Interest of Z.J.H., In re, No. 89-2113

CourtUnited States State Supreme Court of Wisconsin
Writing for the CourtCALLOW; SHIRLEY S. ABRAHAMSON; BABLITCH
Citation471 N.W.2d 202,162 Wis.2d 1002
Parties, 60 USLW 2139 In re the Interest of Z.J.H. Wendy L. SPORLEDER, Petitioner-Appellant-Petitioner, v. Janice A. HERMES, Respondent.
Decision Date26 June 1991
Docket NumberNo. 89-2113

Page 202

471 N.W.2d 202
162 Wis.2d 1002, 60 USLW 2139
In re the Interest of Z.J.H.
Wendy L. SPORLEDER, Petitioner-Appellant-Petitioner,
v.
Janice A. HERMES, Respondent.
No. 89-2113.
Supreme Court of Wisconsin.
Argued May 29, 1991.
Decided June 26, 1991.

Page 203

[162 Wis.2d 1005] Shelley J. Gaylord, argued, Gaylord & Schuett, on briefs, Madison, for petitioner-appellant-petitioner.

Daniel R. Cross, argued, Robinson, Robinson, Peterson, Berk, [162 Wis.2d 1006] Rudolph, Cross and Garde, on briefs, Appleton, for respondent.

Mark Borns and Borns, Macualay & Jacobson, Madison, of counsel, Maria Gil de Lamadrid, San Francisco, Cal., and Paula L. Ettlebrick, New York City, amicus curiae, for Nat. Center for Lesbian Rights and Lambda Legal Defense and Educ. Fund, Inc.

CALLOW, Justice.

This is a review of a decision of the court of appeals, In re Interest of Z.J.H., 157 Wis.2d 431, 459 N.W.2d 602 (Ct.App.1990). In its decision, the court of appeals affirmed a summary judgment of the circuit court for Outagamie county, Judge Dee R. Dyer, dismissing an action by the petitioner-appellant-petitioner (Sporleder) seeking physical placement or visitation of Z.J.H., the adopted son of the respondent (Hermes). Sporleder seeks review of that decision, pursuant to sec. (Rule) 809.62, Stats.

Four issues are raised on this review: (1) Is Sporleder, who is not a natural or adoptive

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parent of Z.J.H., entitled to custody or physical placement of Z.J.H. under the in loco parentis doctrine?; (2) Does sec. 767.245(1), Stats., entitle Sporleder to visitation rights to Z.J.H. absent an underlying action affecting the family?; (3) Is a co-parenting contract between Sporleder and Hermes, the adoptive parent, enforceable by the courts when it concerns the physical placement of the child or visitation rights to the child?; and (4) Is Hermes equitably estopped from denying that Sporleder is an equitable parent of Z.J.H., and therefore entitled to custody of Z.J.H. or visitation with Z.J.H.?

We first conclude that Sporleder does not have standing to acquire custody 1 of Z.J.H. There is no allegation[162 Wis.2d 1007] that Hermes is either unfit or unable to care for Z.J.H., and Sporleder has not established that compelling reasons exist for awarding custody to a third party. Second, we conclude that Sporleder is not entitled to visitation rights with Z.J.H., because there is no underlying action affecting the family. Third, we conclude that the co-parenting contract between Sporleder and Hermes is unenforceable. The rights to custody and visitation are controlled by statutory and case law, and cannot be determined by contract. Finally, we conclude that Hermes is not equitably estopped from denying custody and visitation to Sporleder.

The relevant facts follow. Sporleder and Hermes lived together as companions for approximately eight years. After an unsuccessful attempt to have a child through the artificial insemination of Sporleder, they decided that Hermes would adopt a child. In March 1988, Z.J.H., born January 19, 1988, was placed in their home as a result of a pre-adoptive placement by an adoption agency. Sporleder provided the primary care for Z.J.H., while Hermes worked outside the home. On October 25, 1988, the parties entered a co-parenting agreement, in which they agreed, among other things, that if they separated they would determine the physical placement of Z.J.H. through mediation, and that the non-placement party would have reasonable and liberal visitation rights to the child.

Sometime in October 1988 the parties separated. 2 Hermes then formally adopted Z.J.H. in November 1988, [162 Wis.2d 1008] and subsequently prohibited Sporleder from seeing Z.J.H.

