2007AP001701 Lubinski v. Lubinski (O'Rourke)

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Family
Transferability of placement rights; military absence

The trial court erred in ordering an injunction to enforce the physical placement schedule in the father's absence related to military service, because physical placement rights are not transferable; and the court erred in awarding the stepmother visitation under the terms of the father's physical placement schedule, because physical placement bestows rights associated with legal custody, and the stepmother has no claim to physical placement or legal custody in this case, and the mother has a liberty interest in determining her child's visitation schedule with others, and there are no facts in this case justifying state intervention with that right.

"Weichman v. Weichman, 50 Wis. 2d 731, 184 N.W.2d 882 (1971), is instructive. There, a father requested that his parents have visitation in his absence. Id. at 737. The supreme court found that 'a parent cannot delegate his visitation rights to others in his absence,' and thus remanded for a hearing to determine whether paternal grandparent visitation was in the best interest of the child. Id. Because physical placement entails even greater rights than visitation, it follows that a parent cannot delegate physical placement rights to another in his absence. …

"Under Wis. Stat. § 767.43(1), a court may grant a stepparent 'who has maintained a relationship similar to a parent-child relationship with the child' reasonable visitation rights. We are mindful, however, that '[p]arents have a liberty interest in directing the care, custody and control of their children,' and that '[t]he due process clause does not permit a state to infringe on a fit parent's fundamental right to make child rearing decisions simply because a court disagrees with the parent or believes a better decision could be made.' Rogers, 300 Wis. 2d 532, ¶18 (citing Troxel v. Granville, 530 U.S. 57, 65, 72-73 (2000)). …

"O'Rourke's counsel informed the court at the hearing that O'Rourke would allow Jenny Lubinski to visit with Kevin during Lubinski's absence, but not according to Lubinski's placement schedule. The trial court reasoned that allowing Jenny Lubinski visitation according to Lubinski's physical placement schedule in Lubinski's absence would be in Kevin's best interest because it would allow him to spend the summer with his extended family on his father's side and to engage in summer activities there. However, the trial court's analysis did not give deference to O'Rourke's visitation decisions as mandated under Rogers and did not reflect a sufficient basis for state intervention with O'Rourke's visitation decisions. Accordingly, we reverse and remand with directions for the trial court to deny the motion and the petition."

Reversed and remanded. Recommended for publication in the official reports.

2007AP001701 Lubinski v. Lubinski (O'Rourke)

Dist. I, Milwaukee County, Guolee, J., Dykman, J.

Attorneys: For Appellant: Tess-Mattner, Kent A., Brookfield; For Respondent: Baird, Michael A., Milwaukee

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