The petition in this case is based on Wis. Stat. 767.43,
which codifies the holding of the Court in the case In re the
Custody of HSH-K, 193 Wis.2d. 649., which is a recognition
by the Supreme Court that a biological or adoptive parent has
absolute rights in their children. The Court held that when a
triggering event occurs, the Court may look to the best interest
of the child when determining visitation rights of other parties.
In the Holtzman case, as it is known a non-traditional family
involving two women, who had a child by artificial
insemination, split up. The child knew both individuals as a
parent. The Court held that if the person seeking visitation
could establish a parent like relationship, that was developed
with the consent of the biological parent, and the biological
parent interfered with the parent like relationship the Court has
jurisdiction to determine if visitation is in the best interest of
the child. (see page 433 of the Court's decision)
The facts as
stated above establish that there was a parent like relationship
in this case. By the Respondent's own actions, she promoted
the relationship and regularly relied upon the Petitioner to take
care of the minor child and provide parent like care and love.
The Respondent then cut off contact between the Petitioner and
the child, which establishes the requisite triggering event.
The Petitioner did seek visitation in a reasonable amount of
time.
The Court has raised a question whether or not the
Petitioner's action is constitutional pursuant to Troxel v.
Granville, 530 U.S. 57, (2000), which held that the due process
clause of the Constitution does not allow the government to
intervened in a fit parents decision regarding grand parent
visitation, as it is presumed that the parent is acting in the best
interest of the child. This has created a presumption that may be
rebutted. The case involved a broad Washington Statute that
allowed any third person to petition a Court for visitation
whenever it could be demonstrated that the visitation was in
the best interests of the child. The stature and the application
by the lower Court's provided no deference to the parent's right
to make decisions.
The Supreme Court did recognize that if there were
justifiable special factors that might justify the State's
interference with the fundamental right to make parental
decisions, it could be appropriate to provide visitation or
custody to third parties. The Court looked at the fact that the
parent did not completely cut off contact, or the relationship in
the Troxel case. The Court noted the that some State Statutes
require a showing that the parent has unreasonably denied
visitation to the concerned third party, or a factor that would
require a Court to look at the best interests of the child.
In the case before the Court there are two main
distinguishing facts from the Troxel case. The first is that the
Respondent completely cut off the contact. The second is that
the Wisconsin Statute requires that there is some showing by
the Petitioner that there was a parent like relationship. In this
case the Court may look to the reasons provided by the
Respondent and determine if they are valid, and then look to
the best interest of the child. A third factor is that the Petitioner
believes that the Respondent is not a fit parent, and should not
be entrusted with the child without having a third person being
involved to monitor the condition of the child.
There is a line of cases subsequent to the Troxel case
where Wisconsin Courts have held that the Wisconsin visitation
statute is not unconstitutional. The Court of Appeals in the
case In re the Paternity legal standard. Nothing in Wis. Stat.
Sec. 767.245 requires a showing of parental unfitness before a
court may override a parent's decision regarding grandparent
visitation, nor do we find any case law from this state holding
as much. The circuit court may have believed that the United
States Supreme Court imposed such a requirement in Troxel.
If so, we disagree. There is no suggestion in Troxel that a
court may only interfere with a parent's decision regarding
visitation if the parent is shown to be unfit. Rather, the Troxel
Court's parental fitness discussion is in the context of
explaining that there is a presumption that fit parents act in the
best interest of their children. See Troxel, 530 U.S. at 68."
Rodger D.H. at paragraph 5, page 754 and 755.
The Court in Roger D.H. pointed out that in Troxel the
Court took issue with the judges application of the Washington
Statute, and not that the Statute itself was unconstitutional. The
Wisconsin Court stated that the circuit court must apply the
presumption, that a fit parent's decision regarding grandparent
visitation, is in the best interest of the child. "At the same time,
we observe that this is only a presumption and the circuit court
is still obligated to make its own assessment of the best interest
of the child. See sec 767.245(3)(f). What the Due Process
Clause does not tolerate is a court giving no "special weight"
to a fit parent's determination, but instead basing its decision on
"mere disagreement" with the parent. Troxel, 530 U.S. at
68-69." Roger D.H. 250 Wis.2d 758.
In re Nicholas L., 2007 Wis.App 37 (2007) the Court
discussed Roger D.H. and Troxel. The court held that the
parent's decision should be given special weight by presuming
decision is in the child's best interest. The Court then must
presume the decision regarding visitation as the starting point
for the trial court's analysis, and then to determine if the
evidence presented rebutted the presumption. The Court in the
Nicholas case upheld a decision that determined that it was the
parent's anger that dominated the parent's decision to deny
visitation.
In the lower court's decision it was noted that the decision
was driven as much by anger and frustration, as by a calm, cool
consideration of what is best for the children. The Court
determined that a decision motivated by anger or frustration or
spite, whether justified or not, completely ignores the interests
of the children. The Court then looked at the substantial
relationship that the children had with the grandparents.
In Rick v. Opichka, 2012 WI App 23, the court also held
that the circuit court must still assess what the best interests of
the children are after giving a fit parent's wishes in regards to
visitation special weight. The parent in the Rick case objected
to grandparent visitation after the children's mother had died
and he relied on the Troxel case. The Court rejected the
argument that any decision made by the fit custodial parent
was presumed to be in the best interest of the child and that
any decision made by the fit natural parent is correct. The
Court upheld the lower court's decision to provide visitation to
the grandparent during the second week end of each month
from Friday at 5:00 p.m. until Sunday at 7:00 p.m., and for
two hours on the last Wednesday of each month. The Court
found that the lower court did review the record taking the
presumption in account, and then determined that the
presumption was rebutted in upholding the granting of the
visitation. The lower court looked at the reasons provided by
the parent and determined that his decision to deny visitation
was based on emotional reasons that demonstrated his
judgment was not clear, as he was not through the grieving
process.
Recently in Wohlers v. Broughton 2009 AP 488.
(Wis. App. 2011) the Court of Appeals for District IV decided
a case pursuant to sec. 767.43.(3) which was a case where
visitation rights were granted to the grandparents. This case is
being put before the court as persuasive authority that the
Troxel case only requires an analysis starting from the
proposition that the parents decision is in the best interest of
the child and that the third party may rebut the presumption.
In the case the court upheld the lower court's decision to grant
significant visitation to the grandparent every other week end
during the school year, and mid week after school.