Wisconsin appeals court sides with lesbian lawyer over stay-at-home mom in child custody case

Posted by JD Uy
June 28, 2010 8:29 AM |

Opening summary of judgement by an appeals court in Wisconsin that agrees with a Circuit Court ruling in the case of two lesbians who shared for parental responsibilities for years until they broke up in 2008. The two gay women could not marry in that state, and were not allowed to adopt jointly, so one of the women stayed at home, and the other who worked as a lawyer and had insurance through her job adopted the children legally. However, though they shared a verbal agreement, both courts have concluded that the stay-at-home mom has no custody rights under the law. (Legal.com)

Wendy M. and Helen (Liz) K. had been in a close, committed relationship for seven years before they decided to adopt two children from Guatemala, Olivia and Sofia.[ 1 ] Wendy and Liz could not jointly adopt the children because they were unmarried, see WIS. STAT. § 48.82, and they could not marry because they are a same-sex couple. See Wis. Stat. § 765.001(2); Georgina G. v. Terry M., 184 Wis. 2d 492, 504 fn. 1, 516 N.W.2d 678 (1994); see also Wis. Const. art. XIII, § 13. It was decided that Liz would be the adoptive parent of both children because she had a good job as an attorney, and the children could be added to her employer's health insurance plan. For the next five years, Liz was the family's breadwinner, and Wendy stayed at home with the children.

¶ 2 Wendy ended her romantic relationship with Liz in 2008. Seeking some form of legal recognition of her rights to the children, Wendy filed petitions for guardianship. At first, Liz consented to the petitions. But, following an incident that occurred while the children were under Wendy's care, Liz withdrew her consent to the guardianships. Nonetheless, it is undisputed that Liz has not sought to restrict Wendy's contact with the children; in fact, an informal "co-parenting" arrangement has persisted in which Wendy and Liz share roughly equal placement of the children.

¶ 3 The circuit court dismissed Wendy's guardianship petitions on summary judgment, concluding that Wendy failed to make the showing under Barstad v. Frazier, 118 Wis. 2d 549, 348 N.W. 2d 479 (1984), required for a guardianship filed over the objection of a legal parent (Liz) by a third party (Wendy). On appeal, Wendy and the children's guardian ad litem (collectively, "Wendy") raise several issues. First, Wendy contends that the circuit court erred in dismissing her petitions because Barstad does not apply because she is a parent within the meaning of the guardianship statute, not a third party to the children. Second, Wendy argues that Liz should be equitably estopped from asserting that she is not a parent to the children. In the alternative, Wendy argues that, if Barstad applies, there is a genuine issue of material fact regarding whether compelling reasons as defined by Barstad exist that would permit her to overcome Liz's objection to her guardianships. Finally, Wendy argues that the denial of her guardianship petitions violates the children's rights under the Due Process Clause and the Equal Protection Clause of the Fourteenth Amendment to the U.S. Constitution. U.S. CONST. amend. XIV.

¶ 4 We conclude that Wendy is not a parent within the meaning of WIS. STAT. § 54.15(5), and we decline to apply equitable estoppel because to do so would be contrary to Chapters 48 and 54 of the statutes and Barstad. Further, we conclude that compelling reasons entitling her to a third-party guardianship under Barstad do not exist. Finally, we reject Wendy's constitutional arguments for the reasons explained below. Accordingly, we affirm.


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