Holtmann v. Knott

SHIRLEY S. ABRAHAMSON, j.

Sandra Lynne Holtzman appeals from an order of the circuit court for. Dane county, George A. W. Northrup, circuit judge, dismissing her petition seeking custody of or visitation rights to H.S., the biological child of Elsbeth Knott. We granted the guardian ad litem's petition to bypass the court of appeals. Section (Rule) 809.60, Stats. 1991-92. We affirm that part of the order dismissing the petition for custody; we reverse that part of the order dismissing the petition for visitation rights and remand the case to the circuit court for proceedings consistent with this opinion.

Two issues of law are presented in this case. The first issue is whether Holtzman's assertions of Knott's parental unfitness and inability to care for the child, or of compelling circumstances requiring a change of custody, are sufficient to proceed on a petition for custody under sec. 767.24(3), Stats. 1991-92. The second issue is whether Holtzman may seek visitation rights to the child.1

We agree with the circuit court that Holtzman has not raised a triable issue regarding Knott's fitness or ability to parent her child and has not shown compelling circumstances requiring a change of custody. Therefore the circuit court properly dismissed the custody action commenced under sec. 767.24(3), Stats. 1991-92.

For the reasons set forth, we conclude that the ch. 767 visitation statute, sec. 767.245, Stats. 1991-92, does not apply to Holtzman's petition for visitation rights to Knott's biological child. However, we further conclude that the legislature did not intend that sec. 767.245 be the exclusive means of obtaining court-, ordered visitation, or that it supplant or preempt the courts' long recognized equitable power to protect the best interest of a child by ordering visitation under circumstances not included in the statute. Finally, mindful of preserving a biological or adoptive parent's constitutionally protected interests and the best interest of a child, we conclude that a circuit court may determine whether visitation is in a child's best interest 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 with a biological or adoptive parent. To meet these two requirements, the petitioner must prove the component elements of each one.

To demonstrate the existence of the petitioner's parent-like relationship with the 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;2 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. 3

To establish a significant triggering event justifying state intervention in the child's relationship with a biological or adoptive parent, the petitioner must prove that this parent has interfered substantially with the petitioner's parent-like relationship with the child, and that the petitioner sought court ordered visitation within a reasonable time after the parent's interference.

The petitioner must prove all these elements before a circuit court may consider whether visitation is in the best interest of the child. The proceedings must focus on the child. When a non-traditional adult relationship is dissolving, the child is as likely to become a victim of turmoil and adult hostility as is a child subject to the dissolution of a marriage. Such a child needs and deserves the protection of the courts as much as a child of a dissolving traditional relationship. In re Interest of 162 Wis. 2d 1002, 1033, 471 N.W.2d 202 (1991) (Bablitch, J. dissenting).

We remand the issue of visitation to the circuit court for proceedings consistent with this opinion.

I

The facts as found by the circuit court are as follows:

Holtzman and Knott are two women who shared a close, committed relationship for more than ten years. Holtzman and Knott met in February 1983. In October 1983, they began to live together in a home they jointly purchased in Boston, Massachusetts. On September 15, 1984, they solemnized their commitment to each other, exchanging vows and rings in a private ceremony.

They decided early in their relationship to rear a child together by having Knott artificially inseminated with sperm from an anonymous donor. After a miscarriage and illness, Knott became pregnant in March 1988. Holtzman and Knott attended obstetrical visits and childbirth classes together.

The child was born on December 15, 1988. Holtz-man was present during labor and delivery and took three weeks off from work to stay with Knott and the child. Holtzman and Knott jointly selected a name for the baby, using first and middle names from each of their families and a surname which combined their last names. Both women were named as the child's parents at the child's dedication ceremony at their church. Holtzman's parents were recognized as the child's grandparents and Holtzman's sister was formally named as his godmother.

From December 1988 until January 1,1993, Holtz-man provided the primary financial support for Knott, herself and the child and both women shared child-care responsibilities. Together, the three attended church, went on outings and celebrated holidays, Holtzman devoted herself to the child and spent individual time with him.

The two women explained to the child that there are many kinds of families and that he had two parents who loved him very much. The child called Holtzman "My San," and each year on Father's Day Holtzman, Knott and the child celebrated their own special holiday honoring Holtzman.

Holtzman, Knott and the child moved to Madison, Wisconsin, in June 1992 so that Holtzman could attend law school. They sold their home in Boston and bought a home in Madison, not far from Holtzman's family. The child became attached to Holtzman's parents as his grandparents and to Holtzman's sister as his aunt and godmother.

During the fall of 1992, Holtzman claims to have noticed a change in Knott's behavior. She asserts that Knott suffered from depression and her care for the child deteriorated.

On January 1, 1993, Knott told Holtzman that their relationship was over. The two women agreed that they would continue to live together in the home for the child's sake. On May 26, 1993, Knott and the child moved out of the house. Holtzman made every effort to maintain contact with the child and spent as much time with him as Knott would allow. On August 24,1994, Knott informed Holtzman that she was terminating Holtzman's relationship with the child.

Two days later, on August 26,1993, Knott sought an order in Dane county circuit court to restrain Holtz-man from having any contact with her or the child, claiming Holtzman had threatened or intimidated her. At the hearing on the petition, held on September 1, 1993, before Dane County Circuit Judge Richard J. Callaway, the two women entered into a stipulation on the record. Knott agreed to dismiss the petition; Holtz-man agreed not to contact Knott. Both women agreed to participate in a physical placement study to be conducted by the Dane County Family Court Counseling Service, and to have a guardian ad litem appointed for the child.

Holtzman filed a petition for custody on September 16,1993, and a petition for visitation on September 21, 1993. On September 29, 1993, Knott filed a motion for summary judgment.

After interviewing the child, the guardian ad litem reported the following facts to the circuit court: The child stated that he believed Holtzman was his parent and that he would like to see, spend time with and telephone Holtzman. He was able to recite Holtzman's new address and telephone number. The child acknowledged that his mother no longer viewed Holtz-man as his parent, that she would be upset if he continued to see Holtzman, but that he wanted to see her anyway. He stated that he did not consider anyone other than Holtzman and Knott to be his parents.

The circuit court reluctantly granted Knott's motion for summary judgment. It concluded that the current visitation law, while seeking to protect the best interest of children in traditional families torn asunder, ignores the welfare of children reared by adults in nontraditional relationships when those relationships terminate. According to the circuit court, the visitation law does not recognize the parent-like bond that forms between a child and a parent's nontraditional partner and the subsequent trauma to the child when the adult relationship dissolves. Urging this court and the legislature to reexamine the law in light of the realities of modem society and the best interest of the children, the circuit court wrote as follows:

The court sees this as a case where a family member ought to have the right to visit and keep an eye on the welfare of a minor child with whom she has developed a parent-like relationship. Unfortunately because the law does not recognize the alternative type of relationship which existed in this case, this court can not offer the relief Holtzman seeks.

Decision and order at 8.

The circuit court continued this thought as follows:

There are an increasing number of children in this society for whom the mother is the only known biological parent. Frequently that mother forms a lengthy relationship living with another person, be they man or woman, who assumes a parental role in the child's life for many years. Why should such children be denied the love, guidance and nurturing of the parental bond which developed simply because the adults cannot maintain their relationship? Lack of love. and guidance in the lives of children is a major problem in our society. Does it make sense for the law to worsen this sad fact by denying a child contact with one they have come to accept as their parent, especially when it clearly appears to be in the best interest of the child?

Decision and order at 17.4

Holtzman appealed from the order. This court granted the guardian ad ¡item's petition to bypass the court of appeals.

II.

