One in 11 children today will be raised by someone other than a parent at some point before turning age 18.¹ For every one child in the formal foster care system, there are 19 children being raised by grandparents or other relatives outside the formal foster care system.² Sometimes an informal arrangement between parents and a caregiver is enough or a power of attorney under Wis. Stat. section 48.979 suffices. 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 or unavailable, so a private minor guardianship is needed.

A New Law Better Meets the Needs of Children and Families

On Feb. 28, 2020, Gov. Tony Evers signed into law 2019 Wis. Act 109, which moves private minor guardianships of the person from Wis. Stat. chapter 54 to Wis. Stat. 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 took effect on Aug. 1, 2020. This article addresses the history of guardianship law in Wisconsin, including the challenges under Wis. Stat. chapter 54 as it applied to children and families, and provides an overview of the changes under the new law.

History of Guardianship Law and Challenges Under Wis. Stat. Chapter 54

Private guardianships of the person and estate for both adults and children formerly fell under Wis. Stat. chapter 880, which was created in 1971. In 2005, 2005 Wis. Act 388 replaced Wis. Stat. chapter 880 with Wis. Stat. chapter 54 (hereinafter chapter 54). Chapter 54 focuses mostly on guardianships for incompetent and “spendthrift” adults, and, therefore, many of the provisions were difficult to apply in the context of children and families.

Under chapter 54, only two types of private minor guardianships of the person existed: temporary and permanent. Temporary guardianships lasted 60 days and could be extended one time for “good cause” for a total of 120 days.³ Permanent guardianships terminated when the child turned 18, married, or died, or changed residence to another state and a guardian was appointed in the new state of residence.

The standard applied in determining whether a private minor guardianship is needed for children and for terminating a guardianship once granted were not statutorily defined under chapter 54. The seminal Wisconsin Supreme Court guardianship case, Barstad v. Frazier, was applied to both guardianship appointments and terminations. Under Barstad, the court may not impose a guardianship upon a fit and willing parent.⁴ The statute was silent regarding who had the burden of proof in guardianship terminations.

Chapter 54 was also silent on many issues that affect children and families in the context of private minor guardianships of the person, including the following:

• Can a guardian move out of state?

• Who decides visitation once the guardianship is granted?

• Can guardianship be limited to certain duties and powers such as under Wis. Stat. section 48.977?

• Are alleged fathers entitled to notice?

• Can a guardianship proceeding be stayed pending the outcome of a paternity proceeding?

• Can the time frame to complete a guardianship proceeding (90 days under chapter 54) be extended for good cause?

Summary of Changes under Wis. Stat. Section 48.9795

The new law moves private minor guardianships of the person from chapter 54 to Wis. Stat. chapter 48 (hereinafter chapter 48) 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 guardianships under Wis. Stat. sections 48.831 and 48.977 when the child is involved in the formal child welfare system.

However, as is discussed below, the new law does have implications for children involved in the child welfare or juvenile justice systems with cases pending under Wis. Stat. sections 48.13, 48.133, or 48.14(1) to (10) or (12) or chapter 938. Any private minor guardianship of the person filed on or after Aug. 1, 2020, falls under the new law. For existing private minor guardianships granted under chapter 54, the new law applies to post-appointment matters filed after Aug. 1, 2020.

Definition of Guardianship

The definition of guardianship under the new law is consistent with the definition that already existed under Wis. Stat. section 48.023. Under the new law, all duties and authorities under Wis. Stat. section 48.023 are available to a guardian, including 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. The authorities include but are not limited to the authority to:

• consent to marriage;

• enlist in the armed forces;

• consent to major medical, psychiatric, and surgical treatment;

• obtain a motor vehicle license;

• represent the child in legal actions; and

• carry out the rights and duties of legal custody.⁵

There are two additional rights under Wis. Stat. section 48.9795: the right to change the child’s residence out of state and the authority to determine reasonable visitation with the child.⁶

Four Types of Guardianships under Wis. Stat. 48.9795

The new law expands the types of private guardianships of the person for children available from only temporary and permanent guardianships 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 cannot exceed 60 days, and the guardian’s authority must be limited to required acts that are “reasonably related” to the reasons for the appointment that are specified in the petition.⁷ The petitioner must show facts and circumstances establishing that the welfare of the child requires the immediate appointment of an emergency guardian.⁸

Temporary guardianships cannot exceed an initial term of 180 days and may be extended for an additional 180 days if good cause is shown.⁹ 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.¹⁰

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.¹¹ The parent might retain certain decision-making powers, and a limited guardianship also can allow for shared physical custody between the parent and the guardian. The court must set an expiration date for a limited guardianship order, which may be extended for good cause shown.¹²

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 that other compelling reasons exist demonstrating that a full guardianship is necessary (Barstad standard).¹³ The guardian has all duties and authority specified in Wis. Stat. section 48.023.¹⁴ Full guardianship is in place until the child turns 18.

