Opposition Brief — Knott v. Holtzman

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cass

No. 95-401

IN THE

SUPREME COURT OF THE UNITED STATES

OCTOBER TERM, 1995

IN RE THE INTEREST OF H.S.H.-K.

ELSBETH KNOTT,

Petitioner,

v.

SANDRA LYNN HOLTZMAN,

Respondent.

ON PETITION FOR A WRIT OF CERTIORARI

To THE UNITED STATES COURT OF APPEALS FOR

THE SEVENTH CIRCUIT

RESPONDENT’S BRIEF IN OPPOSITION

Judith Sperling Newton

Counsel of Record

Carol M. Gapen

STAFFORD, ROSENBAUM, RIESER & HANSEN

3 South Pinckney Street, Suite 1000

P.O. Box 1784

Madison, Wisconsin 53701-1784

608/256-0226

Attorneys for Sandra Holtzman

—_—_- ean

i

TABLE OF CONTENTS

TABLE OF AUTHORITIES .......-+seeeee0: il

STATEMENT OF THE CASE ........++++++:: l

REASONS WHY THE PETITION

IT.

III.

SHOULD BE DENIED ........-++++s: +

THE WISCONSIN SUPREME COURT’S DECISION

DOES NOT DEPRIVE PETITIONER OF HER RIGHT TO

ete, | ee ere ee ee 4

THE WISCONSIN SUPREME COURT’S DECISION

DOES NOT VIOLATE PETITIONER’S RIGHT TO

EQUAL PROTECTION. .....--.--+++-->: 9

THE ISSUE OF CHILD VISITATION MUST BE

RESOLVED BY THE STATES. .......---> 11

CI bk iets BAe Smeg oh Ts 14

li

TABLE OF AUTHORITIES

Case Cites

Page

In re Custody of H.S.H.-K., 193 Wis. 2d 649,

N.W.2d 419, 421 (1995) ........- 1-7, 9, 11

Lehr v. Robertson, 463 U.S. 248 (1983) ......- 6-8

Michael H. v. Gerald D., 491 U.S. 110 (1989) .. 10

Moore v. City of East Cleveland, 431 U.S. 494

(1977) «0.0. «00 nem tee eee ee 5

Smith v. Organization of Foster Families for Equality

and Reform, 431 U.S. 816 (1977) ........ 8

Stanley v. Illinois, 405 U.S. G45 CEeFap oko once 7

Thompson v. Thompson, 484 U.S. 174 (1988) ... Ill

Wisconsin v. Yoder, 406 U.S. 205 (1972) ..... 5

ill

Statutes

23 PA. CONS. STAT. ANN. §§ 5311-5314 (1995) .. 12

Ala. Code §§ 30-3-3, 30-3-4 (1994) ........-. 12

Alaska Stat. § 25.24.150 (1994) ........-.--.- 12

Ariz. Rev. Stat. Ann. § 25-337.01 (1995) ....... 12

ARK. CODE ANN. § 9-13-102. ........---55:- 13

Ark. Code Ann. § 9-13-103 (Michie 1994) ...... 12

CAL. FAMILY CODE §§ 3101-3104 (West 1995) ... 12

COLO. REV. STAT. ANN. §§ 19-1-117, 19-1-117.5

0 GR ER EEG ace i eee 12

CONN. GEN. STAT. ANN. § 46b-59 (West 1995) ... 12

DEL. CODE ANN. tit. 10, § 1031 (1994) ........ 12

DEL. CODE. ANN. tit. 10 § 1031(7) (1994) ...... 13

FLA. STAT. ANN. §§ 39.4105, 752.01 (West 1995) . 12

GA. CODE ANN. §§ 19-7-3, 19-9-3 (Michie 1995) . 12

HAW. REV. STAT. § 571-46.3 (1994) .......---. 12

Idaho Code § 32-719 (1995) .......-.--++20- 12

Ill. Ann. Stat. ch. 750, para. 5/607; ch. 755,

