Barbara J. Cox Professor of Law California Western School of Law In re H.S.H-K, 193 Wis. 2d 649, 533 N.W.2d 419 (1995) The brief which follows this introduction was submitted to the Wisconsin Supreme Court on behalf of the National Center for Lesbian Rights. They asked me to draft it for them, which I did. I cannot take much credit for the initial section of the brief; this is "boiler-plate" language which NCLR includes in many of their family law briefs, in an attempt to educate judges about the existence of and issues facing lesbian and gay families. The facts of the case are indicated in the brief. This is a custody and visitation claim filed by Sandra Lynne Holtzman, the non-biological parent of H.S.H-K, the child she had with Elsbeth Knott, the child's biological parent. The Wisconsin Supreme Court issued its decision on June 13, 1995 and, in doing so, became the first state supreme court to recognize the visitation rights of a non-biological lesbian parent. The court essentially, although not expressly, reversed its earlier decision in In re Interest of Z.J.H., 162 Wis. 2d 1002, 471 N.W.2d 202 (1991) where it denied custody and visitation to ------------National Journal of Sexual Orientation Law, Vol. 2, Issue 1 ------------ ---------------------------------END PAGE 131--------------------------------------- the non-adoptive lesbian mother. Two similar cases, where visitation was also denied, include In the Matter of Alison D. v. Virginia M, 77 N.Y.2d 651, 572 N.E.2d 27, 569 N.Y.S.2d 586 (1991) and Nancy S. v. Michelle G., 228 Cal. App. 3d 831, 279 Cal. Rptr. 212 (1st Dist. 1991). For a discussion of those cases and the legal theories used in them, see Barbara J. Cox, Love Makes a Family--Nothing More, Nothing Less: How the Judicial System Has Refused to Protect Nonlegal Parents in Alternative Families, VIII J. L. & Pol. 5 (1991). In this case, the Wisconsin Supreme Court rejected Holtzman's request for custody of her son. The court held that Holtzman had not "raised a triable issue regarding Knott's fitness or ability to parent her child and has not shown compelling circumstances requiring a change of custody." Thus, it affirmed the trial court's dismissal of the custody action. It also concluded, perhaps to avoid overruling Z.J.H., that the visitation statute, sec. 767.245, Stats. 1991-1992, does not apply to "Holtzman's petition for visitation rights to Knott's biological child." However, the court determined that the legislature did not intend that the statute be the exclusive method for obtaining visitation. Refusing to read the statute as supplanting or preempting "the courts' long recognized equitable power to protect the best interest of a child by ordering visitation under circumstances not included in the statute," the court concluded that a trial court may determine whether visitation is in the best interest of the child "if the petitioner first proves that he or she has a parent-like relationship with the child and that a significant triggering event justifies state intervention in the child's relationship with a biological or adoptive parent." The court explained that in order to demonstrate a parent- like relationship between the non-biological or non-adoptive parent and the child, the petitioner must prove four elements: "(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 case, education and development, including contributing towards the child 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." (footnotes omitted) ------------National Journal of Sexual Orientation Law, Vol. 2, Issue 1 ------------ ---------------------------------END PAGE 132--------------------------------------- If the trial court determines that these four factors are established, it must then find that a "significant triggering event" justifies state intervention. In order to do this, "the petitioner must prove that this parent has interfered substantially with the petitioner's parent-like relationship with the child, and the petitioner