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 can exercise only those powers that the guardian is specifically authorized to exercise.¹⁵

In determining which type of guardianship is appropriate, petitioners should consider how long they expect to have to care for the child and the decisions that they will need to make while the child is in their care.

Emergency Guardianship Procedures

Emergency guardianships are outlined in Wis. Stat. section 48.9795(6). The petitioner must file a petition requesting an emergency guardianship (Form JN-1501). The notice and service requirements are different than with the other three types of guardianship. The statute allows for notice by the most “practical means” possible, including personal service or service by email or telephone.¹⁶ Arguably, “practical means” could also include service by fax or social media.

Under the new law, a hearing will be held “as soon as possible.” When good cause is shown, the judge can order a temporary emergency order before a hearing.¹⁷

Any interested party can petition the court for reconsideration of the appointment of the guardian or a modification of the order. A hearing will be held within 30 days after the filing of the petition.¹⁸

An emergency guardianship cannot exceed 60 days and will automatically expire at the end of 60 days or a shorter period set by the court.¹⁹ If additional decision-making is needed beyond the 60 days, then any person can file for temporary, limited, or full guardianship. The statute does not allow for an emergency guardianship to be extended, but the statute also does not prevent the immediate filing of another emergency guardianship.

Temporary, Limited, and Full Guardianship Procedure

The procedures for temporary, limited, and full guardianship are the same and are outlined in Wis. Stat. section 48.9795(4).

The process begins with the filing of a petition for guardianship (Form JN-1501). If the child is an Indian child and subject to the Indian Child Welfare Act (ICWA) and Wis. Stat. section 48.028, the petitioner uses Form IW-1501 instead. The petition’s contents are outlined in Wis. Stat. section 48.9795(4)(b). Any person may petition the court for the appointment of a guardian.²⁰

The petition is filed in the child’s county of residence or the county in which the child is physically present, or if the child is a nonresident, the county in which the petitioner proposes the child reside.²¹ These venue requirements will not defeat the Uniform Child Custody Jurisdiction and Enforcement Act (UCCJEA) provisions. Petitioners still must complete and file the Uniform Child Custody Jurisdiction and Enforcement Act Affidavit (Form GF-150).

Service and Notice Requirements. Service and notice requirements are outlined in Wis. Stat. section 48.9795(4)(c). The petitioner is responsible for sending notice prior to the initial hearing to all interested persons.²² The new law outlines interested persons entitled to notice under Wis. Stat. section 48.9795(1)(a). If the child is an Indian child, notice and service provisions under Wis. Stat. section 48.028(4)(a) apply.

There are two notable changes in the definition of “interested person.” First, the new law includes alleged fathers and anyone who has filed a declaration of paternal interest under Wis. Stat. section 48.025. The new law makes clear that if an alleged father appears and wishes to establish paternity, a temporary guardianship can be ordered pending the outcome of the paternity proceedings.²³ Second, the new law includes children age 12 or over within the definition of “interested person,” thus entitling them to notice.²⁴

Statement by Proposed Guardian. The Statement by Proposed Guardian is a new requirement in Wis. Stat. section 48.9795(4)(d) and replaces the Statement of Acts required under chapter 54. The statement includes information about the number of persons for whom the proposed guardian is responsible, the proposed guardian’s financial situation, and whether the proposed guardian has any criminal or child protective services history. The Statement by Proposed Guardian must be in writing and be sworn and notarized. It must be filed at least 96 hours before the initial hearing.

Timeframe. Under the new law, an initial hearing must be held within 45 days. If the petition is contested or any party requests an adjournment, the judge will set a contested hearing within 30 days after the initial hearing.²⁵

Fact-finding and Dispositional Hearings. Under the new law, private guardianship proceedings for children follow the same bifurcated process of most chapter 48 actions and include a fact-finding and dispositional hearing.²⁶ At the fact-finding hearing, the petitioner has the burden to prove by clear and convincing evidence the allegations in the petition.

After the fact-finding hearing, the court proceeds to the dispositional hearing. The dispositional factors are outlined in Wis. Stat. section 48.9795(4)(g). The best interests of the child as determined by the court shall control in making the determination. The court considers the following: nominations by the child or the parent; whether the proposed guardian is fit, willing, and able to serve as guardian of the child; and whether the appointment of the proposed guardian is in the child’s best interest.