para. 5/11-7.1 (Smith-Hurd 1995) ......-. 12

IND. CODE ANN. §§ 31-1-11.7-2, 31-1-11.7-3

CD) ee ee 12

IOWA CODE ANN. § 598.35 (West 1995) ......-- 12

KAN. STAT. ANN. § 38-129 (1994) .......----: 12

Ky. REV. STAT. ANN. § 405.021 (Baldwin 1995) .. 12

iV

LA. REV. STAT. ANN. § 9:344 (West 1995) ..... 12

MASS. GEN. LAWS ANN. ch.119, § 39D

Cee SE i ob ee eee whine kes 12

MD. CODE ANN., FAM. LAW § 9-i02 (1995) .... 12

ME. REV. STAT. ANN. tit. 19, §§ 1001-1004

‘be Bo) PEER Ue e ae ee eee 12

MICH. COMP. LAWS ANN. § 722.27b (West 1995 . 12

Nis. STAT... § 297.022 (ISOS) oc 12

bins. BATS ares oe SS I ee 13

MIss. CODE ANN. §§ 93-16-1, 93-16-3 (1993) ... 12

Mo. ANN. STAT. § 452.402 (Vernon 1995) ..... 12

MONT. CODE ANN. § 40-9-102 (1994) ......... 12

N.C. GEN. STAT. §§ 48-23, 50-13.2, 50-13.2A

Seri hee EEE vee) 12

N.D. CENT. CODE § 14-09-05.1 (1995) ........ 12

N.H. REV. STAT. ANN. § 458:17-d (1994) ...... 12

N.J. STAT. ANN. § 9:2-7.1 (West 1995) ........ 12

N.M. STAT. ANN. §§ 40-9-1.1, 40-9-2

Cee SPD 354 cdc aed e ween eee. 12

N.Y. Dom. REL. LAW § 72 (McKinney 1995) ... 12

NEB. REV. STAT. §§ 43-1801, 43-1802 (1994) ... 12

NEV. REV. STAT. §§ 125A.330, 125A.340 (1993) . 12

OHIO REV. CODE ANN. §§ 3109.051, 3109.11,

3109.12 (Baldwin 1995) ............. 12

OKLA. STAT. ANN. tit. 10, §§ 5, 60.16

ide I SO ER ESA 12

Re OM SCL aT errs

v

Or. REV. STAT. §§ 109.121, 109.123 (1994) ..... 12

R.I. GEN. LAWS §§ 15-5-24.1, 15-5-24.2,

Tee ty. Spe Saree Te 12

S.C. Code Ann. § 20-7-420 (1993) ........... 12

S.D. CODIFIED LAWS ANN. § 25-4-52, 25-4-53,

56:0:08 OS Goes 28 Penk 2: 12

TENN. CODE ANN. § 36-6-301 (1994) .......... 12

TEX. FAM. CODE ANN. § 14.03 (1995) ......... 12

UTAH CODE ANN. §§ 30-5-1, 30-5-2 (1995) ..... 12

VA. CODE ANN. §§ 16.1-278.15, 63.1-204.1

ia Fee: eee ore et 12

VT. STAT. ANN. tit. 15, §§ 1011, 1012 (1994) .... 12

W. VA. CODE §§ 48-2B-1 - 48-2B-6 (1995) ..... 13

WASH. REV. CODE ANN. § 26.09.240 (West 1995) . 13

WYO, BEAT. B MerretOd Cope) ose noe cen 00 oe 13

No. 95-401

IN THE

SUPREME COURT OF THE UNITED STATES

OCTOBER TERM, 1995

IN RE THE INTEREST OF H.S.H.-K.

ELSBETH KNOTT,

Petitioner,

Vv.

SANDRA LYNN HOLTZMAN,

Respondent.

ON PETITION FOR A WRIT OF CERTIORARI

To THE UNITED STATES COURT OF APPEALS FOR

THE SEVENTH CIRCUIT

RESPONDENT’S BRIEF IN OPPOSITION

Respondent, Sandra Lynne Holtzman, respectfully

requests that this Court deny the petition for writ of

certiorari to the Wisconsin Supreme Court for review of

the judgment in this case.

