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Steve P. v. Maegan F., 2011AP2887, petition for review granted 5/29/13

Review of unpublished court of appeals decision; case activity

Issue (composed by On Point):

Should the Wisconsin Supreme Court modify the legal standard to be applied in third-party guardianship actions under Chapter 54 so as to require circuit courts to consider the best interests of the child?

Currently, a trial court may transfer custody of a minor child to a third party pursuant to Barstad v. Frazier, 118 Wis. 2d 549, 348 N.W.2d 479 (1984), which holds: “a parent is entitled to custody of his or her children unless the parent is either unfit or unable to care for the children or there are compelling reasons for awarding custody to a third party.”  Id., 118 Wis. 2d at 568. “‘[T]he best interests of the child’ is not the proper standard in custody disputes between a natural parent and a third party.”  Id. at 554-55.   Here, Steve and Donna P. sought to adopt a baby from Maegan F. and Noel G.  When Maegan changed her mind, Steve and Donna petitioned for temporary and permanent guardianship.  In a separate action, the baby’s guardian filed a CHIPS petition.  The court of appeals noted that it lacks authority to modify the Barstad standard due to Cook v. Cook, 208 Wis. 2d 166, 189, 560 N.W.2d 246 (1997).  SCOW, of course, can modify its own decisions, so this may be the issue that caught the court’s attention.  It’s hard to know: the petition for review is not available online; nor are the parties’ briefs, because the record for this case is confidential.

The court of appeals decision lists numerous other issues for review.  Some seem fairly fact specific (e.g. fitness findings). Others the court dismissed as “undeveloped” and hence unworthy of its attention. Click here for a recent post on that trend.

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