The trial court can upon proper exercise of discretion grant rights of visitation to relatives. In Weichman v. Weichman (1971), 50 Wis.2d 731, 734, 184 N.W.2d 882, we said: (The trial of this matter was concluded before the Weichman decision was announced.)
By being named in the statute, grandparents and greatgrandparents are given a status to be recognized equally by all the courts of the state. The first visitation language in Wisconsin Statutes appeared in sec. 247.24(1)(c), Stats. Ch. 122, Laws of 1975. This visitation language was included in sec. 247.24(1) based on the decisions in Gotz v. Gotz, 274 Wis. 472, 80 N.W.2d 359 (1957), Weichman v. Weichman, 50 Wis.2d 731, 184 N.W.2d 882 (1971), Ponsford v. Crute, 56 Wis.2d 407, 202 N.W.2d 5 (1972) as stated by the Draftsman's Note for the Legislative Reference Bureau, LRB-366-1 dated November 7, 1974, as follows: "The supreme court established in Weichman v. Weichman, 50 Wis.2d 731, 734, 184 N.W.2d 882 (1970), and reaffirmed in Ponsford v. Crute, 56 Wis.2d 407, 415, 202 N.W.2d 5 (1972), that the court in actions affecting marriage may grant visitation privileges to grandparents and others where it is in the best interest of the child.
We do not consider whether the parties' stipulation would have been sufficient to transfer custody had the children been residing with Robert when the stipulated order was entered. Nor do we believe that King v. King, 25 Wis.2d 550, 131 N.W.2d 357 (1964), Weichman v. Weichman, 50 Wis.2d 731, 184 N.W.2d 882 (1971) and Schmitz v. Schmitz, 70 Wis.2d 882, 236 N.W.2d 657 (1975) require a judicial investigation and evidentiary hearing in stipulated divorce cases involving families with children. King did not consider whether such investigation and hearing was necessary in an uncontested divorce case, and the portion of the opinion relied upon by the dissent in this case simply provided support for the court's conclusion that a stipulation does not bind the trial court or preclude modification of a judgment based on the stipulation.
We conclude that she cannot. ยถ 12. Lubinski, not Jenny Lubinski, has the right to physical placement with Kevin. On this point, Weichman v. Weichman, 50 Wis. 2d 731, 184 N.W.2d 882 (1971), is instructive. There, a father requested that his parents have visitation in his absence.
First, the history of visitation law in this state shows that the courts governed visitation before it was regulated by statute. Two early and frequently cited Wisconsin cases granting nonparent visitation arose when no statute authorized a court to order visitation: Weichman v. Weichman, 50 Wis.2d 731, 184 N.W.2d 882 (1971), and Ponsford v. Crute, 56 Wis.2d 407, 202 N.W.2d 5 (1972). The court concluded in these cases that although the divorce statute at issue was silent about visitation, trial courts had the power to grant visitation to nonparents.
(c) Grant reasonable visitation privileges to a grandparent of any minor child if the court determines that it is in the best interests and welfare of the child and issue any necessary order to enforce the same. The legislative history surrounding the enactment of sec. 247.24(1)(c) shows that it was the intent of the legislature merely to codify this court's decisions in Weichman v. Weichman, 50 Wis.2d 731, 184 N.W.2d 882 (1971), and Ponsford v. Crute, 56 Wis.2d 407, 202 N.W.2d 5 (1972): The supreme court established in Weichman v. Weichman, 50 Wis.2d 731, 734, 184 N.W.2d 882 (1970)[sic], and reaffirmed in Ponsford v. Crute, 56 Wis.2d 407, 415, 202 N.W.2d 5 (1972), that the court in actions affecting marriage may grant visitation privileges to grandparents and others where it is in the best interest of the child.
In other words, the visitation rights of a grandparent are not derivative. Weichman v. Weichman, 50 Wis.2d 731, 184 N.W.2d 882, 885 (1971); accord Bennett v. Bennett, 150 N.J. Super. 509, 376 A.2d 191, 193 (1977). Rather than functioning within a sub-set of parental visitation law, the grandparent's right to seek visitation under ยง 9-102 exists independently.
See e.g., Marotz v. Marotz, 80 Wis.2d 477, 486, 259 N.W.2d 524, 529 (1977); In re Stillman Goodenough, 19 Wis. 291, 296 (1865); sec. 880.155, Stats. In these situations, the children's best interests are frequently compromised for reasons of spite, hostility, or economics. Weichman v. Weichman, 50 Wis.2d 731, 734-36, 184 N.W.2d 882, 884-85 (1971). However, for the reasons stated below, we conclude that the legislature did not intend to reach into intact families to override parental determinations involving visitation privileges between their children and the grandparents.
It is true, as appellant points out, that prior to 1977, courts derived their authority to grant visitation from the custody statute then in effect, sec. 247.24, Stats., for there was at that time no specific statute dealing with visitation. Weichman v. Weichman, 50 Wis.2d 731, 734-35, 184 N.W.2d 882, 884 (1971). Because sec. 247.24(1)(b), Stats. (1975), provided that custody could be granted to a welfare agency or "a relative" if both parents were deemed unfit, the supreme court came to view the authority to grant visitation as running to "other relatives," including a child's aunts.
and failure to do so is reversible error. 43 C.J.S. Infants ยง 108, pp. 276-282, Notes 28, 32 and 33; Citizens Walgreen Drug Agency, Inc. v. Gulf Ins. Co., et al., 282 Ala. 648, 213 So.2d 841 (1968) (Property Rights); Rule 17, Rules of Alabama Civil Procedure, Title 7, Sec. 177 and 181, Code of Alabama (Recomp.); Robert W. Hansen, The Role and Rights of Children in Divorce Actions, Vol. 6, Journal of Family Law, pp. 1-14; Monroe L. Inker and Charlotte Anne Perretta, A Child's Right to Counsel in Custody Cases, 5 Family Law Quarterly, pp. 108120; Ralph J. Podell, The Why Behind Appointing Guardian Ad Litem for Children in Divorce Proceedings, Vol. 57, Marquette Law Review, pp. 103-110; William E. McDonald, A Case for Independent Counsel to Represent Children in Custody Proceedings, Vol. 7, New England Law Review, pp. 351-360; Guillermo v. Guillermo, 43 Misc.2d 763, 252 N.Y.S.2d 171; Barry v. Glynn, 59 Misc.2d 75, 297 N.Y.S.2d 786; In re Gault, 387 U.S. 1, 87 S.Ct. 1428, 18 L.Ed.2d 527; Weichman v. Weichman, 50 Wis.2d 731, 184 N.W.2d 882; Contra: Power v. Snoddy, 269 Ala. 72, 111 So.2d 14; Kennedy v. State Dept. of Pensions and Security, 277 Ala. 5, 166 So.2d 736. No brief for appellee.