STATEMENT OF THE CASE

Holtzman and Knott are two women who shared

a close, committed relationship for more than ten years.

In re Custody of H.S.H.-K., 193 Wis. 2d 649, 659-60,

533 N.W.2d 419, 421 (1995). They decided early in

their relationship to rear a child together by having Knott

artificially inseminated with sperm from an anonymous

donor. Jd. When Knott became pregnant in March

2

1988, Holtzman and Knott attended obstetrical visits and

childbirth classes together. Jd.

The child, H.S.H.-K., was born on December 15,

1988. Jd. Holtzman was present during labor and

delivery and took three weeks off from work to stay with

Knott and the child. Jd Holtzman and Knott jointly

selected a name for the baby, using first and middle

names from each of their families and a surname which

combined their last names. Jn re Custody of H.S.H.-K.,

193 Wis. 2d at 660, 533 N.W.2d at 422. Both women

were named as H.S.H.-K.’s parents at his dedication

ceremony at their church. Jd. Holtzman’s parents were

recognized as the child’s grandparents and Holtzman’s

sister was formally named his godmother. Jd. From

December 1988 until January 1, 1993, Holtzman

provided the primary financial support for Knott, herself

and the child, and both women shared child-care

responsibilities. Jd. Together, the three attended church,

went on outings and celebrated holidays. Jd. Holtzman

devoted herself to the child and spent individual time

with him. Jd.

The two women explained to H.S.H.-K. that there

are many kinds of families and that he had two parents

who loved him very much. /d H.S.H.-K. called

Holtzman "My San," and each year on Father’s Day

Holtzman, Knott and H.S.H.-K. celebrated their own

special holiday honoring Holtzman. /d.

Holtzman, Knott and H.S.H.-K. moved to

Madison, Wisconsin, in June 1992, so that Holtzman

could attend law school. Jn re Custody of H.S.H.-K., 193

3

Wis. 2d at 661, 533 N.W.2d at 422. They bought a

home in Madison, not far from Holtzman’s family. Jd.

H.S.H-K. became attached to Holtzman’s parents as his

grandparents and to Holtzman’s sister as his aunt and

godmother. Jd.

Throughout the fall of 1992, Knott withdrew

emotionally. (Petitioner’s Appendix, p. 147a.) She

suffered from depression, engaged in self mutilation and

was placed on a suicide watch by the Mental Health

Center of Dane County. (/d.)

On January 1, 1993, Knott told Holtzman that

their relationship was over. Jn re Custody of H.S.H.-K.,

193 Wis. 2d 661, 533 N.W.2d at 422. Holtzman made

every effort to maintain contact with H.S.H.-K. and spent

as much time with him as Knott would allow. Jd. On

August 24, 1993, Knott informed Holtzman that she was

terminating Holtzman’s relationship with H.S.H.-K. Id.

Two days later, on August 26, 1993, Knott sought

an order in Dane County Circuit Court to restrain

Holtzman from having any contact with her or

H.S.H.-K., claiming Holtzman had threatened or

intimidated her. Jd. At the hearing on the petition, held

on September 1, 1993, the two women entered into a

stipulation on the record. Jd. Knott agreed to dismiss

the petition; Holtzman agreed not to contact Knott. Jd.

Both women agreed to participate in a physical

placement study to be conducted by the Dane County

Family Court Counseling Service and to have a guardian

ad litem appointed for the child. Jd.

4

In September 1993, Holtzman filed petitions in

Dane County Circuit Court seeking custody of and

visitation with H.S.H.-K. In re custody of H.S.H.-K.,

193 Wis. 2d at 661-62, 533 N.W.2d at 422. The

guardian ad litem interviewed H.S.H.-K. and reported the

following facts to the circuit court: H.S.H.-K. stated that

he believed Holtzman was his parent and that he would

like to see, spend time with and telephone Holtzman. /d.

