Court Finds Stepmother Has No Right to Boy’s Custody

By Attorney Gregg Herman
October 13, 2008

The drought is over.

After nearly nine months without a Wisconsin Court of Appeals case arising from a divorce action being recommended for publication, late last month, the District I Court of Appeals its opinion in Lubinski v. Lubinski (O’Rourke), No. 2007AP1701 (Wis. Ct. App. Sept. 25, 2008).

August and Colleen Lubinski (O’Rourke) were divorced in 2000.  They agreed on a placement schedule for their son, Kevin, which was incorporated into a court order.

In 2007, August was ordered to report for active duty in the military.  August filed a motion seeking an injunction ordering O’Rourke to strictly comply with the placement order while he was in active duty and seeking visitation rights for his new wife, Jenny, under the same terms and conditions granted to August under the placement order.  Jenny filed her own petition for visitation rights with Kevin under the same schedule August would have exercised, were he not in active duty.

Milwaukee County Circuit Court Judge Micheal D. Guolee granted August’s motion and Jenny’s petition.  O’Rourke appealed.

The Court of Appeals concluded that the trial court erred in ordering an injunction to enforce the physical placement schedule in August’s absence because physical placement rights are not transferable.

The appellate court also concluded that the trial court erred in awarding Jenny visitation under the terms of August’s physical placement schedule for two reasons: 1) Physical placement bestows rights associated with legal custody, and Jenny had no claim to physical placement or legal custody in this case; and 2) O’Rourke had a liberty interest in determining her child’s visitation schedule with others, and there were no facts in this case justifying state intervention with that right.

The appellate court held that physical placement rights cannot be delegated to non-parents.  Since Jenny is not the child’s parent, she cannot exercise physical placement in the father’s absence.  Therefore, in granting August’s petition to enforce his placement rights while he was absent, the trial court misused its discretion.

The appellate court then considered Jenny’s petition for stepparent visitation.  The court cited Rogers v. Rogers, 2007 WI App 50, 300 Wis. 2d 532, 731 N.W.2d 347, in which the Wisconsin Court of Appeals preserved the constitutionality of Wisconsin’s visitation statute in light of the U.S. Supreme Court case, Troxel v. Granville, 530 U.S. 57 (2000).  In Rogers, the Court of Appeals required circuit courts to give “special weight” to a fit parent’s determination of his or her children’s best interests by presuming that fit parents act in the best interests of their children.

Since O’Rourke was a fit parent and had assured the court that she would allow Jenny to visit Kevin, the appellate court held that the trial court failed to give deference to the parent’s decisions and therefore reversed the order granting Jenny’s visitation petition.

In a footnote, the Court of Appeals agreed with the trial court that Wis. Stats. §767.451(5m)(c), the statute designed to protect custody rights of parents deployed overseas in military service, was not controlling, as it dealt with custody and not visitation rights. However, the appellate court disagreed with the trial court that the policy underlying the statute should be applied to visitation rights.  Instead, the appellate court based its decision on the “plain language” of the statute, which only specified custody.

Next week, I will discuss the potential implications of this case.

Attorney Gregg Herman is a founding partner of Loeb & Herman S.C. in Milwaukee, WI. He practices family law exclusively, and can be reached via e-mail or by calling (414) 272-5632.