WORK PRODUCT – PRIVILEGED AND CONFIDENTIAL

To: INSTRUCTOR

From:  Bernie Brazeau

Date:  4-14-03

RE:  Homer and Margery Simpleton, grandparent visitation.

ISSUES

1.  Do Homer and Margery Simpleton have standing in Family Court for granting visitation of their granddaughter, Emily Atkins, pursuant to Wis. Stat. Ann. §767.245(3-4) (2002)?

BRIEF ANSWER

1.  More then likely no.  Homer and Margery Simpleton more then likely do not have standing in Family Court for granting visitation of their granddaughter, Emily Atkins, pursuant to Wis. Stat. Ann. §767.245(3-4) (2002).

FACTS

            Homer and Margery Simpleton, our clients, want visitation rights to their granddaughter, Emily Atkins.  Lisl dated Milton Atkins as a juvenile, and subsequently became pregnant.  Lisl moved out of her parents’ home and into Milton's mother's home after the Simpleton's tried to convince Lisl to have an abortion.  Lisl married Milton at the age of majority.  The Simpletons have never seen their granddaughter despite numerous requests to Milton and Lisl Atkins for visitation.  Emily is the nonmarital child of Milton and Lisl.  However, an uncontested and pending joint petition has been filed by Milton and Lisl Atkins to adjudicate Milton as Emily's father.

Applicable Statute.

Wis. Stat. Ann. 767.245(3-4)

(3) The court may grant reasonable visitation rights, with respect to a child, to a grandparent of the child if the child’s parents have notice of the hearing and the court determines all of the following:

                (a) The child is a nonmarital child whose parents have not subsequently married each other.

                (b) Except as provided in sub. (4), the paternity of the child has been determined under the laws of   this state or another jurisdiction if the grandparent filing the petition is a parent of the child’s father.

                (c) The child has not been adopted.

                (d) The grandparent has maintained a relationship with the child or has attempted to maintain a relationship with the child but has been prevented from doing so by a parent who has legal custody of the child.

                (e) The grandparent is not likely to act in a manner that is contrary to decisions that are made by a parent       who has legal custody of the child and that are related to the child’s physical, emotional, educational or spiritual welfare.

                (f) The visitation is in the best interest of the child.

(3c) A grandparent requesting visitation under sub. (3) may file a petition to commence an independent action for visitation under this chapter or may file a petition for visitation in an underlying action affecting the family under this chapter that affects the child.

(4) If the paternity of the child has not yet been determined in an action under sub. (3) that is commenced by a person other than a parent of the child’s mother but the person filing the petition under sub. (3) has, in conjunction with that petition, filed a petition or motion under s. 767.45 (1) (k), the court shall make a determination as to paternity before determining visitation rights under sub. (3).

DISCUSSION

            The court will look at Wis. Stat. Ann. §767.245(3-4) to determine whether this is possible.  The Simpletons would have to prove all of the following: (1)  the child is a nonmarital child whose parents have not married;  (2)  the paternity of the child has been determined if the grandparent filing the petition is a parent of the child’s father;  (3) the child has not been adopted;  (4) the grandparent has attempted to maintain a relationship with the child but has been prevented from doing so;  (5) the grandparent is not likely to act in a manner that is contrary to decisions that are made by a parent who has legal custody of the child; and (6) the visitation is in the best interest of the child.  The Simpletons may however try to petition the court under §767.245(3c).  This provides for an independent action for visitation in an underlying action affecting the family.  Finally, §767.245(4) provides for if the paternity has not been established, that the court will first establish paternity, then determine visitation rights under sub.(3). 

            The Simpletons most definitely will not meet elements 1 and 2.  As to element 3, there is no evidence to the contrary.  The Simpletons may be able to show elements 4 and 6, but 5 will be difficult due to the relationship they had with Lisl prior to her marriage.  Then sub. (3c) would be a long shot, but might be a possibility due to the pending paternity, however the paternity is uncontested, and it would send the Simpletons back to sub. (3) where more then likely it will fail.   Therefore, it is unlikely that the court will grant visitation rights to the Simpletons.