At the conclusion of the hearing, the court may dismiss the petition if it finds that the petitioner has not proven the allegations by clear and convincing evidence or that appointment of the proposed guardian as the child’s guardian is not in the child’s best interests. If the court finds that the allegations have been proven and that there is a need for a guardianship but that the proposed guardian is not fit, willing, and able to serve as the child’s guardian, the court may adjourn the proceedings for not more than 30 days to allow the petitioner or any other party to nominate a new proposed guardian.²⁷

The statute does not specifically address whether a limited or temporary guardianship can be granted if the petitioner has requested a full guardianship and not met the standard for full guardianship but has met the standard for a limited or temporary guardianship.

Considerations for Guardians ad Litem

The role of the guardian ad litem is substantially expanded in the new statutory scheme. Chapter 48 requires guardians ad litem to meet with more people and to obtain records that were not identified in chapter 54.

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.”²⁸

The new law directly suggests 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.”²⁹ In most cases, this will include meeting with the child, the proposed guardian, and the child’s parents and visiting at least one home. This implied requirement might be more than a lawyer is accustomed to and should be accounted for in minor guardianship cases.

Further, guardians ad litem must request records from a number of sources “to the extent necessary to fulfill [their] duties and responsibilities.”³⁰ These sources of records include law enforcement reports and records, court records under chapter 48 or Wis. Stat. chapter 938, social welfare agency records, abuse and neglect records, pupil records, mental health records, and health care records. Notably, this statute provides that the courts must include language sufficient to release these records in the order appointing the guardian ad litem.

Guardians ad litem around Wisconsin should work on contacting county stakeholders in securing lines of communication to receive records on time. For instance, identifying a point person for records requests with local schools, police, and child protective services agencies could streamline the intake process for a guardian ad litem in creating a file for a child and receiving records expeditiously before the initial appearance. Lawyers should contact local courts to ensure new language ordering release of records is added to consent-to-act forms or appointment orders.

Guardians ad litem have other facts to consider now, too. For instance, a child no longer needs to attend the hearing, even if the child is nominating a guardian.³¹ However, any child 12 years old or older who would like 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 investigation.

Finally, guardians ad litem should keep in mind the new protocol for emergency guardianships. As discussed earlier, emergency guardians may be appointed by the court without a hearing or until a hearing can be held.³² The language in the statute notes that a court must attempt to appoint a guardian ad litem before 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.”³³ Lawyers who are appointed as guardians ad litem after an emergency guardianship already has been granted 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, or if a more extensive guardianship is necessary or appropriate.³⁴

Post-appointment Matters

Similar to under chapter 54, once a guardianship is granted, the court maintains continuing jurisdiction over the guardian.³⁵ Guardians are required to notify the court of any change of address (Form JN-1552) and file an Annual Report on the Condition of the Child (Form JN-1550).³⁶ Because some counties have waived this requirement, guardians should check with their county clerk’s office to find out if filing an annual report is required.

Any interested person can file a petition to review the guardian’s conduct (Form JN-1560). Grounds for court action against a guardian include 1) abusing or neglecting the child or knowingly permitting others to do so; 2) failing to disclose information that would have prevented appointment (such as financial information or criminal or child protection services history); 3) failing to comply with the court’s order; or 4) failing to perform any of the duties as guardian, including not allowing reasonable visitation with the parent. The petitioner’s burden is clear and convincing evidence. The court can either remove the guardian and appoint a successor guardian, order the guardian to carry out the duties, or modify the guardian’s duties.³⁷

Any interested person can also file to modify an existing emergency, limited, temporary, or full guardianship (Form JN-1540) and must show by clear and convincing evidence that there has been a substantial change in circumstances since the last order was granted and that modification is in the best interests of the child.³⁸

A parent or a child age 12 or older can petition to terminate a guardianship. The new law makes clear that the petitioner has the burden of proof and must show by a preponderance of evidence that 1) there has been a substantial change in circumstances since the last order affecting the guardianship was entered; 2) 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 3) termination of the guardianship would be in the best interests of the child.³⁹

A successor guardian can be named and appointed at the time of the initial guardianship petition or any time thereafter.⁴⁰ A guardian may also submit a resignation. Anecdotally, under chapter 54, guardianship resignations were often not accepted unless there was an appropriate proposed successor guardian. Petitioners should keep this in mind, especially when requesting full guardianship, because withdrawing as a guardian is usually not as simple as submitting a piece of paper to the court resigning.