sought court ordered visitation within a reasonable time after the parent's interference. Once the trial court finds both the existence of a parent- child relationship between the petitioner and the child and a significant triggering event justifying state intervention, then the trial court must determine whether court-ordered visitation is in the best interest of the child. For these findings, the Wisconsin court remanded to the trial court. Knott's appeal to the United States Supreme Court was denied. The court's test resembles the theories set forth in two excellent articles: Nancy D. Polikoff's This Child Does Have Two Mothers: Redefining Parenthood to Meet the Needs of Children in Lesbian-Mother and Other Nontraditional Families, 78 Geo. L.J. 459 (1990), as well as Kathleen Bartlett's, Rethinking Parenthood as an Exclusive Status: The Need for Legal Alternatives When the Premise of the Nuclear Family Has Failed, 70 Va. L. Rev. 879 (1984). Unfortunately, the Wisconsin Supreme Court refused to go as far as either commentator in refusing to recognizing that this parent-child relationship rises to a level to support granting custody to the non-legal parent. While this case can be heralded as a significant contribution toward recognizing non-legal parents, until those parents are able to establish standing in custody suits, the courts will continue to show their misunderstanding of the parental bond between these parents and their children. STATE OF WISCONSIN COURT OF APPEALS DISTRICT IV In Re the Custody of: HARRISON SAMUEL HOLTZMAN KNOTT SANDRA LYNNE HOLTZMAN, Petitioner-Appellant, v. Case No. 93-2911 ELSBETH KNOTT, Respondent. ------------National Journal of Sexual Orientation Law, Vol. 2, Issue 1 ------------ ---------------------------------END PAGE 133--------------------------------------- ON APPEAL FROM ORDER OF CIRCUIT COURT FOR DANE COUNTY THE HONORABLE GEORGE NORTHRUP, PRESIDING AMICUS CURIAE BRIEF OF NATIONAL CENTER FOR LESBIAN RIGHTS HUME LAW OFFICES Kathleen E. Hume Wisconsin State Bar # 01014488 5665 S. 108th Street Hales Corners, WI 53130 (414) 529-4149 Abby Abinanti, Legal Director Barbara J. Cox National Center for Lesbian Rights 1663 Mission Street, Suite 550 San Francisco, CA 94103 (415) 621-0674 Attorneys for Amicus Curiae National Center for Lesbian Rights TABLE OF CONTENTS ARGUMENT I. THIS CASE WILL IMPACT THE LIVES OF THOUSANDS OF CHILDREN WHO LIVE IN FAMILIES HEADED BY LESBIAN OR GAY PARENTS. . . . . . . . . . .8 II. UNLIKE Z.J.H., IN THIS CASE AN INTACT FAMILY UNIT DOES NOT EXIST AND AN UNDERLYING ACTION AFFECTING THE FAMILY HAS BEEN FILED, THEREFORE, SANDRA HOLTZMAN IS ENTITLED TO SEEK VISITATION OF HER SON. . . . . . . . . . . . . 12 III. APPLYING SEC. 767.245(1), STATS., TO VISITATION CASES ONLY WHEN UNDERLYING ACTIONS AFFECTING THE FAMILY UNIT (LIMITED TO CUSTODY, DIVORCE, OR CHIPS CASES) HAVE ALREADY BEEN FILED PREVENTS MOST LESBIANS FROM OBTAINING JUDICIAL ASSISTANCE IN RESOLVING DISPUTES CONCERNING CHILDREN BORN INTO THEIR PLANNED FAMILIES, CONTRARY TO PUBLIC POLICY ------------National Journal of Sexual Orientation Law, Vol. 2, Issue 1 ------------ ---------------------------------END PAGE 134--------------------------------------- AND STATUTORY MANDATE . . . . . . . . . . . . . . . 15 A. The Rule Delineated in Z.J.H. Unnecessarily Treats Lesbians Worse Than Heterosexuals Without Promoting The Policy Of Mitigating Trauma From Dissolving Family Relationships . . . . . . . . . . . . . . . . . . . 16 B. Allowing Co-Parents In Dissolving Lesbian Families To Obtain Visitation Is Consistent With The Clear Expression Of Legislative Policy To Prevent Discrimination Due To Sexual Orientation . . . . . . . . . . . . . 19 TABLE OF AUTHORITIES In re Interest of Angel Lace M., Case Nos. 92-1369 and 92-1370. . . . . . . . . . 18 In re Interest of Z.J.H., 162 Wis.2d 1002, 471 N.W.2d 202 (1991) . . . . . . . . . . . . . 12, 13, 14, 17, 18 WISCONSIN STATUTES 944.17, stats. . . . . . . . . . . . . . . . . . . 