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Holtmann v. Knott
Citations: 193 Wis. 2d 649; 533 N.W.2d 419; 1995 Wisc. LEXIS 75Docket: No. 93-2911
Court: Wisconsin Supreme Court; June 13, 1995; Wisconsin; State Supreme Court
Sandra Lynne Holtzman appeals a circuit court order dismissing her petition for custody and visitation rights regarding H.S., the biological child of Elsbeth Knott. The court affirmed the dismissal of the custody petition, finding that Holtzman did not present sufficient evidence of Knott's parental unfitness or compelling circumstances for a custody change under sec. 767.24(3), Stats. 1991-92. However, it reversed the dismissal of Holtzman's visitation petition and remanded the case for further proceedings. The opinion addresses two legal issues: (1) whether Holtzman's claims about Knott's parental unfitness warrant a custody petition, and (2) whether Holtzman can seek visitation rights. The court concluded that sec. 767.245, which governs visitation, does not preclude a circuit court from exercising its equitable powers to grant visitation under certain conditions. Specifically, a petitioner must demonstrate a parent-like relationship with the child and a significant triggering event that justifies state intervention in that relationship. To prove a parent-like relationship, Holtzman must show that: 1. Knott consented to and encouraged the relationship. 2. Holtzman and the child lived together. 3. Holtzman took on parental responsibilities without financial compensation. 4. A bonded, dependent relationship developed over time. For a significant triggering event, Holtzman must demonstrate substantial interference by Knott with the relationship and that she sought visitation reasonably soon after the interference. The court emphasizes that the proceedings should prioritize the child's best interests, acknowledging that children in non-traditional relationship dissolutions deserve legal protection similar to those in traditional divorces. The case is remanded for the circuit court to evaluate Holtzman's visitation claim accordingly. Holtzman and Knott, a same-sex couple, were in a committed relationship for over ten years, beginning in February 1983. They cohabited in a home they purchased together in Boston, Massachusetts, starting in October 1983, and solemnized their relationship in a private ceremony in September 1984. They decided to raise a child together through artificial insemination, resulting in the birth of their son on December 15, 1988. Holtzman was actively involved in the child's birth and upbringing, providing primary financial support and sharing parenting responsibilities with Knott. The child was publicly recognized as having two parents during a church dedication ceremony. Holtzman and Knott maintained a nurturing environment, explaining different family dynamics to their child, who affectionately referred to Holtzman as 'My San.' In June 1992, the family relocated to Madison, Wisconsin, for Holtzman to attend law school, fostering strong familial ties with Holtzman's relatives. However, in early 1993, Knott's behavior reportedly changed, and she expressed her intent to end their relationship on January 1. Despite this, they agreed to cohabitate for the child's welfare until Knott and the child moved out in May. Following this separation, Holtzman attempted to maintain contact with the child. On August 24, 1994, Knott notified Holtzman that she would no longer allow contact and subsequently sought a restraining order against Holtzman on August 26, claiming threats. At a court hearing on September 1, 1993, both women reached a stipulation, agreeing to dismiss the restraining order and to undergo a custody evaluation. Holtzman filed petitions for custody and visitation in mid-September 1993. The guardian ad litem, after interviewing the child, reported that the child recognized Holtzman as his parent and expressed a desire to maintain contact, despite his mother's opposition. The individual stated that he only recognizes Holtzman and Knott as his parents. The circuit court granted Knott's summary judgment motion, expressing concern that existing visitation laws prioritize traditional family structures and neglect the welfare of children raised in nontraditional relationships when those relationships end. The court highlighted the emotional trauma for children who form parent-like bonds with nontraditional partners and urged a reevaluation of the law to reflect modern familial realities. It argued that children should not be denied the nurturing of a parental figure due to the dissolution of adult relationships, emphasizing the negative impact on children's well-being. Holtzman appealed the ruling, claiming her custody action should be governed by sec. 767.24, Stats. 1991-92, which outlines the court's responsibilities regarding custody in divorce and annulment cases. This statute allows for legal custody to be awarded to relatives if neither biological parent is fit. Holtzman asserts she has standing to seek custody, despite not being a biological parent, under the premise that compelling circumstances may justify custody being granted to a nonparent. The court has established that a nonparent can seek custody only if the biological or adoptive parent is unfit or unable to care for the child, or if compelling reasons exist, which may include abandonment or neglect. The circuit court determined that Holtzman failed to demonstrate a triable issue regarding Knott's ability to care for the child or to present compelling circumstances justifying a custody transfer from Knott, the biological parent. As a result, summary judgment was appropriately granted, affirming that no material factual issues existed. Holtzman’s lack of standing to seek custody led to the dismissal of her visitation petition. The court noted that for visitation under sec. 767.245(1), there must be an underlying family action, which was absent due to the dismissal of the custody case. Although the statute does not