Wisconsin Legislature: 109,21

(f) Fact-finding and dispositional hearing. The court shall hold the fact-finding and dispositional hearing at the time specified or set by the court under this paragraph, at which any party may present evidence, including expert testimony, and argument relating to the allegations in the petition. The court shall determine whether the petitioner has proven the allegations in the petition under par. (b) by clear and convincing evidence and shall immediately proceed to determine the appropriate disposition under par. (h), considering the factors under par. (g).

(g) Dispositional factors. In determining the appropriate disposition under par. (h), the court shall consider all of the following:

1. Any nominations made under sub. (2) (c) 1. or 2. and the opinions of the parents and child as to what is in the best interests of the child, but the best interests of the child as determined by the court shall control in making the determination when those nominations and opinions are in conflict with those best interests.

2. Whether the proposed guardian would be fit, willing, and able to serve as the guardian of the child.

3. If the child is an Indian child, the order of placement preference under s. 48.028 (7) (b) or, if applicable, s. 48.028 (7) (c), unless the court finds good cause, as described in s. 48.028 (7) (e), for departing from that order.

4. Whether appointment of the proposed guardian as the child's guardian is in the best interests of the child.

(h) Disposition. At the conclusion of the hearing under par. (f), the court shall grant one of the following dispositions, unless the court adjourns the hearing under par. (i):

1. A disposition dismissing the petition if the court finds that the petitioner has not proved the allegations in the petition by clear and convincing evidence or determines that appointment of the proposed guardian as the child's guardian is not in the best interests of the child. Dismissal of a petition under this subdivision does not preclude the court from referring the child to the intake worker for an intake inquiry under s. 48.24 or from acting as an intake worker at the court's discretion under s. 48.10.

2. A disposition ordering the guardianship and issuing letters of guardianship if the court finds that the petitioner has proved the allegations in the petition by clear and convincing evidence and determines that such an appointment is in the best interests of the child. A dispositional order under this section may not change the placement of a child under the supervision of a court pursuant to s. 48.13, 48.133, or 48.14 (1) to (10) or (12) or ch. 938. The disposition shall include all of the following:

a. Whether the appointment is for a full, limited, or temporary guardianship, and, if limited or temporary, the limitations and expiration date of the guardianship.

b. If applicable, the amount of support to be paid by the child's parents.

c. If applicable, and subject to sub. (13), reasonable rules of parental visitation. Subject to a court order under this subdivision or sub. (9) or (13), the guardian's decision regarding visitation is presumed to be in the best interest of the child and, if the court reviews the decision, the petitioner has the burden of proving by clear and convincing evidence that the decision of the guardian is not in the best interest of the child.

(i) Adjournment; proposed guardian unfit or not in best interests. If at the conclusion of the hearing under par. (f) the court finds that the petitioner has proved the allegations in the petition, other than the allegation specified in par. (b) 8., by clear and convincing evidence, but that the proposed guardian is not fit, willing, and able to serve as the guardian of the child, or if the court finds that the petitioner has so proved all of the allegations in the petition, but that appointment of the proposed guardian as the child's guardian is not in the best interests of the child, the court may, in lieu of granting a disposition dismissing the petition under par. (h) 1., adjourn the hearing for not more than 30 days, request the petitioner or any other party to nominate a new proposed guardian, and order the guardian ad litem to report to the court concerning whether the new proposed guardian is fit, willing, and able to serve as the guardian of the child.

(5) Temporary guardianships. (a) Duration and extent of authority. The court may appoint a temporary guardian for a child for a period not to exceed 180 days, except that the court may extend this period for good cause shown for one additional 180-day period. The court's determination and order appointing the temporary guardian shall specify the authority of the temporary guardian, which shall be limited to those acts that are reasonably related to the reasons for the appointment that are specified in the petition for temporary guardianship. The authority of the temporary guardian is limited to the performance of those acts stated in the order of appointment.

(b) Procedures for appointment. A petition for the appointment of a temporary guardian shall be heard in the same manner and is subject to the same requirements as provided in this section for the appointment of a full or limited guardian.

(c) Cessation of powers. The duties and powers of the temporary guardian cease upon the expiration of the period specified in par. (a), or the termination as determined by the court of the situation of the child that was the cause of the temporary guardianship. Upon cessation of a temporary guardianship, the temporary guardian shall file with the court any report that the court requires.

