Previously in this blog, Beth Lauck wrote the first part of a two-part series on the substantive changes in Wisconsin’s new guardianship law, effective Aug. 1, 2020.
As she detailed, there are four new guardianship types, each with different legal burdens, different transferred duties, and differences in whether the guardianship is until age 18, or some other timeline.
There are also notable changes to nominations, review of conduct and visitation burdens, and new requirements added to guardianships, including cases subject to the Indian Child Welfare Act (ICWA).
Attorneys handling minor guardianship proceedings should be looking at their office procedures to prepare for the Aug. 1 change in Wisconsin guardianships. The transition can and will be easier if practitioners, judges, and clerk’s offices look into necessary changes ahead of time.
Considerations for Guardians ad Litem
The role of the guardian ad litem is substantially expanded in the new statutory scheme. The new statute requires guardians ad litem to meet with more people and obtain records from more sources.
Under the new law, the guardian ad litem or a trained designee must meet with the child, the proposed guardian, and any “interested person” as defined in Wis. Stat. section 48.9795(1)(a), “as appropriate to the circumstances.”1
Thus, the circumstances of each case will dictate how many people the attorney needs to meet with. In any given case, the guardian ad litem may need to meet with:
the child, if over 12;
the child’s parent, guardian, or legal or physical custodian;
any alleged father; any person nominated as guardian or successor guardian; any person nominated to act as a fiduciary for the child in a will or other written instrument, if the parents are deceased;
if the child is an Indian child, the Indian custodian or Indian tribe; and
the county department, if the child receives or is in need of public services or benefits.2
The new law specifically states that a diligent investigation will include: “personally or through a trained designee, meeting with or observing the child, meeting with the proposed guardian, meeting with interested persons, and visiting the homes of the child and the proposed guardian.”3
In most cases, this will likely include meeting with the child, the proposed guardian, the child’s parents, and visiting at least one home if the child is already in the physical custody of the proposed guardian. This level of involvement may be more than a practitioner is used to having in minor guardianship cases, but should become the new normal for minor guardianship cases going forward.
Further, guardians ad litem must request records from a number of sources “to the extent necessary to fulfill [their] duties and responsibilities.”4 These sources include:
law enforcement reports and records;
court records under chapters 48 or 938;
social welfare agency records;
abuse and neglect records;
mental health records; and
health care records.5
Notably, this statute provides that the court shall include language sufficient to release these records in the order appointing the guardian ad litem.6
Practitioners acting as guardians ad litem around Wisconsin should work on contacting county stakeholders in securing lines of communication to timely receive records. For instance, identifying a point-person for records requests with local schools, police, and child protective services could streamline the intake process for a guardian ad litem in opening their file and receiving records before the initial appearance on a minor guardianship.
Further, where possible, practitioners should contact local courts to ensure that new language ordering the release of records is added to consent to act forms or appointment orders.
Guardians ad litem have some new responsibilities to keep in mind, as well. For instance, a child no longer needs to attend the hearing, even if they are nominating a guardian. However, any child 12 years or older looking to nominate a guardian must give the guardian ad litem sufficient information about that nomination to prove that the nomination is in the child’s best interests. Gathering this information during a visit will now be essential to the guardian ad litem’s preparation for court.
Finally, guardians ad litem should be mindful of the specific requirements of an emergency guardianship. Emergency guardianships are one of the four types of guardianships under the new law, and when an emergency guardianship is sought, the court must find that the child’s welfare requires the immediate appointment of a guardian and may only transfer powers reasonably related to the need for appointment, which can only last for 60 days.7
The court can appoint an emergency guardian without a hearing, or until a hearing can be held.8 The language in the statute notes that a court shall attempt to appoint a guardian ad litem prior to any hearing on the petition, but “may appoint the guardian ad litem after the hearing if the court finds that exigent circumstances require the immediate appointment of an emergency guardian.”9
Where attorneys find themselves appointed after an emergency guardianship has already been granted, guardians ad litem should still investigate diligently and file a petition for reconsideration or modification if the appointment of guardianship was not in the best interests of the child.10
Special Considerations Due to Relocation to Chapter 48
The relocation of private minor guardianships to Wis. Stat. chapter 48 has implications beyond changes in the guardianship types and the general process.