explicitly require an underlying action for visitation petitions, the court interpreted the statute's intent as primarily addressing cases involving the dissolution of marriage. Holtzman’s claim of a de facto divorce was deemed insufficient as the case did not involve a marriage. Furthermore, the court found that sec. 767.245 was not intended to be the exclusive provision on visitation, allowing for the exercise of equitable powers to protect a child's best interests in cases not covered by the statute. The historical context of visitation law reveals a balance between a parent’s rights and the child's best interests. The state is obligated to respect the constitutional rights of biological and adoptive parents while also recognizing when intervention is necessary to protect a child's best interests. Visitation laws aim to identify specific events that warrant such state intervention. Before 1975, courts established visitation rights of noncustodial parents without statutory guidance. In 1975, two statutes were enacted concerning grandparent visitation, one of which (sec. 880.155) granted visitation rights to grandparents following a parent's death, while the other, part of chapter 247, allowed visitation in cases of annulment, divorce, or legal separation. The 1977 Divorce Reform Act revised the visitation statute significantly, removing explicit limitations to cases of marital dissolution but indicating through legislative intent that the provisions primarily applied in those contexts. The 1977 statute allowed courts to grant visitation rights to grandparents or great-grandparents if deemed in the child's best interests, yet still suggested a focus on situations involving a breakdown of parental relationships. In 1988, further amendments expanded the visitation rights framework, allowing stepparents and others with a parent-child relationship to petition for visitation. Although the 1988 statute (ch. 767) did not explicitly limit petitions to marital dissolution contexts, legislative intent appeared to prioritize such circumstances in the consideration of visitation requests. The 1988 amendment, developed by the Legislative Council Special Study Committee on Custody Arrangements, primarily addressed custody issues arising from divorce or legal separation. The amendment did not aim to modify the court of appeals decision in Van Cleve v. Hemminger, which interpreted prior statutes as necessitating an action affecting the family. In 1991, the legislature introduced a new visitation statute under ch. 48 of the Children's Code, allowing certain relatives to seek visitation rights when a child is adopted by a stepparent or relative. This indicated that the legislature intended sec. 767.245 to be applicable solely in limited circumstances related to marriage dissolution, while the new statute addressed other scenarios requiring state intervention. The legislature clearly intended sec. 767.245 to be invoked by marriage-related events, as evidenced by the specific titling of petitions. The historical context of the visitation statutes highlights ongoing legislative concerns regarding when state interference in parent-child relationships is warranted, with the dissolution of marriage being the primary trigger. The Van Cleve case clarified that the visitation statute applies only when a family-related action has been initiated, preventing it from overriding parental decisions in intact families. The court based its interpretation on legislative history, the potential redundancy of another statute, and public policy favoring state intervention in the context of family dissolution. Subsequent cases, including In re Marriage of Soergel and others, reaffirmed the principles established in Van Cleve. The Wisconsin courts have consistently interpreted the ch. 767 visitation statute, asserting that it applies exclusively to divorce, custody cases, or actions affecting marriage. In Soergel, the court ruled against the biological paternal grandparents' petition for visitation, highlighting that the statute was not intended to override parental decisions, especially in cases where the family unit is intact, as in the case of an adopted child. The majority opinion emphasized that the adoptive mother and child constituted an intact family, which negated the grandparents' visitation rights. In Z.J.H., a divided court further reinforced this interpretation, stating that a third party could not seek visitation if the family unit was intact or if there was no underlying action affecting the family. The court's rationale lacked clarity on whether dissolving a relationship constituted a dissolving family or if an action affecting the family was requisite. The Cox v. Williams case added complexity, where the stepmother sought visitation after her husband's death. The court denied her standing, affirming that the family was intact with only the child and his biological mother following the father's death. Overall, for a circuit court to hear a visitation petition under sec. 767.245(1), there must either be an underlying action affecting the family, a dissolving family, or both. Courts have struggled with consistent interpretations of what qualifies as an 'action affecting the family' and have noted the absence of a definition for 'family' within the statute or case law, leading to varied applications of the visitation statute. The lack of a clear definition of "family" complicates the determination of whether a family is "dissolving" or "intact," making it challenging to assess petitions for visitation under sec. 767.245. The law emphasizes that state intervention in parental decisions regarding child-rearing, a constitutionally protected liberty, must be justified by a triggering event, which typically involves the dissolution of a marriage. The legislature intended that the ch. 767 visitation statute would only apply in cases of marriage dissolution, as such events could negatively impact children and may necessitate state intervention to safeguard their