MBB v. ERW

• Decision Date: 09 November 2004
• Parties: MBB and JPB, a minor child, Appellants (Petitioners), v. ERW and MIS, Appellees (Respondents).
• Court: Wyoming Supreme Court

100 P.3d 415

2004 WY 134

MBB and JPB, a minor child, Appellants (Petitioners), v. ERW and MIS, Appellees (Respondents).

No. C-04-1.

Supreme Court of Wyoming.

November 9, 2004.

Representing Appellants: Robert J. Hand, Jr. of Hand & Hand, Casper, Wyoming.

Representing Appellee ERW: Todd Hambrick and Stephanie Hambrick of Krampner, Fuller & Hambrick, Casper, Wyoming.

Representing Appellee MIS: Richard L. Harden, Casper, Wyoming.

Before HILL, C.J., and GOLDEN, LEHMAN, KITE, and VOIGT, JJ.

VOIGT, Justice.

[¶ 1] In 1993, J.S. was born to MIS (Mother) and ERW (Father). Seven months later, Mother and J.S. began living with Michael Bisiar (Bisiar). In 1998, Mother and Bisiar had a child, J.B., together. In 1999, an order was entered awarding Mother custody of J.S. In 2002, Mother moved out of Bisiar's home. She was facing criminal charges and requested that Father take custody of J.S. Father took custody of J.S. and filed a petition to modify the custody order, requesting that he be granted custody of J.S. The district court granted Father's petition. Shortly thereafter, Bisiar and J.B. filed a petition to set aside the modification, claiming that Father had refused to allow them visitation with J.S. Mother and Father filed separate motions to dismiss Bisiar's petition. The district court granted the motions to dismiss, finding that Bisiar and J.B. lacked standing to bring the action. Bisiar and J.B. appealed. We will affirm.

ISSUE

[¶ 2] The dispositive issue presented in this case is whether a stepparent or sibling has standing to challenge a custody order or to request visitation.

FACTS

[¶ 3] In 1993, J.S. was born to Mother and Father, an unmarried couple. When J.S. was approximately seven months old, Mother and J.S. began living with Bisiar. Bisiar, Mother and J.S. lived together for approximately six years, during which time a second child, J.B., was born. Bisiar held J.S. out as his own son and a close familial bond developed among Bisiar, J.B. and J.S.

[¶ 4] In 1999, genetic testing established Father's paternity with respect to J.S. At that time, Mother and Father entered into an agreement giving Mother custody of J.S. and providing a visitation schedule whereby Father and J.S., who had had little prior contact, would be gradually introduced into a standard visitation arrangement. In 2002, Father moved to modify this agreement requesting that he be granted full custody of J.S. Father's motion alleged that on May 29, 2002, Mother asked Father to take custody of J.S. because she was homeless and awaiting arraignment on charges of aiding and abetting burglary and aggravated burglary. Mother and Father stipulated to the modification and an order giving Father primary custody of J.S. was entered by the district court on January 30, 2003.

[¶ 5] On June 3, 2003, Bisiar filed a petition to set aside the modification order. Bisiar asserted that he was not given his "statutory rights to reasonable notice and an opportunity to be heard with regard to the placement of the minor child as provided in W.S. § 20-5-105." The essence of his claim was that under the Uniform Child Custody Jurisdiction Act (UCCJA), he should have received notice of the hearing and that Father was required to provide the names of all persons with whom the minor child has lived during the last five years. Bisiar also asserted that Father, by not allowing him and J.B. visitation with J.S., was infringing upon their constitutional right to freedom of association with J.S. Bisiar requested that the order be modified to "provide a reasonable and liberal visitation schedule by and between [Bisiar and J.B.] and the minor child [J.S.]...." Mother and Father filed separate motions to dismiss Bisiar's petition, asserting that he had no standing to request that the district court's order be set aside or seek visitation because Bisiar was not J.S.'s parent. On October 30, 2003, the district court dismissed Bisiar's petition, finding that he had "no standing under Wyoming law to bring this action." Bisiar timely appealed.

STANDARD OF REVIEW

[¶ 6] Bisiar's petition was dismissed pursuant to W.R.C.P. 12(b)(6) for failure to state a claim for which relief can be granted.

"When claims are dismissed under W.R.C.P. 12(b)(6), this court accepts the facts stated in the complaint as true and views them in the light most favorable to the plaintiff. Such a dismissal will be sustained only when it is certain from the face of the complaint that the plaintiff cannot assert any facts that would entitle him to relief. Story v. State, 2001 WY 3, ¶ 19, 15 P.3d 1066, ¶ 19 (Wyo.2001). Dismissal is a drastic remedy and is sparingly granted; nevertheless, we will sustain a W.R.C.P. 12(b)(6) dismissal when it is certain from the face of the complaint that the plaintiff cannot assert any set of facts that would entitle that plaintiff to relief. Robinson v. Pacificorp, 10 P.3d 1133, 1135-36 (Wyo. 2000)."