In March 1989, Sporleder brought an action in the Outagamie county family court, seeking visitation rights or physical custody of Z.J.H., and seeking to enforce the co-parenting agreement. The family court commissioner granted visitation rights to Sporleder, and deferred to the circuit court on the other issues. The circuit court subsequently granted summary judgment for Hermes, on the grounds that Sporleder did not enjoy the legal status of parent, and had no standing to exercise these rights under Van Cleve v. Hemminger, 141 Wis.2d 543, 415 N.W.2d 571 (Ct.App.1987). The circuit court also found that the agreement was void as against public policy, and that Hermes was not equitably estopped from denying Sporleder's status as a parent.

The court of appeals affirmed the judgment of the circuit court, concluding that Sporleder was not entitled to custody or visitation rights to Z.J.H. We review the court of appeals decision pursuant to sec. (Rule) 809.62, Stats.

I.

We first determine that Sporleder does not have standing 3 to sustain an action to

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obtain custody of [162 Wis.2d 1009] Z.J.H. In reaching this conclusion, we first examine who has standing to bring an action for custody under the custody statute, sec. 767.24, Stats. Next, we examine whether Sporleder qualifies for such status under the statutory and common law of the state.

We conclude that, according to sec. 767.24(1), Stats., and this court's decision in Barstad v. Frazier, 118 Wis.2d 549, 348 N.W.2d 479 (1984), a non-parent may not bring an action to obtain custody of a minor child unless the natural or adoptive parent is unfit or unable to care for the child, or there are compelling reasons for awarding custody to a third party. Barstad, 118 Wis.2d at 568, 348 N.W.2d 479. See also J. McCahey, Child Custody and Visitation Law and Practice, sec. 11.03 (1991) (discussing the Barstad rule).

The general provisions concerning child custody and physical placement are found in sec. 767.24(1), Stats. 4 This section describes the circumstances under which the court may make custody and placement determinations for minor children. This case does not involve an action for annulment, divorce or legal separation between the parties. Conceivably, however, Sporleder [162 Wis.2d 1010] may bring an action under sec. 767.02(1)(e), 5 if Z.J.H. is her "minor child."

Setting aside the question of Sporleder's status as a parent for now, it is helpful to examine the circumstances under which a non-parent can acquire standing to obtain custody of a minor child. First, under sec. 767.24(3), Stats., a relative can acquire custody, "[i]f the interest of any child demands it, and if the court finds that neither parent is fit and proper to have the care and custody of the child," under a child in need of protection or services (CHIPS) proceeding. Sporleder concedes that Hermes is not unfit or incapable of taking care of Z.J.H., and hence sec. 767.24(3) does not apply to this case.

Second, a third party can acquire custody of a minor child if "compelling circumstances" exist, which necessitate awarding custody to one other than the child's parent. We stated, in Barstad:

We conclude that the rule to be followed in custody disputes between parents and third parties is that a parent is entitled to custody of his or her children unless the parent is either unfit or unable to care for the children or there are compelling reasons for awarding custody to a third party. Compelling reasons include abandonment, persistent neglect of parental responsibilities, extended disruption of parental custody, or other similar extraordinary circumstances that would drastically affect the welfare of the child.

[162 Wis.2d 1011] Barstad, 118 Wis.2d at 568, 348 N.W.2d 479. We find no such conditions or extraordinary circumstances present here.

Sporleder contends that summary judgment was inappropriate in this case, because she was never given the opportunity to show that compelling circumstances existed, which would entitle her to custody over Hermes. Applying the procedure to be used in reviewing summary judgment orders, 6 we conclude that summary judgment

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was appropriate in this case. Reviewing the case as the circuit court did, and applying the standards of sec. 802.08(2), Stats., we conclude that the pleadings, depositions, answers to interrogatories, and the admissions on file, together with the affidavits do not establish a genuine issue of material fact. The parties do not dispute that they entered a co-parenting contract. Neither do they disagree that Sporleder had a "parent-like" relationship with Z.J.H. Hermes, in her motion for summary judgment, conceded as much. There are no disputed material facts, or undisputed facts from which reasonable alternative inferences may be drawn. See Grams, 97 Wis.2d at 338, 294 N.W.2d 473. The crucial question is whether these facts represent "compelling circumstances." We conclude, as a matter of law, that they do not.