interests. In this case, the child was neither born of a marriage nor adopted during a marriage, and the biological mother has never been married, indicating that the statute does not apply. Consequently, the circuit court correctly declined to extend the statute's application in the absence of a dissolved marriage, rendering Holtzman's reliance on sec. 767.245 inappropriate. However, this does not preclude Holtzman from seeking visitation unless it is determined that the court's authority to grant visitation is exclusively derived from sec. 767.245. Historical context indicates that courts had the power to govern visitation before statutory regulation, as demonstrated in key cases such as Weichman v. Weichman and Ponsford v. Crute, where courts granted visitation to nonparents despite the absence of statutory authority. These precedents established that judicial discretion based on the child's best interest is paramount. Furthermore, subsequent visitation statutes do not suggest that they limit courts' equitable powers to order visitation outside specified circumstances. Statutory visitation applies in specific scenarios such as adoption, dissolution of marriage, paternity, and the death of a parent, as outlined in sections 48.925, 767.245, 767.51(6), and 880.155. The legislature emphasizes that actions taken by courts should prioritize the best interests of children. It is inferred that the visitation statutes do not restrict courts from exercising their equitable power to grant visitation in circumstances not explicitly covered by the law, aligning with legislative intent. This was supported by the case Watts v. Watts, where the court ruled that chapter 767 did not prevent courts from resolving property disputes between unmarried individuals. In contrast, the adoption and custody statutes are preemptive, meaning they govern exclusively over their respective areas, unlike visitation statutes, which do not eliminate common law rights. The court has upheld its authority to grant visitation based on the best interests of a child in cases not described in visitation statutes. In the case In re Custody of D.M.M., the court awarded visitation to a great aunt despite no statute permitting this, finding the visitation statute ambiguous and indicating it did not intend to limit visitation rights for parties beyond grandparents. The court affirmed that the visitation statute was meant to supplement, not replace, existing common law rights. Section 767.245 of Wisconsin law codifies existing case law aimed at safeguarding the rights of grandparents and great-grandparents, without excluding other relatives. The court in Z.J.H. affirmed that the legislature did not intend for the visitation statute to replace common law visitation rights, indicating that section 767.245 is not the sole method for seeking visitation. This aligns with the established precedent recognizing circuit courts' plenary power and equitable jurisdiction over child-related matters. In Dovi v. Dovi, the court ruled that despite the absence of statutory authority for custody judgments in divorce cases, courts possess inherent equitable jurisdiction to act in the best interests of children. The Dovi court acknowledged that the repeal of a specific divorce statute did not strip the court of its equitable power, which was historically recognized and could be exercised independently of statutory provisions. Consequently, the visitation statutes do not eliminate the court's equitable jurisdiction in visitation matters not explicitly covered by them. The U.S. Supreme Court has also underscored the authority of courts of equity to protect minors, rooted in the parens patriae doctrine. The D.M.M. and Z.J.H. courts interpret the ch. 767 visitation statute as a declaration of public policy regarding visitation rights, while maintaining that it does not override the courts' equitable jurisdiction to ensure the best interests of a child. The courts conclude that the legislature did not intend sec. 767.245 to replace the courts' equitable powers to order visitation in circumstances not covered by the statute. The courts are expected to act in the child's best interest when state intervention is warranted. However, the Z.J.H. court's decision to deny standing to an adoptive mother's former partner to seek visitation based on a co-parenting agreement raises concerns. The court ruled that the visitation statute barred such agreements, citing that legislative expressions in statutes are absolute and cannot be altered by private agreements. This rationale is deemed unpersuasive as the Grams case cited by the Z.J.H. court involved a contract explicitly prohibited by statute, whereas ch. 767 does not explicitly forbid visitation-related contracts or the courts from granting visitation outside the statute's provisions. Additionally, the Z.J.H. court's assertion that visitation agreements are unenforceable on public policy grounds is criticized for not considering a 1988 statute that allows individuals with a parent-like relationship to petition for visitation rights during marriage dissolutions. This indicates a legislative intent to support shared parental rights between biological or adoptive parents and another adult. Furthermore, the reliance on the Stickles v. Reichardt precedent, which invalidates contracts transferring permanent custody absent a statute, is found to be inapplicable to this situation. Knott did not agree to permanently transfer custody of her biological child to Holtzman. The court determined that public policy allows for visitation rights based on a co-parenting agreement when it serves the child's best interests, overruling prior conflicting language in Z.J.H. The central issue is whether the circuit court should consider Holtzman's visitation claim. Knott asserts her constitutional right as the biological parent to control visitation, claiming this right outweighs those of Holtzman or the child. However, the law does not grant absolute rights to biological or adoptive