AB47,10,115
48.831
(1) Type of guardianship. This section may be used for the appointment
6of a guardian of a child who does not have a living parent if a finding as to the
7adoptability of a child is sought. Except as provided in ss. 48.977 and 48.978,
ch. 54 8s. 48.9795 applies to the appointment of a guardian for a child who does not have a
9living parent for all other purposes. An appointment of a guardian of the estate of
10a child who does not have a living parent shall be conducted in accordance with the
11procedures specified in ch. 54.
AB47,17
12Section 17
. 48.831 (1m) (e) of the statutes is amended to read:
AB47,10,1513
48.831
(1m) (e) A guardian appointed under
s. 48.9795 or ch. 54
, 2017 stats., 14or ch. 880, 2003 stats., whose resignation as guardian has been accepted by a court
15under s.
48.9795 (11) or s. 54.54 (1)
, 2017 stats., or s. 880.17 (1), 2003 stats.
AB47,18
16Section 18
. 48.977 (8) of the statutes is amended to read:
AB47,10,1917
48.977
(8) Relationship to ch. 54 and ch. 880, 2003 stats other guardianship
18procedures. (a) This section does not abridge the duties or authority of a guardian
19appointed under
s. 48.9795 or ch. 54
, 2017 stats., or ch. 880, 2003 stats.
AB47,10,2120
(b) Nothing in this section prohibits an individual from petitioning a court
21under
ch. 54 s. 48.9795 for appointment of a guardian.
AB47,19
22Section 19
. Subchapter XX (title) of chapter 48 [precedes 48.978] of the
23statutes is created to read:
AB47,10,2524
OTHER GUARDIANSHIPS AND DELEGATION
25
OF POWER BY PARENT
AB47,20
1Section
20. 48.978 (7) of the statutes is amended to read:
AB47,11,52
48.978
(7) Relationship to ch. 54 other guardianship procedures
. (a) Except
3when a different right, remedy
, or procedure is provided under this section, the
4rights, remedies, and procedures provided in
s. 48.9795 or ch. 54
, whichever is
5applicable, shall govern a standby guardianship created under this section.
AB47,11,76
(b) This section does not abridge the duties or authority of a guardian appointed
7under
s. 48.9795, ch. 880, 2003 stats., or ch. 54.
AB47,11,108
(c) Nothing in this section prohibits an individual from petitioning a court for
9the appointment of a guardian
of the person under s. 48.9795 or a guardian of the
10estate under ch. 54.
AB47,21
11Section 21
. 48.9795 of the statutes is created to read:
AB47,11,13
1248.9795 Appointment of guardian of the person for a child. (1) 13Definitions. In this section:
AB47,11,1414
(a) “Interested person" means any of the following:
AB47,11,1515
1. For purposes of a petition for guardianship of a child, any of the following:
AB47,11,1716
a. The child, if he or she has attained 12 years of age, and the child's guardian
17ad litem and counsel, if any.
AB47,11,1818
b. The child's parent, guardian, legal custodian, and physical custodian.
AB47,11,2219
c. Any person who has filed a declaration of paternal interest under s. 48.025,
20who is alleged to the court to be the father of the child, or who may, based on the
21statements of the mother or other information presented to the court, be the father
22of the child.
AB47,11,2323
d. Any individual who is nominated as guardian or as a successor guardian.
AB47,12,3
1e. If the child has no living parent, any individual nominated to act as fiduciary
2for the child in a will or other written instrument that was executed by a parent of
3the child.
AB47,12,74
f. If the child is receiving or in need of any public services or benefits, the county
5department or, in a county having a population of 750,000 or more, the department
6that is providing the services or benefits, through district attorney, corporation
7counsel, or other officials designated under s. 48.09.
AB47,12,98
g. If the child is an Indian child, the Indian child's Indian custodian and Indian
9tribe.
AB47,12,1010
h. Any other person that the court may require.
AB47,12,1211
2. For purposes of proceedings subsequent to an order for guardianship of a
12child, any of the following:
AB47,12,1413
a. The child, if the child has attained 12 years of age, the child's guardian ad
14litem, and the child's counsel.
AB47,12,1515
b. The child's parent and guardian.
AB47,12,1816
c. The county of venue, through the district attorney, corporation counsel, or
17other official designated under s. 48.09, if the county has an interest in the
18guardianship.
