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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.
Arena Law Offices, LLC Phone: 414.645.6100 1110 N Old World 3rd St, Suite 210, Milwaukee, WI Fax: 414.645.3500 E-Mail: Andrew@ArenaLawOffices.com
PRACTICE AREAS ABOUT US HOMEPAGE CONTACT US TESTIMONIALS MEDIA Call Now 414.645.6100 24/7
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.
Arena Law Offices, LLC Phone: 414.645.6100 1110 N Old World 3rd St, Suite 210, Milwaukee, WI Fax: 414.645.3500 E-Mail: Andrew@ArenaLawOffices.com