20 944.15, stats. . . . . . . . . . . . . . . . . . . 20 944.01, stats. . . . . . . . . . . . . . . . . . . 20 943.012, stats . . . . . . . . . . . . . . . . . . 20 939.645(1)(b), stats . . . . . . . . . . . . . . . 20 767.245(1), stats. . . . . . . . . . . . . . . 12, 15 767.24(3), stats . . . . . . . . . . . . . . . . . 18 234.29, stats . . . . . . . . . . . . . . . . . . 20 230.18, stats. . . . . . . . . . . . . . . . . . . 20 230.01(2), stats . . . . . . . . . . . . . . . . . 20 227.110(3)(a), stats . . . . . . . . . . . . . . . 21 ------------National Journal of Sexual Orientation Law, Vol. 2, Issue 1 ------------ ---------------------------------END PAGE 135--------------------------------------- 146.025(7)(c)1, stats. . . . . . . . . . . . . . . 21 Wisconsin Statutes Continued 111.85(2)(b), stats. . . . . . . . . . . . . . . . 21 111.81(12)(b), stats . . . . . . . . . . . . . . . 21 111.70(2), stats . . . . . . . . . . . . . . . . . 21 111.321, stats . . . . . . . . . . . . . . . . . . 21 111.32(13)(m), stats . . . . . . . . . . . . . . . 21 111.31(1), stats . . . . . . . . . . . . . . . . . 21 101.22(1), stats . . . . . . . . . . . . . . . . . 21 66.433(3), stats . . . . . . . . . . . . . . . . . 21 66.432(1), stats . . . . . . . . . . . . . . . . . 21 66.431(3)(e)2, stats . . . . . . . . . . . . . . . 21 66.43(2m), stats . . . . . . . . . . . . . . . . . 21 66.405(2m), stats. . . . . . . . . . . . . . . . . 21 66.40(2m), stats . . . . . . . . . . . . . . . . . 21 66.395(2m), stats. . . . . . . . . . . . . . . . . 22 66.39(13), stats . . . . . . . . . . . . . . . . . 22 38.23(1), stats. . . . . . . . . . . . . . . . . . 22 36.12(1), stats. . . . . . . . . . . . . . . . . . 22 21.35, stats . . . . . . . . . . . . . . . . . . . 22 16.765(1), stats . . . . . . . . . . . . . . . . . 22 15.04(1)(g), stats . . . . . . . . . . . . . . . . 22 OTHER PUBLICATIONS Agenda, Business News Bulletin of GLPCI, Sept. 1993 . 10 Chira, Susan, Gay and Lesbian Parents Grow More Visible, The New York Times, Sept. 30, 1993, p. 1. . . . . . 10 Griffin, Jean Latz, The Gay Baby Boom: Homosexual Couples Challenge Traditions as They Create New Families, Chicago Tribune, Sept. 3, 1992, at C1, ------------National Journal of Sexual Orientation Law, Vol. 2, Issue 1 ------------ ---------------------------------END PAGE 136--------------------------------------- col. 18 Griffin, Jean Latz, Law Begins to Address Rise in Gay Families, Chicago Tribune, Sept. 4, 1992, at C1, col. 411 Harris, Scott, For This Family Call It Mothers' Day, Los Angeles Times, May 9, 1993, at B1 . . . . 11 Nan Hunter & Nancy Polikoff, Custody Rights of Lesbian Mothers: Legal Theory and Litigation Strategy, 25 Buff. L. Rev. 691 (1976). . . . . . . . . .8 Kinsey, Pomeroy, Martin, & Gebhard, Sexual Behavior in the Human Family (W.B. Saunders Co. 1953) . . .8 Kolata, Gina, Lesbian Partners Find the Means to Become Parents, N.Y. Times, Jan. 30, 1989, at A13, col. 111 Lan, Angela, Lesbian Couples Opt for Babies, San Diego Union Tribune, 3 Nov. 18, 1993, at H3 . . 11 Lewin, Ellen, Lesbian Mothers (1993). . . . . . . . . .9 Mandell, Jonathan, The Lesbian Baby Boom, Newsday, July 13, 1989, at 8, col. 1. . . . . . . . . . 11 Martin, April, The Lesbian and Gay Parenting Handbook, (1993) . . . . . . . . . . . . . . . . . . . . . 10 Other Publications Continued Martin, April, The Planned Lesbian and Gay Family: Parenthood and Children, (Paper delivered to the 1989 Annual Meeting of the American Psychological Association, New Orleans) . . . . . . . . .9 Minkowitz, Donna, No Book Can Change a Child's Sexuality, News Day, Nov. 30, 1992, at 55 .9 Newman, Leslie, Heather Has Two Mommies (1989). . . . .9 Note, Same-Sex Marriage, X N.Y.L.S. J. Hum. Rts. 555 (1993) . . . . . . . . . . . . . . . . . . . . . 17 O'Connor, Lesbian Urges Therapists to Find New Voices, Washington Blade, August 19, 1988, at 9, col. 2. 