Custody of H.S.H.-K., In re

Decision Date13 June 1995
Docket NumberNo. 93-2911,93-2911
Parties, 64 USLW 2007 In re the CUSTODY OF H.S.H.-K. Sandra Lynne HOLTZMAN, Petitioner-Appellant, v. Elsbeth KNOTT, Respondent-Respondent.
CourtWisconsin Supreme Court

For the petitioner-appellant there was a brief by Judith Sperling Newton, Carol M. Gapen and Stafford, Rosenbaum, Rieser & Hansen, Madison and oral argument by Judith S. Newton.

For the respondent-respondent there was a brief by Charles Schutze, Kelly Kinzel and Schutze Law Offices, Madison and oral argument by Charles Schutze.

Guardian Ad Litem briefs were filed (in the Court of Appeals) by Linda S. Balisle and Balisle & Roberson, S.C., Madison and oral argument by Linda S. Balisle.

Amicus curiae brief was filed by Shannan Wilber and Youth Law Center, San Francisco, CA, Marvin Ventrell and Nat. Ass'n of Counsel for Children, Denver, CO and Joan Heifetz Hollinger, University of California, for the Youth Law Center and Nat. Ass'n of Counsel for Children.

SHIRLEY S. ABRAHAMSON, Justice.

Sandra Lynne Holtzman appeals from an order of the circuit court for Dane county, George A.W. Northrup, circuit judge, dismissing her petition seeking custody of or visitation rights to H.S., the biological child of Elsbeth Knott. We granted the guardian ad litem's petition to bypass the court of appeals. Section (Rule) 809.60, Stats. 1991-92. We affirm that part of the order dismissing the petition for custody; we reverse that part of the order dismissing the petition for visitation rights and remand the case to the circuit court for proceedings consistent with this opinion.

Two issues of law are presented in this case. The first issue is whether Holtzman's assertions of Knott's parental unfitness and inability to care for the child, or of compelling circumstances requiring a change of custody, are sufficient to proceed on a petition for custody under sec. 767.24(3), Stats. 1991-92. The second issue is whether Holtzman may seek visitation rights to the child. 1

We agree with the circuit court that Holtzman has not raised a triable issue regarding Knott's fitness or ability to parent her child and has not shown compelling circumstances requiring a change of custody. Therefore the circuit court properly dismissed the custody action commenced under sec. 767.24(3), Stats. 1991-92. For the reasons set forth, we conclude that the ch. 767 visitation statute, sec. 767.245, Stats. 1991-92, does not apply to Holtzman's petition for visitation rights to Knott's biological child. However, we further conclude that the legislature did not intend that sec. 767.245 be the exclusive means of obtaining court-ordered visitation, or that it supplant or preempt the courts' long recognized equitable power to protect the best interest of a child by ordering visitation under circumstances not included in the statute. Finally, mindful of preserving a biological or adoptive parent's constitutionally protected interests and the best interest of a child, we conclude that a circuit court may determine whether visitation is in a child's best interest if the petitioner first proves that he or she has a parent-like relationship with the child and that a significant triggering event justifies state intervention in the child's relationship with a biological or adoptive parent. To meet these two requirements, the petitioner must prove the component elements of each one.

To demonstrate the existence of the petitioner's parent-like relationship with the child, the petitioner must prove four elements: (1) that the biological or adoptive parent consented to, and fostered, the petitioner's formation and establishment of a parent-like relationship with the child; (2) that the petitioner and the child lived together in the same household; (3) that the petitioner assumed obligations of parenthood by taking significant responsibility for the child's care, education and development, including contributing towards the child's support, without expectation of financial compensation; 2 and (4) that the petitioner has been in a parental role for a length of time sufficient to have established with the child a bonded, dependent relationship parental in nature. 3

To establish a significant triggering event justifying state intervention in the child's relationship with a biological or adoptive parent, the petitioner must prove that this parent has interfered substantially with the petitioner's parent-like relationship with the child, and that the petitioner sought court ordered visitation within a reasonable time after the parent's interference.