Bonnie M. Quinn Revocable Trust v. SRW, Inc., 2004 WY 65, ¶ 8, 91 P.3d 146, 148 (Wyo.2004) (quoting Manion v. Chase Manhattan Mortgage Corp., 2002 WY 49, ¶ 6, 43 P.3d 576, ¶ 6 (Wyo.2002) and Van Riper v. Oedekoven, 2001 WY 58, ¶ 24, 26 P.3d 325, ¶ 24 (Wyo.2001)).

DISCUSSION

[¶ 7] On appeal, Bisiar and J.B. contend (1) that the district court should have been made aware of their relationship with J.S. before granting the modification; and (2) that they should have been awarded visitation. In support of their first argument, they contend that the modification was defective because Father did not comply with a provision of the UCCJA, Wyo. Stat. Ann. § 20-5-110 (LexisNexis 2003), which requires:

Every party in a custody proceeding in his first pleading or in an affidavit attached to that pleading shall give information under oath as to the child's present address, the places where the child has lived within the last five (5) years and the names and present addresses of the persons with whom the child has lived during that period.

Bisiar and J.B. maintain that because Father did not include this information in his petition for modification, the resulting order was defective and should have been set aside.

[¶ 8] We disagree. To begin with, Bisiar and J.B. failed to demonstrate the applicability of the UCCJA to an intrastate custody matter, considering that the stated purpose of the act is to avoid and resolve custody conflicts between different jurisdictions.¹ Secondly, and more fundamentally problematic for Bisiar and J.B., is the fact that they lack standing to challenge the district court's modification order and request visitation. Standing—a stake or interest in the litigation—must be established for participation in a lawsuit as a party. State ex rel. Bayou Liquors, Inc. v. City of Casper, 906 P.2d 1046, 1048 (Wyo.1995) (quoting Schulthess v. Carollo, 832 P.2d 552, 556-57 (Wyo. 1992)).

[¶ 9] In State ex rel. Klopotek v. District Court of Sheridan County, 621 P.2d 223, 227 (Wyo.1980), superseded by statute on other grounds by Marquiss v. Marquiss, 837 P.2d 25 (Wyo.1992), we stated that "[t]he father and mother are natural guardians of the persons of their minor children." Parents enjoy a constitutionally protected fundamental right to "make decisions concerning the care, custody, and control of their children." Troxel v. Granville, 530 U.S. 57, 66, 120 S.Ct. 2054, 147 L.Ed.2d 49 (2000); see also Michael v. Hertzler, 900 P.2d 1144, 1147 (Wyo. 1995). This fundamental right has been recognized as a liberty interest protected under the Fifth and Fourteenth Amendments to the United States Constitution, and is also found in Wyo. Const. art. 1, § 6, which provides, "[n]o person shall be deprived of life, liberty or property without due process of law." Michael, 900 P.2d at 1147. In Troxel, the United States Supreme Court discussed this principle:

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. More than 75 years ago, in Meyer v. Nebraska, 262 U.S. 390, 399, 401, 43 S.Ct. 625, 67 L.Ed. 1042 (1923), we held that the "liberty" protected by the Due Process Clause includes the right of parents to "establish a home and bring up children" and "to control the education of their own." Two years later, in Pierce v. Society of Sisters, 268 U.S. 510, 534-535, 45 S.Ct. 571, 69 L.Ed. 1070 (1925), we again held that the "liberty of parents and guardians" includes the right "to direct the upbringing and education of children under their control."

Troxel, 530 U.S. at 65,120 S.Ct. 2054. "`It is cardinal with us that the custody, care and nurture of the child reside first in the parents....'" Nulle v. Gillette-Campbell County Joint Powers Fire Bd., 797 P.2d 1171, 1174 (Wyo.1990) (quoting Prince v. Massachusetts, 321 U.S. 158, 166, 64 S.Ct. 438, 88 L.Ed. 645 (1944)).

[¶ 10] While a parent's interest in the care and custody of his or her child is a fundamental right, it is not without limitations. Michael, 900 P.2d at 1148. The State, pursuant to its police power and in its capacity as parens patriae, has the right and duty to "supervise the welfare of children and promote their best interest in a way which affects the rights of parents." Id. at 1150. However, state action affecting this fundamental right is subject to strict scrutiny. Id. at 1146. Also, private action affecting a parent's interest in the care, custody and control or his child may only be accomplished by court action taken pursuant to appropriate statutory authority. Id. at 1147; State ex rel. Klopotek, 621 P.2d at 227.

[¶ 11] Besides a child's biological or adoptive parents, the Wyoming legislature has granted statutory authority to request visitation to only two additional classes of persons. First, under Wyo. Stat. Ann. § 20-7-101 (LexisNexis 2003),² a child's grandparents, under certain circumstances, may bring an action to establish visitation with their...