AB47: Bill Text

LRB-0241/2

EAW:amn&cjs

2019 - 2020 LEGISLATURE

2019 Assembly BILL 47

February 28, 2019 - Introduced by Joint Legislative Council. Referred to Committee on Family Law.

AB47,1,12 An Act to renumber subchapter XX of chapter 48 [precedes 48.98]; to renumber and amend 54.56, 54.57, 808.075 (4) (f) 3. and 814.66 (1) (m); to amend 48.09 (5), 48.14 (2) (b), 48.14 (11), 48.15, 48.235 (1) (c), 48.255 (1) (intro.), 48.293 (2), 48.299 (4) (a), 48.299 (4) (b), 48.299 (6) (intro.), 48.299 (6) (d), 48.299 (7), 48.368 (1), 48.465 (3), 48.62 (2), 48.831 (1), 48.831 (1m) (e), 48.977 (8), 48.978 (7), 51.30 (4) (b) 18. a., 51.30 (4) (b) 18. c., 54.01 (10), 54.10 (1), 54.15 (6), 54.25 (2) (d) 1., 54.25 (2) (d) 2. o., 54.52 (1), 55.03 (1), 115.76 (12) (b) 2., 118.125 (2) (L), 146.82 (2) (a) 9. a., 146.82 (2) (a) 9. c., 757.69 (1) (g) 5., 808.075 (4) (a) 11., 809.30 (1) (a), 809.30 (1) (b) 2., 809.30 (2) (a) and 938.345 (1) (e); and to create subchapter XX (title) of chapter 48 [precedes 48.978], 48.9795, 48.981 (7) (a) 11v., 808.075 (4) (a) 9m. and 808.075 (4) (a) 13. of the statutes; relating to: guardianships of children.

Analysis by the Legislative Reference Bureau

This bill is explained in the Notes provided by the Joint Legislative Council in the bill.

For further information see the state and local fiscal estimate, which will be printed as an appendix to this bill.

The people of the state of Wisconsin, represented in senate and assembly, do enact as follows:

Joint legislative council prefatory note: This bill was prepared for the Joint Legislative Council's Study Committee on Minor Guardianships. Generally, the bill creates a new process and standards for appointment of a guardian of a minor's person. A description of current law and a summary of the bill's key provisions are provided below.

Introduction

Chapter 54, Stats., currently governs guardianships of the person, estate, or both of minors, as well as incompetent or spendthrift adults. Unlike certain, specialized minor guardianships under ch. 48, Stats., minor guardianships under ch. 54, Stats., do not require involvement by the child welfare system and therefore are informally referred to as “private” guardianships.

Under current law, a guardian of a minor's person has the authority to exercise care, custody, and control over the minor. The court may appoint either a temporary guardian, for a duration up to 60 days and one additional 60-day period, or a permanent guardian, with the appointment terminating only upon certain events specified by statute and case law.

Chapter 54, Stats., focuses primarily on incompetent and spendthrift adults, rendering many of the chapter's provisions inapplicable to minors. Current statutory law does not address certain issues relevant to minor guardianships, such as emergency situations and parental visitation.

Jurisdiction

The bill removes guardianships of a minor's person from ch. 54, Stats., and creates a new statute governing guardianships of a child's person in a new subchapter under ch. 48, Stats. This change transfers jurisdiction over private guardianships from the probate court under ch. 54, Stats., to the children's court under ch. 48, Stats. Under the bill, guardianships of a child's estate remain governed by ch. 54, Stats., but may be consolidated with actions under the new procedure.

The bill does not change the process or standard for appointment of a guardian in the specialized circumstances under ch. 48, Stats. The bill also specifies that a petition filed under the new statute may not seek to change preexisting orders entered in certain actions under chs. 48 and 938, Stats. If any such actions are pending, the bill requires the court to stay any subsequent proceedings under the new statute until the pending action is resolved, subject to certain exceptions. In addition, the bill prohibits a dispositional order under the new statute from changing the placement of a child under the supervision of a court in certain types of actions.

Types of Guardianship

The bill creates four types of guardianships of a child's person: full; limited; temporary; and emergency. The bill clarifies that a parent retains all rights and duties that are not assigned to the guardian or otherwise limited by statute or court order. For each type of guardian, the bill provides the following standards for and duties upon appointment:

A full guardianship requires a finding that the child's parents are unfit, unwilling, or unable to provide for the care, custody, and control of the child or other compelling facts and circumstances demonstrate that a full guardianship is necessary. Once appointed, the bill grants a full guardian the duties and authority granted to other guardians under ch. 48, Stats., as well as the following: the authority, subject to a court order, to determine reasonable visitation with the child; the right to change the child's residence from this state to another state; and the duty to report to the court immediately regarding any address changes and annually regarding the child's condition.