(6) Emergency guardianships. (a) Duration and extent of authority. The court may appoint an emergency guardian for a child for a period not to exceed 60 days. The court's determination and order appointing the emergency guardian shall specify the authority of the emergency guardian and shall be limited to those acts that are reasonably related to the reasons for the appointment that are specified in the petition for emergency guardianship. The authority of the emergency guardian is limited to the performance of those acts stated in the order of appointment. An order appointing an emergency guardian may not change the placement of a child under the supervision of a court pursuant to s. 48.13, 48.133, or 48.14 (1) to (10) or (12) or ch. 938.

(b) Procedures for appointment. All of the following procedures apply to the appointment of an emergency guardian:

1. Any person may petition for the appointment of an emergency guardian for a child. The petition shall contain the information required under sub. (4) (b) and shall specify the reasons for the appointment of an emergency guardian and the powers requested for the emergency guardian.

2. The petitioner shall give notice of the petition and of the time and place of the hearing under subd. 4. to the child, if 12 years of age or over, the child's guardian ad litem, and the child's counsel, if any; the child's parents, guardian, and legal custodian; and the person nominated as emergency guardian. The notice and a copy of the petition shall be served as soon after the filing of the petition as possible, shall be served by the most practical means possible, including personal service or service by electronic mail or telephone, and shall include notice of the right to petition for reconsideration or modification of the emergency guardianship under subd. 5. If the petitioner serves notice of the hearing after the hearing is conducted and the court has entered an order, the petitioner shall include the court's order with the notice of the hearing.

3. The court shall appoint a guardian ad litem for the child as soon as possible after the filing of the petition. The court shall attempt to appoint the guardian ad litem before the 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. The guardian ad litem shall conduct a diligent investigation sufficient to represent the best interests of the child in court. If the court appoints a guardian ad litem after entry of the order granting the emergency guardianship, the guardian ad litem may petition for reconsideration or modification of the emergency guardianship under subd. 5. If the court dismisses the petition for emergency guardianship prior to appointing a guardian ad litem, the court need not appoint a guardian ad litem unless the petition is refiled.

4. The court shall hold a hearing on the emergency guardianship petition as soon as possible after the filing of the petition or, for good cause shown, may issue a temporary order appointing an emergency guardian without a hearing that shall remain in effect until a hearing is held on the emergency guardianship petition. If appointed prior to the hearing, the guardian ad litem shall attend the hearing in person or by telephone.

5. If the court appoints an emergency guardian, any person specified in subd. 2. may petition for reconsideration or modification of the emergency guardianship and the court shall hold a rehearing on the issue of appointment of the emergency guardian within 30 calendar days after the filing of the petition.

6. If the court determines that the welfare of the child does not require the immediate appointment of an emergency guardian, the court may dismiss the petition. Dismissal of a petition under this subdivision does not preclude the court from referring the child to the intake worker for an intake inquiry under s. 48.24 or from acting as an intake worker at the judge's discretion under s. 48.10.

(c) Immunity. An emergency guardian of a child is immune from civil liability for his or her acts or omissions in performing the duties of emergency guardianship if he or she performs the duties in good faith, in the best interests of the child, and with the degree of diligence and prudence that an ordinarily prudent person exercises in his or her own affairs.

(d) Cessation of powers. The duties and powers of the emergency guardian cease upon the expiration of the period specified in par. (a), or the termination as determined by the court of the situation of the child that was the cause of the emergency guardianship. Upon cessation of an emergency guardianship, the emergency guardian shall file with the court any report that the court requires.

(7) Standby guardianship. A petition for the appointment of a standby guardian of the person for a child to assume the duty and authority of guardianship on the incapacity, death, or debilitation and consent, of the child's parent shall be brought under s. 48.978.

(8) Successor guardian. (a) Appointment; initial petition or during guardianship. 1. As part of a petition for the initial appointment of a guardian of a child or at any time after that appointment, a person may petition for the appointment of one or more successor guardians of the child to assume the duty and authority of full, limited, or temporary guardianship in the event of an occurrence specified in subd. 2. Except as provided in par. (b), if the petition for the appointment of a successor guardian is brought after the initial appointment of a guardian, the petition shall be heard in the same manner and subject to the same requirements as provided under this section for an initial appointment of a guardian.