H.S.H.-K. was able to recite Holtzman’s new address and

telephone number. Jd. H.S.H.-K. acknowledged that

Knott no longer viewed Holtzman as his parent, that she

would be upset if he continued to see Holtzman, but that

he wanted to see her anyway. Jd. He stated that he did

not consider anyone other than Holtzman and Knott to be

his parents. Jd. On October 28, 1993, the trial court

granted Knott’s motion for summary judgment and

reluctantly dismissed the petitions, ruling that, under

then-existing state law, Holtzman did not have standing

to seek custody or visitation. Jd. Respondent relies on

petitioner’s facts regarding the judicial proceedings which

followed.

REASONS WHY THE PETITION SHOULD BE

DENIED

I. THE WISCONSIN SUPREME COURT’S DECISION

DOES NOT DEPRIVE PETITIONER OF HER RIGHT TO

DUE PROCESS.

In In re Custody of H.S.H.-K., 193 Wis. 2d 649,

533 N.W.2d 419 (1995), the Wisconsin Supreme Court

concluded that a person who has lived with and had a

parent-like relationship, with a child have standing to

5

seek visitation with the child when such visitation is in

the child’s best interests and there has been a triggering

event which has interfered with the parent-child

relationship. The court remanded the case to the trial

court to allow respondent the opportunity to establish her

right to seek visitation with the child that she and

petitioner raised together for most of his life. Jd.

Petitioner claims that this decision violates her

constitutional rights as a parent. She argues that her

status as H.S.H.-K.’s biological mother prohibits state

interference in any way with her right to make all

decisions regarding H.S.H.-K. Petitioner is in error.

A parent’s constitutional right to the care, custody

and management of his or her child is not absolute.

Parents have a liberty interest in maintaining a

relationship with their children, This interest is "a

rational continuum which, broadly speaking, includes a

freedom from all substantial arbitrary impositions and

purposeless restraints." Moore v. City of East Cleveland,

431 U.S. 494, 502 (1977) (citation omitted). A restraint

which is not arbitrary and which serves a legitimate

purpose does not violate a parent’s due process rights.

For example, "[t]here is no doubt as to the power of a

State, having a high responsibility for education of its

citizens, to impose reasonable regulations for the control

and duration of basic education." Wisconsin v. Yoder,

406 U.S. 205, 213 (1972). The rights of parents to

determine the education of their children must be

balanced with the state’s interest in the education of

those children. Jd. at 214. The issue in Wisconsin v.

Yoder was the parents’ right to determine the religious

upbringing of their children when that right conflicted

6

with the state’s requirement that children remain in

school until age 16. Jd. at 215. This Court determined

that when the state’s requirement of education to age 16

did not conflict with parent’s religious beliefs, the

requirement was reasonable. Jd. at 233. Thus, under

Wisconsin v. Yoder, the Wisconsin Supreme Court’s

decision in this case, which balances the child’s right

against the parent’s right, is reasonable and nonviolative

of petitioner’s constitutional rights.

This Court "has emphasized the paramount interest

in the welfare of children and has noted that the rights of

the parents are a counterpart of the responsibilities they

have assumed." Lehr v. Robertson, 463 U.S. 248, 257

(1983). The Wisconsin Supreme Court’s decision is

consistent with these principles; it requires a balancing of

the rights of both the parent and the child. Rather than

ignoring or violating Knott’s constitutional rights as a

parent, the court balanced her "constitutionally protected

liberty interest in determining how to rear a child against

the best interest of the child." in re Custody of

HS.H-K., 193 Wis. 2d 668, 533 N.W.2d at 425

(footnote omitted).

Knott argues that there cannot be state

involvement in a parent’s decisions regarding his or her

children unless the parent is unfit.' There is no support

: Knott claims that she has been found to be a fit

parent. The Wisconsin Supreme Court ruled only that on the

record before it, there was no triable issue as to unfitness. Jn re

Custody of H.S.H.-K., 193 Wis. 2d at 665, 66, 533 N.W.2d at 424.

Holtzman attempted to obtain mental health records to buttress her

7

for her argument. A parent cannot be deprived of

custody of his or her child unless he or she is unfit. Jn

re Custody of H.S.H.-K., 193 Wis. 2d at 664-65, 533

N.W.2d at 423; Stanley v. Illinois, 405 U.S. 645 (1972).