parents. State policy, as established by the legislature, aims to balance parental autonomy with the child's best interests, acknowledging nonparents with parent-like relationships, particularly after marital dissolution. Holtzman and the guardian ad litem argue for the court to hear Holtzman's petition, stating it aligns with chapter 767's policy, emphasizing Holtzman's established parent-like relationship with the child. They claim that the significant disruption in the child's life warrants state intervention, especially since Knott is now obstructing the child's relationship with Holtzman, who was included in the child's life as a parental figure. The court agrees with Holtzman and the guardian ad litem's positions. It affirms that a circuit court has the equitable power to hear visitation petitions when a parent-like relationship exists and a significant triggering event justifies intervention. Petitioners must prove two components: the existence of a parent-like relationship, demonstrated by four specific elements, and the occurrence of a significant triggering event indicating substantial interference by the biological or adoptive parent. The four elements for establishing a parent-like relationship include: parental consent and fostering of the relationship, cohabitation, assumption of parental responsibilities, and a sufficiently prolonged parental role to develop a bonded relationship. The triggering event requires proof that the biological parent substantially interfered with this relationship and that the visitation petition was filed reasonably soon after the interference. The petitioner must establish specific elements for a circuit court to assess whether visitation aligns with the child's best interest. The court is instructed to evaluate if Holtzman can prove a parent-like relationship with the child, alongside evidence of a significant triggering event, namely Knott’s substantial interference with this relationship and Holtzman’s prompt legal response. If these criteria are met, the court will then consider the child's best interest regarding visitation. This process aims to safeguard parental rights while also acknowledging the child's need for relationships with adults resembling parental figures. Legislative policies and case law emphasize protecting biological and adoptive parents' rights to raise their children without undue state interference. A triggering event is necessary to justify state involvement in parent-child dynamics, particularly when a parent consents to another's establishment of a parent-like bond and later disrupts it. Supporting case law from other jurisdictions reinforces the need for biological or adoptive parents' consent for such relationships. Relevant cases include a New Mexico ruling where a co-parenting agreement was upheld as in the child's best interest, and a New York case where a partner was held liable for child support based on a consent agreement regarding artificial insemination. Legal scholarship also advocates for recognizing the significance of parental consent in forming these relationships. Parental autonomy and the best interests of children can be upheld by recognizing as a parent anyone who maintains a functional parental relationship with a child, provided that the legally recognized parent intended this relationship to be parental. A nonparent may seek custody and visitation if they have developed a parent-child relationship with the child, supported by the legally recognized parent. The court concluded that Holtzman did not present a triable issue for custody transfer, affirming the dismissal of her custody action under sec. 767.24, Stats. 1991-92. Holtzman is also barred from petitioning for visitation under sec. 767.245, but the statute does not limit the court's equitable powers to determine visitation under other circumstances. The circuit court must assess if visitation with Holtzman is in the child's best interest if she demonstrates a parent-like relationship and proves substantial interference from Knott along with prompt petitioning after such interference. The court affirmed the dismissal of Holtzman's custody petition but reversed the dismissal of her visitation rights, remanding for further proceedings. The appeal arose from a summary judgment in favor of Knott, and the court's review followed the same methodology as the circuit court. A monetary contribution to the child's support is not necessary for establishing a parent-like relationship. The circuit court denied Holtzman and the guardian ad litem’s requests for relief pending appeal but later granted visitation while the appeal was ongoing. Knott subsequently sought a writ of prohibition to prevent temporary visitation, which the higher court denied, allowing the visitation schedule to proceed. Holtzman also aimed to access Knott's mental health records to support claims of unfitness. Affidavits opposing a summary judgment motion may indicate an inability to present essential facts, allowing the court to refuse the motion or grant a continuance for further affidavits, depositions, or discovery. The circuit court has discretion under Section 802.08(4) to allow these actions. The court upheld its decision to deny Holtzman access to privileged mental health records, concluding there was no erroneous exercise of discretion. The legal framework recognizes a natural parent's protected right to rear children free from government intervention, as affirmed by various Supreme Court cases. Historically, visitation rights for non-custodial parents were determined by courts without statutory guidance until the introduction of the Uniform Child Custody Jurisdiction Act in 1975. Legislative efforts in 1977 aimed to address actions affecting marriage, which included provisions for visitation rights emphasizing the best interests of the child, extending rights to grandparents and great-grandparents. The 1977 Divorce Reform Act retained existing statutes on visitation while expanding them, with subsequent