Holtzman asserts that her action for custody is governed by sec. 767.24, Stats. 1991-92, which provides as follows:

(1) General PROVISIONS. In rendering a judgment of annulment, divorce, or legal separation, or in rendering a judgment in an action under s. 767.02(l)(e) [custody], the court shall make such provisions as it deems just and reasonable concerning the legal custody and physical placement of ahy minor child of the parties, as provided in this section.

(3) Custody to agency or relative, (a) If the interest of any child demands it, and if the court finds that neither parent is able to care for the child adequately or that neither parent is fit and proper to have the care and custody of the child, the court may declare the child to be in need of protection or services and transfer legal custody of the child to a relative of the child, as defined in s. 48.02(15), to a county department, as defined under s. 48.02 (2g), or to a licensed child welfare agency....

Holtzman claims that she has "standing" to bring an action under sec. 767.24, Stats. 1991-92, to obtain custody of the child. The concept of "standing" is used in custody actions to mean that the petitioner "has status to bring an action for custody under the applicable statute." In re Interest of 162 Wis. 2d 1002, 1008 n.3, 471 N.W.2d 202 (1991). A person who is not a biological or adoptive parent may not bring an action to obtain custody of a minor unless the biological or adoptive parent is "unfit or unable to care for the child" or there are compelling reasons for awarding custody to a nonparent. 162 Wis. 2d at 1009; Barstad v. Frazier, 118 Wis. 2d 549, 568, 348 N.W.2d 479 (1984).

The court has equated the showing required to prove that a parent is "unfit or unable to care for the child" with the showing required of persons petitioning for the termination of parental rights. Barstad, 118 Wis. 2d at 556. See also Z.J.H., 162 Wis. 2d at 1010 (suggesting that in a custody action the parent's fitness is evaluated according to the standards used for a child in need of protection or services (CHIPS) proceeding). A fit and able parent may, however, be denied custody under compelling circumstances. Barstad, 118 Wis. 2d at 564. Compelling circumstances include abandonment, persistent neglect of parental responsibilities, extended disruption of parental custody, or "other similar extraordinary circumstances that would drastically affect the welfare of the child." Barstad, 118 Wis. 2d at 568.

The circuit court concluded that Holtzman had not shown a triable issue regarding Knott's fitness or ability to care for the child. Nor had Holtzman established the existence of compelling circumstances that would warrant a hearing on transferring custody from Knott, the biological parent.5 We agree with the circuit court's evaluation of the record. Summary judgment is properly entered when the pleadings and depositions, together with affidavits, do not establish a genuine issue of material fact. No triable issue of fact regarding Knott's fitness or ability to care for the child has been presented. Nor do the facts alleged rise to the level of compelling circumstances. Thus we conclude as a matter of law that the facts presented fail to meet the standards set forth in sec. 767.24. Accordingly we affirm this part of the circuit court's order.

HH HH HH

The circuit court's conclusion that Holtzman has no "standing" to bring a custody action became the basis for its dismissal of Holtzman's petition for visitation. Citing 162 Wis. 2d at 1020, the circuit court concluded that before it could consider whether granting Holtzman visitation under sec. 767.245(1), Stats. 1991-92, was in the child's best interest "there must be an underlying action affecting the family." Because the custody action was dismissed, the circuit court concluded that there was no underlying action affecting the family in this case.

It is important to note that the ch. 767 visitation statute, sec. 767.245(1), Stats. 1991 — 92, does not explicitly require an underlying action affecting the family before a circuit court may determine whether a petitioner's relationship with a child falls within the statute and whether visitation is in the child's best interest. The ch. 767 visitation statute reads as follows:

Section 767.245(1). Upon petition by a grandparent, greatgrandparent, stepparent or person who has maintained a relationship similar to a parent-child relationship with the child, the court may grant reasonable visitation rights to that person if the parents have notice of the hearing and if the court determines that visitation is in the best interest of the child.

Holtzman argues that she may petition for visitation under this statute because she has maintained a relationship similar to a parent-child relationship with Knott's biological child and because her estrangement from Knott was a de facto divorce, that is, "an action affecting the family."

Our analysis of the ch. 767 visitation statute and the cases interpreting it compels us to conclude that Holtzman is in error. Section 767.245, 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. This conclusion, however, does not end our inquiry. Our analysis of the ch. 767 visitation statute and the cases also demonstrates, as we explain below, that the legislature did not intend sec. 767.245 to be the exclusive provision on visitation. Nor did the legislature intend the ch. 767 visitation statute to supplant or preempt the courts' long standing equitable power to protect the best interest of a child by ordering visitation in circumstances not included in the statute. In other words, the legislature did not intend sec. 767.245 to "occupy the field" of visitation.

We begin our examination of whether a circuit court should consider Holtzman's petition for visitation with an analysis of the ch. 767 visitation statute.

A.

To understand the current ch. 767 visitation statute we must look at its history, which reveals the often conflicting policies underlying visitation law. Visitation law balances a biological or adoptive parent's constitutionally protected liberty interest in determining how to rear a child6 against the best interest of the child. The state not only must respect a biological or adoptive parent's constitutional right, but also must recognize when state intervention in a parent-child relationship is necessary to protect a child's best interest. Visitation law is thus concerned with identifying the triggering events that may justify state intervention.

Prior to 1975, the courts determined without statutory authorization the visitation rights of noncustodial parents and others. In 1975, the legislature enacted two separate visitation statutes relating to grandparent visitation.7 Both of the 1975 grandparent visitation statutes assured grandparents' rights to visitation on the occurrence of specific triggering events. One statute, sec. 880.155, Stats. 1975 (in ch. 880 entitled Guardians and Wards), provided grandparents with visitation rights following the death of a child's parent. This statute is still in existence. Section 880.155, Stats. 1993-94. The other statute, contained in chapter 247 entitled "Actions Affecting Marriage," was the precursor to the current ch. 767 visitation statute and expressly governed grandparent visitation when a court rendered "a judgment of annulment, divorce or legal separation."8 This statute, sec. 247.24(1)(c), Stats. 1975, provided as follows:

Section 247.24 Judgment; care and custody of minor children. (1) In rendering a judgment of annulment, divorce or legal separation, the court may:

(c) Grant reasonable visitation privileges to a grandparent of any minor child if the court determines that it is in the best interest and welfare of the child and issue any necessary order to enforce the same. (Emphasis added.)

In 1977, the legislature substantially revised sec. 247.24 by enacting the Divorce Reform Act (ch. 105, Laws of 1977). Under the 1977 statute, grandparent visitation was no longer expressly limited to circumstances in which a circuit court had rendered a judgment of annulment, divorce or legal separation.9 The 1977 ch. 247 grandparent visitation provision read as follows:

Section 247.245 Visitation.

(4) The court may grant reasonable visitation privileges to a grandparent or greatgrandparent of any minor child upon the grandparent's or great-grandparent's petition to the court with notice to the parties if the court determines that it is in the best interests and welfare of the child and issue any necessary order to enforce the same.

Although the 1977 ch. 247 visitation statute did not explicitly limit visitation to circumstances in which a circuit court rendered a judgment of annulment, divorce or legal separation, the legislative purpose section of the 1977 Divorce Reform Act discloses that the entire law was directed to actions affecting marriage.10 In addition, the entire structure of the new statute reveals the legislature's intent to limit its application. Unlike the 1975 ch. 247 visitation statute, the 1977 version focused primarily on the visitation privileges of a noncustodial parent upon the dissolution of a marriage. It seems reasonable to conclude that the legislature intended the grandparent visitation section to apply only under the same circumstances, thus retaining the limits on judicial intervention in a parent-child relationship that had accompanied the earlier ch. 247 visitation statute. These limits restrained a court from granting visitation to a grandparent unless the marriage of the child's parents was dissolving.11

In 1988, the legislature amended the 1977 ch. 24712 grandparent visitation statute by enacting a detailed law relating to custody of children upon dissolution of marriage.13 The major change in 1988, as explained by the Legislative Council's Special Committee notes, was to extend "the current law permitting the court, upon petition, to grant visitation rights to a grandparent or greatgrandparent to: (1) a stepparent; and (2) any person who has maintained a relationship similar to a parent-child relationship with the child."14 These additions shaped the visitation statute into its present form.