A limited guardianship requires a finding that the child's parents need assistance in providing for the care, custody, and control of the child. The court must specify the limited guardian's duties and authority, and may limit such authority to allow a parent to retain certain decision-making powers. If in the child's best interest, the court may also allow shared physical custody among the limited guardian and the parent.

A temporary guardianship requires a finding that the child's particular situation, including the inability of the child's parents to provide for the care, custody, and control of the child for a temporary period of time, requires the appointment of a temporary guardian. A temporary guardian may be appointed for a period not to exceed 180 days, though the court may grant one additional 180-day period for good cause shown. In its order, the court must limit the temporary guardian's authority to those acts that are reasonably related to the reasons for the appointment.

An emergency guardianship requires a finding that the child's welfare requires the immediate appointment of an emergency guardian. The court may appoint an emergency guardian for a period not to exceed 60 days and must limit the emergency guardian's authority to those acts reasonably related to the reasons for the appointment.

Procedure for Full, Limited and Temporary Guardianships

Under the bill, any person, including a child 12 years of age or older, may petition for the appointment of a guardian for a child. The petition must contain certain information including the type of guardianship sought, the facts and circumstances establishing that a guardianship is needed, the name and address of a proposed guardian, and other information as specified in the bill. A parent or a child 12 years or older may also nominate a guardian under the bill. Under the bill, the court must appoint the person nominated as the guardian by the parent, unless the court finds that appointment of the person nominated is not in the child's best interest.

The bill requires that an initial hearing be held within 45 days after a petition is filed. At least 96 hours before the initial hearing, the proposed guardian must submit a report to the court as to his or her existing parental, guardianship, or custodial responsibilities and financial situation, and as to whether he or she is charged with or has been convicted of a crime or child abuse or neglect. Any interested person, as defined in the bill, may become a party to the hearing.

At the initial hearing, the court must first determine whether any party wishes to contest the petition. If the petition is not contested, the court must immediately proceed to a fact-finding and dispositional hearing, unless an adjournment is requested. If the petition is contested and all parties consent, the court may proceed immediately to a fact-finding and dispositional hearing. If any party does not consent or if an adjournment is requested, the court must set a date for a fact-finding and dispositional hearing that allows reasonable time for the parties to prepare but is not more than 30 days after the initial hearing.

At the fact-finding and dispositional hearing, any party may present evidence, including expert testimony, and argument relating to the allegations in the petition. The court must determine whether the petitioner has proven the allegations in the petition by clear and convincing evidence and must immediately proceed to determine the appropriate disposition.

The bill requires the court to consider all of the following factors in determining the appropriate disposition: 1) any nomination of a guardian made by a parent or the child, if 12 years of age or older, and the opinions of the parents and child as to what is in the child's best interests; 2) whether the proposed guardian would be fit, willing, and able to serve as the child's guardian; 3) if the child is an Indian child, the order of placement preference required for an Indian child in an Indian child custody proceeding, unless the court finds good cause for departing from that order; and 4) whether appointment of the proposed guardian is in the child's best interests.

Procedure for Emergency Guardianships

Under the bill, any person may petition for the appointment of an emergency guardian for a child. The petition must contain the same information required for a full, limited, or temporary guardianship, and must specify the reasons for the appointment of and the powers requested for an emergency guardian.

The bill requires the court to hold a hearing on an emergency petition as soon as possible after the filing of the petition or, for good cause shown, the court may issue a temporary order appointing an emergency guardian without a hearing, which remains in effect until a hearing is held. Any person who receives notice of the emergency guardianship petition under the bill has a right to a hearing for reconsideration or modification of an emergency guardianship.

Role of the Guardian ad Litem

Generally, the bill requires appointment of a guardian ad litem (GAL) in proceedings to appoint a guardian or terminate a guardianship, as well as in proceedings to modify a guardianship, if a hearing will be held.

The GAL represents the best interests of the child throughout the proceedings but must apply in all court proceedings the applicable standard specified in the bill. In addition to certain specific duties and responsibilities required of a GAL under the Children's Code, the GAL must conduct a diligent investigation sufficient to represent the best interests of the child in court. As appropriate to the circumstances, this investigation may include, personally or through a trained designee, meeting with or observing the child, meeting with any proposed guardian, meeting with interested persons, and visiting the homes of the child and the proposed guardian.

