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October 23, 2019 - Introduced by Representatives Dittrich, Plumer, Ballweg,
Felzkowski, James, Kerkman, Kulp, Magnafici, Milroy, Murphy, Mursau,
Ramthun, Tusler, Thiesfeldt, Tranel, Born, VanderMeer and Tittl,
cosponsored by Senators Olsen, Jacque, Darling and Cowles. Referred to
Committee on Family Law.
AB561,1,3 1An Act to amend 48.426 (3) (c) and 48.92 (2); and to create 48.425 (1) (h), 48.43
2(2) (c) and 48.905 of the statutes; relating to: postadoption contact
3agreements.
Analysis by the Legislative Reference Bureau
This bill allows a proposed adoptive parent and a birth parent or other relative
with whom a child has a substantial relationship to enter into an agreement for
postadoption contact and allows a court to approve such an agreement.
Under current law, there is no mechanism to formalize or enforce an agreement
entered into between a birth parent or other relative and a proposed adoptive parent
for postadoption contact, commonly known as an “open adoption.” Under current
law, a termination of parental rights order and an adoption permanently severs the
child's legal relationship with the birth parent and other relatives and creates the
legal relationship of parent and child between the child and the adoptive parent.
However, the Wisconsin Supreme Court has stated that in a proceeding for the
termination of parental rights, when considering the impact on the child of severing
the legal relationship between a parent or other relatives, a court may, in its
discretion, afford due weight to an adoptive parent's stated intent to permit
continued visitation between the child and the parent or other relatives, while
bearing in mind that such a promise is legally unenforceable after the termination
of parental rights and adoption. State v. Margaret H., 2000 WI 42, ¶¶ 29-30.
Under the bill, a proposed adoptive parent and a birth parent or other relative
with whom the child has a substantial relationship may enter into an agreement for

postadoption contact privileges. Under the bill, a court is required to consider the
terms of any such agreement when considering the impact on the child of severing
the child's relationship with the parent or other relative. Under the bill, a
postadoption contact agreement may control the types and frequency of contact that
the parties agree to. A court in an action to terminate parental rights may approve
a postadoption contact agreement if the agreement meets certain requirements, as
specified under the bill. The bill also specifies how an agreement may be modified,
terminated, or enforced.
The people of the state of Wisconsin, represented in senate and assembly, do
enact as follows:
AB561,1 1Section 1. 48.425 (1) (h) of the statutes is created to read:
AB561,2,52 48.425 (1) (h) A statement as to whether a postadoption contact agreement has
3been entered into under s. 48.905. If such an agreement has been entered into, the
4agency or tribal child welfare department shall attach a copy of the agreement to the
5report.
AB561,2 6Section 2. 48.426 (3) (c) of the statutes is amended to read:
AB561,2,117 48.426 (3) (c) Whether the child has substantial relationships with the parent
8or other family members, and whether it would be harmful to the child to sever these
9those relationships. In determining whether it would be harmful to the child to sever
10those relationships, the court shall consider the terms of any postadoption contact
11agreement that has been entered into under s. 48.905.
AB561,3 12Section 3. 48.43 (2) (c) of the statutes is created to read:
AB561,2,1413 48.43 (2) (c) A court may approve a postadoption contact agreement entered
14into under s. 48.905.
AB561,4 15Section 4. 48.905 of the statutes is created to read:
AB561,3,2 1648.905 Postadoption contact agreement. (1) Parties. A proposed adoptive
17parent may enter into a postadoption contact agreement with a parent of the child