Like the 1977 grandparent visitation statute upon which it is based, the 1988 ch. 767 visitation provision does not expressly limit a petition for visitation to actions affecting the marriage or actions affecting the family. Once again, however, the legislature appears to have intended that visitation petitions brought under sec. 767.245 be considered within the context of a dissolving marriage. The 1988 amendment was formulated by the Legislative Council Special Study Committee on Custody Arrangements. The charge to the committee,15 the minutes of the committee's meetings, the committee's comment on the Act,16 and the Wisconsin Legislative Council Staff Information Memorandum on the 1988 amendment17 all reveal that the committee's primary concern was with custody issues prompted by the divorce or legal separation of a married couple.18 Nor did the legislature use the 1988 amendment to alter a court of appeals decision, Van Cleve v. Hemminger, 141 Wis. 2d 543, 415 N.W.2d 571 (Ct. App. 1987), which interpreted the 1977 statute as requiring an action affecting the family.

In 1991, the legislature added a third visitation statute, this time to ch. 48, the Children's Code, allowing certain relatives who have maintained a relationship with a child similar to a parent-child relationship to seek visitation on adoption of a child by a stepparent or relative.19 Had the legislature intended the ch. 767 visitation statute to apply to circumstances other than the dissolution of a marriage, it could have amended sec. 767.245. Instead it created this new statute. The legislature apparently intended sec. 767.245 to apply to limited circumstances and the new statutory provision to govern other limited circumstances justifying state intervention. The legislature did not intend any or all of the three visitation statutes to preempt the entire field of visitation.

The legislature's intent that sec. 767.245 be triggered by marriage and its dissolution is also evident in the statutory requirement that a petition for ch. 767 visitation, like a petition for divorce, separation and annulment, shall be entitled "In re the Marriage of A.B. and C.D." Section 767.05(5), Stats. 1991-92.

This recitation of the history of the three visitation statutes illustrates the continuing legislative concern with identifying the triggering events that warrant state interference in an otherwise protected parent-child relationship. As we have seen, the triggering event most often manifest in the history of the ch. 767 visitation statute (and the case law interpreting it) has been the dissolution of a marriage, that is, an annulment, divorce or separation.20

After 1977, without the explicit restrictions in the 1975 visitation statute that visitation be granted by a judgment of annulment, divorce or legal separation, courts were left to resolve under what circumstances the visitation statute allowed them to intervene in a parent-child relationship to determine whether visitation was in the best interest of a child.

Van Cleve v. Hemminger, 141 Wis. 2d 543, 415 N.W.2d 571 (Ct. App. 1987), considered a grandparent's right to petition for visitation under the ch. 767 visitation statute, sec. 767.245(4), Stats. 1985-86, when the child and both parents lived together. In Van Cleve, the court of appeals construed the visitation statute to apply only to cases where an underlying "action affecting the family" had previously been filed. It concluded that the legislature did not intend the visitation provision "to reach into intact families to override parental determinations involving visitation privileges between their children and the grandparents." 141 Wis. 2d at 546-47 (emphasis added).

The Van Cleve court of appeals based its interpretation of the ch. 767 visitation statute on several factors. First, it reviewed the legislative history described above and concluded that the legislature intended to limit the application of the statute. Second, it reasoned that if the ch. 767 visitation statute were interpreted to apply to visitation under all circumstances, sec. 880.155, governing grandparent visitation at the death of a parent, would be superfluous. Third, the court of appeals determined that public policy encourages state intervention in a parent-child relationship when a family dissolves; under such circumstances the state may mitigate a child's trauma and protect a child's best interest by ordering visitation with appropriate adults. Van Cleve, 141 Wis. 2d at 549.21

This court adhered to the Van Cleve decision in three recent cases: In re Marriage of Soergel, 154 Wis. 2d 564, 453 N.W.2d 624 (1990); In re Interest of Z.J.H., 162 Wis. 2d 1002, 1014, 471 N.W.2d 202 (1991); and Cox v. Williams, 177 Wis. 2d 433, 502 N.W.2d 128 (1993). In each case the court held that the legislature intended the ch. 767 visitation statute to apply only "in divorce or custody cases or in other actions affecting the marriage." Soergel, 154 Wis. 2d at 573.

In Soergel, the parents were divorced, the biological father had terminated his parental rights, and the stepfather had adopted the child. The biological paternal grandparents petitioned for visitation, arguing that their visitation rights to the child should turn solely upon the court's determination of the child's best interest. The court on a 6-0 vote concluded that sec. 767.245(4), Stats. 1985-86, was not intended to interfere with such parental decisions. Soergel, 154 Wis. 2d at 574.22

In relying on Van Cleve and Soergel, a divided court (5-2) concluded that there was no authority for an adoptive mother's former female partner to petition for visitation with the child. 162 Wis. 2d at 1014. Without defining family and without further explanation, the majority simply declared (1) that the adoptive mother and child formed an intact family, (2) that the presence of an intact family signals the absence of a dissolving family relationship, and (3) that the legislature did not intend sec. 767.245(1), Stats. 1989-90, to grant third parties visitation with a child in an intact family. The majority did not consider whether the dissolution of the relationship between the mother and her partner might constitute the dissolution of a family.

The Z.J.H. decision does not make clear whether it rests on the requirement that a family be dissolving (that is, not intact) or on the requirement set forth in Van Cleve that an action affecting the family be filed. Indeed the majority acknowledges that its decision rests on either of the following two bases: (1) the mother and the child are an "intact family unit" or (2) there is no "underlying action affecting the family unit." Z.J.H., 162 Wis. 2d at 1022.

This confusion was compounded in the most recent supreme court case interpreting the ch. 767 visitation statute, Cox v. Williams, 177 Wis. 2d 433, 502 N.W.2d 128 (1993). In Cox, the issue was whether a stepmother could seek visitation under sec. 767.245(1) with the child of her deceased husband and his first wife, the child's biological mother. Reversing the court of appeals, a divided court (4-3) concluded that the stepmother had no standing, even though the father had custody of the child from the time of his divorce to the time of his death, and the stepmother had acted as a parent to the child for five years.

Citing Van Cleve and the Cox majority required two components in a petition for visitation under sec. 767.245(1): (1) that an "underlying action affecting the family unit has previously been filed" and (2) that the child's family is not intact so that it may be in the child's best interest to order visitation to mitigate the trauma and impact of the dissolving family relationship. Cox, 177 Wis. 2d at 439.

In addition to determining that there was no underlying action affecting the family, the majority in Cox concluded that the child's family was intact. After the father's death, said the court, the child's family consisted only of the child and his biological mother. Cox, 177 Wis. 2d at 440.

In summary, the cases interpreting the ch. 767 visitation statute have determined that a circuit court may hear a petition for visitation (1) when there is either "an underlying action affecting the family" or "a dissolving family" or (2) when both "an underlying action affecting the family" and "a dissolving family" exist.23

Courts have had difficulty interpreting and applying these broadly stated triggering events. First, courts have reached no consensus about which statutorily-defined "actions affecting the family" suffice to meet the court-imposed "actions affecting the family" requirement with respect to petitions for visitation.24

Second, the very concept of "family" is not defined, either in the visitation statute or in the case law.25 The absence of a definition of family makes the question of whether a family is "dissolving" or "intact" virtually impossible to resolve.