The GAL is required to attend all court proceedings relating to the guardianship, present evidence concerning the best interest of the child, if necessary, and make clear and specific recommendations to the court at every stage of the proceedings. Further, the bill requires the GAL to inspect certain reports and records relating to the child and, upon presentation of necessary releases, the child's family and the proposed guardian. The court must order custodians of the specified reports or records to permit inspection and copying of such reports or records by the GAL.

Post-Appointment Matters

The bill allows a court, on its own motion or upon the petition of any interested person, to appoint a successor guardian after a guardian has died, been removed, or resigned, or as a part of the original appointment or any time after, even while the current guardianship is still in place.

Under the bill, if the guardian abuses or neglects the child or knowingly permits others to do so, fails to disclose information that would have prevented his or her appointment as guardian, fails to follow or comply with the court's order, or otherwise fails to perform any of his or her duties as guardian, the court may exercise its continuing jurisdiction to impose certain remedies, including removal of the guardian and appointment of a successor guardian, modification of the duties and authority of the guardian, or entry of an order that may be necessary or appropriate to compel the guardian to carry out the guardian's duties. The court may also require the guardian to pay any costs of the proceeding if the guardian's conduct was egregious. The bill requires the court to hold a hearing on a petition for the review of the conduct of a guardian within 30 days of the filing of the petition.

The bill authorizes a court to modify a guardianship order, if the court finds that there has been a substantial change in circumstances since the last order affecting the guardianship was entered and that the proposed modification is in the child's best interests.

Under the bill, a guardianship continues until the child attains the age of 18 years unless 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 approved by the court, and a successor guardian is not appointed; 6) the guardian is removed for cause and a successor guardian is not appointed; 7) the guardianship is terminated on the request of a parent or the child; or 8) the court terminates the guardianship upon the adoption of the child.

The bill also allows a parent or child to petition for termination of a guardianship. Specifically, the court must terminate the guardianship if it finds that the petitioner has shown by a preponderance of the evidence that 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.

AB47,1 Section 1 . 48.09 (5) of the statutes is amended to read:

AB47,5,8 48.09 (5) By the district attorney or, if designated by the county board of supervisors, by the corporation counsel, in any matter arising under s. 48.13, 48.133, or 48.977 or, if applicable, s. 48.9795. If the county board transfers this authority to or from the district attorney on or after May 11, 1990, the board may do so only if the action is effective on September 1 of an odd-numbered year and the board notifies the department of administration of that change by January 1 of that odd-numbered year.

AB47,2 Section 2 . 48.14 (2) (b) of the statutes is amended to read:

AB47,5,13 48.14 (2) (b) The appointment and removal of a guardian of the person for a child under ss. 48.427, 48.43, 48.831, 48.832, 48.839 (4) (a), 48.977, and 48.978, and ch. 54 48.9795 and for a child found to be in need of protection or services under s. 48.13 because the child is without parent or guardian.

AB47,3 Section 3 . 48.14 (11) of the statutes is amended to read:

AB47,5,15 48.14 (11) Granting visitation privileges under s. 54.56 48.9795 (12).

AB47,4 Section 4 . 48.15 of the statutes is amended to read:

AB47,6,7 48.15 Jurisdiction of other courts to determine legal custody. Except as provided in s. ss. 48.028 (3) and 48.9795 (2) (b) 2., nothing in this chapter deprives another court of the right to determine the legal custody of a child by habeas corpus or to determine the legal custody or guardianship of a child if the legal custody or guardianship is incidental to the determination of an action pending in that court. Except as provided in s. 48.028 (3), the jurisdiction of the court assigned to exercise jurisdiction under this chapter and ch. 938 is paramount in all cases involving children alleged to come within the provisions of ss. 48.13 and 48.14 and unborn children and their expectant mothers alleged to come within the provisions of ss. 48.133 and 48.14 (5).

AB47,5 Section 5 . 48.235 (1) (c) of the statutes is amended to read:

AB47,6,12 48.235 (1) (c) The court shall appoint a guardian ad litem for any child who is the subject of a proceeding to terminate parental rights, whether voluntary or involuntary, for a child who is the subject of a contested adoption proceeding, and for a child who is the subject of a proceeding under s. 48.977 or, 48.978, or 48.9795.