However, the Wisconsin Supreme Court decision does

not deprive Knott of custody. It simply allows the child

to have visitation, if visitation is in the child’s best

interests, with a person with whom he has a bonded,

dependent relationship. Jn re Custody of H.S.H.-K., 193

Wis. 2d at 533 N.W.2d at 421. That relationship was

created as Knott consented to and fostered Holtzman’s

establishment of a parent-like relationship with H.S.H.-K.

In re Custody of H.S.H.-K., 193 Wis. 2d at 660-62, 695,

533 N.W.2d at 421, 422 and 436. Knott had a

constitutionally protected right either to allow or not

allow that relationship to develop. However, once

H.S.H.-K.’s relationship with Holtzman had developed,

the child’s right to continue the relationship became

significant and must be balanced against the rights of the

parent. When Knott exercised her constitutional right to

allow Holtzman to act as a parent to H.S.H.-K. and

subsequently interfered with H.S.H.-K.’s relationship

with Holtzman, Knott’s actions in and of themselves

triggered, and thus justified, the state’s intervention for

the sake of the child. Jd.

The constitutional protection granted a parent is

not based solely, or even primarily, on the biological

link. Lehr, 463 U.S. at 261.

claims of Knott’s unfitness, but was denied access to them. Jd. at

n.5.

8

[T}he importance of the familial relationship, to the

individuals involved and to the society, stems from

the emotional attachments that derive from the

intimacy of daily association, and from the role it

plays in promot{ing] a way of life’ through the

instruction of children ... as well as from the fact

of blood relationship.

Id. (quoting Smith v. Organization of Foster Families for

Equality and Reform, 431 U.S. 816, 844 (1977) (citation

omitted)). "No one would seriously dispute that a deeply

loving and interdependent relationship between an adult

and a child in his or her care may exist even in the

absence of a blood relationship." Smith, 431 U.S. at 844.

It is this principle upon which the Wisconsin Supreme

Court determined the factors which a person seeking

visitation must demonstrate to prove that he or she had

a parent-like relationship with the child. Those factors

are:

(1) that the biological or adoptive parent

consented to, and fostered, the petitioner’s

formation and establishment of a parent-like

relationship with the child; (2) that the petitioner

and the child lived together in the same household;

(3) that the petitioner assumed obligations of

parenthood by taking significant responsibility for

the child’s care, education and development,

including contributing towards the child’s support,

without expectation of financial compensation; and

(4) that the petitioner has been in a parental role

for a length of time sufficient to have established

with the child a bonded, dependent relationship

parental in nature.

9

In re Custody of H.S.H.-K., Wis. 2d at 658-59, 533

N.W.2d at 421 (footnote omitted). Thus, a petitioner’s

standing to seek visitation depends on the child’s

emotional attachments to the petitioner, after the child’s

biological parent consented to and fostered the formation

and establishment of the relationship. The application

of these factors assures the child’s right to associate with

and maintain a relationship with a person who has been

in a familial relationship with the child without violating

the biological parent’s constitutional rights.

II. THE WISCONSIN SUPREME COURT’S DECISION

DoEs NOT VIOLATE PETITIONER’S RIGHT TO

EQUAL PROTECTION.

Petitioner is treated no differently under Jn re

Custody of H.S.H.-K. from anyone else who consented to

and fostered a relationship between his or her child and

a third party. Whether or not petitioner is a member of

a "unitary family" is irrelevant. The Wisconsin Supreme

Court’s test for standing is narrowly tailored to limit

standing to petition for visitation to those persons who

have an actual parent-like relationship with the child.

Rather than granting standing to classifications of

persons, such as those who are not members of "unitary

families," the court’s ruling is based very specifically on

the relationship between the child and the person seeking

visitation. The test was carefully crafted so that only

persons with whom the child has a bonded, dependent

relationship have standing to seek visitation with the

child. Id.