Despite the confusion surrounding the conditions that must exist before a circuit court may consider a petition for visitation under sec. 767.245, the statute and cases reveal a thread consistently woven into the law of visitation: a concern that state intervention in a parent's determination of how to rear a child, a constitutionally protected liberty interest, must be justified by a triggering event. With respect to visitation, this triggering event must be more than a claim that a third party's visitation is in a child's best interest.

As our analysis of the ch. 767 visitation statute and the cases demonstrates, the events triggering application of the statute relate to the dissolution of a marriage. The rationale of the legislature and the courts has been that the end of a marriage adversely affects a child and may result in the separation of the child from a parent, signalling that state intervention in a parent-child relationship may be necessary to protect the child's best interest.

In short, the legislature did not intend the ch. 767 visitation statute to apply in the absence of the dissolution of a marriage.26 The child in this case was not born of a marriage or adopted during a marriage, and his biological mother has not been married during his life. We therefore conclude that the legislature did not intend the ch. 767 visitation statute to apply to this case. 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.

- This conclusion does not, however, necessarily eliminate Holtzman's ability to seek visitation with Knott's child unless we also conclude that the legislature intended the courts' power to order visitation in the best interest of a child to derive exclusively from sec. 767.245.

B.

The history of visitation law, the legislative enactments and the cases demonstrate that the legislature did not intend sec. 767.245 either to be an exclusive grant of power to the courts to determine visitation or to limit the courts' equitable power to protect the best interest of a child by ordering visitation.

First, the history of visitation law in this state shows that the courts governed visitation before it was regulated by statute. Two early and frequently cited Wisconsin cases granting nonparent visitation arose when no statute authorized a court to order visitation: Weichman v. Weichman, 50 Wis. 2d 731, 184 N.W.2d 882 (1971), and Ponsford v. Crute, 56 Wis. 2d 407, 202 N.W.2d 5 (1972). The court concluded in these cases that although the divorce statute at issue was silent about visitation, trial courts had the power to grant visitation to nonparents. The Weichman court concluded that "there is no statutory or common-law rule which forbids a court in a divorce action from granting visitation to parents or to others. The question is not one of the power of the court but of judgment or of judicial discretion. The underlying principle... is what is for the best interest and welfare of the child." Weichman, 50 Wis. 2d at 734.27 These early cases were the impetus behind the formulation of the first visitation statute in 1975.28 Thus the courts do not derive their power over visitation from the statutes.

Second, nothing in the 1975, 1977, 1988 or 1991 visitation statutes states or implies that these visitation provisions are designed to displace a court's equitable power to protect the best interest of a child by ordering visitation under circumstances not included in the statutes. Statutory visitation applies under limited circumstances (adoption of a child, dissolution of marriage, paternity and death of a parent) and to certain persons. Secs. 48.925, 767.245, 767.51(6) and 880.155. At the same time the legislature has clearly and repeatedly expressed the policy that courts are to act in the best interest of children.29 It is reasonable to infer that the legislature did not intend the visitation statutes to bar the courts from exercising their equitable power to order visitation in circumstances not included within the statutes but in conformity with the policy directions set forth in the statutes.

We reached a similar conclusion about the legislative intent in ch. 767 in Watts v. Watts, 137 Wis. 2d 506, 405 N.W.2d 305 (1987), which involved property rights, not children. The parties in Watts had never married; they lived together, had children, and held themselves out as husband and wife. When the relationship ended, Sue Ann Watts sued for determination of property rights. The circuit court dismissed her action, concluding that ch. 767, authorizing a court to divide property in a dissolution of a marriage, does not apply to property division between unmarried persons. This court reversed, holding that ch. 767 did not preempt the courts' traditional power to settle contract and property disputes between unmarried persons. Similarly we conclude in the case at bar that the legislature did not intend the visitation statutes to preempt the courts' equitable power to protect the best interest of a child by ordering visitation in circumstances not included in the statutes.

The adoption and custody statutes, however, are different from the visitation statutes in regard to preemption. In contrast to visitation cases in which the court has expressly stated that the ch. 767 visitation statute has not supplanted the common law, the court has expressly declared that adoption is governed solely by the adoption statutes. See Adoption of Tschudy, 267 Wis. 272, 281, 65 N.W.2d 17 (1954) (stating that ”[i]n Wisconsin, adoption proceedings are statutory"); In re Cheaney's Estate, 266 Wis. 620, 64 N.W.2d 408 (1954) (concluding that adoption is statutory and that Wisconsin does not recognize equitable adoption); and Kenneth E. Worthing, Inheritance and Testamentary Rights With Respect to Adopted Children, 1953 Wis. L. Rev. 38, 39 (commenting that rights obtained through and from adoption are purely statutory).

The court has also expressly declared that custody is governed exclusively by the custody statutes, concluding that the legislature has preempted the field.30 See, e.g., Hamachek v. Hamachek, 270 Wis. 194, 198, 70 N.W.2d 595 (1955) (declaring that "[cjourts have no power in awarding custody of minor children other than that provided by statute"); Larson v. Larson, 30 Wis. 2d 291, 297, 140 N.W.2d. 230 (1966) (quoting with approval Hamachek's determination that custody is governed solely by statute); Groh v. Groh, 110 Wis. 2d 117, 123, 327 N.W.2d 655 (1983) (quoting with approval Hamachek's holding that the court's power in custody is governed by statute); Poeschel v. Poeschel, 115 Wis. 2d 570, 571-72, 341 N.W.2d 407 (Ct. App. 1983) (quoting Groh and Hamachek and concluding that the circuit court's only power in awarding custody of minor children stems from the custody statute); and Schwantes v. Schwantes, 121 Wis. 2d 607, 622, 360 N.W.2d 69 (Ct. App. 1984) (quoting Groh and Hamachek for the proposition that courts have no power to award custody of minor children other than as provided by statute).

Third, this court has recently 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. In In re Custody of D.M.M., 137 Wis. 2d 375, 404 N.W.2d 530 (1987), a great aunt sought visitation. No statute authorized the award of visitation to a great aunt, yet the court granted her petition.31

In D.M.M. the court characterized the visitation statute as ambiguous, stating that it was not clear whether the statute preempted the common law or merely codified "existing law which was not intended to abrogate the visitation rights of others when the best interests of the child warrant..." D.M.M., 137 Wis. 2d at 386. Reviewing the history of the visitation statute, the court concluded that the grandparent language "was intended to supplement common law rights of grandparents and others to petition for visitation . . . [and was not intended as] a supplantation of the common law." D.M.M., 137 Wis. 2d at 388. See also D.M.M., 137 Wis. 2d at 390. The D.M.M. court declared repeatedly that the 1977 visitation statute as renumbered, sec. 767.245(4), Stats. 1985-86, did not preclude persons other than grandparents and greatgrandparents from petitioning for visitation. This statute merely insured grandparents a statutory right to visitation that was "not subject to developing and changing common law." D.M.M., 137 Wis. 2d at 387. Section 767.245 was "a codification of case law to further protect grandparent and greatgrandparents' rights and was not meant thereby to exclude other relatives." 137 Wis. 2d at 390.

This court again sanctioned the courts' equitable power to order visitation more recently in Z.J.H. Citing D.M.M., the Z.J.H. court concluded that "the legislature did not intend to supplant the common law" of visitation when it enacted the ch. 767 visitation statute and did not intend sec. 767.245 to be the exclusive means of petitioning for visitation rights. Z.J.H, 162 Wis. 2d at 1014.

