COURT OF APPEALS DECISION DATED AND FILED June 1, 2011 A. John Voelker Acting Clerk of Court of Appeals |
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This opinion is subject to further editing. If published, the official version will appear in the bound volume of the Official Reports. A party may file with the Supreme Court a petition to review an adverse decision by the Court of Appeals. See Wis. Stat. § 808.10 and Rule 809.62. |
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APPEAL
from an order of the circuit court for
Before
¶1 PER CURIAM. Melissa Dierks appeals from an order dismissing for lack of standing her petition for visitation with her deceased sister’s children. We conclude that the circuit court appropriately declined to exercise its equitable powers to determine visitation. We therefore affirm the order.
¶2 Paul and Monica J. had three children together before Monica’s death in 2007. In 2009, Paul terminated contact between his children and Terri Keopple, their maternal grandmother; Amanda Bryan, Monica’s cousin; and Melissa, their maternal aunt. All of these women had extensive involvement with the children prior to that time.
¶3 Terri, Amanda and Melissa petitioned for visitation pursuant to Wis. Stat. § 767.43(1).[1] Paul conceded that Terri had standing as a grandmother to seek visitation pursuant to Wis. Stat. § 54.56(2),[2] but challenged Amanda’s and Melissa’s standing. The parties agreed that the issue of standing would be decided by the circuit court based upon the parties’ affidavits and other written submissions.[3] The circuit court concluded that Amanda had alleged sufficient facts to invoke the court’s equitable power to determine visitation, but that Melissa had not. Melissa now appeals.
¶4 A determination to grant or deny visitation is committed to
the circuit court’s sound discretion. Martin
L. v. Julie R.L., 2007 WI App 37, ¶4, 299
¶5 In the present case, the circuit court relied upon Holtzman
v. Knott, 193
¶6 The central dispute in the present case is whether Melissa proved the elements of a “parent-like relationship.”
To demonstrate the existence of [a] parent-like relationship with [a] child, the petitioner must prove four elements: (1) that the biological or adoptive parent consented to, and fostered, the petitioner’s formation and establishment of a parent-like relationship with the child; (2) that the petitioner and the child lived together in the same household; (3) that the petitioner assumed obligations of parenthood by taking significant responsibility for the child’s care, education and development, including contributing towards the child’s support, without expectation of financial compensation; and (4) that the petitioner has been in a parental role for a length of time sufficient to have established with the child a bonded, dependent relationship parental in nature.
¶7 The circuit court concluded that Melissa failed to prove the second element, finding that Melissa had not lived in the same household with the children, except for approximately three and one-half months in 2002. The court considered this evidence “too remote in time to be applicable to the Holtzman factors[, and] not a sufficient amount of time for the court to accept jurisdiction applying the Holtzman factors ….”
¶8 Melissa argues the circuit court erred “when it focused on the sole element of whether Melissa had lived in the same household as the children.” Melissa concedes a “technical failure” to live in the same household, but insists this “does nothing to undermine the parent-like relationship she developed.” Melissa contends that “[w]hile the Holtzman elements are helpful for defining what a ‘parent-like’ relationship is, they will not cover every circumstance.” Alternatively, Melissa argues we are not bound by a literal application of the Holtzman criteria, and we therefore may “craft a solution” for persons and circumstances not covered by the visitation statutes.
¶9 However, we are bound by the prior decisions of our supreme
court, Livesey v. Copps Corp., 90
¶10 We acknowledge, as did the circuit court, the close relationship that developed between Melissa and the children. However, we conclude that the circuit court appropriately found that residing for three and one-half months in the family’s home five years prior to Monica’s death, and before two of the children were born, was not comparable to the facts found in Holtzman.
¶11 In Holtzman, the child’s biological mother and her former partner had
lived together in the same household for nearly a decade, half of which was
after the child was born.
¶12 Because we conclude the court appropriately determined that Melissa
failed to prove a parent-like relationship, we need not reach the issue of
whether cutting off contact between Melissa and the children constituted a
“triggering event.” See Gross v. Hoffman, 227
By the Court.—Order affirmed.
This opinion will not be published. See Wis. Stat. Rule 809.23(1)(b)5.
[1] The
primary concern of the legislature in enacting Wis.
Stat. § 767.43(1) was visitation in the context of the dissolution
of a marriage. See Holtzman v. Knott, 193
References to the Wisconsin Statutes are to the 2009-10 version unless noted.
[2] Wisconsin Stat. § 54.56(2) concerns visitation by a minor’s grandparents and stepparents after the death of one or both of the parents.
[3] Paul stipulated to the truth of the allegations for purposes of standing.
[4] Paul
insists the present case is controlled by Cox v. Williams, 177
However, as the circuit court correctly observed, Cox
is distinguishable on its facts. In Cox,
a former step-parent sought visitation of her deceased husband’s child. Cox, 177
[5] “The
petitioner must prove all these elements before a circuit court may consider
whether visitation is in the best interest of the child.” Holtzman, 193