COURT OF APPEALS
DECISION
DATED AND FILED
June 1, 2011
A. John Voelker
Acting Clerk of Court of Appeals
Appeal No.
NOTICE
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.
Cir. Ct. No. 2010FA51
2010AP1705
STATE OF WISCONSIN
IN COURT OF APPEALS
DISTRICT III
IN THE MATTER OF THE GRANDPARENTAL AND OTHER VISITATION
OF S.J., O.J. & A.J.:
MELISSA DIERKS,
PETITIONER-APPELLANT,
AMANDA BRYAN AND TERRI KEOPPLE,
PETITIONERS,
V.
PAUL JENSEN,
RESPONDENT-RESPONDENT.
APPEAL from an order of the circuit court for St. Croix County:
HOWARD W. CAMERON, JR., Judge. Affirmed.
Before Hoover, P.J., Peterson and Brunner, JJ.
No. 2010AP1705
¶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.
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 Wis. 2d
649, 670-74, 533 N.W.2d 419 (1995). However, the statute does not preempt the consideration of
visitation in circumstances not subject to the statute. Id. at 674.
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.
2
No. 2010AP1705
¶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
Wis. 2d 768, 731 N.W.2d 288. The question of whether a party has standing is a
question of law. Le Fevre v. Schrieber, 167 Wis. 2d 733, 736, 482 N.W.2d 904
(1992).
¶5
In the present case, the circuit court relied upon Holtzman v. Knott,
193 Wis. 2d 649, 533 N.W.2d 419 (1995), which reaffirmed “the courts’ use of
their equitable power to order visitation in the best interest of a child in
circumstances not described in any visitation statute.” Id. at 685.4 A circuit court
may determine whether visitation is in the best interests of the children if the
petitioner first proves that he or she has a “parent-like relationship with the child
and that a significant triggering event justifies state intervention in the child’s
relationship ….” Id. at 658. To meet these two requirements, a petitioner must
prove the elements of each one. Id. at 694.
4
Paul insists the present case is controlled by Cox v. Williams, 177 Wis. 2d 433, 502
N.W.2d 128 (1993). Paul argues that WIS. STAT. § 54.56(2) is the exclusive means by which a
person may petition for visitation after the death of a parent. Paul asserts that § 54.56(2) grants a
specific statutory right to either a “grandparent” or a “stepparent,” and “[Melissa] simply is not a
member of the class of persons who may request it.”
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 Wis. 2d at
437-38. The circuit court concluded that the visitation statutes did not apply, and it appears no
equitable issue was raised or decided in that case. See id. at 437-41. In any event, Cox was
decided before Holtzman, which explicitly rejected the notion that standing can only be conferred
by statute. See Holtzman, 193 Wis. 2d at 683. The court recognized that the visitation statutes
were not the exclusive means of obtaining court ordered visitation, nor did the statutes “supplant
or preempt” the courts’ long recognized equitable power to protect the best interests of the child
by ordering visitation “in circumstances not described in any visitation statute.” Id. at 658, 685.
We therefore reject Paul’s contention that WIS. STAT. § 54.56(2) was the exclusive means to
petition for visitation.
3
No. 2010AP1705
¶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.
Id. at 694-95 (footnote omitted).
¶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
4
No. 2010AP1705
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 Wis. 2d 577, 581, 280 N.W.2d 339 (Ct. App. 1979),
including the four elements Holtzman deemed necessary to prove a parent-like
relationship. We are not persuaded that a “broader purpose behind Holtzman”
justifies the avoidance of a literal application of the specific requirement “that the
petitioner and the child lived together in the same household[.]” See Holtzman,
193 Wis. 2d at 658.
¶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. Id. at 659-61. We do not imply that a Holtzman-like
amount of time living together in the same household is the only circumstance
under which an equitable determination may be made under the second element.
However, the circuit court appropriately determined under the facts of the present
case that the relationship Melissa developed with the children did not overcome
the lack of time living in the same household, or the remoteness in time.
Accordingly, Melissa did not satisfy the four elements demonstrating the existence
5
No. 2010AP1705
of a parent-like relationship with the children.5 The court did not err in declining
to exercise its equitable powers to determine visitation.
¶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 Wis. 296, 300, 277 N.W. 663
(1938) (only dispositive issues need be addressed).
By the Court.—Order affirmed.
This opinion will not be published.
See WIS. STAT. RULE
809.23(1)(b)5.
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 Wis. 2d at 659.
6