2. After hearing, the court may designate one or more successor guardians whose appointment shall become effective immediately upon the death, unwillingness or inability to act, resignation, or removal by the court of the initially appointed guardian or during a period, as determined by the initially appointed guardian, when the initially appointed guardian is temporarily unable to fulfill his or her duties, including during an extended vacation or illness. The powers and duties of the successor guardian shall be the same as those of the initially appointed guardian. The successor guardian shall receive a copy of the court order establishing or modifying the initial guardianship and of the order designating the successor guardian. Upon the occurrence of an event specified in this subdivision, the successor guardian shall so notify the court and request the court to issue new letters of guardianship. Upon notification, the court shall issue new letters of guardianship that specify that the successor guardianship is permanent or that specify the period for a temporary successor guardianship.

(b) Appointment; when no guardian. 1. If a guardian dies, is removed by order of the court, or resigns and the resignation is accepted by the court, the court, on its own motion or upon petition of any interested person, may appoint a person who is fit, willing, and able to serve as successor guardian. The court may, upon request of any interested person or on its own motion, direct that the petition or motion for the appointment of a successor guardian be heard in the same manner and subject to the same requirements as provided under this section for an initial appointment of a guardian.

2. If the appointment under subd. 1. is made without hearing, the successor guardian shall provide notice to all interested persons of the appointment and the right to petition for reconsideration of the appointment of the successor guardian. The notice shall be served personally or by mail not later than 7 days after the appointment.

(9) Modification of guardianship order. (a) Any interested person or other person approved by the court may request a modification of a guardianship order entered under this subsection or sub. (4) (h) 2. or the court may, on its own motion, propose such a modification. The request or motion shall set forth in detail the nature of the proposed modification, shall allege facts sufficient to show that there has been a substantial change in circumstances since the last order affecting the guardianship was entered and that the proposed modification would be in the best interests of the child, and shall allege any other information that affects the advisability of the court's disposition.

(b) The court shall hold a hearing on the matter prior to any modification of the guardianship order if the request or motion indicates that new information is available that affects the advisability of the court's guardianship order, unless written waivers of objections to the modification are signed by all interested persons other than the child and the court approves the waivers.

(c) If a hearing is to be held, the person requesting or proposing the modification shall notify all interested persons at least 7 days prior to the hearing of the date, place, and purpose of the hearing. A copy of the request or proposal shall be attached to the notice. The court may order a modification if, at the hearing, the court finds that the person proposing the modification has proved by clear and convincing evidence that there has been a substantial change in circumstances and determines that a modification would be in the best interests of the child. An order for modification under this subsection may not change the placement of a child under the supervision of a court pursuant to s. 48.13, 48.133, or 48.14 (1) to (10) or (12) or ch. 938, other than to modify a guardianship order entered under this section.

(10) Review of conduct of guardian. (a) Continuing jurisdiction of court. The court that appointed the guardian of a child has continuing jurisdiction over the guardian.

(b) Cause for court action against a guardian. The court may impose a remedy under par. (d) if a guardian of a child does any of the following:

1. Abuses or neglects the child or knowingly permits others to do so.

2. Fails to disclose information specified in sub. (4) (d) that would have prevented appointment of the person as guardian.

3. Fails to follow or comply with the court's order.

4. Otherwise fails to perform any of his or her duties as a guardian under s. 48.023.

(c) Procedure. Any interested person or other person approved by the court may file a petition requesting a review of the conduct of a guardian, or the court, on its own motion, may propose such a review. The request or motion shall allege facts sufficient to show cause under par. (b) for the court to impose a remedy under par. (d). The court shall hold a hearing on the request or motion not more than 30 days after the filing of the request or proposal. Not less than 7 days before the date of the hearing, the person requesting or proposing the review shall provide notice of the hearing to the child, his or her parents, the guardian, and any other persons required by the court. A copy of the request or motion shall be attached to the notice.

(d) Remedies of the court. If after hearing the court finds by clear and convincing evidence cause as specified in par. (b) to order a remedy under this paragraph, the court may do any of the following:

1. Remove the guardian.

2. Remove the guardian and appoint a successor guardian.

3. Enter any other order that may be necessary or appropriate to compel the guardian to carry out the guardian's duties, including an order setting reasonable rules of visitation with the child.

4. Modify the duties and authority of the guardian.

5. Require the guardian to pay any costs of the proceeding, including costs of service and attorney fees, if the court finds that the guardian's conduct was egregious.

(11) Termination of guardianship. (a) Term of guardianship. A guardianship under this section shall continue until the child attains the age of 18 years unless any of the following occurs:

1. The guardianship is for a lesser period of time and that time has expired.

2. The child marries.

3. The child dies.

4. The child's residence changes from this state to another state and a guardian is appointed in the new state of residence.