AB47,12,1919
d. If the child is an Indian child, the Indian child's tribe.
AB47,12,2020
e. Any other person that the court may require.
AB47,12,2421
(b) “Party" means the person petitioning for the appointment of a guardian for
22a child or any interested person other than a person who is alleged to the court to be
23the father of the child or who may, based on the statements of the mother or other
24information presented to the court, be the father of the child.
AB47,13,7
1(2) Appointment; venue; nomination; duty and authority. (a)
Venue. Except
2as provided under par. (b) 2., venue for guardianship under this section shall be in
3the child's county of residence or in the county in which the child is physically
4present, or, if the child is a nonresident, the county in which the petitioner proposes
5that the child resides. The court may, upon a motion and for good cause shown,
6transfer the case, along with all appropriate records, to the county in which a
7dispositional order has been issued under this chapter.
AB47,13,248
(b)
Appointment. 1. This section may be used for the appointment of a guardian
9of the person for a child. An appointment of a guardian of the estate of a child shall
10be conducted under the procedures specified in ch. 54.
If the court assigned to
11exercise jurisdiction under this chapter has jurisdiction over a proceeding for the
12appointment of a guardian of the person for a child or continuing jurisdiction over
13such a guardianship and the court assigned to exercise probate jurisdiction has
14jurisdiction over a proceeding for the appointment of a guardian of the estate of the
15child or continuing jurisdiction over such a guardianship, the court assigned to
16exercise jurisdiction under this chapter may order those proceedings or
17guardianships to be consolidated under the jurisdiction of the court assigned to
18exercise jurisdiction under this chapter. Upon such consolidation, the court assigned
19to exercise jurisdiction under this chapter shall order all records relating to the
20guardianship of the estate of the child to be transferred to the court assigned to
21exercise jurisdiction under this chapter and that court shall retain those records as
22required under SCR chapter 72. This section does not prohibit a person from
23petitioning a court under s. 48.831, 48.977, or 48.978 for the appointment of a
24guardian of the person for a child.
AB47,14,9
12. If the child is the subject of an action pending under s. 48.13, 48.133, or 48.14
2or ch. 938, any subsequent petition filed under this section shall be heard by the court
3authorized to exercise jurisdiction over the pending action. The court shall stay a
4guardianship proceeding for the appointment of a full, limited, or temporary
5guardian of the person for a child under par. (d) 1., 2., or 3. until the action pending
6under s. 48.13, 48.133, or 48.14 or ch. 938 is resolved. The court may appoint an
7emergency guardian under sub. (6) while an action is pending under s. 48.13, 48.133,
8or 48.14 or ch. 938 if the court finds that the best interests of the child require the
9immediate appointment of a guardian.
AB47,14,1110
3. A petition filed under this section may not seek to change an order under s.
1148.13, 48.133, or 48.14 or ch. 938.
AB47,14,1512
4. The court may appoint coguardians of the person for a child under this
13section, subject to any conditions that the court imposes. Unless the court orders
14otherwise, any decision concerning the child must be concurred in by all coguardians
15or is void.
AB47,14,2116
(c)
Nomination by parent or child. 1. A parent may nominate a guardian and
17successor guardian for any of his or her children who is in need of guardianship,
18including a nomination by will. Subject to the rights of a surviving parent, the court
19shall appoint the person nominated as guardian or successor guardian, unless the
20court finds that appointment of the person nominated is not in the child's best
21interests.
AB47,15,222
2. A child who has attained 12 years of age may nominate his or her own
23guardian, but if the child is outside of the state or if other good reason exists, the court
24may dispense with the child's right of nomination. If neither parent of a child who
1has attained 12 years of age is fit, willing, and able to carry out the duties of a
2guardian, the court may appoint the nominee of the child.
AB47,15,73
3. In determining who is appointed as guardian, the court shall consider the
4nominations of the parents and child and the opinions of the parents and child as to
5what is in the best interests of the child, but the best interests of the child as
6determined by the court shall control in making the determination when those
7nominations and opinions are in conflict with those best interests.
AB47,15,108
(d)
Duties and authority of guardian. 1. `Full guardianship.' Subject to subds.
92. and 5., a guardian appointed under sub. (4) (h) 2. has all of the following duties and
10authority:
AB47,15,1111
a. All of the duties and authority specified in s. 48.023.