This characterization of the power of a circuit court to determine visitation rights apart from the ch. 767 visitation statute comports with this court's precedents recognizing the plenary power of circuit courts and their equitable jurisdiction over children. In Dovi v. Dovi, 245 Wis. 50, 55, 13 N.W.2d 585 (1944), the trial court denied the parties a divorce but entered a judgment on the custody of the children. No statute empowered the court to enter such a judgment. The mother challenged the court's authority, arguing that the court has no common law jurisdiction over divorce because divorce law is statutory, and, most importantly, that the legislature had repealed the very statute that had expressly authorized the court to act when it denied a divorce.

The Dovi court acknowledged that if the court had only the jurisdiction conferred upon it by the divorce statutes, the repeal of the section authorizing the court to act when no divorce was granted took away the court's jurisdiction. Nevertheless, after carefully analyzing cases from Wisconsin and other states, the Dovi court concluded that the question of a court's powers was "not so much one of divorce law" but of "equity jurisdiction." Dovi, 245 Wis. at 54.

Courts have jurisdiction in equity apart from the divorce statute to act in the best interest of a child, wrote the Dovi court. The protection of minors is one of the "well established grounds for the exercise of equity jurisdiction." Dovi, 245 Wis. at 57.32 The repealed statute "merely made applicable to divorce actions a jurisdiction which equity courts already possessed and which, might have been exercised without the aid of a statute."Dovi, 245 Wis. at 57. Because the statute "did not confer jurisdiction upon the court," its repeal left the courts' equitable jurisdiction over children where it was before the statute was enacted. Dovi, 245 Wis. at 55.33 Similarly in the case at bar, the enactment of the visitation statutes did not preempt the court's equitable jurisdiction over visitation in circumstances not included in the statutes.

The United States Supreme Court has explained the courts' equity powers over children as follows:

The general authority of courts of equity over the persons and estates of infants ... is not questioned. It may be exerted, upon proper application, for the protection of both. This jurisdiction in the English courts of chancery is supposed to have originated in the prerogative of the crown, arising from its general duty as parens patriae to protect persons who have no other rightful protector.... The jurisdiction possessed by the English courts of chancery from this supposed delegation of the authority of the crown as parens patriae is . . . exercised in this country by the courts of the States. . . . New York Life Ins. Co. v. Bangs, 103 U.S. 435, 438 (1880).

In keeping with longstanding precedent, the D.M.M. and Z.J.H. courts viewed the ch. 767 visitation statute as a legislative declaration of public policy about the rights of certain people to visitation under certain circumstances, but not as a replacement of the equitable jurisdiction of the courts over visitation and the best interest of a child. Accordingly we conclude on the basis of the history of the ch. 767 visitation statute and the case law interpreting this statute that the legislature did not intend sec. 767.245 to supplant or preempt the equitable powers of the court to protect the best interest of a child by ordering visitation under circumstances not included within the visitation statutes. Rather, the legislature intended the courts to use their equitable powers to continue the policy direction of the visitation statutes, that is, to exercise their powers for the best interest of a child when a triggering event justifies state intervention.

There is, however, one determination in Z.J.H. that gives us pause. Although the Z.J.H. court pronounced that the visitation statutes did not preempt the court's power over visitation, the court denied standing to an adoptive mother's former partner to petition for visitation on the common-law basis of an express co-parenting agreement between the two women. The court, without discussion of its equitable power, concluded that the visitation statute barred any contract concerning visitation. In support of this conclusion the court quoted Grams v. Melrose-Mindoro Jt. School Dist. No. 1 for the proposition that "[w]hen the legislative will is expressed in peremptory terms of a statute it is paramount and absolute and cannot be varied or waived by the private conventions of the parties." Z.J.H., 162 Wis. 2d at 1024 (quoting Grams v. Melrose-Mindoro Jt. School Dist. No. 1, 78 Wis. 2d 569, 578, 254 N.W.2d 730 (1977)). On further reflection, we do not find this reasoning persuasive.

The Grams case is inapposite. The contract at issue in Grams required a teacher to instruct courses that she was not certified to teach when the statutes expressly declared that "[a] teaching contract with any person not legally authorized to teach the named subject . . . shall be void." Section 118.21, Stats. 1971. Thus, the contract in Grams was explicitly proscribed by the statute. Nothing in ch. 767 expressly prohibits contracts relating to visitation or prohibits a court from granting visitation under circumstances not governed by the statutes.

To bolster its holding that a contract for visitation was a per se violation of the visitation statute, the Z.J.H. court also concluded that visitation agreements are unenforceable on public policy grounds. Such agreements, wrote the court, contravene "the public interest in maintaining a stable relationship between a child and his or her legal parent. ..." Z.J.H., 162 Wis. 2d at 1025.

This public policy analysis is not compelling. The Z.J.H. court did not consider the 1988 statutory provision allowing a person who has established a parent-like relationship with a child to petition for visitation rights when a marriage dissolves. This statutory provision states a legislative policy that courts should give effect to a biological or adoptive parent's sharing of parental rights and responsibilities with another adult. Section 767.245(1), Stats. 1991-92.

Furthermore, the Z.J.H. court relied on Stickles v. Reichardt, 203 Wis. 579, 582, 234 N.W. 728 (1931), for the rule that "in the absence of a statute, contracts of a parent by which a parent attempts to transfer permanently the custody of his child to another are invalid as contrary to public policy." 162 Wis. 2d at 1025. This rule does not apply in the present case. There is no assertion that Knott agreed to transfer permanently the custody of her biological child to Holtzman.34

Upon re-examination of we conclude that public policy considerations do not prohibit a court from relying on its equitable powers to grant visitation apart from sec. 767.245 on the basis of a co-parenting agreement between a biological parent and another when visitation is in a child's best interest. We overrule any language in Z.J.H. to the contrary.

IV.

Thus, the issue before the court is whether the circuit court should exercise its equitable powers to consider Holtzman's claim that visitation is in the child's best interest.

Knott argues that, as the biological parent, she has a constitutional right to determine who shall visit her child and that this right supersedes rights asserted by her child35 or Holtzman.36 The law does not support Knott's claim that biological or adoptive parents have absolute rights in their children.37 The public policy of the state, established by the legislature, directs the court to respect and protect parental autonomy and at the same time to serve the best interest of the child. In the 1988 amendment to the visitation statute, the legislature has also recognized the important role of a nonparent who has a parent-like relationship with a child when the child's life is disrupted by the dissolution of a marriage.

Holtzman and the guardian ad litem contend that the circuit court ought to hear the petition. Hearing Holtzman's petition for visitation would, they argue, be consistent with the policy direction of ch. 767. They assert that Holtzman has established a parent-like relationship with the child and that this relationship comports with the visitation statute. They also argue that the triggering mechanism in this case, comparable to the triggering mechanisms of the ch. 767 visitation statute, is the disruption of the child's life by the elimination of his relationship with a parent-like person. They urge that the state's intervention to act in the child's best interest is justified because, as the child's guardian ad litem asserted at oral argument, the biological mother "exercised her constitutional rights to include another adult to act as a parent"38 but she is now substantially interfering in the child's relationship with this adult.

As we have said, we agree with the positions of the guardian ad litem and Holtzman. Mindful of presérv-ing a biological or adoptive parent's constitutionally protected interests and the best interest of a child, we conclude that a circuit court has equitable power to hear a petition for visitation when it determines that the petitioner has a parent-like relationship with the child and that a significant triggering event justifies state intervention in the child's relationship with a biological or adoptive parent. To meet these two requirements, a petitioner must prove the component elements of each one. Only after the petitioner satisfies this burden may a circuit court consider whether visitation is in the best interest of the child.

To demonstrate the existence of the petitioner's parent-like relationship with the 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;39 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.

To establish a significant triggering event justifying state intervention in the child's relationship with a biological or adoptive parent, the petitioner must prove that this parent has interfered substantially with the petitioner's parent-like relationship with the child, and that the petitioner sought court ordered visitation within a reasonable time after the parent's interference. The petitioner must prove all these elements before a circuit court may consider whether visitation is in the best interest of the child.

