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2009AP488 In re the Paternity of E.M.B.

By: WISCONSIN LAW JOURNAL STAFF//August 4, 2011//

2009AP488 In re the Paternity of E.M.B.

By: WISCONSIN LAW JOURNAL STAFF//August 4, 2011//

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Family Law
Special grandparent visitation statute; ‘significant triggering event’

The trial court did not err when it declined to require the grandparents to prove a “significant triggering event” occurred because the special grandparent visitation statute, §767.43(3), applies and Holtzman v. Knott, 193 Wis. 2d 649 (1995), does not apply to cases under that statute.

“We conclude that Holtzman does not apply to cases brought under the special grandparent provision, WIS. STAT. § 767.43(3). After Holtzman was decided, the legislature enacted the special grandparent visitation provision, § 767.43(3), which expressly applies where there has not been a marriage, and, thus, no dissolution of a marriage. See § 767.43(3)(a), previously numbered § 767.245(3), see 1995 Wis. Act 68; 2005 Wis. Act 443, § 101. Section 767.43(2m) plainly provides that § 767.43(3), not § 767.43(1), applies to grandparents requesting visitation if the requirements in § 767.43(3)(a)-(c) apply: the child’s parents have married each other, paternity has been established by law if the grandparents are the parents of the child’s father, and the child has not been adopted. Section 767.43(3) then sets forth three additional requirements after the three threshold criteria are met. Sec. 767.43(3)(d)-(f); see ¶14 above. There is no logical reason to engraft onto this plain and complete procedure for grandparent visitation in particular circumstances an additional requirement that was established for the purpose of exercising the court’s equitable powers when no visitation statute applied. See Holtzman, 193 Wis. 2d at 689. Neither the reasoning in Holtzman nor the plain language of § 767.43(3) supports such a conclusion.”

We additionally conclude that the court applied the correct legal standard to the father’s proposed visitation schedule as a “rebuttable presumption.” However, the court erred by limiting the scope of his motion to school-year visitation, in light of the fact that he plainly requested review of nonschool-year visitation as well.

Affirmed in part, reversed in part and remanded.

2009AP488 In re the Paternity of E.M.B.

Dist. IV, Dane County, Higginbotham, J., Hanrahan, J.

Attorneys: For Appellant: Bruns, Donald B., Madison; For Respondent: Gapen, Carol M., Madison

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