(concurring and dissenting). I join in the very well written concurring and dissenting opinion by Justice Steinmetz. I write separately to emphasize certain points.
There is nothing in this case that warrants the deprivation of the rights of this biological mother to determine what is in her child's best interests and to decide who will and will not have visitation with her child. Neither marriage nor blood ties justifies this courts' creation of an arrangement not recognized until today. There was no marriage — the "ceremony" gone through by the mother and her former companion is a nullity — it is completely unrecognized in our law. To give any importance to the "ceremony" by these two women should require an act of the legislature, not an aberrant opinion by this court.
*702Contrary to the position taken by Ms. Holtzman's attorney in seeking visitation rights under Chapter 767 of the Wisconsin statutes, the majority recognizes, . . Holtzman is in error. Section 767.24 Stats. 1991-92, does not apply to the facts of this case. The legislature enacted the Ch. 767 visitation statute with the dissolution of marriage in mind. This case does not involve a marriage or its dissolution." Majority op. at 667. The majority opinion devotes several pages supporting that conclusion, ending its discussion of the statute as follows:
In short, the legislature did not intend the ch. 767 visitation statute to apply in the absence of the dissolution of marriage. . . . The circuit court appropriately refused to stretch the statute to fit in the absence of a dissolved marriage. Accordingly, we conclude that Holtzman's reliance on sec. 767.245 is misplaced.
Majority op. at 680-681.
The majority opinion should end there!
Instead, it takes the majority thirty-five paragraphs and fifteen footnotes from there on to create its new vision of family law in a way that should only be done by the legislature. Along the way, it cites many cases contrary to its new found theories. However, its only apparent purpose for doing so is so it can ignore or overrule them as is so ably discussed by Justice Steinmetz.
There is no statutory justification or provision to deny this biological mother, who with her child is an "intact family" under our prior rulings, the control over her child. In the law up until today, no one in the position of Ms. Holtzman could interfere with the right of the child's mother to determine who will visit or *703associate with her child. As one of the present majority said recently in a concurrence in In re Angel Lace M., 184 Wis. 2d 492, 516 N.W.2d 492 (1994):
The legislators, as representatives of the people of this state, have both the right and the responsibility to establish the requirements for a legal adoption, for custody, and for visitation. This court cannot play that role. We can only interpret the law, not rewrite it.
Id. at 520 (Geske, J., concurring) (emphasis supplied). Justice Geske was right. The visitation statute is the sole means of obtaining state sanctioned visitation rights.1 The majority disputes this fact by repeating several times that the statute does not preempt the courts' "equitable power" over visitation. The majority persists in this claim:
*704'Till their own dreams at length deceive 'em And oft repeating they believe 'em.
Mathew Prior (1664-1721).
The majority attempts to distinguish visitation from adoption and custody by stating that, unlike adoption and custody, this court has not expressly stated that the visitation statute supplanted the common law. This is not correct. In In re Interest of Z.J.H., 162 Wis. 2d 1002, 471 N.W.2d 202 (1991), after detailing the statutory requirements for standing under the much modified, current visitation statute,2 this court held that a contract that purported to grant custody and visitation rights was void "[bjecause we conclude that the legislative intent grants custody and visitation rights to non-parents only under the circumstances described above." Z.J.H., 162 Wis. 2d at 1024 (emphasis added).
Moreover, it is far from clear which direction the legislature would go if it were to examine the issue presented here. Even in countries that have legalized same-sex marriages, legislatures have restricted the rights of those couples where children are concerned. For example, Sweden, Denmark and Norway have all legalized same-sex marriages; however, the legislatures in all of these countries made it illegal for couples in same-sex marriages to adopt children or have children by artificial insemination. Lawrence Ingrassia, Danes Don't Debate Same-Sex Marriages, They Celebrate Them, Wall St. J., June 8, 1994, at A1, A8. If anything, the intent of the legislature seems to be contrary to the majority's opinion. As pointed out by *705Justice Steinmetz, the legislature has reacted swiftly to decisions from this court with which it does not agree. Steinmetz, J., concurring and dissenting op. at 718 n.7. The most recent example is a bill already passed by the Senate, 1995 Senate Bill 13, and currently in Committee in the Assembly, which would amend the current visitation statute so that visitation may be ordered in cases with facts similar to those in In re the Marriage of Cox, 177 Wis. 2d 433, 502 N.W.2d 128 (1993) (stepparent sought standing to seek court-ordered visitation of the child of her deceased husband and his first wife). This bill is not as important to this case for what it says as it is for what it does not say. While it expresses dissatisfaction with this court's holding in Cox, if passed it would not eliminate the requirement that an action affecting the family exist for a party to gain standing nor would it in any way state disapproval with the public policy arguments that this court made in 162 Wis. 2d 1002, 471 N.W.2d 202 (1991) (holding that "legislative intent grants custody and visitation rights to non-parents only under [the statute]" and stating that public policy concerns "militate against contractual provisions affecting th[e] relationship [between a natural or adoptive parent and that parent's child]."), or Angel Lace, 184 Wis. 2d at 495 (holding that the Wisconsin adoption statutes did not allow a third party to adopt the minor child of the third party's same-sex nonmarital partner).