AB47,15,1312
b. Subject to an order of a court of competent jurisdiction, the authority to
13determine reasonable visitation with the child.
AB47,15,1414
c. The right to change the residence of the child from this state to another state.
AB47,15,1815
d. The duty to immediately notify the court that appointed the guardian of any
16change in the address of the guardian or child and to make an annual report to that
17court on the condition of the child. The report shall include the location of the child,
18the health condition of the child, and any recommendations regarding the child.
AB47,16,419
2. `Limited guardianship.' The court may order that the duties and authority
20of a guardian appointed under sub. (4) (h) 2. be limited. The duties and authority of
21a limited guardian shall be as specified by the order of appointment under sub. (4)
22(h) 2. The duties and authority of a full guardian shall apply to a limited guardian
23to the extent relevant to the duties or authority of the limited guardian, except as
24limited by the order of appointment. The court may limit the authority of a guardian
25with respect to any power to allow the parent to retain such power to make decisions
1as is within the parent's ability to exercise effectively and may limit the physical
2custody of a guardian to allow shared physical custody with the parent if shared
3physical custody is in the best interests of the child. The court shall set an expiration
4date for a limited guardianship order, which may be extended for good cause shown.
AB47,16,95
3. `Temporary guardianship.' If it is demonstrated to the court that a child's
6particular situation, including the inability of the child's parent to provide for the
7care, custody, and control of the child for a temporary period of time, requires the
8appointment of a temporary guardian, the court may appoint a temporary guardian
9as provided under sub. (5).
AB47,16,1210
4. `Emergency guardianship.' If it is demonstrated to the court that the welfare
11of a child requires the immediate appointment of an emergency guardian, the court
12may appoint an emergency guardian as provided under sub. (6).
AB47,16,1913
5. `Powers of guardian.' The parent retains all rights and duties accruing to the
14parent as a result of the parent-child relationship that are not assigned to the
15guardian or otherwise limited by statute or court order. A guardian acting on behalf
16of a child may exercise only those powers that the guardian is authorized to exercise
17by statute or court order. The court may authorize a guardian to exercise only those
18powers that are necessary to provide for the care, custody, and control of the child and
19to exercise those powers in a manner that is appropriate to the child.
AB47,17,2
20(3) Guardian ad litem. (a) The court shall appoint a guardian ad litem when
21a petition is filed for appointment of a guardian or termination of a guardianship
22under this section. Except as provided under sub. (6) (b) 3., the court shall appoint
23the guardian ad litem as soon as possible and before the initial hearing. The court
24shall appoint a guardian ad litem when it determines that a hearing for modification
1is to be held under sub. (9) (b). In a case that is contested, the guardian ad litem may
2file a motion pursuant to s. 48.235 (8) (b).
AB47,17,143
(b) The guardian ad litem has the duties and responsibilities required under
4s. 48.235 (3) (a). The guardian ad litem represents the best interests of the child
5throughout the proceedings but must apply in all court proceedings the applicable
6standard under sub. (4) (b) 4. to 7. The guardian ad litem shall conduct a diligent
7investigation sufficient to represent the best interests of the child in court. As
8appropriate to the circumstances, the investigation may include, personally or
9through a trained designee, meeting with or observing the child, meeting with the
10proposed guardian, meeting with interested persons, and visiting the homes of the
11child and the proposed guardian. The guardian ad litem shall attend all court
12proceedings relating to the guardianship, present evidence concerning the best
13interests of the child, if necessary, and make clear and specific recommendations to
14the court at every stage of the proceedings.
AB47,18,215
(c) To the extent necessary to fulfill the duties and responsibilities required of
16the guardian ad litem in the proceedings, the guardian ad litem shall inspect reports
17and records relating to the child and, upon presentation of necessary releases, the
18child's family, and the proposed guardian, including law enforcement reports and
19records under ss. 48.396 (1) and 938.396 (1) (a), court records under ss. 48.396 (2) (a)
20and 938.396 (2), social welfare agency records under ss. 48.78 (2) (a) and 938.78 (2)
21(a), abuse and neglect reports and records under s. 48.981 (7) (a) 11v., pupil records
22under s. 118.125 (2) (L), mental health records under s. 51.30 (4) (b) 4., and health
23care records under s. 146.82 (2) (a) 4. The court shall include in the order appointing
24the guardian ad litem an order requiring the custodian of any report or record
1specified in this subdivision to permit the guardian ad litem to inspect and copy the
2report or record on presentation by the guardian ad litem of a copy of the order.
