Stevens Point Journal

Tue, Nov 19, 2002

Ruling sets new custody precedent

Stevens Point Journal

WAUKESHA (AP) - A person who is not a biological parent can be given custody over the natural parent, according to a state Court of Appeals ruling that has broken new ground in Wisconsin law.

The case involves Randy A. Johnson, of Pewaukee, who has custody of a 4-year-old girl he thought was his biological offspring.

His now ex-wife, Norma I. Johnson, confessed that the girl was another man's child shortly before the woman went off to prison for embezzlement in 1999.

At that point, the biological father, Brendan Brennan, tried to establish paternity and obtain custody.

He later intervened in the ensuing divorce proceedings of the couple, after the woman filed court papers saying that Brennan was the biological father.

During the divorce proceedings, genetic testing established to a 99.99 percent degree of certainty that Brennan was the father, court records show.

Still, Waukesha County Circuit Judge Lee S. Dreyfus Jr. ruled last year that it was in the best interests of the child to remain with Randy Johnson and declared him the legal father.

Dreyfus ruled that state law holds that a man is presumed to be a child's parent when the child is born to his wife, as was the case with the Johnsons. The judge ruled that genetic testing was not sufficient to override that presumption in this case.

Last week, the state Court of Appeals panel in Waukesha said that Dreyfus arrived at the correct conclusion but through the wrong manner.

Using a different law, the appeals court for the first time in Wisconsin said that Randy Johnson was entitled to be treated as the "natural father" under the "equitable parent doctrine" because he had cared for the child since her birth and had established a close bond with her.

Previously, the equitable parent doctrine had not been used in Wisconsin to award custody of a child to a nonparent, according to court records.

The doctrine extends the rights and responsibilities of a natural parent to a non-biological parent seeking custody or visitation.

Once a court determines someone to be an equitable parent, that person has the same rights and responsibilities as a biological parent.

But until now, the doctrine had been used only to award visitation to a non-parent, the appeals court said.

Brennan and Norma Johnson said they planned to appeal and hoped that the state Supreme Court would take the case. They also plan to marry.

Norma Johnson, 42, of Waukesha, was released from prison in June in connection with stealing nearly $200,000 from her employer. She used some of the money for fertility treatments before the birth of her daughter.