v. Wanda K. FRAZIER, Defendant-Appellant-Petitioner, Michael L. Weiss, Defendant.
• Court: Wisconsin Supreme Court

Page 479

348 N.W.2d 479

118 Wis.2d 549

Theol A. BARSTAD, Plaintiff-Respondent, v. Wanda K. FRAZIER, Defendant-Appellant-Petitioner Michael L. Weiss, Defendant.

No. 82-1182.

Supreme Court of Wisconsin.

Argued Feb. 27, 1984.

Decided May 30, 1984.

Reconsideration Denied July 24, 1984. ^*

Donna M. Mueller, Wausau (argued), for defendant-appellant-petitioner; Wisconsin Judicare, Inc., Wausau, on brief.

Terrence M. Gherty, Hudson (argued), for plaintiff-respondent; Susan Schleif Gherty and Gherty & Dunlap, Hudson, on brief.

DAY, Justice.

This is a review of a decision of the court of appeals ¹ affirming a judgment of the circuit court for St. Croix county, Honorable John G. Bartholomew, Circuit Judge, awarding custody of Michael Scott Frazier to his grandmother Theol Barstad. This review presents the question of the standard to be applied in a custody dispute between a parent and a third party. We hold that unless the court finds that the parent is unfit or unable to care for the child or that there are compelling reasons for denying custody to the parent, the court must grant custody to the child's parent. We hold that the trial court's conclusion that compelling reasons required that Wanda Frazier, Michael's mother, be denied custody of her son is not supported by the record. We reverse the decision of the court of appeals and order that custody be returned to Wanda Frazier.

Michael Frazier was born on November 24, 1973. His mother, Wanda K. Frazier, was sixteen years old at the time and living with her father and stepmother in North Hudson, Wisconsin. Within three months after Michael was born, both he and his mother had left North Hudson and taken up residence with Theol Barstad, Wanda Frazier's mother, in St. Paul, Minnesota. Shortly thereafter, Michael, his mother and his grandmother all returned to North Hudson where they lived together until February of 1977. At that point, Wanda Frazier and Michael moved out of Theol Barstad's home. They lived for a short time with a male friend of Ms. Frazier and then moved into a rented apartment. Ms. Frazier was working at the time and left Michael under the supervision of a babysitter or day care when she was away. In August of 1977 Michael was returned to Theol Barstad's home where he has remained ever since.

During the latter part of 1977 and the first part of 1978, Wanda Frazier lived in St. Paul. In August of 1978, she married David Emory and lived with him in New Richmond, Wisconsin until November of that year when she returned to her mother's home in North Hudson. ² She remained with her mother until June of 1980. In July of 1980, Ms. Frazier began living with another male friend. In June of 1981, Theol Barstad commenced a custody action in the circuit court for St. Croix county under section 767.02(1)(c), Stats.1979-80, seeking custody of Michael. ³ The complaint named Wanda Frazier and Michael L. Weiss, Michael Frazier's father, as defendants. ⁴ A guardian ad litem was appointed and a hearing on the matter was held on December 21 and 30, 1981.

At the time of the custody hearing, Wanda Frazier was living with the male friend in a rented house in South Haven, Minnesota. Neither Ms. Frazier nor her friend was employed fulltime. He was supporting the household with his savings. Both individuals testified that they had no plans to marry in the near future. They also testified that their relationship was otherwise similar to a traditional married couple with Ms. Frazier taking primary responsibility for housekeeping and he providing economic support. Ms. Frazier testified that from the time she left her mother's home up until the time of the hearing she had visited Michael on a weekly basis.

At the time of the custody hearing, Theol Barstad, aged 45, was married to Roger Barstad, aged 39, and living in a house in North Hudson. Roger Barstad was employed fulltime and Theol Barstad did babysitting at home. Theol Barstad was receiving Aid to Families with Dependent Children for the support of Michael at the time of the hearing. Mrs. Barstad had been married on three previous occasions each of the marriages having ended in divorce.

Home studies were made of both Mrs. Barstad's home and that of her daughter. Those studies did not show that either of the parties were unfit to have custody of Michael.

The trial court judge conducted an in camera interview with Michael and found him to be a bright, friendly and intelligent child who was doing well in school and happy in his present surroundings.

