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Grandparents Do Not Need To Prove A “Significant Triggering Event” To Establish Placement

In Wohlers v. Broughton, the court of appeals held that 1) grandparents did not need to prove a “significant triggering event” occurred to establish placement with the minor child; and 2) the court properly applied Troxel v. Granville, 530 U.S. 57 (2000) in determining a visitation schedule.

Wohlers is a grandparent visitation case involving the special grandparent visitation provision set forth in sec. 767.43(3) Wis. Stats.  The special grandparent visitation statute applies when  a) there is a non-marital child whose parents have not subsequently married; b) the paternity of the child is established in this state, or another, if the grandparent filing the petition is a parent of the child’s father; and c) the child has not been adopted.

In Wohlers, the mother of E.B. was in jail and the maternal grandparents had assumed the care of the child for approximately 5 years.  Steve Wohlers was adjudicated E.B.’s father when the child was approximately 3 years old.  Once adjudicated the father, Wohlers was granted periods of physical placement with E.B.  The grandparents filed a motion allowing them to intervene and establish vistitation with E.B.  The parties subsequently entered into a stipulation granting sole custody to the Wohlers and visitation to the grandparents.  In a two-week period, Wohlers would have placement with E.B for nine days and the grandparents would have placement for five days. 

Wohlers then sought to amend the stipulation and filed a motion to establish or eliminate grandparent visitation starting with the 2007 – 2008 school year.  Wohlers, at a status conference on the matter, requested a hearing to determine whether the grandparents even had standing to assert visitation rights because there was no “significant triggering event” justifying intervention in the parent-child relationship under Holtzman v. Knott, 193 Wis. 2d 649, 533 N.W.2d 419 (1995).  After briefing the issue, the court denied Wohler’s motion regarding the grandparent’s lack of standing to assert visitation.  At trial, Wohlers submitted a plan outlining his proposed visitation schedule beginning with the school year.  Wohlers’s schedule allowed the grandparents one weekend per month with E.B., one mid-week evening visit per week upon his approval, and one vacation of up to seven days per year.  The Dane County Family Court Counseling Service (DCFCCS) and the GAL recommended every other weekend visitation during the school year.  The court only addressed school year placement.

The trial court found that the DCFCCS and the GAL’s recommendations of alternate weekend visitation to the grandparents was in E.B.’s best interest.  Wohlers appealed, stating that 1) the trial court erred by declining to require the grandparents to prove the existence of a “significant triggering event” under Holtzman; 2) the trial court failed to give “special weight” to Wohler’s proposal as required by Troxel; and 3) the trail court erred in failing to address placement for non-school year time.

The court of appeals held that Holtzman did not apply because in that case, the party seeking visitation with the child was a woman who had been in a relationship with the child’s biological mother.  The Holtzman court held that in determining whether to grant a third-party visitation with a child, there must first be a parent-like relationship with the child, and there must be a “significant triggering event” warranting intervention into the parent-child relationship.  The Holtzman court noted that the legislative intent of the third-party visitation statute was that it would apply in situations of marriage dissolution.  In Holtzman, there was no marriage so the two factors did not apply.

Applying that reasoning, the court of appeals in Wohlers stated that since there was no marriage, Holtzman factors were not applicable.

Secondly, Wohlers argued that under Troxel, there was a rebuttable presumption that Wohlers’s proposed placement schedule was in E.B.’s best interest.  Under Troxel, it is presumed the fit parents act in their child’s best interest.

The Wohlers court of appeals held that the record clearly indicated that the court considered that there is a rebuttable presumption that Wohlers is acting in E.B.’s best interest, but that the GAL’s recommendations were appropriate.  The Wohlers court stated that “the court’s decision reflects an analytical process that shows the court applied the correct legal standard.”  First, the court rejected the idea that the experts’ opinions were entitled to any special weight.  The court found that E.B. was attached to both Mr. Wohlers and the grandparents. 

Lastly, the court of appeals held that the trial court erred in limiting the scope of the issues before the court to only the school year visitation.  The record is clear that Wohlers intended for any order to reflect school, as well as non-school visitation.  The issue was mentioned in correspondence and briefing to the court.

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