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S-H-K-, Matter of;

Facts

Holtzman and Knott are two women who shared a close, committed relationship for more than ten years. They decided to rear a child together by having Knott artificially inseminated. The child was born on December 15, 1988, and both women were involved in the child's upbringing. However, after a change in Knott's behavior and the eventual end of their relationship, Knott moved out with the child and later sought to restrict Holtzman's contact with them. Holtzman filed petitions for custody and visitation, which were dismissed by the circuit court.

Holtzman and Knott are two women who shared a close, committed relationship for more than ten years. Holtzman and Knott met in February 1983. In October 1983, they began to live together in a home they jointly purchased in Boston, Massachusetts. On September 15, 1984, they solemnized their commitment to each other, exchanging vows and rings in a private ceremony. They decided early in their relationship to rear a child together by having Knott artificially inseminated with sperm from an anonymous donor. After a miscarriage and illness, Knott became pregnant in March 1988. Holtzman and Knott attended obstetrical visits and childbirth classes together. The child was born on December 15, 1988. Holtzman was present during labor and delivery and took three weeks off from work to stay with Knott and the child.

Issue

Whether Holtzman's assertions of Knott's parental unfitness and inability to care for the child, or of compelling circumstances requiring a change of custody, are sufficient to proceed on a petition for custody under sec. 767.24(3), Stats. 1991-92, and whether Holtzman may seek visitation rights to the child.

Two issues of law are presented in this case. The first issue is whether Holtzman's assertions of Knott's parental unfitness and inability to care for the child, or of compelling circumstances requiring a change of custody, are sufficient to proceed on a petition for custody under sec. 767.24(3), Stats. 1991-92. The second issue is whether Holtzman may seek visitation rights to the child.

Rule

A person who is not a biological or adoptive parent may not bring an action to obtain custody of a minor unless the biological or adoptive parent is 'unfit or unable to care for the child' or there are compelling reasons for awarding custody to a nonparent. Compelling circumstances include abandonment, persistent neglect of parental responsibilities, or other extraordinary circumstances that would drastically affect the welfare of the child.

A person who is not a biological or adoptive parent may not bring an action to obtain custody of a minor unless the biological or adoptive parent is 'unfit or unable to care for the child' or there are compelling reasons for awarding custody to a nonparent. Compelling circumstances include abandonment, persistent neglect of parental responsibilities, extended disruption of parental custody, or 'other similar extraordinary circumstances that would drastically affect the welfare of the child.'

Analysis

The court agreed with the circuit court that Holtzman had not raised a triable issue regarding Knott's fitness or ability to care for the child and had not shown compelling circumstances requiring a change of custody. Therefore, the circuit court properly dismissed the custody action. However, the court found that the visitation statute did not apply to Holtzman's petition but recognized that the legislature did not intend for it to be the exclusive means of obtaining visitation rights.

The court agreed with the circuit court that Holtzman has not raised a triable issue regarding Knott's fitness or ability to parent her child and has not shown compelling circumstances requiring a change of custody. Therefore the circuit court properly dismissed the custody action commenced under sec. 767.24(3), Stats. 1991-92.

Conclusion

The order dismissing appellant parent's petition for custody was affirmed. The court reversed and remanded the order dismissing the petition for visitation rights, allowing for the possibility of visitation if Holtzman could prove a parent-like relationship and a significant triggering event.

We affirm that part of the order dismissing the petition for custody; we reverse that part of the order dismissing the petition for visitation rights and remand the case to the circuit court for proceedings consistent with this opinion.

Who won?

The prevailing party in the case was Knott, as the court affirmed the dismissal of Holtzman's custody petition. However, the court allowed for the possibility of Holtzman seeking visitation rights, indicating a partial victory for her.

The prevailing party in the case was Knott, as the court affirmed the dismissal of Holtzman's custody petition. However, the court allowed for the possibility of Holtzman seeking visitation rights, indicating a partial victory for her.

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