10 Perez, Julia, To Beverly, in Harriet Alpert, ed., We Are Everywhere (1987) . . . . . . . . . . . . .9 Pies, Cheri, Considering Parenthood (1985). . . . . . .9 Rubenstein, William, ed., Lesbians, Gay Men and the Law, ------------National Journal of Sexual Orientation Law, Vol. 2, Issue 1 ------------ ---------------------------------END PAGE 137--------------------------------------- (1993) . . . . . . . . . . . . . . . . . . . . . 19 Tuller, David, Gays and Lesbians Try Co-Parenting, San Francisco Chronicle, Sept. 4, 1993, at A1 . . . . . . . . . . 11 Tuller, David, Gay Co-Parenting Challenges Law on U.S. Family, The (New Orleans) Times-Picayne, Feb. 10, 1993, at F10. . . . . . . . . . . . . . . 11 Two Moms, San Francisco Examiner, June 12, 1989, at A1811 Seligman, Variations on a Theme, Newsweek, Special Section at 39, Winter/Spring 1990 . . . . .8 Shapiro, E. Donald & Schultz, Lisa, Single Sex Families: The Impact of Birth Innovations Upon Traditional Notions, 24 J. Fam. L. 271 (1985-86). . . 10 Other Publications Continued Sherman, All In A Day's Work, Gay Community News, Feb. 14-20, 1988, at 7, col. 1 . . . . . . . . 10 Sullivan, Joseph, Court Backs Lesbian's Right to Adopt Partner's Child, New York Times, Aug. 11, 1993, at B5. . . . . . . . . . . . . . . . . . . . 11 Weston, Kath, Families We Choose: Lesbians, Gays, and Kinship, (1991) . . . . . . . . . . . . . 10 OTHER SOURCES Oprah Winfrey Show, "Gay and Lesbian Adoption," ABC Television Broadcast, Sept. 19, 1989. . . 11 Phil Donohue Show, CBS Television Broadcast, Sept. 19, 1989. . . . . . . . . . . . . . . . . . . 11 20/20, "I Have Two Moms," ABC Television Broadcast, May 6, 1989 . . . . . . . . . . . . . . . . . 11 20/20, "Women Who Love Women," ABC Television Broadcast, Oct. 23, 1992. . . . . . . . . 10 I. THIS CASE WILL IMPACT THE LIVES OF THOUSANDS OF CHILDREN WHO LIVE IN FAMILIES HEADED BY LESBIAN OR GAY PARENTS. Sandra Lynne Holtzman and Elsbeth Knott represent two ------------National Journal of Sexual Orientation Law, Vol. 2, Issue 1 ------------ ---------------------------------END PAGE 138--------------------------------------- of the estimated twenty-five million lesbians and gay men who live in the United States. They are also among the one to five million lesbians in this country who are mothers. While lesbian invisibility in our society makes it nearly impossible to provide an accurate figure, it is estimated that more than ten thousand lesbians have conceived via donor insemination and have given birth to children within the context of a lesbian family relationship. Many more have adopted children. This case concerns the future of H.H.K., a child born into the Holtzman-Knott "planned lesbian family." A planned lesbian family is one in which a lesbian deliberately chooses to raise a child without being married or heterosexually involved. Planned lesbian families are a relatively recent phenomenon. [T]he 1980's have witnessed the emergence of an entirely new family structure, unparalleled in human history. For the first time ever in any society we know about, gay people in large numbers are setting out consciously, deliberately, proudly, openly, to bear and adopt children. The existence of planned lesbian and gay families has been amply documented recently. In 1989, the first children's book whose central character is a child born of donor insemination to a lesbian couple sold out of its initial printing of 4000 copies before publication. The first book designed exclusively to assist lesbians in deciding whether and how to become parents is now in its fourth printing. A study of nearly 2000 lesbians reported that approximately one-third wanted to "become mothers either through adoption or artificial insemination." The planned lesbian or gay family does not have one fixed structure, and may be formed in many ways, including adoption, ------------National Journal of Sexual Orientation Law, Vol. 2, Issue 1 ------------ ---------------------------------END PAGE 139--------------------------------------- birth to a lesbian through insemination, or birth to a surrogate who relinquishes the