AB47,18,5
3(4) Procedures. (a)
Petition; who may file. 1. Except as provided in subd. 2.,
4any person, including a child 12 years of age or over on his or her own behalf, may
5petition for the appointment of a guardian for a child.
AB47,18,106
2. If there is an action pending under s. 48.13, 48.133, or 48.14 or ch. 938, a
7petition under this subsection may be filed by any party to the pending action or any
8person approved by the court if the petition is consistent with the child's permanency
9plan and does not seek to change the requirements of any preexisting court order
10issued under s. 48.13, 48.133, or 48.14 or ch. 938.
AB47,18,1411
(b)
Petition; form and content. A petition for guardianship may include an
12application for protective placement or protective services or both under ch. 55. The
13petition shall be entitled “In the interest of .... (child's name), a person under the age
14of 18" and shall state all of the following, if known to the petitioner:
AB47,18,1515
1. The name, date of birth, and address of the child.
AB47,18,1816
2. The names and addresses of the petitioner, the child's parents, current
17guardian, and legal custodian, if any, the proposed guardian, any proposed successor
18guardians, and all other interested persons.
AB47,18,2019
3. Whether the petitioner is requesting a full guardianship, a limited
20guardianship, a temporary guardianship, or an emergency guardianship.
AB47,18,2421
4. If the petitioner is requesting a full guardianship, the facts and
22circumstances establishing that the child's parents are unfit, unwilling, or unable to
23provide for the care, custody, and control of the child or other compelling facts and
24circumstances demonstrating that a full guardianship is necessary.
AB47,19,5
15. If the petitioner is requesting a limited guardianship, the facts and
2circumstances establishing that the child's parents need assistance in providing for
3the care, custody, and control of the child and a statement of the specific duties and
4authority under sub. (2) (d) sought by the petitioner for the proposed guardian and
5the specific parental rights and duties that the petitioner seeks to have transferred.
AB47,19,116
6. If the petitioner is requesting a temporary guardianship, the facts and
7circumstances establishing that the child's particular situation, including the
8inability of the child's parents to provide for the care, custody, and control of the child
9for a temporary period of time, requires the appointment of a temporary guardian;
10the reasons for the appointment of a temporary guardian; and the powers requested
11for the temporary guardian.
AB47,19,1412
7. If the petitioner is requesting an emergency guardianship, the facts and
13circumstances establishing that the welfare of the child requires the immediate
14appointment of an emergency guardian.
AB47,19,1615
8. The facts and circumstances establishing that the proposed guardian is fit,
16willing, and able to serve as the child's guardian.
AB47,19,1717
9. The information required under s. 822.29 (1).
AB47,19,2118
10. Whether the child may be subject to s. 48.028 or the federal Indian Child
19Welfare Act,
25 USC 1901 to
1963, and, if the child may be subject to s. 48.028 or that
20act, the names and addresses of the child's Indian custodian, if any, and Indian tribe,
21if known.
AB47,20,822
11. If the petitioner knows or has reason to know that the child is an Indian
23child, reliable and credible information showing that continued custody of the child
24by the child's parent or Indian custodian is likely to result in serious emotional or
25physical damage to the child under s. 48.028 (4) (d) 1. and that active efforts under
1s. 48.028 (4) (d) 2. have been made to prevent the breakup of the Indian child's family
2and that those efforts have proved unsuccessful and, if the proposed guardianship
3would change the placement of the child from the home of his or her parent or Indian
4custodian to a placement outside that home, a statement as to whether the new
5placement is in compliance with the order of placement preference under s. 48.028
6(7) (b) or, if applicable, s. 48.028 (7) (c) and, if the new placement is not in compliance
7with that order, specific information showing good cause, as described in s. 48.028
8(7) (e), for departing from that order.
AB47,20,119
12. Whether the petitioner is aware of any guardianship or other related
10proceeding involving the child that is pending in another court and, if so, the details
11of the guardianship, termination of parental rights, or related proceeding.
