Most people think of the court as the place where you go to get the “right” result. But as the parties learned in a Wisconsin Court of Appeals case, Dustardy H. v. Bethany H. (decided December 21, 2010), sometimes the courts will refuse to fix things that are clearly wrong. This is especially true if the person complaining about things helped create the problem to begin with.
Background
Dusty and Beth were in a same-sex relationship, and participated in a civil commitment ceremony in Hawaii in 2003. Shortly after that, they decided to have a child via artificial insemination, with Beth carrying the child.
After the baby was born, Dusty and Beth filed a “Petition for Determination of Parentage” with the circuit court. After a hearing, the judge found that Dusty had consented to the artificial insemination, and issued an order declaring that both she and Beth were legally the child’s parents. (Then, as now, Wisconsin law prohibited the court from recognizing the Hawaii civil commitment as a marriage, and Wisconsin laws governing who may be declared a parent after artificial insemination could not be applied to Dusty and Beth’s situation.)
The couple separated several years later; at first, they were able to work out informal agreements regarding the child, Christian. They ran into some difficulty, however, and in 2008 Dusty petitioned the court for an order that formally awarded both parties joint custody, and set up a formal placement schedule. In response, Beth filed a motion asking for relief from the 2004 order, claiming that Wisconsin law prohibited the court’s declaration that Dusty was legally Christian’s parent.
The circuit court granted Beth’s motion and vacated the 2004 order. Dusty appealed. The Court of Appeals reinstated the 2004 order, once again making Dusty Christian’s parent.
He who hesitates . . .
The Court of Appeals actually agreed with Beth on many of the legal issues. In particular, the Court of Appeals found the Circuit Court had no legal authority to declare Dusty to be a parent. However, the Court of Appeals noted there is always tension between achieving fair resolutions in disputes, and a policy favoring finality of judgments, once they are entered. In laymen’s terms, this might be described as a struggle between getting it right and getting it over with. The Court of Appeals held that, under the facts of this case, the policy favoring finality of judgments should prevail.
The Court of Appeals said that Beth had missed several opportunities to attack the 2004 order. She had the right to appeal the judgment; however, Wisconsin Statutes require that appeals must be initiated within 90 days of the date of the final judgment, and her opportunity to appeal had long passed.
She also had the right to file a motion asking for relief from the judgment, based on erroneous conclusions of law, because there were issues not properly dealt with under the original judgment. However, a request for relief on these grounds must be filed within a reasonable period of time after the judgment is entered, and the circuit court concluded that Beth waited far too long before filing her motion for relief.
Don’t expect the judge to bail you out
Although not expressly stated, the fact that Beth had specifically asked the Circuit Court to do something she now claimed it lacked the authority to do probably played a role, as well.
The Court of Appeals observed that under Wisconsin Statutes and prior case law, Dusty had a right to ask for an order for visitation, but she did not have a right to ask the court for an order declaring her to be a parent. Dusty’s “parent-like” relationship with Christian meant she could ask the court to enter orders allowing her the opportunity to spend time with Christian, but law did not give her the right to ask for the same powers, privileges, immunities, duties, and obligations that Beth enjoyed as Christian’s biological parent. However, with Beth’s consent, Dusty was granted parental rights under the 2004 order, and Beth’s failure to act quickly to change the 2004 order tipped the scales in favor of finality, even though the circuit court’s order was erroneous as a matter of law.
The facts of this case are unique, and the decision of the Court of Appeals does not create a precedent that someone may become a legal parent solely by agreement, much less require a court to order that result based on an agreement. The decision does, however, put litigants on notice: it is very dangerous to adopt a “wait and see” attitude with regard to legal problems.
You may find out that, by waiting too long, you’ve lost your chance to set things right.