Special Considerations under Chapter 48

Because of the transfer of private minor guardianships to chapter 48, other statutes might apply to private minor guardianships that did not previously. For instance, as discussed above, Wis. Stat. section 48.9795(4)(e) contains specific time limits that apply to the initial appearance and any contested matters. However, with minor guardianships now proceeding under chapter 48, there is nothing to indicate that Wis. Stat. section 48.315 does not apply to the time limits in these hearings. Thus, arguably, if lawyers or courts need more time to allow for discovery, investigation, and calendaring, time limits can be tolled for good cause.

Also, lawyers unfamiliar with chapter 48 will need to learn about the interplay of the chapter and the rules of evidence. Under chapter 54, the rules of evidence always applied to the entire proceeding if the proceeding was contested; however, under chapter 48, only fact-finding hearings must comply with the Wisconsin Rules of Evidence.⁴¹ With the new bifurcated proceeding, the dispositional phase – as well as any postjudgment matter – is governed by Wis. Stat. section 48.299(4)(b), which limits the applicability of the rules of evidence. Among other evidentiary exceptions, this notably means that hearsay can be admitted if it has “demonstrable circumstantial guarantees of trustworthiness.”

CHIPS Cases under Wis. Stat. Section 48.13. The new private minor guardianship law expressly prohibits the use of a guardianship to modify a child in need of protection or services (CHIPS) order.⁴² The proposition that guardianships should not be allowed to undermine a CHIPS case historically came from case law that considered the paramount jurisdiction under chapter 48 over all cases involving children subject to CHIPS proceedings.⁴³ This idea is now codified, and the statute requires the court to stay any proceedings on full, limited, or temporary guardianships filed under Wis. Stat. section 48.9795 against a pending CHIPS or JIPS proceeding. The only exception is an emergency guardianship; however, even a petition for emergency guardianship cannot seek to change placement.⁴⁴

Given the above restrictions, it is unclear how this statutorily required stay on full, limited, or temporary guardianships will affect the use of Wis. Stat. section 48.9795 guardianships to close CHIPS cases. Wisconsin Statutes section 48.977(8) states that nothing in chapter 48 prevents a filing under Wis. Stat. section 48.9795. However, with the above limitations in Wis. Stat. section 48.9795(2)(b)2., it seems that Wis. Stat. section 48.977 will remain the best practice for closing a CHIPS case with a guardianship.

Indian Child Welfare Act

When private minor guardianships were governed by chapter 54, there was not any express statutory mandate to follow the provisions of the Indian Child Welfare Act, a federal law codified in Wisconsin and generally referred to as the Wisconsin Indian Child Welfare Act or WICWA.⁴⁵ Thus, a major change resulting from moving private minor guardianships to chapter 48 is that WICWA expressly applies to private minor guardianships. WICWA imposes additional notice requirements, allows tribes to assume jurisdiction over cases, and imposes strict placement preferences that must be followed unless good cause is established to deviate from those preferences.

In accordance with WICWA, minor guardianship petitions must now state whether the child may be subject to the act,⁴⁶ and the statutory dispositional factors require the court to make a finding as to whether the child is an Indian child.⁴⁷ By statute, a child is an Indian child if the child is 1) unmarried; 2) under 18 years old; and 3) either an enrolled member of a tribe, or eligible to enroll in a tribe and the biological child of an enrolled member or any tribe.⁴⁸ If a petitioner believes the child might be an Indian child, the petitioner has additional notice requirements in sending notice to the Indian child’s parent, Indian custodian, and Indian tribe.⁴⁹

Further, if the petitioner believes the child might be an Indian child, the petitioner must include information in the petition satisfying standards in WICWA jurisprudence, including reliable and credible information that continued custody by the Indian parent or custodian is likely to result in “serious emotional or physical damage to the child” and that active efforts were made to prevent removing the child from the parent’s care.⁵⁰

Finally, if the petitioner believes the child might be an Indian child, the petition must include – and the court must find in the dispositional phase – that any placement outside the Indian parent’s home comports with the order of placement preferences in WICWA, and if not, whether there is good cause to deviate from the placement preferences outlined in Wis. Stat. section 48.028(7)(b).⁵¹ Practically speaking, if the petitioner seeking guardianship over an Indian child is not an extended family member, the petitioner should consider whether it is possible to meet the burden of good cause to deviate from placement preferences.