Clearly, this case does not involve abandonment, persistent neglect of parental duties, or extended disruption of parental custody. Although Sporleder may have been the primary care provider, Z.J.H. was not separated from Hermes. Additionally, we do not find "similar extraordinary circumstances." Barstad, 118 Wis.2d at [162 Wis.2d 1012] 568, 348 N.W.2d 479. This case is vastly different from the case Sporleder primarily relies on, LaChapell v. Mawhinney, 66 Wis.2d 679, 225 N.W.2d 501 (1975). In LaChapell, custody of two minor children was awarded to the children's grandparents over their natural father. In that case, the father had not lived with the children for eight years, had not displayed any interest in them, and had only visited them twice. LaChapell, 66 Wis.2d at 684, 225 N.W.2d 501. Here, we find no such compelling circumstances to justify awarding custody to a third party.

Although Sporleder had cultivated a "parent-like" relationship with Z.J.H., and expected that relationship to continue, the focus of our decision in Barstad was that compelling circumstances existed when a deficiency existed in the relationship of the child with the natural parent that drastically affected the welfare of the child. Barstad, 118 Wis.2d at 568, 348 N.W.2d...

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22 practice notes
  • Angel Lace M., In Interest of, Nos. 92-1369
    • United States
    • United States State Supreme Court of Wisconsin
    • June 8, 1994
    ...to seek visitation is closed and the option of protecting the relationship through contract is closed. See In re the Interest of Z.J.H., 162 Wis.2d 1002, 471 N.W.2d 202 (1991). In the best interests of a young girl named Angel, this court should not close the door on her I am authorized to ......
  • Custody of H.S.H.-K., In re, No. 93-2911
    • United States
    • United States State Supreme Court of Wisconsin
    • June 13, 1995
    ...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. We remand the issue of visitation to the circuit court for proceedings consistent with this opini......
  • Michels v. Lyons (In re Visitation of A. A. L.), No. 2017AP1142
    • United States
    • United States State Supreme Court of Wisconsin
    • May 24, 2019
    ...Holtzman, 193 Wis. 2d at 680, 533 N.W.2d 419 ; 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). More recently, in upholding Wis. Stat. § 54.56(2) agai......
  • In re Parentage of L.B., No. 75626-1.
    • United States
    • United States State Supreme Court of Washington
    • November 3, 2005
    ...care for the child'" or other compelling reasons exist. H.S.H.-K., 193 Wis.2d at 664, 533 N.W.2d 419 (quoting In re Interest of Z.J.H., 162 Wis.2d 1002, 1009, 471 N.W.2d 202 (1991)). The former partner was unable to meet this standard and thus lacked standing. Id. at 665-66, 533 N.W.2d 419.......
  • Request a trial to view additional results
22 cases
  • Angel Lace M., In Interest of, Nos. 92-1369
    • United States
    • United States State Supreme Court of Wisconsin
    • June 8, 1994
    ...to seek visitation is closed and the option of protecting the relationship through contract is closed. See In re the Interest of Z.J.H., 162 Wis.2d 1002, 471 N.W.2d 202 (1991). In the best interests of a young girl named Angel, this court should not close the door on her I am authorized to ......
  • Custody of H.S.H.-K., In re, No. 93-2911
    • United States
    • United States State Supreme Court of Wisconsin
    • June 13, 1995
    ...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. We remand the issue of visitation to the circuit court for proceedings consistent with this opini......
  • Michels v. Lyons (In re Visitation of A. A. L.), No. 2017AP1142
    • United States
    • United States State Supreme Court of Wisconsin
    • May 24, 2019
    ...Holtzman, 193 Wis. 2d at 680, 533 N.W.2d 419 ; 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). More recently, in upholding Wis. Stat. § 54.56(2) agai......
  • In re Parentage of L.B., No. 75626-1.
    • United States
    • United States State Supreme Court of Washington
    • November 3, 2005
    ...care for the child'" or other compelling reasons exist. H.S.H.-K., 193 Wis.2d at 664, 533 N.W.2d 419 (quoting In re Interest of Z.J.H., 162 Wis.2d 1002, 1009, 471 N.W.2d 202 (1991)). The former partner was unable to meet this standard and thus lacked standing. Id. at 665-66, 533 N.W.2d 419.......
  • Request a trial to view additional results

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