AB47,6 Section 6 . 48.255 (1) (intro.) of the statutes is amended to read:

AB47,6,16 48.255 (1) (intro.) A petition initiating proceedings under this chapter, other than a petition under s. 48.133 or 48.9795, shall be entitled, “In the interest of (child's name), a person under the age of 18'' and shall set forth with specificity:

AB47,7 Section 7 . 48.293 (2) of the statutes is amended to read:

AB47,7,4 48.293 (2) All records relating to a child, or to an unborn child and the unborn child's expectant mother, that are relevant to the subject matter of a proceeding under this chapter shall be open to inspection by a guardian ad litem or counsel for any party and to inspection by the court-appointed special advocate for the child, upon demand and upon presentation of releases when necessary, at least 48 hours before the proceeding. Persons entitled to inspect the records may obtain copies of the records with the permission of the custodian of the records or with permission of the court. The court may instruct counsel, a guardian ad litem, or a court-appointed special advocate not to disclose specified items in the materials to the child or the parent, or to the expectant mother, if the court reasonably believes that the disclosure would be harmful to the interests of the child or the unborn child. This subsection does not apply to a guardianship proceeding under s. 48.9795.

AB47,8 Section 8 . 48.299 (4) (a) of the statutes is amended to read:

AB47,7,8 48.299 (4) (a) Chapters 901 to 911 shall govern the presentation of evidence at the fact-finding hearings under ss. 48.31, 48.42, 48.977 (4) (d) and, 48.978 (2) (e) and (3) (f) 2., and 48.9795.

AB47,9 Section 9. 48.299 (4) (b) of the statutes is amended to read:

AB47,7,24 48.299 (4) (b) Except as provided in s. 901.05, neither common law nor statutory rules of evidence are binding at a hearing for a child held in custody under s. 48.21, a hearing for an adult expectant mother held in custody under s. 48.213, a runaway home hearing under s. 48.227 (4), a dispositional hearing, or a hearing about changes in placement, trial reunifications, revision of dispositional orders, extension of dispositional orders, or termination of guardianship orders entered under s. 48.977 (4) (h) 2. or (6) or, 48.978 (2) (j) 2. or (3) (g), or 48.9795. At those hearings, the court shall admit all testimony having reasonable probative value, but shall exclude immaterial, irrelevant, or unduly repetitious testimony or evidence that is inadmissible under s. 901.05. Hearsay evidence may be admitted if it has demonstrable circumstantial guarantees of trustworthiness. The court shall give effect to the rules of privilege recognized by law. The court shall apply the basic principles of relevancy, materiality, and probative value to proof of all questions of fact. Objections to evidentiary offers and offers of proof of evidence not admitted may be made and shall be noted in the record.

AB47,10 Section 10 . 48.299 (6) (intro.) of the statutes is amended to read:

AB47,8,4 48.299 (6) (intro.) If a man who has been given notice under s. 48.27 (3) (b) 1., 48.977 (4) (c) 1., 48.978 (2) (c) 1., or 48.9795 (4) (c) 1. appears at any hearing for which he received the notice, alleges that he is the father of the child , and states that he wishes to establish the paternity of the child, all of the following apply:

AB47,11 Section 11 . 48.299 (6) (d) of the statutes is amended to read:

AB47,8,14 48.299 (6) (d) The court may stay the proceedings under this chapter pending the outcome of the paternity proceedings under subch. IX of ch. 767 if the court determines that the paternity proceedings will not unduly delay the proceedings under this chapter and the determination of paternity is necessary to the court's disposition of the child if the child is found to be in need of protection or services proceedings or if the court determines or has reason to know that the paternity proceedings may result in a finding that the child is an Indian child and in a petition by the child's parent, Indian custodian, or tribe for transfer of the proceeding proceedings to the jurisdiction of the tribe.

AB47,12 Section 12. 48.299 (7) of the statutes is amended to read:

AB47,8,23 48.299 (7) If a man who has been given notice under s. 48.27 (3) (b) 1., 48.977 (4) (c) 1., 48.978 (2) (c) 1., or 48.9795 (4) (c) 1. appears at any hearing for which he received the notice but does not allege that he is the father of the child and state that he wishes to establish the paternity of the child or if no man to whom such notice was given appears at a hearing, the court may refer the matter to the state or to the attorney responsible for support enforcement under s. 59.53 (6) (a) for a determination, under s. 767.80, of whether an action should be brought for the purpose of determining the paternity of the child.