10

Petitioner asserts, that the holding of Michael H.

v. Gerald D., 491 U.S. 110 (1989), supports her

argument; she is mistaken. If anything, the Michael H.

decision supports the child’s right to continue his

relationship with Holtzman. In Michael H., the

biological father of a child brought an action to establish

paternity and visitation with the child who was living

with her mother and her mother’s husband. Although the

biological father had lived with the mother and the child

for a short period of time, the Court found that he did

not have the right to a determination that he was the

child’s father? Jd. at 127. Instead, the Court considered

the child, though unrelated to her stepfather, to be his

legal child. Id.

In Michael H., the Court explained the concept of

the "unitary family," which "is typified, of course, by the

marital family, but also includes the household of

unmarried parents and their children." Id. at 123, n.3.

Biological relationships are not the exclusive

determination of the existence of a family. Smith, 431

U.S. at 843. H.S.H-K. lived in a household of

unmarried parents. His unitary family consisted of

himself, Knott, and Holtzman. If there is an analogy to

Michael H., it is that Holtzman’s relationship with

H.S.H.-K. was similar not to that of the biological father,

but to that of the mother’s husband whose relationship

: The concurring opinion of Justice Stevens in

Michael H., noted that under the California statute, the biological

father could seek visitation with the child as "a person having an

interest in the welfare of the child. Michael H., 491 U.S. at 133."

The constitutionality of the California statute was not questioned.

11

with the child was protected. Likewise, the Wisconsin

Supreme Court’s decision protects H.S.H.-K.’s

relationship with Holtzman.

Petitioner’s argument that the adoption of the

Wisconsin Supreme Court’s test will open the floodgates

to unrestricted rights of visitation is absurd. The test is

extremely limiting; it applies only to relationships which

have been fostered by the parent and in which the party

seeking visitation lived in the same household with the

child and provided daily care and support for the child.

It does not apply to casual or commercial relationships.

It applies only when the child has formed a bonded,

dependent relationship with the person seeking visitation.

In such a situation, allowing visitation can prevent the

harm to a child caused by the loss of a person on whom

the child relies physically and emotionally. From the

child’s perspective, the biological or legal status of his or

her family-in-fact members is irrelevant; what matters to

the child is the continuation of important relationships.

The Wisconsin Supreme Court’s test is neither

underinclusive nor overinclusive; it is carefully crafted to

benefit children while protecting the biological parents’

constitutional rights.

Ill. THE ISSUE OF CHILD VISITATION MUST BE

RESOLVED BY THE STATES.

Domestic relations disputes have traditionally been

the province of the states. Thompson v. Thompson, 484

U.S. 174, 186 (1988). States have a long tradition of

determining the visitation rights of both parents and

nonparents. See In re Custody of H.S.H.-K., 193 Wis.2d

_

12

at 692-93 n.37, 533 N.W.2d at 435 n.37. Every one of

the fifty states allows grandparents to petition for

visitation under certain circumstances.’ Some states,

; ALA. CODE §§ 30-3-3. 30-3-4 (1994); ALASKA

STAT. § 25.24.150 (1994); ARIZ. REV. STAT. ANN. § 25-337.01

(1995); ARK. CODE ANN. § 9-13-103 (Michie 1994); CAL. FAMILY

CODE §§ 3101-3104 (West 1995); COLO. REV. STAT. ANN. §§ 19-1-

117, 19-1-117.5 (West 1995); CONN. GEN. STAT. ANN. § 46b-59

(West 1995); DEL. CODE ANN. tit. 10, § 1031 (1994); FLA. STAT.

ANN. §§ 39.4105, 752.01 (West 1995); GA. CODE ANN. §§ 19-7-3,

19-9-3 (Michie 1995); HAW. REV. STAT. § 571-46.3 (1994); IDAHO

CODE § 32-719 (1995); ILL. ANN. STAT. ch. 750, para. 5/607; ch.