child to the gay biological father. This case concerns the most common planned lesbian family -- a couple in a long-term committed relationship, choosing to co-parent a child born as a result of insemination. The day-to-day lives of lesbian families and the difficulties presented when the child's relationship with one of the two parents is not legally recognized has been addressed in numerous public conferences, support groups, publications, and by the national and local print and television media. Amicus urges this court to protect the integrity of planned lesbian families and the best interests of children within such families. To do this, the court must consider the context within which the particular family was created and understand what the family looks like from the inside, including specifically the child's perspective. Several overriding principles should be applied in cases involving planned lesbian families. Three of the relevant principles amicus advocates are: 1) a biological connection is not necessary for establishing parenthood; 2) agreements, particularly when coupled with an ongoing course of conduct, establish the intent of a biological parent to share parenting with another person and should be upheld; and 3) a child's experience of his or her family is critical to any analysis. Given the prevalence of planned lesbian families, the courts can expect legal questions to recur as these families form, grow, and sometimes dissolve. This court cannot turn from this problem, hoping that it is rare, hoping it will disappear. Lesbians will seek judicial assistance in resolving visitation disputes, just as heterosexual couples (married or not) seek assistance. Two such cases reaching the Wisconsin appellate ------------National Journal of Sexual Orientation Law, Vol. 2, Issue 1 ------------ ---------------------------------END PAGE 140--------------------------------------- courts since 1990 establishes this truth. This court should not turn a blind eye to this problem. II. UNLIKE Z.J.H., IN THIS CASE AN INTACT FAMILY UNIT DOES NOT EXIST AND AN UNDERLYING ACTION AFFECTING THE FAMILY HAS BEEN FILED, THEREFORE, SANDRA HOLTZMAN IS ENTITLED TO SEEK VISITATION OF HER SON. The Wisconsin Supreme Court, in In re Interest of Z.J.H., 162 Wis. 2d. 1002, 1020, 471 N.W.2d 202, 209 (1991), reached the "inescapable conclusion that there must be an underlying action affecting the family unit, before the provisions of sec. 767.245(1) are implicated." The public policy underlying that decision was to "protect the children's best interests by ordering visitation with appropriate adults to mitigate the trauma and impact of a dissolving family relationship." Z.J.H., at 1022, 471 N.W.2d at 210. But, "the legislature did not intend that the state intervene in the parents' decision regarding their children's best interests when the family unit is intact." Id. Here, the family unit has dissolved and an underlying action affecting the family has been filed. Sandra Holtzman and Elsbeth Knott shared "a close, committed relationship" for over 10 years. (Trial court decision [dec] at 1) "Given the societal and legal standards to which they are subject, the couple did everything they could to create and formalize a normal family relationship." (Dec. 1) From the beginning, they discussed adding a child to their family. (Dec. 2) They decided that Elsbeth would be inseminated and she became pregnant in March 1988. (Dec. 2) Sandra joined Elsbeth for obstetrical visits, and they attended childbirth classes, prepared the baby's room, decided on a name, and participated in decisions regarding their child jointly. (Dec. 2) H.H.K. was born on December 15, 1988 and they lived with him as a family, ------------National Journal of Sexual Orientation Law, Vol. 2, Issue 1 ------------ ---------------------------------END PAGE 141--------------------------------------- sharing all parental responsibilities, until May 26, 1993 when Elsbeth took H.H.K. from their family home