AB47,20,1312
13. Whether there is an action pending or the child is subject to a court order
13under s. 48.13, 48.133, or 48.14 or ch. 938.
AB47,20,1914
(c)
Service of petition and notice. 1. Except as provided in subd. 3. and sub. (6)
15(b) 2., the petitioner shall cause the petition and notice of the time and place of the
16hearing under par. (e) to be served at least 7 days before the time of the hearing upon
17all interested persons. Failure of the petitioner to provide notice to all interested
18persons shall deprive the court of jurisdiction unless notice is specifically waived by
19an interested person or by the court for good cause shown.
AB47,20,2520
2. A notice shall be in writing. A copy of the petition and any other required
21document shall be attached to the notice. Except as provided in subd. 3. and sub. (6)
22(b) 2., notice shall be delivered in person or by certified mail. Notice is considered to
23be given by proof of personal delivery, by proof that the notice was sent by certified
24mail to the last-known address of the recipient, or, if the recipient is an adult, by the
25written admission of service of the person served.
AB47,21,10
13. If the petitioner knows or has reason to know that the child is an Indian child,
2notice to the Indian child's parent, Indian custodian, and Indian tribe shall be
3provided in the manner specified in s. 48.028 (4) (a). No hearing may be held under
4par. (e) or (f) until at least 10 days after receipt of the notice by the Indian child's
5parent, Indian custodian, and Indian tribe or, if the identity or location of the Indian
6child's parent, Indian custodian, or tribe cannot be determined, until at least 15 days
7after receipt of the notice by the U.S. secretary of the interior. On request of the
8Indian child's parent, Indian custodian, or Indian tribe, the court shall grant a
9continuance of up to 20 additional days to enable the requester to prepare for the
10hearing.
AB47,21,2111
(d)
Statement by proposed guardian. At least 96 hours before the hearing under
12par. (e), the proposed guardian shall submit to the court a sworn and notarized
13statement as to the number of persons for whom the proposed guardian is
14responsible, whether as a parent, guardian, or legal custodian, as to the proposed
15guardian's income, assets, debts, and living expenses, and as to whether the
16proposed guardian is currently charged with or has been convicted of a crime or has
17been determined under s. 48.981 (3) (c) to have abused or neglected a child. If the
18proposed guardian is currently charged with or has been convicted of a crime or has
19been determined under s. 48.981 (3) (c) to have abused or neglected a child, he or she
20shall include in the sworn and notarized statement a description of the
21circumstances surrounding the charge, conviction, or determination.
AB47,22,622
(e)
Initial hearing. 1. The initial hearing on a petition for guardianship, other
23than a petition for emergency guardianship under sub. (6), shall be heard within 45
24days after the filing of the petition. At the hearing, the court shall first determine
25whether any party wishes to contest the petition. If the petition is not contested, the
1court shall immediately proceed to a fact-finding and dispositional hearing, unless
2an adjournment is requested. If the petition is contested and all parties consent, the
3court may proceed immediately to a fact-finding and dispositional hearing. If any
4party does not consent or if an adjournment is requested, the court shall set a date
5for a fact-finding and dispositional hearing that allows reasonable time for the
6parties to prepare but is not more than 30 days after the initial hearing.
AB47,22,137
2. The proposed guardian and any proposed successor guardian shall be
8physically present at all hearings unless the court excuses the attendance of either
9or, for good cause shown, permits attendance by telephone. The child is not required
10to attend any hearings, but if the child has nominated the proposed guardian, the
11child shall provide to the guardian ad litem sufficient information for the guardian
12ad litem to advise the court on whether the nomination is in the best interests of the
13child.
AB47,22,1814
3. If a man who has been given notice under par. (c) 1. appears at the initial
15hearing, alleges that he is the father of the child, and states that he wishes to
16establish the paternity of the child, s. 48.299 (6) applies. The court may order a
17temporary guardianship under sub. (5) pending the outcome of the paternity
18proceedings.
AB47,22,2519
(f)
Fact-finding and dispositional hearing. The court shall hold the
20fact-finding and dispositional hearing at the time specified or set by the court under
21this paragraph, at which any party may present evidence, including expert
22testimony, and argument relating to the allegations in the petition. The court shall
23determine whether the petitioner has proven the allegations in the petition under
24par. (b) by clear and convincing evidence and shall immediately proceed to determine
25the appropriate disposition under par. (h), considering the factors under par. (g).