Ms. Holtzman may very well love Ms. Knott's child and feel that what she wants is in the child's best interests. But, so we must assume the same feelings and intent on the part of the child's mother.
The courts and the legislature heretofore have correctly held under similar facts that the mother is the *706one who should make the determination of what visitation is in her child's best interests. California's Court of Appeal, First District has recently aptly summarized the reasoning behind the grant of a veto right over third party visitation to biological and adoptive parents as follows:
Providing parents a superior ability to influence the upbringing of their child is clearly in the interests of the child. By diminishing the likelihood of struggle between parents and others close to the child with whom the parents are at cross-purposes, the parental preference minimizes the likelihood the child will be exposed to hostility between those with whom he has a strong attachment, which can cause distress, create loyalty dilemmas and be disruptive to the child's socialization experiences. (Emery, Marriage, Divorce and Children (1988) at pp.94-98, and other authorities there cited and discussed.) Recent empirical studies suggest that in many instances sustained exposure to ongoing conflict may cause children more psychological distress and adjustment difficulties than separation from an attachment figure involved in the conflict. (See Johnston, Kline & Tschann, On-Going Post Divorce Conflict: Effects on Children of Joint Custody and Frequent Access, 59 Am.J. of Orthopsychiatry 576 (1989)).
In re the Marriage of Gayden, 229 Cal. App. 3d 1510, 1517 (1991).3
*707Further, although the majority states that it was "mindful of preserving a biological or adoptive parent's constitutionally protected interests," majority op. at 658, in reaching its conclusion, the majority nevertheless trammels those rights. In Wisconsin v. Yoder, 406 U.S. 205 (1972), the United States Supreme Court, after acknowledging the potential for parents to act contrary to the best interests of their child, concluded that if a parent's childraising method does not "jeopardize the health or safety of the child, or have a potential for significant social burdens" the state shall not interfere. Id. at 234 (emphasis supplied).4 The majority opinion is directly contrary to this mandate because Ms. Knott's decision to not permit Ms. Holtz-man visitation rights has not been shown to have jeopardized the health or safety or to have a potential for significant social burdens on her child.5 Thus, the *708majority opinion unconstitutionally deprives this mother of an important right. Contrary to the majority opinion, the child here does not need the "protection of the courts." Majority op. at 659. His mother is the one who should have had the courts protecting her right to raise her own child and to determine what is in her child's best interests.
The concern expressed by Justice Bablitch is that "the dissents would victimize the child once more by denying him any relationship" with Ms. Holtzman and that the dissents leave "these children ... in a societal Dickensian drift, with both the children and possibly society paying what could be an incalculable price for the errors of others." Bablitch, J., concurring op at 700. But, this child is in no "societal drift," Dickensian or otherwise. This child is no "Oliver Twist" — he is not an orphan, he has a mother. Thousands and thousands of single parents, widows and widowers from time immemorial have raised children and made the choices parents have always had to make that are part of raising, supporting and nurturing their children, including deciding with whom their child shall associate. And, they have done so without government interference. This mother has a constitutional right to do the same.
In an attempt to obscure the result oriented nature of the opinion, the majority creates four "criteria" out of whole cloth to give some legal gloss to its new creation. The majority should have taken heed of the warning given in a similar case in which a court refused to redefine the word "parent" in a visitation statute:
*709[Expanding the definition of 'parent' in the manner advocated by the appellant could expose other natural parents to litigation brought by child-care providers of long standing, relatives, successive sets of stepparents or other close friends of the family. No matter how narrowly we might attempt to draft the definition, the fact remains that the status of individuals claiming to be parents would have to be litigated and resolution of these claims would turn on elusive factual determinations of the intent of the natural mother, the perceptions of the children, and the course of conduct of the party claiming parental status. By deferring to the Legislature in matters involving complex social and policy ramifications far beyond the facts of the particular case, we are not telling the parties that the issues they raise are unworthy of legal recognition. To the contrary, we intend only to illustrate the limitations of the courts in fashioning a comprehensive solution to such a complex and socially significant issue.