Practitioners may be able to use other provisions in chapter 48 in favor of their clients and wards in these cases, and in other circumstances may be restricted by provisions in chapter 48. Practitioners should consider how the new statutory scheme interacts with guardianships filed under Wis. Stat. section 48.977, how time limits may be construed, how ICWA will impact a private guardianship petition, and how discovery will proceed in private guardianship cases.
Guardianships filed under section 48.977 can now be filed under a full guardianship or limited guardianship.11 Practitioners in CHIPS proceedings should assess in chapter 977 guardianship cases whether the circumstances warrant shared custody between the parent(s) and guardian, and particularly guardians ad litem should assess and make their best interests recommendations accordingly.
Practitioners and judicial officials should note that the new law expressly prohibits the use of a guardianship to modify a CHIPS case.12 Any petition for full, limited, or temporary guardianship filed against an open CHIPS case must be stayed by statute.13 Emergency guardianships may be filed, but they cannot seek to change the placement of a child in a pending CHIPS matter.14
Further, in moving private minor guardianships to chapter 48, there are other statutes that may apply to private minor guardianships that did not previously. For instance, in Wis. Stat. section 48.9795, the initial appearance must occur within 45 days of filing the petition, and if contested, the guardianship fact-finding hearing must be conducted within 30 days of the initial appearance. However, with minor guardianships now proceeding under chapter 48, there is a potential that Wis. Stat. section 48.315 applies to toll the time limits on these hearings.
On the flip side, the legislature was careful to keep discovery procedures of chapter 48 from applying to guardianships. Wis. Stat. section 48.293 was revised in the same act as the new guardianship law to affirmatively exclude Wis. Stat. sestoin 48.9795 guardianships from discovery entitlements for records from Child Protective Services or the county department. Attorney practitioners should not rely on getting records from welfare investigations, and should look to their clients for information supporting the guardianship instead.
Finally, the ICWA now expressly applies to private minor guardianships. The petition must now state whether ICWA applies, and the statutory dispositional factors require the court to make a finding as to whether the child is an Indian child, and if so, whether placement preferences are satisfied.15 Petitioners and guardians ad litem should inquire early into whether ICWA applies to assess the case under the placement preferences.
Global Considerations and Conclusion
Practitioners, court administration, and judicial officials should be mindful of these changes going into the Aug. 1 transition. Not only will the procedures and standards for these proceedings change under the new law, but attorneys practicing around the state may experience some growing pains while trying to streamline records requests and investigations in private minor guardianships. Particularly noting the COVID-19 pandemic, some of these changes may be difficult to implement.
Practitioners can ease some burdens in this transition if they begin to act now. Court administration and stakeholders should revise Consent to Act and Orders Appointing Guardian ad Litem ahead of time to reflect the statutorily required language to release records to the appointed attorney. Practitioners and guardians ad litem should change their office procedures to prepare to gather additional records, and identify contacts that can process expedited records requests.
Overall, this law has some hurdles to clear before it can meet its full potential, but ultimately, this law aims to serve the particular and messy needs of children and families with unique circumstances and experiences. Practitioners around the state will serve these children and families well by being as prepared for the changes as possible.
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 Wis. Stat. § 48.9795(3)(b).
2 Wis. Stat. § 48.9795(1)(a).
3 Wis. Stat. § 48.9795(3)(b).
4 Wis. Stat. § 49.9795(3)(c).
5 Id. Practitioners should view this statute for specific definitions of these different record sources.
7 Wis. Stat. § 48.9795(6)(a).
8 Wis. Stat. § 48.9795(6)(b)(4).
9 Wis. Stat. § 48.9795(6)(b)(3).
10 See id.
11 See Wis. Stat. § 48.977(5)(a)-(b).
12 Wis. Stat. § 48.9795(2)(b)(2).
15 Wis. Stat. § 48.9795(4)(g)(3).