1who is the subject of the adoption or with another relative with whom the child has
2a substantial relationship.
AB561,3,4 3(2) Terms. A postadoption contact agreement shall contain all of the following
4provisions:
AB561,3,95 (a) An acknowledgment by the parent or relative that failure to comply with
6the terms of the agreement is not grounds to revoke the termination of the parent's
7rights or the adoption. An acknowledgment under this paragraph is not required if
8s. 48.028 and the federal Indian Child Welfare Act, 25 USC 1901 to 1963, apply to
9the proceeding.
AB561,3,1310 (b) A statement by each party to the agreement that the agreement was entered
11into voluntarily, that the terms of the agreement are understood, that no promises
12or threats were made to coerce a party to enter into the agreement, and that no
13representations have been relied upon other than those contained in the agreement.
AB561,3,1714 (c) An acknowledgment that if a dispute arises about fulfillment of the terms
15of the agreement, the parties shall participate, or attempt to participate, in good
16faith, in mediation or an alternative dispute resolution process, with the mediator
17or arbitrator to be selected by the adoptive parent.
AB561,3,1918 (d) A description of the postadoption contact and frequency of contact agreed
19to by the proposed adoptive parent. Contact may include any of the following:
AB561,3,2120 1. Sharing of information about the child between the adoptive parent and
21parent or relative.
AB561,3,2222 2. Sharing of the parent's or relative's medical history.
AB561,3,2423 3. Written, oral, or electronic communication between the child and parent or
24relative.
AB561,4,3
14. Visitation by the parent or relative with the child under specified conditions
2or conditions that may be set by the proposed adoptive parent at the time of
3visitation.
AB561,4,6 4(3) Approval. In a proceeding to terminate parental rights or a proceeding to
5grant an adoption, a court may approve a postadoption contact agreement if it finds
6all of the following:
AB561,4,97 (a) The agreement contains all of the provisions specified in sub. (2), and the
8court is satisfied that the proposed adoptive parent and the parent or relative
9understand those provisions.
AB561,4,1110 (b) The agreement is signed by the proposed adoptive parent and parent or
11relative.
AB561,4,1512 (c) An agency having guardianship, legal custody, or supervision of the child,
13the child's guardian ad litem, and, in the case of an Indian child, the Indian child's
14tribe, have submitted favorable recommendations for approval of the postadoption
15contact agreement.
AB561,4,1716 (d) The court determines that the parent or relative will not undermine the
17proposed adoptive parent's relationship with the child.
AB561,4,2018 (e) The court determines that the parent or relative will not act in a manner
19that is contrary to the proposed adoptive parent's parenting decisions that are
20related to the child's physical, emotional, educational, or spiritual welfare.
AB561,4,2321 (f) The court determines by clear and convincing evidence that approval of the
22agreement is in the best interests of the child. In considering the best interests of the
23child under this section, the court shall consider all of the following:
AB561,4,2524 1. Whether the child has a substantial relationship with the parent or relative,
25and whether it would be harmful to the child not to preserve that relationship.
AB561,5,2
12. The needs of the child and how those needs would be affected by postadoption
2contact with the parent or relative as provided under the agreement.
AB561,5,43 3. The wishes of the child, which may be communicated by the child, or through
4the child's guardian ad litem or other appropriate professional.
AB561,5,65 4. Any other factor that the court determines is relevant to the best interests
6of the child.
AB561,5,12 7(4) Stipulated modification. At any time after approval of an agreement by
8a court, an adoptive parent may agree to modify the postadoption contact agreement
9with the former parent or relative. The modified agreement shall be in writing,
10signed by the parties, and shall be submitted to the court. The court may approve the
11modified agreement, without a hearing, if it finds by clear and convincing evidence
12that modification of the agreement is in the best interests of the child.
AB561,5,22 13(5) Petition to modify or terminate. At any time after approval of an
14agreement by a court, an adoptive parent may petition the court for modification or
15termination of the postadoption contact agreement. The court shall schedule a
16hearing on the petition, with notice to the adoptive parent, former parent or relative,
17an agency that had guardianship, legal custody, or supervision of the child before the
18adoption, and, in the case of an Indian child, the Indian child's tribe. The court may
19modify or terminate the agreement, after a hearing, if it finds by clear and convincing
20evidence that modification or termination of the agreement is in the best interests
21of the child and that there has been a substantial change in circumstances since the
22agreement was approved by the court.
AB561,6,10 23(6) Enforcement. A party may petition the court for enforcement of the terms
24of the agreement after attempting mediation or an alternative dispute resolution
25process in good faith to obtain specific performance of the terms of the agreement.

1The court shall schedule a hearing on the petition, with notice to the adoptive parent,
2former parent or relative, an agency that had guardianship, legal custody, or
3supervision of the child before the adoption, and, in the case of an Indian child, the
4Indian child's tribe. The court may order specific performance of the terms of the
5agreement, after a hearing, if it finds by clear and convincing evidence that
6enforcement is in the best interests of the child. In first attempting mediation or an
7alternative dispute resolution process, the mediator or arbitrator shall be selected
8by the adoptive parent, with the mediator or arbitrator's fees to be paid equally by
9the adoptive parent and former parent or relative unless agreed otherwise in the
10mediation or ordered otherwise by the arbitrator or the court.
AB561,5 11Section 5. 48.92 (2) of the statutes is amended to read:
AB561,6,2312 48.92 (2) After the order of adoption is entered the relationship of parent and
13child between the adopted person and the adopted person's birth parents and the
14relationship between the adopted person and all persons whose relationship to the
15adopted person is derived through those birth parents shall be completely altered
16and all the rights, duties, and other legal consequences of those relationships shall
17cease to exist, unless the birth parent is the spouse of the adoptive parent, in which
18case those relationships shall be completely altered and those rights, duties, and
19other legal consequences shall cease to exist only with respect to the birth parent who
20is not the spouse of the adoptive parent and all persons whose relationship to the
21adopted person is derived through that birth parent. Notwithstanding the extinction
22of all parental rights under this subsection, a court may approve a postadoption
23contact agreement under s. 48.905 or
order reasonable visitation under s. 48.925.
AB561,6,2424 (End)
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