legislative studies focusing on custody arrangements in divorce contexts. The bill emphasizes the importance of maintaining a close relationship between children and both parents following divorce or separation. It highlights a gap in current law regarding visitation rights for nonparents, such as stepparents, who have developed meaningful relationships with children during the parents' marriage but are often denied the ability to petition for visitation after the divorce. Legislative findings indicate that current custody laws fail to recognize these critical relationships. In response, 1991 Wisconsin Act 191 allows relatives who have had a parent-child type relationship with a child adopted by a stepparent or relative to petition for visitation rights, provided certain conditions are met. This statute aims to amend previous case law that restricted such visitation rights. The visitation statute (ch. 767) applies to paternity suits as well, with specific provisions allowing courts to order visitation during paternity judgments. Historical legislative changes have shifted terminology from "actions affecting marriage" to "actions affecting the family," which includes visitation rights. In the case of Van Cleve, the court of appeals ruled that a grandparent's petition for visitation, despite being included in the definition of "actions affecting the family," lacked sufficient underlying action to proceed. The dissenting opinion in Cox identified three potential underlying actions affecting the family, while the majority dismissed the visitation aspect in the custody action without clear justification. The ch. 767 visitation statute grants stepparents a right to visitation, contingent upon the existence of a divorce or separation between the stepmother and the biological father, as outlined in sec. 767.245, Stats. In the current case, Holtzman filed for custody, while Knott sought an injunction, both viewed as affecting the family unit. The legislature has not defined "family" within ch. 767 or the Family Code, which has led to ambiguity recognized by the U.S. Supreme Court. The Court emphasized that biological relationships alone do not determine familial status, highlighting the importance of emotional bonds and daily associations in defining a family. Ch. 767 is primarily applicable to legally married couples; Holtzman and Knott were not married and could not marry under state law. The biological father of Knott's child is an anonymous sperm donor who has no relationship with the child. The court referenced precedents allowing visitation by extended family members and prioritized the child's welfare over parental visitation difficulties. Legislative history indicates that statutes governing visitation, including those for grandparents, require courts to act in the child's best interest. Various statutes regulate custody in different contexts, and a prior case, In re Custody of D.M.M., did not require an underlying action for a visitation claim, suggesting that custody or guardianship proceedings might suffice. The petition regarding the child may have been submitted post-divorce, as the father is referred to as the mother's "husband at the time of the child's birth." Courts have a responsibility to protect minors, recognizing them as special subjects of concern. The circuit courts possess constitutional powers of law and equity, enabling them to act independently of statutory limitations. Minors are regarded as wards of the court, deserving of diligent care to prevent injustice. Various precedents establish that courts of equity have broad jurisdiction over minors, including cases involving the care of children between unmarried cohabitants and petitions for sterilization of minors. Despite legislative limitations on sterilization, courts maintain the authority to consider such matters constitutionally. Additionally, the enforcement of parental agreements concerning child care may be favored when a parent's rights have been voluntarily relinquished, provided the child's welfare is adequately addressed. Holtzman contends that the child, being nonmarital, is deprived of equal protection under the law, asserting that the child has a liberty interest in maintaining relationships with both parents and that the circuit court's ruling infringes upon this interest, resulting in a violation of substantive due process. Holtzman argues for her constitutionally protected right to seek custody or visitation of a child, despite not being biologically related, based on established family-type relationships recognized by the U.S. Supreme Court in cases like *Michael H. v. Gerald D.* and *Lehr v. Robertson*. Precedent in Wisconsin allows nonparents to obtain visitation rights even against a custodial parent's wishes, as seen in *Gotz v. Gotz*, where visitation was granted to maternal aunts despite the father's objections. However, case law shows inconsistency regarding nonparental visitation rights, with some courts leaning towards permitting visitation when a nonparent maintains a parent-like relationship with the child, provided it serves the child's best interests. Examples include granting visitation to foster parents and other nonparents in California and New Mexico. Contrastingly, some rulings, like *In re Marriage of Freel* and *In the Matter of Alison D. v. Virginia M.*, assert that custodial parents hold veto power over nonparent visitation absent specific statutes. Furthermore, visitation for nonparents may be granted only under extraordinary circumstances, as noted in *Cooper v. Merkel*. Holtzman's claim is supported by evidence that the biological parent, Knott, consented to her involvement, fostering a parent-like relationship through various actions, including their agreement on conception and a dedication ceremony. The document also references legal distinctions in contracts between unmarried partners and mentions cases denying visitation or custody rights to nonparents based on statutory grounds related to artificial insemination.