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Divorce and Family Law
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Personal Injury and Accidents
Robert S. Duxstad
Daniel P. Bestul
Lance A. McNaughton

The Search For A Child’s “Best Interests”

Posted: 8.29.2018  |  Author: 


"Best interests of the child.” Wisconsin law is peppered with this phrase, and it is the guiding principle for judges when they make decisions affecting the child’s welfare.However, it is not always clear where “best interests” lie.One recent Wisconsin Court of Appeals case illustrates how hard it can be to protect a child’s best interests.


The case involves a termination of parental rights and adoption, and so the Court of Appeals’ decision does not include names for any of the parties.For the purposes of this article, we will refer to the key players simply as “father”, “mother”, “stepmother”, “child”, and “great-grandmother”.


The father and mother were never married.The father petitioned the court to terminate the mother’s parental rights, so the father’s wife, and child’s stepmother, could adopt the child.To do this, the father had to prove the mother was unfit.


The case doesn’t describe the mother’s alleged shortcomings, but it says she contested the claim.She repeatedly failed to show up for court appearances, and the Court concluded, by default, that she was unfit.The Court was then required to analyze the child’s best interests, to determine whether the mother’s rights should be terminated and whether the adoption should go forward.The mother showed up for that phase of the proceedings, and she argued her parental rights should not be terminated.


One of the reasons she opposed the termination was the relationship the child had with her grandmother, the child’s great-grandmother.The father agreed that the child’s relationship with the great-grandmother was important, and the great-grandmother had obtained court-ordered visitation with the child; this in itself requires a finding that the visitation is in the child’s best interests.The father told the Court that if the termination were granted, and the adoption went through, he would not interfere with the great-grandmother’s visitation in any way.The judge, however, had doubts, because there was a history of conflict between the father and the great-grandmother.


Ultimately, the judge decided the mother’s parental rights should be terminated, but with a specific, unequivocal directive that the termination of parental rights would not in any way, shape, or form sever, limit, or otherwise impede the visitation rights of the great-grandmother.


The mother appealed the decision, arguing that the Court could not terminate her rights, while still allowing the great-grandmother’s visitation.


She argued that, because the order terminating the mother’s parental rights also terminated the legal relationship between the great-grandmother and the child, Wisconsin law did not allow visitation for the great-grandmother; and, since the termination ended the great-grandmother’s visitation, it was, therefore, not in the child’s best interests.


The Court of Appeals began, as it must, with the laws the Legislature has put in place governing these kinds of cases.It analyzed several statutes and concluded that the mother was right, and the termination should not have been ordered.


The Court of Appeals began its discussion with a review of the recent Supreme Court decision in Meister v. Meister (discussed in a previous newsletter).The law in that case applied to grandparents and great-grandparents, but only of the child of a married or formerly-married couple.The Court noted that, since the mother and father in this case were never married, the Court could not rely on that statute.


The Court next turned to a second statute, which governs visitation rights for grandparents when the child’s parents were never married.This special law referred only to grandparents, while the law governing children of married couples expressly granted great-grandparents the rights to request visitation.The Court found this to be important; since the Legislature granted one group of great-grandparents rights, but, in the very next section of the law, gave the rights only to grandparents but not great-grandparents, the Court of Appeals concluded this great-grandparent could not rely on this law for visitation.


The Court of Appeals concluded that a third statute also would not apply, because it required that a person asking for visitation had to “maintain a relationship similar to a parent-child relationship with the child within two years prior to the filing of the petition for visitation”.While all parties agreed that the great-grandmother’s relationship with the child was very important, she had never provided for the child’s daily care and needs for an extended period, and, therefore, she had not been in a parent-child relationship with the child.Because of this, the Court lacked the authority to grant the great-grandmother visitation under this statute.


The Court of Appeals then looked at another Supreme Court decision. That case concluded that a circuit court may use its equitable power to order “visitation under circumstances not included in the statutes”. In those extraordinary circumstances, a circuit court can determine whether visitation is in the child’s best interests.However, that decision also required a finding that there had been a parent-like relationship with the child and that there had been a significant triggering event that justifies intervention in a child’s relationship with a biological or adoptive parent.


The Court of Appeals concluded that the “equitable powers” described in its prior Supreme Court case did not apply here, because the Legislature had enacted laws that gave people like the great-grandmother the right to ask for visitation but had also intentionally put conditions in place that must be met before visitation could be granted.The Court of Appeals concluded that “a court’s equitable authority is not so all encompassing that a court may ignore statutes and case law in order to assist someone in trouble.”


Because the Trial Court determined it was not in the child’s best interests to sever the great-grandmother’s visitation rights, and explicitly stated it would not have terminated the parental rights if she would lose visitation, the order terminating parental rights was set aside.


When this case goes back to the Trial Court, the trial judge will have to determine which “best interests” choice wins out.Is it in the child’s best interests to continue the great-grandmother’s visitation or to terminate the rights of an unfit parent and allow adoption by the fit stepmother?



Dan Bestul is a fellow of the American Academy of Matrimonial Lawyers and has been certified as a Family Law Advocate by the National Board of Trial Advocacy. In addition to his work with clients in traditional and collaborative family law representation, Dan serves as a mediator and lawyer-coach in family law matters. Dan practices primarily in Green and Lafayette Counties in Wisconsin, and can be reached by e-mail at bestul@duxstadlaw.com.





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