David J. Rosecky v. Monica M. Schissel
833 N.W.2d 634
Wis.2013Background
- David and Marcia Rosecky (intended parents) entered a written Parentage Agreement (PA) with Monica and Cory Schissel where Monica would be a traditional surrogate (her egg, David's sperm) and the Roseckys would be the child’s legal parents with custody/placement. Attorneys for both sides negotiated and signed the PA before conception.
- Monica became pregnant in June 2009; she gave birth to F.T.R. on March 19, 2010. Shortly before birth she refused to terminate parental rights under the PA and later sought custody/placement.
- David obtained a paternity adjudication in Waukesha County that he is F.T.R.’s father; related custody/guardianship proceedings proceeded in Columbia County where the circuit court suppressed the PA, found the PA unenforceable, and after trial awarded custody/primary placement to David and secondary placement to Monica.
- The circuit court held the PA’s termination-of-parental-rights (TPR) terms could not be enforced because statutory safeguards for voluntary TPR (§ 48.41) were not met; it declined to sever provisions and excluded the PA from the custody trial.
- The Wisconsin Supreme Court accepted certification and reversed: it held the PA (except for the TPR provisions) is a valid, enforceable contract unless enforcement would be contrary to the child’s best interests, and remanded for custody/placement determinations that take the PA into account.
Issues
| Issue | Rosecky (Plaintiff) Argument | Schissel (Defendant) Argument | Held |
|---|---|---|---|
| Enforceability of Parentage Agreement (PA) | PA is a valid contract; public policy favors enforcement for stability and predictability; sever unenforceable TPR clause if needed. | PA violates public policy/statutory schemes governing custody, adoption, and TPR; payments/adoption-like provisions illegal; parties can withdraw before court approval. | PA is a valid, enforceable contract except that provisions requiring voluntary TPR are unenforceable under Chapter 48; remaining terms may be enforced unless contrary to child’s best interests. |
| Severability of TPR provisions | Severability clause permits cutting TPR provisions while enforcing custody/placement terms. | PA as whole conflicts with statutory safeguards so should not bind custody decisions. | TPR provisions are severable; severing them does not defeat the PA’s primary purpose, so custody/placement provisions may stand. |
| Admissibility and consideration of PA in custody trial | PA is relevant to statutory custody factors (Wis. Stat. § 767.41(5)(am)), and should be admitted and considered. | Court must apply custody statutes and best-interests analysis; PA cannot bind court or preclude future modification. | Trial court erred in excluding the PA; custody/placement decision must consider the PA (subject to best-interest analysis). |
| Standard for custody/placement when PA exists | Enforce PA terms unless enforcement would be contrary to child’s best interests. | Custody statutes (Chapter 767) govern; court must weigh PA among § 767.41(5) factors — PA cannot override child’s best interests or statutory scheme. | Court holds PA enforceable except TPR terms, and directs remand for custody/placement where PA terms are to be enforced unless doing so would be contrary to the child’s best interests. |
Key Cases Cited
- Schlosser v. Allis-Chalmers Corp., 86 Wis. 2d 226 (Wis. 1978) (contract-formation and de novo review principles)
- Watts v. Watts, 137 Wis. 2d 506 (Wis. 1987) (freedom of contract and public-policy voiding standard)
- Goossen v. Estate of Standaert, 189 Wis. 2d 237 (Ct. App. 1994) (elements of a contract)
- Simenstad v. Hagen, 22 Wis. 2d 653 (Wis. 1964) (severability of illegal contract provisions when primary purpose remains intact)
- Baierl v. McTaggart, 245 Wis. 2d 632 (Wis. 2001) (severability analysis and weight of severability clauses)
- Holtzman v. Knott, 193 Wis. 2d 649 (Wis. 1995) (courts may rely on equitable powers for visitation and co-parenting agreements)
- Johnson v. Calvert, 851 P.2d 776 (Cal. 1993) (parental intent in surrogacy disputes)
- Baby M., 537 A.2d 1227 (N.J. 1988) (traditional surrogacy agreement held contrary to public policy)