Appeals court overturns decision regarding surviving parent’s right to bar contact

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A recent Wisconsin Court of Appeals decision tackled the case of a widower fighting for control of his three children.

In Amanda Bryan and Melissa Dierks, and Terri Keopple v. Paul Jensen, 2011 AP 1315, a three-judge panel reversed a lower court decision that allowed widower Paul Jensen’s three children to have contact with two women who had tried but failed to get court-ordered visitation.

The appeals court decided Jensen has the right to cut off contact between his three children and their deceased mother’s identical twin sister and cousin because they infringed on his fundamental right to make child rearing decisions.

“Simply because the court disagrees with a parent or believes a better decision could be made” is not reason enough to support state intervention in the decisions of a fit parent, the appellate court stated.

The case originated when Jensen’s wife and the mother of his three children, Monica, passed away after a long struggle with cancer in 2007.

For years before their mother’s death, the three children had close relationships with Monica’s identical twin sister, Melissa Dierks, and Monica’s first cousin, Amanda Bryan.

During the last year of Monica’s illness and in the two years following her death, the relationship between Paul Jensen, Bryan, Dierks and Monica’s mother, Terri Keopple, soured to the point that Jensen gradually cut off contact between the three women and his children.

According to court records, Jensen in part limited access to his three children after a child psychologist suggested that Dierks’ and Bryan’s interference with his parenting choices could create an environment that “is potentially destructive to” the children.

Jensen also suspected that either Keopple, Dierks or Bryan reported him to the St. Croix Department of Human Services for neglect. Although he was cleared of any wrongdoing, Jensen said the complaint only complicated matters.

Visitation debated

In 2010, Keopple filed for grandparent visitation under Wis. Stat. 54.56(2)(2011-12), with both Dierks and Bryan filing separately under Wis. Stat. 767.43(1).

Jensen acknowledged that Keopple had standing to petition the court, but fought and succeeded in getting both Dierks’ and Bryan’s separate visitation claims dismissed.

Later that year, Keopple and Jensen eventually entered into a subsequent order for visitation, drafted with the assistance of a guardian ad litem. The agreement stipulated that Keopple would have weekend visitation every six weeks, one evening every other week and four consecutive days during the summer. Keopple also was granted some phone access with the kids during the week.

The agreement prohibited Keopple from facilitating any contact between the children and Dierks or Bryan during her visitation. It also required Jensen to provide copies of the children’s schedules to Keopple.

Less than 45 days after the order was entered, the parties were back in court.

Jensen’s motion for contempt at that time alleged that Keopple had allowed Dierks and Bryan to exchange text messages with the children during her visitation. Keopple’s own contempt motion complained that Jensen had failed to turn over the children’s schedules.

Only Keopple was found in contempt of court. She then reversed course and asked the court to remove the contact restriction it had placed on Dierks and Bryan.

After a full hearing, St. Croix County Circuit Judge Howard Cameron ordered the restriction dropped. Dierks and Bryan were then allowed to contact the three children during Keopple’s visitation, a decision immediately appealed by Jensen.

On appeal

In reversing the trial court’s decision to allow contact, the appellate court determined that Cameron had erroneously exercised discretion, essentially substituting the trial court’s own opinion of what was good parenting in the place of a fit custodial father.

Keopple argued that the lower court had good reason to allow Dierks and Bryan to have contact. She suggested Jensen had slowly isolated the children from his late wife’s family, and Jensen’s decision to cut off contact was based on his own animosity and not the best interests of the children.

Furthermore, Keopple said, the children strongly wanted to maintain a relationship with Dierks and Bryan, who had been close family friends for years. She referred to Wis. Stat. 54.56(3) which compels a trial court judge to “consider the wishes of the minor.”

“The [trial] court identified Dierks and Bryan as the individuals who were among the closest to the children before and after Monica’s death,” Keopple said. “It is in the best interests of the children to maintain these relationships.”

Reviewing the judicial discretion exercised by Cameron, the appellate court first sought to determine if the court had: 1) examined the relevant facts, 2) applied the proper legal standard, and 3) used a demonstrated rational process to reach a conclusion that a reasonable judge could reach.

In examining the “relevant facts” brought before the trial court, the appellate court looked carefully at a series of incidents involving Jensen, the children, Dierks and Bryan from 2007-09, including:

• In October 2008, while visiting Monica’s burial cemetery with the Jensen children, Dierks got into a fight with her ex-husband. She allegedly threw shoes, swore loudly, and struck her ex, all in front of the Jensen children. She then allegedly stormed off and left the children at the cemetery, but returned a short while later.

• That same month, Dierks allegedly argued loudly with and swore at Paul Jensen’s girlfriend, Penny West, in the presence of West’s child.

• The court record further described several other altercations and instances of apparent animosity, each presenting behavior which suggested underlying hostility between Dierks, Bryan and Jensen, and each causing the appellate court concern about future contact between the children and Dierks and Bryan.

The bottom line

The appellate court indicated that the trial court failed to properly apply the correct legal standard.

Following the U.S. Supreme Court’s 2000 decision in Troxel v. Granville, 530 US 57, Wisconsin courts have applied a rebuttable presumption that decisions made by a living parent involving visitation are in the child’s best interests, as noted in Opichka v. Opichka, 323 Wis.2d 510 (2010), the court stated.

In his decision, Cameron had effectively “jumped ahead,” the appellate court wrote, to the question of whether contact with Dierks and Bryan would be in the children’s best interest “without giving proper deference to Jensen’s parenting decision.”