We conclude that the cause should be remanded to the circuit court to determine whether Holtzman can prove these elements.40 If the circuit court finds, after applying the four-part test we prescribe, that Holtz-man has proved that she has a parent-like relationship with the child and that a significant triggering event occurred demonstrated by Knott's substantial interference with the child's relationship with Holtzman and by Holtzman's prompt petition to the court after Knott's interference, it must then determine whether visitation is in the best interest of the child.

This exercise of equitable power protects parental autonomy and constitutional rights by requiring that the parent-like relationship develop only with the consent and assistance of the biological or adoptive parent. It also protects a child's best interest by preserving the child's relationship with an adult who has been like a parent.

Support for this approach is found in the legislative policy underlying the visitation statutes and the case law of other jurisdictions, as well as in scholarly commentary.

The underlying legislative policy expressed in the three visitation statutes and the case law is to protect biological and adoptive parents' constitutional right to rear their children free of unnecessary state intervention. The legislature and courts have insisted that a person petitioning for visitation under the statutes point to a triggering event to justify state intervention in a parent-child relationship. In this case, the best interest of a child may override a parent's right when a parent consents to and fosters another person's establishing a parent-like relationship with a child and then substantially interferes with that relationship. In both the visitation statutes and the approach in this case, a triggering event notifies the state that intervention into the constitutionally protected realm of parent and child might be warranted to protect a child's best interest.

The case law of other states provides further support for our decision. Other courts have recognized the importance of the establishment of a person's parent-like relationship with a child based on the consent and conduct of the child's biological or adoptive parent. In facts parallel to those of this case, the New Mexico court of appeals concluded that the trial court erred in determining that an agreement concerning a child that two women had co-parented for seven years was, as a matter of law, against the best interest of the child. A.C. v. C.B., 829 P.2d 660, 664 (N.M. Ct. App. 1992), cert. denied 827 P.2d 837 (N.M. 1992).

In Karin T. v. Michael T., 484 N.Y.S.2d 780 (Fam. Ct. 1985), the biological mother's female partner signed a statement agreeing to consider the offspring of the mother's artificial insemination to be the partner's "own legitimate child." The court concluded that the partner was liable for child support based on the artificial insemination agreement, finding that "[t]he contract and the equitable estoppel which prevail in this case prevent the respondent from asserting her lack of responsibility by reason of lack of parenthood."41 Id. at 784.

Finally, legal commentators recognize the significance of a biological or adoptive parent's consent to permit another adult to establish a parent-like relationship with a child. See Nancy D. Polikoff, This Child Does Have Two Mothers: Redefining Parenthood to Meet the Needs of Children in Lesbian-Mother and Other Nontraditional Families, 78 Geo. L.J. 459, 464 (1990) (arguing that parental autonomy and the best interests of children would be preserved by recognizing as a parent "anyone who maintains a functional parental relationship with a child when a legally recognized parent created that relationship with the intent that the relationship be parental in nature"); Comment, Kristine L. Burks, Redefining Parenthood: Child Custody and Visitation When Nontraditional Families Dissolve, 24 Golden Gate U. L. Rev. 223, (1994) (positing that a nonparent be able to seek custody and visitation when, inter alia, that person has developed a parent-child relationship with a child with the support and cooperation of the legally recognized parent).

To summarize our decision, we conclude the following: Holtzman has not raised a triable issue requiring a transfer of custody, and therefore we affirm the dismissal of the custody action commenced under sec. 767.24, Stats. 1991-92. Holtzman cannot petition for visitation of Knott's child under sec. 767.245, Stats. 1991-92, but the legislature did not intend the statute to supplant or preempt the subject of visitation or the equitable powers of the court to determine visitation under circumstances not included within the statute. A circuit court may determine whether visitation with Holtzman is in the child's best interest if Holtzman first proves under the four part test that she has a parent-like relationship with the child; and if Holtz-man proves a significant triggering event by demonstrating that Knott has interfered substantially with the child's relationship with Holtzman, and that Holtzman petitioned the court promptly after Knott's interference.

For the reasons set forth, that part of the order of the circuit court dismissing the petition for custody is affirmed, that part of the order dismissing the petition for visitation rights is reversed, and the cause is remanded for proceedings consistent with this opinion.

By the Court. — The order of the circuit court is affirmed in part and reversed in part and the cause remanded.

1 The two questions of law arise in an appeal from an order granting Knott's motion for summary judgment. Summary judgments are governed by sec. 802.08, Stats. 1991-92, and this court reviews the circuit court's order for summary judgment by applying the same methodology as the circuit court. Green Spring Farms v. Kersten, 136 Wis. 2d 304, 315, 401 N.W.2d 816 (1987).

2 A petitioner's contribution to a child's support need not be monetary.

3 We do not by this opinion mean to interpret what conditions satisfy the statutory requirement of "a relationship similar to a parent-child relationship with the child" in sec. 767.245(1).

4 The circuit court denied Holtzman's and the guardian ad litem's requests for relief pending appeal, specifically the right to exercise visitation. On December 23, 1993, the court of appeals granted Holtzman's request for visitation while the appeal was pending and directed the circuit court to establish a visitation schedule. On December 24, 1993, Knott filed a petition for a writ of prohibition with this court to prevent the circuit court from ordering temporary visitation. On January 6, 1994, this court directed the circuit court to hold the planned hearing to determine a visitation schedule but to stay the implementation of the visitation schedule until this court had considered Knott's petition. On February 3, 1994, this court denied the petition for a writ of prohibition and lifted the previously imposed stay on visitation.

5 Holtzman sought access to Knott's mental health records to support her claims of Knott's unfitness or compelling circumstances, relying on sec. 802.08(4), Stats. 1991-92, which provides as follows:

Should it appear from the affidavits of a party opposing the [summary judgment] motion that the party cannot for reasons stated present by affidavit facts essential to justify the party's opposition, the court may refuse the motion for judgment or may order a continuance to permit affidavits to be obtained or depositions to be taken or discovery to be had or may make such other order as is just. (Emphases added.)

Section 802.08(4) grants the circuit court discretion to permit affidavits to be obtained or discovery to be had. On the basis of this record we cannot conclude that the circuit court erroneously exercised its discretion in refusing to give Holtzman access to privileged mental health records.

6 Santosky v. Kramer, 455 U.S. 745 (1982); Prince v. Massachusetts, 321 U.S. 158 (1944), reh'g denied, 321 U.S. 804 (1944); Pierce v. Society of Sisters, 268 U.S. 510 (1925); Meyer v. Nebraska, 262 U.S. 390, 399 (1923).

This court has said that "[u]nder ordinary circumstances, a natural parent has a protected right under both state law and the United States Constitution to rear his or her children free from governmental intervention." Barstad, 118 Wis. 2d at 567 (cited with approval in 162 Wis. 2d at 1015, and Cox v. Williams, 177 Wis. 2d 433, 440, 502 N.W.2d 128 (1993)).

See Developments in the Law, The Constitution and the Family, 93 Harv. L. Rev. 1156,1351-1357 (1980).

7 Outside these two statutes, courts continued to determine, without statutory direction, the visitation rights of other persons, including non-custodial parents.

It appears that only one other statute mentioned visitation in 1975 — the Uniform Child Custody Jurisdiction Act defining custody to include visitation for purposes of that act. Section 822.02(2), Stats. 1975.

8 Ch. 122, Laws of 1975.

9 The visitation statute nevertheless remained in chapter 247, entitled "Actions Affecting Marriage."

10 "It is the intent of the legislature to emphasize the present and future needs of the parties to actions affecting marriage and of their children, if any . . .." Section 1, ch. 105, Laws of 1977.