The petitioner must prove all these elements before a circuit court may consider whether visitation is in the best interest of the child. The proceedings must focus on the child. When a non-traditional adult relationship is dissolving, the child is as likely to become a victim of turmoil and adult hostility as is a child subject to the dissolution of a marriage. Such a child needs and deserves the protection of the courts as much as a child of a dissolving traditional relationship. In re Interest of Z.J.H., 162 Wis.2d 1002, 1033, 471 N.W.2d 202 (1991) (Bablitch, J. dissenting).

We remand the issue of visitation to the circuit court for proceedings consistent with this opinion.

I.

The facts as found by the circuit court are as follows:

Holtzman and Knott are two women who shared a close, committed relationship for more than ten years. Holtzman and Knott met in February 1983. In October 1983, they began to live together in a home they jointly purchased in Boston, Massachusetts. On September 15, 1984, they solemnized their commitment to each other, exchanging vows and rings in a private ceremony.

They decided early in their relationship to rear a child together by having Knott artificially inseminated with sperm from an anonymous donor. After a miscarriage and illness, Knott became pregnant in March 1988. Holtzman and Knott attended obstetrical visits and childbirth classes together.

The child was born on December 15, 1988. Holtzman was present during labor and delivery and took three weeks off from work to stay with Knott and the child. Holtzman and Knott jointly selected a name for the baby using first and middle names from each of their families and a surname which combined their last names. Both women were named as the child's parents at the child's dedication ceremony at their church. Holtzman's parents were recognized as the child's grandparents and Holtzman's sister was formally named as his godmother.

From December 1988 until January 1, 1993, Holtzman provided the primary financial support for Knott, herself and the child and both women shared child-care responsibilities. Together, the three attended church, went on outings and celebrated holidays. Holtzman devoted herself to the child and spent individual time with him.

The two women explained to the child that there are many kinds of families and that he had two parents who loved him very much. The child called Holtzman "My San," and each year on Father's Day Holtzman, Knott and the child celebrated their own special holiday honoring Holtzman.

Holtzman, Knott and the child moved to Madison, Wisconsin, in June 1992 so that Holtzman could attend law school. They sold their home in Boston and bought a home in Madison, not far from Holtzman's family. The child became attached to Holtzman's parents as his grandparents and to Holtzman's sister as his aunt and godmother.

During the fall of 1992, Holtzman claims to have noticed a change in Knott's behavior. She asserts that Knott suffered from depression and her care for the child deteriorated.

On January 1, 1993, Knott told Holtzman that their relationship was over. The two women agreed that they would continue to live together in the home for the child's sake. On May 26, 1993, Knott and the child moved out of the house. Holtzman made every effort to maintain contact with the child and spent as much time with him as Knott would allow. On August 24, 1994, Knott informed Holtzman that she was terminating Holtzman's relationship with the child.

Two days later, on August 26, 1993, Knott sought an order in Dane county circuit court to restrain Holtzman from having any contact with her or the child, claiming Holtzman had threatened or intimidated her. At the hearing on the petition, held on September 1, 1993, before Dane County Circuit Judge Richard J. Callaway, the two women entered into a stipulation on the record. Knott agreed to dismiss the petition; Holtzman agreed not to contact Knott. Both women agreed to participate in a physical placement study to be conducted by the Dane County Family Court Counseling Service, and to have a guardian ad litem appointed for the child.

Holtzman filed a petition for custody on September 16, 1993, and a petition for visitation on September 21, 1993. On September 29, 1993, Knott filed a motion for summary judgment.

After interviewing the child, the guardian ad litem reported the following facts to the circuit court: The child stated that he believed Holtzman was his parent and that he would like to see, spend time with and telephone Holtzman. He was able to recite Holtzman's new address and telephone number. The child acknowledged that his mother no longer viewed Holtzman as his parent, that she would be upset if he continued to see Holtzman, but that he wanted to see her anyway. He stated that he did not consider anyone other than Holtzman and Knott to be his parents.

The circuit court reluctantly granted Knott's motion for summary judgment. It concluded that the current visitation law, while seeking to protect the best interest of children in traditional families torn asunder, ignores the welfare of children reared by adults in nontraditional relationships when those relationships terminate. According to the circuit court, the visitation law does not recognize the parent-like bond that forms between a child and a...

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