because the adults had become estranged. (Dec. 2). This planned lesbian family is vastly different from the one in Z.J.H. There, the adults had a long-term relationship and decided to adopt a child together, but the adoptive relationship was not legally established until after the adults' relationship had ended. Z.J.H. at 1007, 471 N.W.2d at 204. The child was placed in their home in March 1988, the parties separated in October 1988, and the child was adopted in November 1988. Id. In contrast, the Holtzman-Knott family lived together with their child for over four years. While the Z.J.H. court could determine that the adoptive mother and child were an intact family, without the co-parent, such a determination here is impossible. Elsbeth did not create a family unit with H.H.K. separate from Sandra. When the family relationship began to dissolve in January 1993, it was the relationship between all three members of the family that dissolved, not simply the relationship between the adult partners. That family unit included Sandra, Elsbeth, and H.H.K. and it has dissolved. Furthermore, an underlying action affecting the family unit was filed before Sandra's petitions for custody and visitation. Elsbeth began that action on August 26, 1993, when she petitioned the court for an injunction claiming that Sandra had threatened and intimidated her and asking that she be restrained from having any contact with Elsbeth or H.H.K. (Dec. at 4). At the hearing, Elsbeth agreed to dismiss her petition, Sandra agreed not to contact Elsbeth, and they agreed jointly to refer the visitation issue to family court. (Dec. at 4). ------------National Journal of Sexual Orientation Law, Vol. 2, Issue 1 ------------ ---------------------------------END PAGE 142--------------------------------------- Elsbeth's petition for an injunction was an underlying action affecting the family unit. She sought judicial assistance in restraining Sandra from continuing her relationship with H.H.K., one that Sandra had maintained despite ending her relationship with Elsbeth. Clearly, that petition would have significantly affected the family unit. III. APPLYING SEC. 767.245(1), STATS., TO VISITATION CASES ONLY WHEN UNDERLYING ACTIONS AFFECTING THE FAMILY UNIT (LIMITED TO CUSTODY, DIVORCE, OR CHIPS CASES) HAVE ALREADY BEEN FILED WOULD PREVENT MOST LESBIANS FROM OBTAINING JUDICIAL ASSISTANCE IN RESOLVING DISPUTES CONCERNING CHILDREN BORN INTO THEIR PLANNED FAMILIES, CONTRARY TO PUBLIC POLICY AND STATUTORY MANDATE. Visitation actions under sec. 767.245(1), Stats., are permitted for any "person who has maintained a relationship similar to a parent-child relationship with the child." The statutory language concentrates on the relationship between the third party and the child and focuses on promoting the best interest of the child. Visitation is contingent on the relationship between the biological parent and the third party only to the extent that the parent has allowed or created a parent-child relationship between the third party and the child. The language of the statute coupled with Wisconsin's leadership in preventing discrimination against lesbians and gay men signifies legislative support for modifying the expression of the Z.J.H. rule, though not the underlying policy, to avoid treating lesbians differently than heterosexual couples needing to resolve visitation disputes. A. The Rule Delineated in Z.J.H. Unnecessarily Treats Lesbians Worse Than Heterosexuals Without Promoting The Policy Of Mitigating Trauma From Dissolving Family Relationships. In Z.J.H., the Supreme Court indicated that underlying actions affecting the family, which it seemed to define as ------------National Journal of Sexual Orientation Law, Vol. 2, Issue 1 ------------ ---------------------------------END PAGE 143--------------------------------------- divorce, custody, or CHIPS actions, must be filed before visitation actions are appropriate. Z.J.H. at 1020, 471 N.W.2d at 209. There, the court concluded that the