Nonmarital child

1.         Emily Atkins is a nonmarital child, but her parents have married one another. Wis. Stat. Ann. §767.245(3)(a) states:  The child is a nonmarital child whose parents have not subsequently married each other.   Emily is a nonmarital child, however, her parents have married each other.  Therefore, this would more than likely cease the petition.

Paternity

1.         The paternity of Emily is currently pending.  Wis. Stat. Ann. §767.245(3)(b) states:  except as provided in sub.(4), the paternity of the child has been determined under the laws of this state or another jurisdiction if the grandparent filing the petition is a parent of the child’s father.   Paternity is pending in this case, however, the grandparents filing this petition are not the father's parents.

            Sub.(4)  of Wis. Stat. Ann. §767.245 continues to say that: "if the paternity of the child has not yet been determined in an action under sub. (3) that is commenced by a person other than a parent of the child’s mother but the person filing the petition under sub. (3) has, in conjunction with that petition, filed a petition or motion under s. 767.45 (1) (k), the court shall make a determination as to paternity before determining visitation rights under sub. (3)."  The petition for paternity was filed jointly by Milton and Lisl Atkins.  Again, the petition under sub. (3) would be filed by the parents of the mother, and sub. (4) states that it has to be other then the parent's of the mother.  Thus, the Simpletons have not met the criteria set forth for this matter either.

Adoption

1.         No evidence to the contrary.  More then likely not at issue with either party to this pending action.         

Contact, or attempted contact

1.         Homer and Margery Simpleton have repeatedly requested access to Emily, however, Milton and Lisl Atkins have denied these requests.  Sub. (3)(d) states that: "the grandparent has maintained a relationship with the child or has attempted to maintain a relationship with the child but has been prevented from doing so by a parent who has legal custody of the child."  The Simpletons have never seen Emily, but have attempted to gain access to her.  However, Lisl, a parent who has legal custody,  has denied their requests.  Therefore, the Simpletons would satisfy this element of the sub. (3).

Conduct contrary to parent

1.         If  the Simpletons were granted access to Emily, would their actions be contrary to that of Lisl Atkins the parent and legal custodian of Emily?  Sub. (3)(e)states that: "the grandparent is not likely to act in a manner that is contrary to decisions that are made by a parent who has legal custody of the child and that are related to the child’s physical, emotional, educational or spiritual welfare."  The Simpletons tried to convince Lisl to get an abortion when she was a juvenile and living with her parents.  The past relationship of a pregnant teenage Lisl to her parents, Homer and Margery Simpleton, may be construed as contrary to the parent.  Especially concerning the emotional and spiritual welfare of the child.  Thus, may result in an unfavorable request towards the granting of visitation with Emily.

Best interest of child

1.         Would the visitation between the Simpletons and Emily be in the best interest of Emily?

Sub (3)(f) provides that "the visitation is in the best interest of the child."  In Re: The Paternity of Roger D.H. 2002 WI App 35, 250 Wis. 2d 747, 641 N.W.2d 440, the Wisconsin Supreme Court stated: "When applying sub. (3), circuit courts must apply the presumption that a fit parent’s decision regarding grandparent visitation is in the best interest of the child, but the court must still make its own assessment of the best interest of the child." Therefore, the court is the only one who could determine this issue, and the outcome could go either way on this.

Independent action

1.                  Milton's paternity has not yet been established.  In Wis. Stat. Ann. §767.245(3c), "a grandparent requesting visitation under sub. (3) may file a petition to commence an independent action for visitation under this chapter or may file a petition for visitation in an underlying action affecting the family under this chapter that affects the child."  In Paternity of Nastassja L.H.–J. 181 Wis. 2d 666, 512 N.W.2d 189 (Ct. App. 1993),  "a paternity case in which the court has retained post judgment authority to enforce the judgment constitutes an underlying action under which a petition for grandparent visitation may be brought."  Although our situation is different in regard to paternity, Paternity of Nastassja L.H.–J.  being post judgment, and ours pending, this could be considered to be an underlying action affecting the family.  Thus, granting the Simpletons their petition to be heard at family court.

EVALUATION RUBRIC: 35 POINTS TOTAL

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32 points earned