Based on the best interests of the child criteria and the recommendations of the guardian ad litem, the trial court awarded custody of Michael to Theol Barstad. The court stated that its decision was "based on the present stability which the grandmother has given and which is reflected in the happy, well-adjusted boy ... as contrasted to the unknown future of Wanda Frazier." The court further stated that "although Wanda Frazier is not an unfit person to have custody of the minor child, the present stability and happiness of this young boy should not be exchanged for the unknown." The court concluded that "there are compelling reasons why this Court should not change the custody of Michael from his grandmother." The court emphasized that in awarding custody to Michael's grandmother it was "not penalizing Wanda Frazier for her live-in relationship."

The mother of Michael appealed to the court of appeals which, relying on this court's holding in LaChapell v. Mawhinney, 66 Wis.2d 679, 225 N.W.2d 501 (1975), affirmed the judgment of the trial court. This court granted a petition for review.

Custody determinations are based on first-hand observation and experience with the persons involved and therefore the discretionary decisions of the trial court are given great weight on appeal. A custody award will be upset only if the appellate court is convinced that the findings of fact upon which the custody determination is based are clearly erroneous, sec. 805.17(2), Stats.1980-81, or that the custody determination represents a clear abuse of discretion. To find an abuse of discretion, an appellate court must find either that the circuit court has not exercised discretion or that it has exercised discretion on the basis of an error of law or irrelevant or impermissible factors. In re Marriage of Millikin v. Millikin, 115 Wis.2d 16, 25, 339 N.W.2d 573 (1983); In re Marriage of Gould v. Gould, 116 Wis.2d 493, 498, 342 N.W.2d 426 (1984).

In its findings of fact and conclusions of law, the circuit court stated that it was applying the best interests of the child criteria but also stated that there were compelling reasons for not awarding custody of Michael to his mother. We conclude that the "best interests of the child" is not the proper standard in custody disputes between a natural parent and a third party and also that the record does not support a conclusion of compelling reasons for denying custody to Michael's mother. We therefore reverse the decision of the court of appeals and order that custody be transferred to Wanda Frazier.

A grandparent stands in a closer relationship to a child than one we normally think of as a "third party." ⁵ But as between a parent and a grandparent we hold that to deprive a parent of custody the principles one would apply to third parties are applicable.

This court has accepted the principle that between parents in a divorce action the "best interest of the child" is generally applied as to which parent is awarded custody. Section 767.24(2), Stats; Johnson v Johnson, 78 Wis.2d 137, 148, 254 N.W.2d 198 (1977).

Transfer of legal custody of a child from a parent to a third party does not have the finality of termination of parental rights. "Custody" may imply a temporary arrangement that theoretically could be changed as future circumstances might warrant. But a change of custody may result in as complete a severance of child-parent ties as does termination. The day to day contact between the child and one having custody can create a relationship that may leave the birth parent almost an intruder. All of the day to day interactions between a parent and child are bound to be diminished if not eliminated where the parent comes on the scene as a court permitted "visitor."

This court has not had many custody cases from which workable principles are easily derived. Ponsford v. Crute, 56 Wis.2d 407, 202 N.W.2d 5 (1972). LaChapell v. Mawhinney, 66 Wis.2d 679, 225 N.W.2d 501 (1975).

Other jurisdictions have had occasion to analyze the legal and social forces at work when courts have been called upon to steer the frail bark of a child's "best interest" through the cross-currents of parent-grandparent relationships, where the whirlpools of love and attachment may pull powerfully in opposite directions. See Annot., 31 A.L.R.3d 1187 (1970) and cases cited therein.

When a parent is young, the physical, financial and even emotional factors may often appear to favor the grandparents. One cannot expect young parents to compete on an equal level with their established older relatives. ⁶ So the "best interest" standard cannot be the test. If it were we would be forced to conclude that only the more affluent in our society should raise children. To state the proposition is to demonstrate its absurdity.

We conclude that in the absence of compelling reasons the principles followed in cases involving termination of parental rights should be followed where a request for a custody change from a parent to a third party is presented to a court.

Both this court and the United States Supreme Court have recognized that the relationship between a parent and a child is a constitutionally protected right. In Stanley v. Illinois, 405 U.S. 645, 92 S.Ct. 1208, 31 L.Ed.2d 551 (1972) the United States Supreme Court considered the constitutionality of an Illinois statutory scheme that permitted the parental rights of an unwed father to be terminated without a...