Nancy S. v. Michele G., 279 Cal. Rptr. 212, 219 (Cal. Ct. App. 1991).
Moreover, the majority creates its law under the rubric of the "court's longstanding equitable power to protect the best interest of a child." If it is the courts and not the legislature who are to define the factual situations that "equity" requires granting visitation, everyone could have standing in any case in which they allege that the best interests of a child are at issue. That is, if the courts can, in any given case, state that the facts of a case create a "triggering event" which enables the court to exercise its "equitable powers," doesn't every case involving a child potentially come down to an amorphous "best interests" analysis regardless of the decisions made by one, or both, of the child's *710biological or adoptive parents? Anything goes that a court may claim is "in the best interest of the child"!
The potential for this problem is highlighted in Justice Bablitch's concurrence. He states that "children of dissolving non-traditional families have interests that can be protected by the courts in matters of access." Bablitch, J., concurring op at 700. To state the proposition is to illustrate why the majority opinion is wrong. "Non-traditional family" is not defined. Is it a temporary monogamous couple of one sex or may it include a temporary heterosexual couple? May it be comprised of more than two people so as to be polygamous, and if so, how many? Do all persons claiming a "right" to visitation have to be sexually involved with the biological parent to be part of the non-traditional family or can the relationship between some or all of the adults be non-sexual? All these various living arrangements can be lumped into the term "non-traditional family." That is why the legislature should be the body that decides what groupings of adults living together may be defined as a "non-traditional family" and then define what rights a member of such an arrangement may have with the children of another member of such a "non-traditional" group.
There is no justification for a court to seek to impose in the name of the law, common or equitable, its own ideas of social policy and a new found theory of family law which creates new "rights" for those who have no legally binding relationship to the child (for instance, no duty of support). This is especially true when doing so requires overruling its own cases interpreting controlling statutory authority. Changes in family law as drastic as those created here should only be done by the legislature following full .hearings and *711debate by ninety-nine Representatives, thirty-three Senators and the Governor.
The majority opinion is a bad example of legislation by judicial fiat.
I concur with that part of the opinion dismissing the custody petition of Ms. Holtzman and dissent from that part of the opinion allowing her to seek visitation.
The majority argues that Watts v. Watts, 137 Wis. 2d 506, 405 N.W.2d 305 (1987), supports the position that the legislative intent of ch. 767 may be applied to non-marital situations. Watts is completely irrelevant to determining the legislative intent behind ch. 767. The key element to the majority's discussion of this case, and to the holding of the case, is that it involved contract and property rights. That the two parties were involved in a "relationship" and that they "held themselves out as husband and wife" was only used as a misguided attempted defense to the contractual claims. In contrast, here the majority bases its entire decision on the relationship between Holtzman and Knott. Absent this relationship, Holtzman would not, even under the majority's tortured analysis, have standing to seek visitation. Thus, in Watts this court simply held that express and implied in fact contracts to share property will be enforced. As the Watts court noted, if such an agreement did not exist, the parties would have no recourse in the courts.
1987 Wis. Act 355.
One can hardly fail to note the antagonism that exists between Ms. Holtzman and Ms. Knott. That is why the law, up to now, has wisely left it to the biological or adoptive parent to determine whether visitation is in the best interest of his or her own child. This has been true regardless of what the motive may be, good or bad, of a third party in seeking visitation. Thus, contrary to the statement in Justice Bablitch’s concurrence, my *707conclusion is not that legislative silence "evinces a legislative intent that the best interests of these children have no protection whatsoever." Bablitch, J., concurring op. at 700. Rather, my conclusion is that the legislative silence evinces an intent that the child's best interests are best determined by the child's biological or adoptive parent instead of by the courts.
Gotz v. Gotz, 274 Wis. 472, 80 N.W.2d 359 (1957), is not to the contrary. In that case, the court allowed visitation of the child's aunts to continue despite the objections of the biological father who had indefinite temporary custody of the child due to the mother's poor health. The court did not hold that the aunts had an independent right to visitation. Instead, the court upheld the visitation because it found the aunts to be the representatives of the biological mother, who had permanent custody of the child but who could not visit the child herself as she was residing in another state. Id. at 477.
Further, given that the majority throws out Ms. Holtz-man's custody claim because she did not present sufficient evidence to show that Ms. Knott is unfit and unable to care for *708her child, it is unlikely that Ms. Knott's decision to deny Ms. Holtzman visitation could ever be shown to have jeopardized the health or safety or to have had a potential for significant social burdens on Ms. Knott's child.