755, para. 5/11-7.1 (Smith-Hurd 1995); IND. CODE ANN. §§ 31-1-

11.7-2, 31-1-11.7-3 (West 1995); IowA CODE ANN. § 598.35 (West

1995); KAN. STAT. ANN. § 38-129 (1994); Ky. REV. STAT. ANN. §

405.021 (Baldwin 1995); LA. REV. STAT. ANN. § 9:344 (West

1995); ME. REV. STAT. ANN. tit. 19, §§ 1001-1004 (West 1994);

Mb. CODE ANN., FAM. LAW § 9-102 (1995); MASS. GEN. LAWS

ANN. ch.119, § 39D (West 1995); MICH. Comp. LAWS ANN. §

722.27b (West 1995); MINN. STAT. § 257.022 (1994); MIss. CODE

ANN. §§ 93-16-1, 93-16-3 (1993); Mo. ANN. STAT. § 452.402

(Vernon 1995); MONT. CODE ANN. § 40-9-102 (1994); NEB. REV.

STAT. §§ 43-1801, 43-1802 (1994); NEV. REV. STAT. §§ 125A.330,

125A.340 (1993); N.H. REV. STAT. ANN. § 458:17-d (1994); N.J.

STAT. ANN. § 9:2-7.1 (West 1995); N.M. STAT. ANN. §§ 40-9-1.1,

40-9-2 (Michie 1995); N.Y. Dom. REL. LAW § 72 (McKinney

1995); N.C. GEN. STAT. §§ 48-23, 50-13.2, 50-13.2A (1994); N.D.

CENT. CODE § 14-09-05.1 (1995); OHIO REV. CODE ANN. §§

3109.051, 3109.11, 3109.12 (Baldwin 1995); OKLA. STAT. ANN. tit.

10, §§ 5, 60.16 (West 1995); OR. REV. STAT. §§ 109.121, 109.123

(1994); 23 Pa. CONS. STAT. ANN. §§ 5311-5314 (1995); R.L. GEN.

LAWS §§ 15-5-24.1, 15-5-24.2, 15-5-24.3 (1994); S.C. CODE ANN.

§ 20-7-420 (1993); S.D. CODIFIED LAWS ANN. § 25-4-52, 25-4-53,

25-4-54 (1995); TENN. CODE ANN. § 36-6-301 (1994); TEX. FAM.

CODE ANN. § 14.03 (1995); UTAH CODE ANN. §§ 30-5-1, 30-5-2

(1995); VT. STAT. ANN. tit. 15, §§ 1011, 1012 (1994); VA. CODE

13

such as Delaware, allow grandparents to petition for

visitation regardless of the marital status of the child’s

parents. DEL. CODE. ANN. tit. 10 § 1031(7) (1994).

Arkansas allows siblings to visit over their parents’

objections. ARK. CODE ANN. § 9-13-102. In Minnesota,

a person who has resided for two years in the same |

household as a child may petition for visitation with the |

child. MINN. STAT. § 257.022. The state of Washington

allows the court to order visitation rights for a person

other than a parent when visitation may serve the best

interests of the child. _ WASH. REV. CODE ANN.

§ 26.09.240 (West 1995). Each of the states has

carefully balanced the rights of the parents, the children

and the persons seeking visitation. Likewise, the

Wisconsin Supreme Court reached a balance giving great |

weight to Knott’s constitutional rights while protecting

the best interests of this child. If the Wisconsin Supreme

Court decision is upset, it will destroy the right of all

states to protect the relationships children have with the

important people in their lives.

ANN. §§ 16.1-278.15, 63.1-204.1 (Michie 1995), WASH. REV. CODE

ANN. § 26.09.240 (West 1995); W. VA. CODE §§ 48-2B-1 - 48-2B-

6 (1995); Wyo. STAT. § 20-7-101 (1995).

hci iiiaeaiiiiaaudaii

14

CONCLUSION

The decision of the Wisconsin Supreme Court was

narrowly drawn to protect the constitutional rights of

biological parents and the best interests of children. For

all the reasons discussed herein, respondent Sandra

Lynne Holtzman respectfully requests that the petition

for a writ of certiorari be denied.

Respectfully Submitted,

udith Sperling Newton

Counsel of Record

Carol M. Gapen

STAFFORD, ROSENBAUM, RIESER &

HANSEN

3 South Pinckney Street, Suite 1000

P.O. Box 1784

Madison, Wisconsin 53701-1784

608/256-0226

Attorneys for Sandra Holtzman

October Z , 1995.