5. The guardian dies, or resigns and the resignation is accepted by the court, and a successor guardian is not appointed.

6. The guardian is removed for cause under sub. (10) (d) 1. and a successor guardian is not appointed.

7. The court terminates the guardianship on the request of a parent of the child or the child under par. (b).

8. The court terminates the guardianship upon the adoption of the child.

(b) Termination on request of parent or child. 1. A parent of the child or the child may file a petition requesting that a guardianship order entered under sub. (4) (h) 2., (5), (6), (8), or (9) be terminated. The petition shall allege facts sufficient to 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.

2. The court shall hold a hearing on the petition unless written waivers of objections to termination of the guardianship are signed by all interested persons and the court approves the waivers.

3. If a hearing is to be held, by no less than 7 days before the date of the hearing, the parent or child requesting the termination shall provide notice of the hearing to the child, the child's parents, the guardian, and any other persons required by the court. A copy of the petition shall be attached to the notice. The court shall terminate the guardianship if the court finds that the petitioner has proven the allegations in the petition under subd. 1. by a preponderance of the evidence.

109,22 Section 22 . Subchapter XX of chapter 48 [precedes 48.98] of the statutes is renumbered subchapter XXI of chapter 48 [precedes 48.98].

109,23 Section 23 . 48.981 (7) (a) 11v. of the statutes is created to read:

48.981 (7) (a) 11v. A guardian ad litem for a child who is the subject of a guardianship proceeding under s. 48.9795 to the extent necessary to fulfill the duties and responsibilities required of the guardian ad litem under s. 48.9795 (3).

109,24 Section 24 . 51.30 (4) (b) 18. a. of the statutes is amended to read:

51.30 (4) (b) 18. a. In this subdivision, “abuse" has the meaning given in s. 51.62 (1) (ag); “neglect" has the meaning given in s. 51.62 (1) (br); and “parent" has the meaning given in s. 48.02 (13), except that “parent" does not include the parent of a minor whose custody is transferred to a legal custodian, as defined in s. 48.02 (11), or for whom a guardian is appointed under, or s. 48.9795 or 54.10 or s. 880.33, 2003 stats.

109,25 Section 25 . 51.30 (4) (b) 18. c. of the statutes is amended to read:

51.30 (4) (b) 18. c. If the patient, regardless of age, has a guardian appointed under s. 48.9795 or 54.10 or s. 880.33, 2003 stats., or if the patient is a minor with developmental disability who has a parent or has a guardian appointed under s. 48.831 and does not have a guardian appointed under s. 48.9795 or 54.10 or s. 880.33, 2003 stats., information concerning the patient that is obtainable by staff members of the agency or nonprofit corporation with which the agency has contracted is limited, except as provided in subd. 18. e., to the nature of an alleged rights violation, if any; the name, birth date and county of residence of the patient; information regarding whether the patient was voluntarily admitted, involuntarily committed or protectively placed and the date and place of admission, placement or commitment; and the name, address and telephone number of the guardian of the patient and the date and place of the guardian's appointment or, if the patient is a minor with developmental disability who has a parent or has a guardian appointed under s. 48.831 and does not have a guardian appointed under s. 48.9795 or 54.10 or s. 880.33, 2003 stats., the name, address and telephone number of the parent or guardian appointed under s. 48.831 of the patient.

109,26 Section 26 . 54.01 (10) of the statutes is amended to read:

54.01 (10) “Guardian" means a person appointed by a court under s. 54.10 to manage the income and assets, which may include, by court order, digital property, as defined in s. 711.03 (10), and provide for the essential requirements for health and safety and the personal needs of a minor, an individual found incompetent, or a spendthrift or to manage the income and assets of a minor. A person's assets may include, by court order, digital property, as defined in s. 711.03 (10).

109,27 Section 27 . 54.10 (1) of the statutes is amended to read:

54.10 (1) A court may appoint a guardian of the person or a guardian of the estate, or both, for an individual if the court determines that the individual is a minor. Except as provided in ss. 48.427, 48.831, 48.977, and 48.978, an appointment of a guardian of the person of a minor shall be conducted under the procedures specified in s. 48.9795.