The 1977 bill created ch. 247 entitled "Actions Affecting Marriage." Section 247.02(1), Stats. 1979, declared that "actions affecting marriage" are:

(a) To affirm marriage.

(b) Annulment.

(c) Divorce.

(d) Legal separation....

(e) Custody.

(f) For child support.

(g) For maintenance payments.

(h) For property division.

(i) To modify a judgment in an action affecting marriage granted in this state or elsewhere.

(j) For periodic family support payments.

11 The Wisconsin Legislative Council, which was instrumental in formulating the 1977 Divorce Reform Act, characterized the 1977 statute as "retaining] the statute allowing the court to award visitation rights to a grandparent where that is in the child's best interests, and expands it to include great-grandparents as well." The Divorce Reform Act (Chapter 105, Laws of 1977), Wis. Leg. Council Staff Information Memo 78-9 at 8 (April 18, 1978; revised June 22, 1978) (first emphasis added).

See also analyses of 1983 Wis. Act 450 discussing sec. 767.245 and viewing court-ordered visitation as limited to actions affecting the family. Bill drafting files, microfiche, Wis. State Law Library.

12 Chapter 247 was renumbered ch. 767. Section 50, ch. 32, Laws of 1979.

13 1987 Wis. Act 355.

14 Comments — 1987 Act 355, sec. 767.245, West's Wis. Stats. Ann. (1993).

15 The Legislative Council's Special Committee on Custody Arrangements was created to study existing laws relating to custody determinations in divorce or related actions. Minutes of Aug. 15, 1984.

16 The Note to the committee's legislative declaration illustrates the emphasis on dissolution of marriage: "the basic concept underlying many of the changes in this bill [is] that it is generally in the best interest of a child to have a close, continuing relationship with both parents where the parents have divorced or separated." Sec. 1,1987 Wis. Act 355.

17 Tn discussing visitation rights of nonparents, the Information Memorandum states: "Existing law did not recognize the importance to the child of continuing contact with stepparents or other persons with whom the child has lived in a parent-child type relationship. The Special Committee found that there are currently many cases in which a nonparent who has had a close, meaningful relationship with a child during the parents' marriage is denied an opportunity to even petition for visitation rights with that child after the parents are divorced or separated. " Wis. Leg. Council Staff Information Memo 88-5 at 8 (May 3,1988) (emphasis added).

18 The legislative findings pronounced at the beginning of 1987 Wisconsin Act 355 state that "the current laws and practices relating to child custody determinations in divorce and other actions affecting the family ... [flail to recognize the importance to the child of continuing contact with . . . persons with whom the child has lived in a relationship similar to a parent-child relationship." (Emphasis added.)

19 1991 Wis. Act 191. Section, 48.925, Stats. 1991-92, provides as follows: "[U]pon petition by a relative who has maintained a relationship similar to a parent-child relationship with a child who has been adopted by a stepparent or relative, the court may grant reasonable visitation rights to that person if [certain requirements are met]."

This statute was designed to overrule that part of In re Marriage of Soergel, 154 Wis. 2d 564, 453 N.W.2d 624 (1990), which related to adoption.

20 The ch. 767 visitation statute also applies to paternity suits. Section 767.51(6) instructs that a court may order visitation under sec. 767.245 when it enters a paternity judgment or order. No other statute expressly identifies an event triggering the application of the ch. 767 visitation státute.

21 In 1979, the legislature had substituted the phrase "actions affecting the family" for the previously used phrase "actions affecting marriage." Section 19, ch. 352, Laws of 1979.

At the time Van Cleve was decided, sec. 767.02(1), Stats. 1985-86, defined "actions affecting the family" to include actions "[c]oncerning visitation rights to children." Section 767.02(1)(k), Stats. 1985-86.

In Van Cleve, the court of appeals implicitly decided that a grandparent's petition for visitation, although included in the statutory definition of an action affecting the family, did not suffice as an underlying action affecting the family.

22 This case involved the 1977 ch. 247 visitation statute. The Soergels petitioned for visitation three months prior to the effective date of the 1988 amendments to that statute.

23 In the court implied that a CHIPS proceeding would suffice as an action affecting the family. Z.J.H., 162 Wis. 2d at 1020. The court cited no authority for this statement.

24 The three dissenters in Cox, like the court of appeals, concluded that there were three possible underlying actions affecting the family — the divorce action between the child's biological parents, the action by the child's biological mother to modify the divorce judgment, and the biological mother's custody action.

The majority in Cox viewed the divorce action as having terminated at the father's death and, without explanation, refused to consider visitation within the custody action. While the ch. 767 visitation statute recognizes stepparents' right to visitation, the majority suggested that only a divorce or separation action between the stepmother and biological father would suffice as a prerequisite to the stepmother's petitioning for visitation under sec. 767.245, Stats. Cox, 177 Wis. 2d at 441.

In the case at bar, Holtzman filed a petition for custody and Knott has sought an injunction. Holtzman views both of these proceedings as underlying actions affecting the family.

25 We have previously noted that "[t]he legislature has failed to provide any definition for 'family' under ch. 767, or for that matter under any chapter of the Family Code." Watts v. Watts, 137 Wis. 2d 506, 515-16, 405 N.W.2d 303 (1987) (footnote omitted).

The United States Supreme Court has acknowledged "considerable difficulty" in defining "family." The Court noted that "biological relationships are not [the] exclusive determination of the existence of a family" and stated that "the importance of the familial relationship, to the individuals involved and to the society, stems from the emotional attachments that derive from the intimacy of daily association and from the role it plays in 'promoting] a way of life'.through the instruction of children." Smith v. Organization of Foster Families, 431 U.S. 816, 842-844 (1977) (quoting Wisconsin v. Yoder, 406 U.S. 205, 231-33 (1972)).

26 Chapter 767 ordinarily does not apply unless there is a marriage or the dissolution of a marriage. See Watts v. Watts, 137 Wis. 2d 506, 518-19, 405 N.W.2d 305 (1987) (holding that the Family Code, of which ch. 767 is an integral part, "applies, for the most part, to those couples who have been joined in marriage according to law").

Holtzman and Knott were not married and could not marry under the laws of this state. The biological father of Knott's child, an anonymous sperm donor, did not marry Knott and has not developed any relationship with the child.

27 As precedent for its decision, the court relied on Gotz v. Gotz, 274 Wis. 472, 80 N.W.2d 359 (1957) (allowing visitation by the noncustodial mother's two sisters and their husbands), and Peterson v. Peterson, 13 Wis. 2d 26, 108 N.W.2d 126 (1961) (declaring that the difficulty and hardship of a parent in exercising visitation rights must be subordinated to the welfare of the child).

28 According to a Legislative Reference Bureau analysis, the 1975 precursor to the ch. 767 grandparent visitation statute "codifies the authority of the court in actions affecting marriage to grant visitation privileges to grandparents where it is in the best interest of the child." Drafting Record, 1975 S.B. 1311, Wisconsin State Law Library.

29 Sections 48.925 (visitation on adoption), 767.245 (visitation on dissolution of marriage), and 880.155 (visitation on death of parent) direct that the court shall consider and act in the best interest of the child. See also secs. 767.24(5) (best interest of the child in custody and physical placement) and sec. 767.25(2) (best interest of the child in child support).

30 The statutes, including but not limited to ch. 48 (the Children's Code), secs. 767.02(l)(e) and 767.24, and ch. 880 (Guardians and Wards), Stats. 1991-92, regulate custody proceedings whether in a judgment of annulment, divorce or legal separation, in a judgment in a separate custody action not dependent on marriage or dissolution of marriage, in a ch. 48 proceeding, or in a guardianship proceeding.