AB47,23,2
1(g)
Dispositional factors. In determining the appropriate disposition under par.
2(h), the court shall consider all of the following:
AB47,23,63
1. Any nominations made under sub. (2) (c) 1. or 2. and the opinions of the
4parents and child as to what is in the best interests of the child, but the best interests
5of the child as determined by the court shall control in making the determination
6when those nominations and opinions are in conflict with those best interests.
AB47,23,87
2. Whether the proposed guardian would be fit, willing, and able to serve as the
8guardian of the child.
AB47,23,119
3. If the child is an Indian child, the order of placement preference under s.
1048.028 (7) (b) or, if applicable, s. 48.028 (7) (c), unless the court finds good cause, as
11described in s. 48.028 (7) (e), for departing from that order.
AB47,23,1312
4. Whether appointment of the proposed guardian as the child's guardian is in
13the best interests of the child.
AB47,23,1614
(h)
Disposition. At the conclusion of the hearing under par. (f), the court shall
15grant one of the following dispositions, unless the court adjourns the hearing under
16par. (i):
AB47,23,2317
1. A disposition dismissing the petition if the court finds that the petitioner has
18not proved the allegations in the petition by clear and convincing evidence or
19determines that appointment of the proposed guardian as the child's guardian is not
20in the best interests of the child. Dismissal of a petition under this subdivision does
21not preclude the court from referring the child to the intake worker for an intake
22inquiry under s. 48.24 or from acting as an intake worker at the court's discretion
23under s. 48.10.
AB47,24,524
2. A disposition ordering the guardianship and issuing letters of guardianship
25if the court finds that the petitioner has proved the allegations in the petition by clear
1and convincing evidence and determines that such an appointment is in the best
2interests of the child. A dispositional order for a full, limited, or temporary
3guardianship under this subsection may not change the placement of a child under
4the supervision of a court pursuant to s. 48.13, 48.133, or 48.14 or ch. 938. The
5disposition shall include all of the following:
AB47,24,76
a. Whether the appointment is for a full, limited, or temporary guardianship,
7and, if limited or temporary, the limitations and expiration date of the guardianship.
AB47,24,88
b. If applicable, the amount of support to be paid by the child's parents.
AB47,24,149
c. If applicable, and subject to sub. (13), reasonable rules of parental visitation.
10Subject to a court order under this subdivision or sub. (9) or (13), the guardian's
11decision regarding visitation is presumed to be in the best interest of the child and,
12if the court reviews the decision, the petitioner has the burden of proving by clear and
13convincing evidence that the decision of the guardian is not in the best interest of the
14child.
AB47,25,215
(i)
Adjournment; proposed guardian unfit or not in best interests. If at the
16conclusion of the hearing under par. (f) the court finds that the petitioner has proved
17the allegations in the petition, other than the allegation specified in par. (b) 8., by
18clear and convincing evidence, but that the proposed guardian is not fit, willing, and
19able to serve as the guardian of the child, or if the court finds that the petitioner has
20so proved all of the allegations in the petition, but that appointment of the proposed
21guardian as the child's guardian is not in the best interests of the child, the court may,
22in lieu of granting a disposition dismissing the petition under par. (h) 1., adjourn the
23hearing for not more than 30 days, request the petitioner or any other party to
24nominate a new proposed guardian, and order the guardian ad litem to report to the
1court concerning whether the new proposed guardian is fit, willing, and able to serve
2as the guardian of the child.
AB47,25,11
3(5) Temporary guardianships. (a)
Duration and extent of authority. The court
4may appoint a temporary guardian for a child for a period not to exceed 180 days,
5except that the court may extend this period for good cause shown for one additional
6180-day period. The court's determination and order appointing the temporary
7guardian shall specify the authority of the temporary guardian, which shall be
8limited to those acts that are reasonably related to the reasons for the appointment
9that are specified in the petition for temporary guardianship. The authority of the
10temporary guardian is limited to the performance of those acts stated in the order
11of appointment.
AB47,25,1412
(b)
Procedures for appointment. A petition for the appointment of a temporary
13guardian shall be heard in the same manner and is subject to the same requirements
14as provided in this section for the appointment of a full or limited guardian.