109,28 Section 28 . 54.15 (6) of the statutes is amended to read:

54.15 (6) Testamentary nomination by proposed ward's parents. Subject to the rights of a surviving parent, a parent may by will nominate a guardian and successor guardian of the person or estate for any of his or her minor children who is in need of guardianship, unless the court finds that appointment of the guardian or successor guardian is not in the minor's best interests. For an individual who is aged 18 or older and is found to be in need of guardianship by reason of a developmental disability or serious and persistent mental illness, a parent may by will nominate a testamentary guardian. The parent may waive the requirement of a bond for such an estate that is derived through a will.

109,29 Section 29 . 54.25 (2) (d) 1. of the statutes is amended to read:

54.25 (2) (d) 1. A court may authorize a guardian of the person to exercise all or part of any of the powers specified in subd. 2. only if it finds, by clear and convincing evidence, that the individual lacks evaluative capacity to exercise the power. The court shall authorize the guardian of the person to exercise only those powers that are necessary to provide for the individual's personal needs, safety, and rights and to exercise the powers in a manner that is appropriate to the individual and that constitutes the least restrictive form of intervention. The court may limit the authority of the guardian of the person with respect to any power to allow the individual to retain power to make decisions about which the individual is able effectively to receive and evaluate information and communicate decisions. When a court appoints a guardian for a minor, the guardian shall be granted care, custody, and control of the person of the minor.

109,30 Section 30 . 54.25 (2) (d) 2. o. of the statutes is amended to read:

54.25 (2) (d) 2. o. The power to have custody of the ward, if an adult, and the power to have care, custody, and control of the ward, if a minor.

109,31 Section 31 . 54.52 (1) of the statutes is amended to read:

54.52 (1) A person may at any time bring a petition for the appointment of a standby guardian of the person or estate of an individual who is determined under s. 54.10 to be incompetent, a minor, or a spendthrift or for the appointment of a standby guardian of the estate of a minor, except that, as specified in s. 48.978 a petition for the appointment of a standby guardian of the person or property estate, or both, of a minor to assume the duty and authority of guardianship on the incapacity, death, or debilitation and consent, of the minor's parent may shall be brought under s. 48.978.

109,32 Section 32 . 54.56 of the statutes is renumbered 48.9795 (12) and amended to read:

48.9795 (12) Visitation by a minor's child's grandparents and stepparents. (a) In this section subsection, “stepparent" means the surviving spouse of a deceased parent of a minor child, whether or not the surviving spouse has remarried.

(b) If one or both parents of a minor child are deceased and the minor child is in the custody of the surviving parent or any other person, a grandparent or stepparent of the minor child may petition for visitation privileges with respect to the minor child, whether or not the person with custody is married. The grandparent or stepparent may file the petition in a guardianship or temporary guardianship proceeding under this chapter section that affects the minor child or may file the petition to commence an independent action under this chapter subsection. Except as provided in sub. (3m) par. (cm), the court may grant reasonable visitation privileges to the grandparent or stepparent if the surviving parent or other person who has custody of the minor child has notice of the hearing and if the court determines that visitation is in the best interest of the minor child.

(c) Whenever possible, in making a determination under sub. (2) par. (b), the court shall consider the wishes of the minor child.

(cm) 1. Except as provided in par. (b) subd. 2., the court may not grant visitation privileges to a grandparent or stepparent under this section subsection if the grandparent or stepparent has been convicted under s. 940.01 of the first-degree intentional homicide, or under s. 940.05 of the 2nd-degree intentional homicide, of a parent of the minor child, and the conviction has not been reversed, set aside, or vacated.

2. Paragraph (a) Subdivision 1. does not apply if the court determines by clear and convincing evidence that the visitation would be in the best interests of the minor child. The court shall consider the wishes of the minor child in making the determination.

(d) The court may issue any necessary order to enforce a visitation order that is granted under this section subsection, and may from time to time modify the visitation privileges or enforcement order for good cause shown.

(dm) 1. If a grandparent or stepparent granted visitation privileges with respect to a minor child under this section subsection is convicted under s. 940.01 of the first-degree intentional homicide, or under s. 940.05 of the 2nd-degree intentional homicide, of a parent of the minor child, and the conviction has not been reversed, set aside, or vacated, the court shall modify the visitation order by denying visitation with the minor child upon petition, motion, or order to show cause by a person having custody of the minor child, or upon the court's own motion, and upon notice to the grandparent or stepparent granted visitation privileges.

(e) This section subsection applies to every minor child in this state whose parent or parents are deceased, regardless of the date of death of the parent or parents.

109,33 Section 33 . 54.57 of the statutes is renumbered 48.9795 (13) and amended to read: