On Feb. 28, 2020, Governor Tony Evers signed AB 47 – now
2019 Wisconsin Act 109 – into law, which moves private guardianships of the child from chapter 54 to chapter 48, the Children’s Code, and expands the types of private minor guardianships available to better meet the needs of children and families.
The new law takes effect Aug. 1, 2020. The Children and the Law Section legislation committee helped draft the legislation and the section supported the bipartisan bill.
The Need for Private Minor Guardianships
One in 11 children today will be raised by someone other than a parent at some point before turning 18.1 Most of these children are taken in by relatives or close family friends without the support of the formal child welfare system. For every one child in the formal foster care system, there are 19 children being raised by grandparents or other relatives outside of the formal foster care system.2
Beth Lauck, Loyola University Chicago 2007, is a staff attorney with Kids Matter, Inc.,
in Milwaukee, where she represents petitioners in private minor guardianship proceedings.
When safe and willing relatives step forward to care for a child, often child protective services will not become involved.
Parental substance abuse, untreated mental health, death, or incarceration are common reasons that cause relatives to come forward. In recent years, the opioid epidemic and increases in methamphetamine abuse have only increased the number of children living with someone other than a parent. Sometimes an informal arrangement between parents and a caregiver is enough. However, without a legal relationship, the caregiver is not able to consent for the child’s educational, medical, and other needs when the parent is unable, so a minor private guardianship is needed.
Challenges Under Chapter 54
Minor private guardianships of both the person and estate currently fall under Wis. Stat. chapter 54. Chapter 54 focuses mostly on guardianships for incompetent and spendthrift adults, and many of the provisions are difficult to apply in the context of children and families.
Under chapter 54, only two types of private guardianship exist: temporary and permanent. Temporary is for 60 days, and can be extended one time for “good cause” for a total of 120 days.3
Permanent guardianships do not have specific end dates. By statute, a permanent guardianship terminates when the child turns 18, marries, dies, or changes residence to another state and a guardian is appointed in the new state of residence.4
Additionally, chapter 54 does not provide for shared decision-making or custody between a parent and guardian. Many families’ situations – such as when a parent is incarcerated, or struggles with substance abuse or untreated mental health and needs time to stabilize – require guardianship for a time between 60 days (or the maximum of 120 days) and the child turning 18, or could benefit from shared decision-making or custody between a parent and guardian. However, neither option is available under chapter 54.
Additionally, under chapter 54 the standard applied in determining whether a guardianship is needed is not statutorily defined. Instead, the seminal Wisconsin Supreme Court guardianship case of Barstad v. Frazier is applied.
Under Barstad, the court may not impose a guardianship upon a fit and willing parent.5 A parent is entitled to custody of his or her children unless the parent is either unfit or unable to care for the children or there are other compelling reasons. Compelling reasons include abandonment, persistent neglect of parental responsibilities, extended disruption of parental custody, or other similar extraordinary circumstances that would drastically affect the welfare of the child. Only after the court finds such compelling reasons may it award custody to a third party, if the best interest of the child would be promoted.
Parents may petition the court to end the guardianship prior to the child turning 18 on the basis that they are fit, suitable, and willing to resume exercising responsibility for the child, and termination is in the child’s best interest. This procedure is not statutorily defined under chapter 54 and the Barstad standard is also applied to guardianship terminations. However, the statute is silent and case law unclear on whether the guardian or parent has the burden of proof in termination proceedings causing much inconsistency in practice.
Given the difficult burden under Barstad, caregivers are often reluctant to move forward with a guardianship petition or fight a guardianship termination, fearing that they do not have enough evidence to prove unfitness, nor do they want a protracted legal proceeding to jeopardize the relationship with the parent.
Parents are hesitant to consent to a “permanent” guardianship that is potentially in place until the child is 18 and does not allow for shared decision-making, afraid of the long-term impact on their rights.
However, without a legal relationship in place between the child and caregiver, children are left in “legal limbo,” with the caregiver having difficulty obtaining necessary medical and educational services for the child and keeping the child safe when the parent is unable.
Summary of Changes Under Chapter 48
The new law moves minor private guardianships of the person from chapter 54 to chapter 48, the Children’s Code, and creates Wis. Stat. section 48.9795, Appointment of guardian of the person for a child.
Private guardianships of the estate for children remain under chapter 54. The new section does not change the standard or process for public chapter 48 guardianships when a child is involved in the formal child welfare system.
Four Types of Guardianships
Section 48.9795 expands the types of private guardianships of the person for children, available from only temporary and permanent guardianship to four types: emergency, temporary, limited, and full. The new law also provides a statutory framework for each type of guardianship, and makes clear the rights and duties transferred to the guardian based on the type of guardianship granted.
Emergency guardianships may not exceed 60 days, and the guardian’s authority shall be limited to the required acts that are reasonably related to the reasons for the appointment that are specified in the petition.6 For example, an emergency guardianship may be used so the caregiver can consent for a medical procedure when the parent is unavailable or unable.
Temporary guardianships may not exceed 180 days, and may be extended for an additional 180 days if good cause is shown.7 The petitioner must show that a child’s particular situation, including the inability of the child’s parent to provide for the care, custody, and control of the child for a period of time, requires the appointment of a temporary guardian.8
A limited guardianship requires that the petitioner show that a parent needs assistance in providing for the care, custody, and control of the child. The petition must include a statement of the specific parental rights and duties that the petitioner seeks to have transferred.9 The parent may retain certain decision-making powers. A limited guardianship may also allow for shared physical custody between the parent and guardian. The court shall set an expiration date for a limited guardianship order, which may be extended for good cause shown.10
A full guardianship requires a petitioner to prove that a child’s parents are unfit, unwilling, or unable to provide care for the child, or other compelling reasons exist demonstrating that a full guardianship is necessary (Barstad standard).11
The guardian has duties and authority specified in section 48.023, which includes the duty and authority to make important decisions in matters having a permanent effect on the life and development of the child, and the duty to be concerned about the child's general welfare, including the authority to consent to marriage, enlistment in the U.S. armed forces, major medical, psychiatric and surgical treatment, and obtaining a motor vehicle operator's license.12
Full guardianship is in place until the child turns 18, although the parent may petition to reverse the full guardianship if he or she can show a substantial change in circumstances, that he or she is fit, willing, and able to carry out the duties of the guardian, or that no compelling facts or circumstances exist and that termination is in the child’s best interest.13
Under the new law, a parent retains the rights and duties that are not assigned to the guardian, and the guardian acting on behalf of a child may exercise only those powers that the guardian is authorized to exercise by statute or court order.14
In addition to expanding the types of guardianships available for children from two to four, there are other substantive and procedural changes under the new law that provide clarity to the private guardianship process for children.
These changes include:
Under the new law, private guardianship proceedings for children follow the same bifurcated process of most chapter 48 proceedings when a child is involved in the formal child welfare system. The petitioner must prove the allegations in the petition by clear and convincing evidence. Once the allegations are proven, the matter proceeds to a second phase, where the court determines whether the guardianship is in the child’s best interest – taking into consideration any nominations made by a parent or child over the age of 12, and whether the proposed guardian is fit, willing, and able to serve as the child’s guardian.
The new law better defines an interested person, who is entitled to notice of the hearing, to include the child’s parent, guardian, legal or physical custodian, the child if age 12 or older, the child’s guardian ad litem and counsel, any individual who is nominated as guardian or as successor guardian, and any person who has filed a declaration of paternal interest, who is alleged to the court to be the father of the child, or who may be the father of the child. Chapter 54 did not specify that notice needed to be given to alleged fathers, and the practice varied. It is also important to note that the new law changes the age a child is entitled to notice from age 14 to 12.
Under the new law, the timeframe for notice changes from 10 to seven days before the hearing.15 Similar to chapter 54, personal service is not required, but notice must be in writing with a copy of the petition attached and by personal service or certified mail to the last known address.
The new law clarifies the timeframe for guardianship hearings. Under chapter 54, the hearing must be heard within 90 days of filing. However, it was unclear if that meant that the proceeding must be completed within 90 days or only the initial hearing held within 90 days. Under the new law, the initial hearing shall be heard within 45 days. If the petition is contested, the judge will set a contested hearing, which must be scheduled within 30 days of the initial hearing.16
The new law provides a statutory framework for guardianship terminations, including making clear which party has the burden of proof. Under the new law, the petitioner has the burden of proof, and must show that there has been a substantial change in circumstances since the last order affecting the guardianship was entered, that the parent is fit, willing, and able to carry out the duties of a guardian, or that no compelling facts or circumstances exist demonstrating that a guardianship is necessary, and that termination of the guardianship would be in the best interests of the child.17
Under the new law, a guardian has the authority to determine reasonable visitation with the child.18 The petitioner in a visitation dispute shall have the burden of proving that the decision of the guardian is not in the child’s best interest.
Conclusion: New Clarity
The new law provides clarity and resolves challenges families faced under chapter 54.
With additional guardianship options available and statutorily prescribed standards, burdens of proof, and procedures, the new minor private guardianship law improves the legal process for meeting the needs of children when parents are unable. The law is a victory for children and families.
This article was originally published on the State Bar of Wisconsin’s Children & the Law Section Blog. Visit the State Bar sections or the Children & the Law Section web pages to learn more about the benefits of section membership.
1 See The Annie E. Casey Foundation, What is Kinship Care?
2 See Generations United, Raising the Children of the Opioid Epidemic: Solutions and Supports for Grandfamilies.
3 Wis. Stat. § 54.50.
4 Wis. Stat. § 54.64(3).
5 Barstad v. Frazier, 118 Wis. 2d 549, 348 N.W.2d 479 (1984).
6 Wis. Stat. § 48.9795(6).
7 Wis. Stat. § 48.9795(5)(a).
8 Wis. Stat. § 48.9795(2)(d)3.
9 Wis. Stat. § 48.9795(4)(b)5.
10 Wis. Stat. § 48.9795(2)(d)2.
11 Wis. Stat. § 48.9795(4)(b)4.
12 Wis. Stat. § 48.9795(2)(d).
13 Wis. Stat. § 48.9795(11)(b).
14 Wis. Stat. § 48.9798(2)(d)5.
15Wis. Stat. § 48.9795(4)(c).
16 Wis. Stat. § 48.9795(4)(e).
17 Wis. Stat. § 48.9795(11)(b).
18 Wis. Stat. § 48.9795(2)(d)1.