Weichman v. Weichman

• Decision Date: 30 March 1971
• Docket Number: No. 374,374
• Citation: 184 N.W.2d 882,50 Wis.2d 731
• Parties: Annette Louise WEICHMAN, Appellant, v. John Cletus WEICHMAN, Jr., Respondent.
• Court: Wisconsin Supreme Court

Page 882

184 N.W.2d 882

50 Wis.2d 731

Annette Louise WEICHMAN, Appellant, v. John Cletus WEICHMAN, Jr., Respondent.

No. 374.

Supreme Court of Wisconsin.

March 30, 1971.

This is an appeal in a divorce action and involves the question of so-called visitation rights of grandparents. Annette Louise Weichman, the plaintiff, and John Cletus Weichman, Jr., the defendant, were married in Waukesha county on February 14, 1969. The plaintiff was pregnant at the time. The parties lived together for two months and separated in April, 1969, and this action was then started. Since the plaintiff was 17 years of age and the defendant was 18, a guardian ad litem was appointed for each party. The child was born on July 7, 1969, and shortly thereafter the defendant enlisted in the Armed Services.

The hearing for divorce was held December 31, 1969; both parties, their attorneys, and their parents were present. The divorce and custody were uncontested, but the defendant requested his parents be granted visitation privileges while he was in the service. The court granted the divorce and the custody of the child to the plaintiff and asked the parties to submit briefs on the issue of visitation rights. A short time later in January, 1970, the defendant went absent without leave from the Armed Services and has disappeared. Two inconsistent judgments and several orders were finally entered in October and November of 1970. One order and one judgment granted the paternal grandparents visitation privileges. From this order and judgment, the plaintiff appeals.

D'Amato & Cusack, Waukesha, for appellant.

Michael Best & Friedrich, Milwaukee, for respondent. HALLOWS, Chief Justice.

At the outset we will overlook as not relevant the questions relating to inconsistent judgments and orders and the question of the plaintiff's contempt in not allowing the paternal grandparents to visit the child. On oral argument the paternal grandparents waived any right to have the plaintiff held in contempt and the issues were narrowed to whether the court abused its discretion in granting visitation rights to the paternal grandparents.

There is no statutory or commonlaw rule which forbids a court in a divorce action from granting visitation rights to parents or to others. The question is not one of the power of the court but of judgment or of judicial discretion. The underlying principle or guideline for the granting of visitation privileges, as it is for granting custody, is what is for the best interest and welfare of the child. See Gotz v. Gotz (1956), 274 Wis. 472, 80 N.W.2d 359.

The court's power to control visitation rights flows from sec. 247.24, Stats., ¹ and is intertwined with its power to grant custody in divorce actions. In instances where neither parent is able to adequately care for the child or both are unfit, custody of the child may be given to a relative if the interest of the child demands it. However, visitation rights are not dependent upon the fitness or unfitness of the parents but upon whether the welfare of the child requires it to see and visit members of the family to which it belongs. Other jurisdictions have granted visitation rights to relatives, not for their gratification or enjoyment, but to fulfill the needs of the child. See Benner v. Benner (1952), 113 Cal.App.2d 531, 248 P.2d 425; Kewish v. Brothers (1966), 279 Ala. 86, 181 So.2d 900; Lucchesi v. Lucchesi (1947), 330 Ill.App. 506, 71 N.E.2d 920.

In Gotz v. Gotz, supra, visitation rights were given to the sisters of the divorced mother who went to Florida for health reasons. The father was given temporary custody of the child with the provision the maternal relatives had the right to visit the child weekly. Later the father objected that these visitations were detrimental to the child, but the court found on psychiatric testimony that the detrimental effect on the child was caused by the father's resentment of visits which grew out of his hostility toward his wife's sisters. Based upon the premise 'It is generally a good thing for the child of divorced parents to maintain contact with both his father and mother,' this court recognized it was within the judicial discretion of the trial court to keep that contact alive through visits of the child's aunts. It is natural for a child 'to belong;' it gives him security in life which he needs in his development. A child should have family contacts and these should be preserved to him to the fullest extent in divorce cases.

Unfortunately, too many divorced parents 'allow the desire to nurture their personal animosities to overshadow the welfare of the child,' and frequently there is an overflow of this animosity to other relatives of the child. In this case the record reveals deep animosity and ill-feeling between the young parents and their respective families. The child seems to be more of a football in the game of life than a player. A child has a right to grow up as naturally as he can under the circumstances of a divorce. Those things which will aid him in his normal development as a human being, the court should allow him; those things which will harm his development should be forbidden. It is difficult enough for a child of a broken home to find its way through life without having the added burden of being the victim of hatred and hostility between his parents and relatives. Divorced parents and their kin should remember it is not their wishes or desires which are at stake but the welfare of the child who did not ask to be placed in the tragic circumstances he finds himself. ²

In Peterson v. Peterson (1961), 13 Wis.2d 26, 30, 108 N.W.2d 126, 128, we stated, 'No hard and fast formula has yet been devised for determining what factors will ultimately assure the future welfare of a child.' In that case we allowed a divorced mother to take the child out of the home of the paternal...