The application of WICWA to private minor guardianships likely will cause some confusion for lawyers who are unfamiliar with its requirements; however, it is sure to provide safeguards to Indian children that are necessary and important to keeping Native American families intact.

Conclusion

The new private minor guardianship 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 law improves the legal process for meeting the needs of children and families.

Cite to 94. Wis. Law. 16-22 (January 2021).

Endnotes

¹ See Annie E. Casey Foundation, What is Kinship Care?, (last visited Dec. 7, 2020).

² See Generations United, 2018 Update: Raising the Children of the Opioid Epidemic: Solutions and Supports for Grandfamilies.

³ Wis. Stat. § 54.50(2).

⁴ Barstad v. Frazier, 118 Wis. 2d 549, 348 N.W. 2d 479 (1984).

⁵ Wis. Stat. § 48.9795(2)(d)1.a.; Wis. Stat. § 48.023(1)-(4).

⁶ Wis. Stat. § 48.9795(2)(d)1.b.-c.

⁷ Wis. Stat. § 48.9795(6)(a).

⁸ Wis. Stat. § 48.9795(4)(b)7.

⁹ Wis. Stat. § 48.9795(5)(a).

¹⁰ Wis. Stat. § 48.9795(2)(d)3.

¹¹ Wis. Stat. § 48.9795(4)(b)5.

¹² Wis. Stat. § 48.9795(2)(d)2.

¹³ Wis. Stat. § 48.9795(4)(b)4.

¹⁴ Wis. Stat. § 48.9795(d)1.a.

¹⁵ Wis. Stat. § 48.9798(2)(d)5.

¹⁶ Wis. Stat. § 48.9795(6)(b)2.

¹⁷ Wis. Stat. § 48.9795(6)(b)4.

¹⁸ Wis. Stat. § 48.9795(6)(b)5.

¹⁹ Wis. Stat. § 48.9795(6)(a), (d).

²⁰ Wis. Stat. § 48.9795(4)(a).

²¹ Wis. Stat. § 48.9795(2)(a).

²² Wis. Stat. § 48.9795(4)(c)1.

²³ Wis. Stat. § 48.9795(4)(e)3.

²⁴ Wis. Stat. § 48.9795(1)(a)1.a.

²⁵ Wis. Stat. § 48.9795(4)(e)1.

²⁶ Wis. Stat. § 48.9795(4)(f).

²⁷ Wis. Stat. § 48.9795(4)(h)1., (i).

²⁸ Wis. Stat. § 48.9795(3)(b).

²⁹ Wis. Stat. § 48.9795(3)(b).

³⁰ Wis. Stat. § 48.9795(3)(c).

³¹ Wis. Stat. § 48.9795(4)(e)2.

³² Wis. Stat. § 48.9795(6)(b)4.

³³ Wis. Stat. § 48.9795(6)(b)3.

³⁴ See id.

³⁵ Wis. Stat. § 48.9795(10)(a).

³⁶ Wis. Stat. § 48.9795(2)(d)1.d.

³⁷ Wis. Stat. § 48.9795(10)(b)1.-4., (d)1.-5.

³⁸ Wis. Stat. § 48.9795(9)(a).

³⁹ Wis. Stat. § 48.9795(11)(b).

⁴⁰ Wis. Stat. § 48.9795(8)(a)1.

⁴¹ Wis. Stat. § 48.299(4)(a)-(b).

⁴² Wis. Stat. § 48.9795(2)(b)(2).

⁴³ See Wis. Stat. § 48.15; State ex rel. Rickli v. County Ct. for Dane Cnty., Branch 4, 21 Wis. 2d 89, 123 N.W.2d 908 (1963); M.L.-F. v. Oneida Cnty. Dep’t of Soc. Servs. (In the Matter of the Guardianship of B.C.L.-J.), 2016 WI App 25, 367 Wis. 2d 697, 877 N.W.2d 401.

⁴⁴ Wis. Stat. § 48.9795(2)(b)2.

⁴⁵ See Wis. Stat. § 48.028; 25 U.S.C. ch. 21.

⁴⁶ Wis. Stat. § 48.9795(4)(b)10.

⁴⁷ Wis. Stat. § 48.9795(4)(g)3.

⁴⁸ Wis. Stat. § 48.02(8g).

⁴⁹ Wis. Stat. § 48.9795(4)(c)3.; Wis. Stat. § 48.028(4)(a).

⁵⁰ Wis. Stat. § 48.9795(4)(b)11.

⁵¹ Wis. Stat. § 48.9795(4)(b)(11), (g)(3). See also Wis. Stat. § 48.028(7)(b).