31 In re Custody of D.M.M., 137 Wis. 2d 375,404 N.W.2d 530 (1987), is silent about the need for an underlying action to justify a visitation claim. The underlying action may have been a custody or a guardianship proceeding. D.M.M., 137 Wis. 2d at 379. The petition may also have been filed after the divorce of the child's parents because the opinion describes the father as the mother's "husband at the time [of the child's birth]."

32 See also State ex rel. Friedrich v. Circuit Court for Dane County, 192 Wis. 2d 1, 18, 531 N.W.2d 32 (1995) (courts have the "duty to protect minors who appear before them"); Romasko v. Milwaukee, 108 Wis. 2d 32, 37, 38, 321 N.W.2d 123 (1982) ("minors are the special objects of the solicitude of the courts ... [the court has the] governmental function of seeing to it that justice is done to those who are defenseless and who are the objects of the special concern of government"); Stevenson v. Milwaukee County, 140 Wis. 14, 17, 121 N.W. 654 (1909) (circuit courts have, by constitution, powers of law and equity and "do not depend solely upon statute for their powers"); Harrigan v. Gilchrist, 121 Wis. 127, 231, 99 N.W. 909 (1904) ("the circuit courts of this state have, under the constitution, succeeded to all the jurisdiction formerly exercised by courts of law and courts of chancery as well"); Richardson v. Tyson, 110 Wis. 572, 578, 86 N.W. 250 (1901) ("the infant is always the ward of every court wherein his rights or property are brought in jeopardy, and is entitled to most jealous care that no injustice be done to him").

For other state courts reaching similar conclusions about the courts' equitable powers over children, see, e.g., Parker v. Parker, 81 N.E.2d 745, 748 (Ill. Ct. App. 1948) (courts of equity have plenary jurisdiction over minors); Metten v. Benge, 366 N.W.2d 577, 579 (Iowa 1985) (action between unmarried cohabitants about care of child supports exercise of equity jurisdiction); Wentzel v. Montgomery General Hospital, Inc., 447 A.2d 1244, 1253 (Md. 1982), cert. denied 459 U.S. 1147 (1983) (court of equity may consider petition to sterilize a minor under inherent power); Stambaugh v. Price, 532 S.W.2d 929, 932 (Tenn. 1976) (chancery court has inherent jurisdiction to act in relation to the property and other interests of minors).

33 See also In Matter of Guardianship of Eherhardy, 102 Wis. 2d 539, 548-51, 557-60, 307 N.W.2d 881 (1981) in which six justices concluded that although the legislature did not authorize sterilization, circuit courts have the power under the state constitution to entertain a petition for sterilization of an incompetent person; repeal of the sterilization law left the courts'jurisdiction untouched.

34 Moreover, Stickles favors, in some circumstances, the enforcement of a parent's agreement relating to the care of the child:

Where a parent has voluntarily contracted away his rights and the child as a result has formed new attachments, it may very well be that a situation has been created which a court will hesitate to disturb, not on the principal ground that the contract was valid or invalid, but because, everything considered, the welfare of the child demands the continuance of the new relationship.

Stickles, 203 Wis. at 583.

35 Holtzman argues that the child, a nonmarital child because Knott and Holtzman cannot marry, is denied equal protection of the law.

Holtzman and the guardian ad litem also assert (1) that the child has a liberty interest in continuing his relationship with both parties and in avoiding the harm from separation from one of them and (2) that the circuit court's decision interferes with this liberty interest, depriving the child of substantive due process.

For a discussion of the constitutional argument from the child's vantage point, see In Interest of Angel Lace M., 184 Wis. 2d 492, 537 n.13, 516 N.W.2d 678 (1994) (Heffernan, C.J. dissenting).

36 Holtzman claims that, "as a member of a unitary family" although not biologically related to the child, she has a constitutionally protected right to seek custody of or visitation with the child. The United States Supreme Court, she explains, has favored an established family-type relationship over a biological bond in Michael H. v. Gerald D., 491 U.S. 110 (1989), and Lehr v. Robertson, 463 U.S. 248 (1983).

37 This court has allowed a nonparent to have visitation rights with a child over the objections of the custodial parent in a case arising more than 30 years after the United States Supreme Court announced that parents have a protected liberty interest in rearing their children. In Gotz v. Gotz, 174 Wis. 2d 472, 80 N.W.2d 359 (1957), the court upheld the trial court's order granting visitation to two maternal aunts, against the wishes of the biological father who had custody of the child.

There is little uniformity in the case law concerning nonparental visitation over the objection of a biological or adoptive parent, but some courts have observed a judicial trend toward considering or allowing visitation to nonparents who have a parent-like relationship with the child if visitation would be in the best interest of the child. See, e.g., In the Matter of Adoption of Francisco A., 866 P.2d 1175, 1179 (N. Mex. Ct. App. 1993) (granting visitation to foster parents in adoptive situation); In re Robin N., 7 Cal. App. 4th 1140, 1146 (Ct. App. 1992) (granting visitation to nonparent who had a parent-like relationship with the child against wishes of parents); In re Hirenia C., 18 Cal. App. 4th 504, 519 (Ct. App. 1993) (granting visitation to nonparent who had parent-child relationship with adopted child); Annot., Visitation Rights of Persons Other Than Natural Parents or Grandparents, 1 A.L.R. 4th 1270 (1980). But see In re Marriage of Freel, 448 N.W.2d 26 (Iowa 1989) (concluding that absent a statute a custodial parent holds a veto power over the visitation rights of anyone except a parent); In the Matter of Alison D. v. Virginia M., 77 N.Y.2d 651, 656-57 (Ct. App. 1991) (determining that to allow the mother's former partner visitation with the child would impermissibly impair the mother's right to custody and control of her child); Cooper v. Merkel, 470 N.W.2d 253 (S.D. 1991) (concluding that a nonparent may be granted visitation rights over the objection of a biological parent only with a clear showing of parental gross misconduct, unfitness, or other extraordinary circumstances affecting the welfare of the child).

38 Oral argument, October 12, 1994.

39 A petitioner's contribution to a child's support need not be monetary.

40 Through consent, a biological or adoptive parent exercises his or her constitutional right of parental autonomy to allow another adult to develop a parent-like relationship with the child. In this case, on the basis of the record before us, a circuit court could find that Knott'had consented to and fostered Holtzman's formation and establishment of a parent-like relationship with the child, thereby sharing her parental rights. Several facts point to this consent including the parties' agreement about the conception of the child, the dedication ceremony naming both parties as the child's parents, and the child's name. An ongoing course of conduct by which Knott fostered Holtzman's parent-like relationship with the child can be demonstrated by these facts, as well as others such as Holtz-man's care of the child and the child's close relationship with members of Holtzman's family.

An agreement between the parties could also indicate an adoptive or biological parent's consent to another to establish a parent-like relationship with the child. For the distinctions among express, implied-in-fact, and quasi contracts between two unmarried partners, see Watts v. Watts, 137 Wis. 2d 506, 405 N.W.2d 303 (1987).

41 See also In re Marriage of Gayden, 229 Cal. App. 3d 1510, 1521-22 (Ct. App. 1991). Two decisions, both based on statutory grounds, have denied petitioners custody or visitation of children born to their former partners by artificial insemination. See, e.g., Nancy S. v. Michele G., 279 Cal. Rptr. 212, 217 (Ct. App. 1991) (refusing to grant nonparent visitation or custody but intimating that a nonparent could jointly adopt the child with the biological parent of the same sex, a remedy not permitted in Wisconsin); In the Matter of Alison D. v. Virginia M., 572 N.E.2d 27, 29 (N.Y. Ct. App. 1991) (refusing to grant standing to mother's live-in partner to seek visitation).