What happens when a break-up occurs between nontraditional parents?

• Author: Pribek, Jane

Byline: Jane Pribek

Among the definitions for "family" in "Black's Law Dictionary" is "a group of persons connected ... by affinity." Families in the 21st century might resemble TV's Ward, June, Wally and Beaver Cleaver. Or, they might resemble Carol, Susan and son Ben from "Friends," or more recently, Bette, Tina and daughter Angelica from "The L Word." Nontraditional families are not just entertainment on television. About a quarter of a million children in the U.S. are being raised by same-sex couples, reports Lambda Legal. Likewise, the Urban Institute reports that, per the 2000 census, 96 percent of all U.S. counties have at least one same-sex couple with children under 18 living in the household. Madison family law attorney Sandra L. Holtzman advises same-sex couples about the steps they can take to legally protect themselves and their children. It's not just a practice area for Holtzman, of the Law Office of Sandra L. Holtzman. She knows about the intersection of family law and same-sex couples because she lives it. A fair amount of her life is publicly recounted in In re the Custody of H.S.H-K., 193 Wis.2d 649 (1995). In that case, the Wisconsin Supreme Court upheld summary judgment against her. The court relied in part on Barstad v. Frazier, 118 Wis.2d 549 (1984), that a person who is not a biological or adoptive parent may not bring an action to obtain custody of a minor unless the biological or adoptive parent is "unfit or unable to care for the child" or there are compelling reasons for awarding custody to a nonparent. That holding put an end to the custody issue in her case, and it remains the law today, Holtzman explains. (Although she subsequently was awarded sole legal custody of her son in a guardianship action.) But the decision is perhaps better known for its holding with regard to the placement rights of non-biological, non-adoptive parents when same-sex couples are breaking up. Specifically, the justices held that Holtzman could not rely upon Ch. 767, Actions Affecting the Family, as the basis for requesting visitation with her former partner's biological child because a marriage was not dissolving. However, the court went on to hold that the family code was not the exclusive means for Holtzman to obtain visitation, and that courts may rely upon their equitable powers to grant visitation on the basis of a co-parenting agreement when visitation is in the child's best interest. The case's bottom line? "At this time, the...