## Facts

- Sandra Lynne Holtzman and Elsbeth Knott were in a long-term same-sex relationship.
- The partners jointly decided to have and raise a child together; Knott conceived H.S. through artificial insemination.
- After H.S.’s birth, Holtzman took on substantial day-to-day caregiving responsibilities and contributed financially, functioning as a co-parent, though she was neither a biological nor adoptive parent.
- In January 1993, Knott ended the relationship, moved out with H.S., and later terminated Holtzman’s contact with the child.
- Holtzman filed a circuit court petition seeking custody or, alternatively, visitation.
- The circuit court granted summary judgment to Knott and dismissed both the custody and visitation claims.
- The Wisconsin Supreme Court accepted the case on bypass and reviewed the summary judgment dismissal.

## Issues

1. Whether a non-parent’s allegations raised a triable issue of parental unfitness, inability to parent, or “compelling circumstances” sufficient to proceed on a custody petition against a fit biological parent under Wis. Stat. § 767.24(3) (1991–92).
2. Whether a non-biological, non-adoptive former partner may obtain court-ordered visitation with the child of the biological parent when Wis. Stat. § 767.245 (1991–92) does not authorize visitation for that relationship.
3. If statutory visitation is unavailable, whether a court may use equitable authority to order visitation, and under what threshold standards.

## Decision

- The court affirmed summary judgment dismissing Holtzman’s custody claim because she did not present evidence creating a triable issue that Knott was unfit, unable to parent, or that compelling circumstances required transferring custody from a fit parent.
- The court held that Wis. Stat. § 767.245 did not apply to Holtzman’s visitation request.
- The court reversed dismissal of the visitation claim, holding that courts retain equitable power to order visitation in circumstances not covered by the statute.
- The court remanded for further proceedings, directing that visitation may be considered only if the petitioner proves (1) a parent-like relationship with the child and (2) a significant triggering event justifying state intervention; only then may the court evaluate best interests.

## Legal Principles

- A fit biological or adoptive parent has a strong presumptive right to custody; a third party seeking custody must show parental unfitness, inability to parent, or compelling circumstances sufficient to justify displacement under the governing custody statute.
- The child-visitation statute in chapter 767, as then written, did not extend to an unmarried, non-adoptive former partner seeking visitation with the biological child of the other partner.
- Statutory visitation is not the exclusive source of authority for court-ordered visitation; courts retain equitable power to protect a child’s best interests when statutes do not address the relationship at issue.
- Before a court may consider best-interest visitation against the wishes of a biological or adoptive parent, the petitioner must first prove:
  - a “parent-like” relationship with the child; and
  - a “significant triggering event” justifying state intervention in the child’s relationship with the parent (such as substantial interference with or termination of the child’s relationship with the petitioner).
- Any equitable visitation order must account for the parent’s constitutionally protected interests in the care, custody, and control of the child and must be limited to circumstances warranting intervention.

## Conclusion

The Wisconsin Supreme Court refused to allow a non-parent to proceed on a custody claim absent evidence overcoming the presumption favoring a fit parent, but recognized equitable authority to consider de facto parent visitation when the petitioner proves a parent-like relationship and a triggering event warranting state involvement, after which the court may decide best-interest visitation.


In re Custody of H.S.H.-K., 533 N.W.2d 419 (Wis. 1995)