On Nov. 29, 2018, the Legislative Council’s Study Committee on Minor Guardianships completed their work on a proposed bill that not only moves private minor guardianships from Wis. Stat. chapter 54 to chapter 48 under Wis. Stat. section 48.9795, but expands the use of guardianship to meet the needs of children and families.
The proposed bill, AB 47, was presented to the Joint Legislative Council for approval on Feb. 13, 2019, and received a unanimous vote of support from the council.
The following is a brief summary of some of the proposed changes to incorporate private guardianships for minor children into chapter 48.
Proposed Guardianships under Chapter 48
Proposed section 48.9795 allows for any person to file for private guardianship of a minor child.
This section does not change the standard or process for appointment of guardian under chapter 48. Actions involving the guardianship of an estate of a minor child would remain under chapter 54, except that a court may consolidate both guardianship of the estate with the guardianship of the person if they are pending at the same time.
Section 48.9795 expands the types of guardianship allowed from two – temporary and permanent – to four:
A full guardianship requires the petitioner to prove that a child’s parents are unfit, unwilling, or unable to provide for the care, custody, or control of a child. There may also be compelling circumstances that demonstrate the need for a guardianship.
In addition to the prior responsibilities under chapter 54, a full guardian has the responsibility to determine reasonable visitation with the child and holds the right to change the child’s residence to another state.
A limited guardianship does not require showing that a child’s parents are unfit, unwilling, or unable to care for a child. Rather, a petitioner is required to show that a parent needs assistance in providing for the care, custody, and control of a child.
A limited guardianship will specify that decision-making powers a parent retains and which powers are transferred to a guardian. A limited guardianship may also allow for shared physical custody between the parent and guardian.
A temporary guardianship is used when a parent is unable, unwilling, or unable to care for a child, based upon the child’s particular situation, for a defined period of time. A court may appoint a temporary guardian for a child for up to 180 days. This 180-day period may be extended for additional 180 days if good cause is shown.
An emergency guardianship is used when the child’s welfare requires an immediate appointment of a guardian. The appointment is limited to 60 days, and the guardian’s authority is limited to those acts needed to resolve the emergency situation.
Procedural Changes to Minor Guardianships under Chapter 48
Private guardianships of children, once they are included in chapter 48, will follow the familiar bifurcated process of most chapter 48 actions. A fact-finding hearing must occur within 30 days of the plea hearing, and the petitioner must prove the allegations in the petition by clear and convincing evidence to the court. There are no jury trials.
Once the allegations are proven, the matter proceeds to a second phase where the court determines the appropriate disposition, by considering:
any nomination or opinions as to what is in the child’s best interests made by a parent or child;
whether the proposed guardian would be fit, willing, and able to serve as the child’s guardian;
whether the child is an Indian child and subject to placement preferences required for an Indian child; and
whether the appointment of the guardian is in the child’s best interests.
Changes to the Role of Guardian ad Litem
In addition to the responsibilities listed in Wis. Stat. section 48.235 (3), a guardian ad litem is required to conduct diligent investigation sufficient to represent the best interests of the child. This could include, personally or through a trained designee, observing the child, and, if age-appropriate, interviewing the child to determine the child’s goals and concerns regarding the proposed guardianship.
A guardian ad litem could visit the proposed guardian’s home and also, to the extent necessary, inspect reports and records relating to the child, child’s family, and the proposed guardian, including law enforcement and child protection records.
Under the proposal, the guardian ad litem could no longer rely on a child welfare agency to do a home study to obtain this information.
Other Proposed Changes to Minor Guardianships
In this proposal, the interests of the public is represented by the district attorney or corporation counsel. They are required to participate when a child is receiving or in need of any public services or benefits.
The proposed legislation provides for exclusive jurisdiction over visitation privileges in private guardianship cases, including grandparent visitation. A guardian’s decision regarding visitation is presumed to be in the best interests of the child. The petitioner in a visitation dispute shall have the burden of proving, by clear and convincing evidence, that the decision of the guardian is not in the best interest of the child.
A petition for guardianship may include an application for protective placement or protective services or both under chapter 55.
The new proposal continues to allow for standby and successor guardianships, and for termination or modification of guardianship orders. But, similar to section 48.977 guardianships, it clarifies that a parent must establish a substantial change in circumstances in order to terminate the guardianship.
A Positive Change for Children
Chapter 54 has presented challenges for those who advocate on behalf of children and families. Its focus on adult guardianships makes it difficult to find solutions for children in many instances.
This legislation is a positive change and the result of substantial effort, compromise, and commitment by the study committee and the members of the Children & the Law Section who served on it.
A special thanks goes to Henry Plum, Theresa Roetter, and Meghan DeVore, who not only guided this legislation through the Children & the Law Legislative Committee but also served on the study committee.
For more information:
see a complete summary of the proceedings of the Legislative Study Committee on the Wisconsin State Legislature website;
view the committee hearings on Wisconsin Eye; and
follow the progress of AB 47 on the Legislature website.