lesbian co-parent's visitation petition should not be allowed because either (a) the adoptive mother and child were an "intact family unit," or (b) no underlying action affecting the family unit had been previously filed. Z.J.H. at 1022, 471 N.W.2d at 211. Unfortunately, the Supreme Court did not recognize that its rule, as delineated, could preclude lesbian couples from access to the courts when visitation disputes arise. While protecting most heterosexual couples, none of the options listed readily permit access to the courts for lesbians in dissolving families. First, lesbians cannot marry in any state. Therefore, they cannot use an underlying divorce action to seek visitation because they are not permitted to create a marriage, an obvious prerequisite. They also cannot file "other actions affecting the marriage." Second, lesbian co-parents cannot bring custody actions as natural or adoptive parents. Lesbians are unable to bear a child genetically-related to both parents. Thus, lesbians are unlike unmarried heterosexual couples who have children genetically related to both parents, and who therefore, although precluded from using a divorce action, can pursue a custody option to resolve visitation disputes. The Supreme Court is considering whether a same-sex co-parent can adopt the biological or adoptive child of her partner. (In the Interest of Angel Lace M., Case Nos. 92-1369 and 92-1370). Because it is unclear whether adoption is a viable alternative for lesbian co-parents, Sandra could not have adopted ------------National Journal of Sexual Orientation Law, Vol. 2, Issue 1 ------------ ---------------------------------END PAGE 144--------------------------------------- H.H.K., thereby allowing her to seek visitation through an underlying custody action as an adoptive parent. Third, requiring lesbians to pursue a CHIPS action under sec. 767.24(3), Stats., or otherwise allege unfitness as their only means to obtain custody is inappropriate public policy. Unlike married or unmarried heterosexual couples, lesbians must attack the fitness of their ex-partners, and their children's other parent, as the singular basis for obtaining custody or visitation of their children. While these allegations exist in this case (see, Pet.'s brief at 6-7), they will not exist in most cases. See, Z.J.H., at 1010, 471 N.W.2d at 205. Additionally, these allegations increase the "trauma" for all members of the dissolving family and cannot promote the children's best interests. It is inconceivable that the Z.J.H. court intended to preclude lesbians from attaining visitation, absent allegations of unfitness. Such a decision squarely contradicts the Wisconsin legislature's leadership in protecting gay men and lesbians from pernicious discrimination. B. Allowing Co-Parents In Dissolving Lesbian Families To Obtain Visitation Is Consistent With The Clear Expression Of Legislative Policy To Prevent Discrimination Due To Sexual Orientation. Wisconsin has a proud heritage of leading this nation by prohibiting discrimination based on sexual orientation. Long before other states recognized its crippling impact, Wisconsin statutorily prohibited that discrimination. It would be inconsistent with this legislative mandate to limit lesbians so much more drastically than heterosexual couples when seeking visitation. The legislature, by ending its regulation of private sexual ------------National Journal of Sexual Orientation Law, Vol. 2, Issue 1 ------------ ---------------------------------END PAGE 145--------------------------------------- activity between consenting adults, indicated an acceptance of relationships outside the marital relationship. Sec. 944.01, Stats. By revising secs. 944.15 and 944.17, the legislature indicated a willingness to allow individuals to choose the intimate relationships that best express their personalities, desires, and beliefs. The legislature, however, has not simply evinced a passive attitude toward sexual minorities living in Wisconsin. As the following comprehensive statement shows, it took significant steps to prevent harmful differences in treatment. Each statute prohibits some form of differential treatment due to sexual orientation. Sec. 943.012: Felony to damage community property based on sexual orientation. Sec. 939.645(1)(b): Increased penalties for crimes against victims based on sexual orientation. Sec. 440.77(1)(o): Prohibits discrimination in loan practices. Sec. 234.29: Prohibits discrimination in housing projects. Sec. 230.18: Prohibits discrimination in civil service. Sec. 230.01(2): Prohibits discrimination in State employment. Sec. 227.10(3)(a): Prohibits discrimination in State administrative rules. Sec. 146.025(7)(c)(1): HIV test results may not indicate sexual orientation. Sec. 111.85(2)(b): Prohibits discrimination in fair share agreements. Sec. 111.81(12)(b): Prohibits discrimination in State employee labor organizations. Sec. 111.70(2): Prohibits discrimination in municipal fair share agreements. ------------National Journal of Sexual Orientation Law, Vol. 2, Issue 1 ------------ ---------------------------------END PAGE 146--------------------------------------- Sec. 111.321: Prohibits employment discrimination. Sec. 111.32(13)(m): "Sexual orientation" defined as having, having a history of, or being identified with, a preference for heterosexuality, homosexuality, or bisexuality. Sec. 111.31(1): Employment discrimination substantially and adversely affects state's general welfare. Sec. 101.22(1): Prohibits housing discrimination. Sec. 66.433(3): Community commissions recommend solutions to sexual orientation discrimination in housing, employment, and public accommodations and facilities. Sec. 66.432(1): Equal opportunity in housing is local concern. Sec. 66.431(3)(e)2 and 66.43(2m): Entitlement to slum clearance benefits without regard to sexual orientation. Sec. 66.405(2m): Equal opportunity in urban redevelopment projects. Sec. 66.40(2m): Prohibits discrimination by housing authorities. Sec. 66.395(2m): Prohibits discrimination in elderly housing. Sec. 66.39(13): Prohibits discrimination in veterans housing. Sec. 38.23(1): Prohibits discrimination against vocational, technical, and adult education students. Sec. 36.12(1): Prohibits discrimination against Wisconsin System students. Sec. 21.35: Prohibits discrimination in National guard admission. Sec. 16.765(1): Prohibits discrimination by State contractors. Sec. 15.04(1)(g): State agency heads must take remedial action to end discrimination. These statutes clearly indicate that sexual minorities may ------------National Journal of Sexual Orientation Law, Vol. 2, Issue 1 ------------ ---------------------------------END PAGE 147--------------------------------------- not be treated differently due to their sexual orientation. To prohibit differential treatment in visitation, the legislature permitted individuals with a "parent-child relationship" to petition the court for visitation. This statute applies to members of dissolving lesbian families. Therefore, this court should acknowledge this legislative intent, while following the policies underlying Supreme Court precedent, and permit Sandra Holtzman to request visitation with her son. CONCLUSION Restricting lesbians in dissolving families to pursuing a divorce, custody or CHIPS action as the only methods for seeking visitation precludes most lesbians from court assistance in resolving visitation disputes. Additionally, recognizing other actions as fulfilling the policies behind the Z.J.H. rule protects intact family units and is consistent with expressed legislative policies to prevent differences in treatment by the state due to sexual orientation. This court should allow Sandra Holtzman to seek visitation with her son. Dated this ___ day of March, 1994. Hume Law Offices Kathleen E. Hume National Center for Lesbian Rights Abby Abinanti Barbara J. Cox By________________________ Kathleen E. Hume State Bar Number 01014488 Attorneys for Amicus Curiae