Chapter 48

48.02 Annotation Under sub. (13), a deceased parent continues to be a parent; a deceased parent’s parents continue to be grandparents. H.F. v. T.F., 168 Wis. 2d 62, 483 N.W.2d 803 (1992).

48.02 Annotation A viable fetus is not a “person” within the definition of a child under sub. (2). State ex rel. Angela M.W. v. Kruzicki, 209 Wis. 2d 112, 561 N.W.2d 729 (1997), 95-2480.

48.02 Annotation While the second sentence of sub. (13) applies exclusively to nonmarital children, the first sentence does not apply exclusively to children of married individuals. The biological father of a nonmarital child satisfies the definition of parent in sub. (13) as he is a biological parent notwithstanding that he has not officially been adjudicated as the child’s biological father. State v. James P., 2005 WI 80, 281 Wis. 2d 685, 698 N.W.2d 95, 04-0723.

48.02 Annotation An interpretation of “severe bruising” under sub. (14g) that includes consideration of the circumstances surrounding the physical injury is reasonable. A child’s bruises were severe based on the combination of: 1) the sensitive location of the bruising, on the child’s skull; 2) the vulnerability of a child of the victim’s age; and 3) the means by which the court determined the bruises were created, by an adult hand pressing on the child’s skull. Kristi L.M. v. Dennis E.M., 2007 WI 85, 302 Wis. 2d 185, 734 N.W.2d 375, 05-1034.

48.02 Annotation Under former sub. (13), 2007 stats., parentage may be established in one of three ways: 1) by initiating a paternity action under s. 767.80; 2) by petitioning for adoption under this chapter; or 3) by virtue of the presumption established by the artificial insemination statute. While a circuit court possesses common law authority to order visitation, it has no authority outside of the statutes to confer parental rights. Dustardy H. v. Bethany H., 2011 WI App 2, 331 Wis. 2d 158, 794 N.W.2d 230, 08-2587.

48.02 Annotation Enforcement of surrogacy agreements promotes stability and permanence in family relationships because it allows the intended parents to plan for the arrival of their child, reinforces the expectations of all parties to the agreement, and reduces contentious litigation. The surrogacy agreement in this case was enforceable except for the portions of the agreement requiring a voluntary termination of parental rights (TPR). The TPR provisions did not comply with the procedural safeguards set forth in s. 48.41 for a voluntary TPR because the biological mother would not consent to the TPR and there was no legal basis for involuntary TPR. The TPR provisions were severable. Rosecky v. Schissel, 2013 WI 66, 349 Wis. 2d 84, 833 N.W.2d 634, 11-2166.

48.02 Annotation Construing sub. (1) (gm) and s. 813.122 as allowing a trial court to consider evidence of the treatment a respondent obtained or steps a respondent took to ameliorate a child’s symptoms of emotional damage after the filing of the petition but prior to the injunction hearing would undercut the purpose of the injunction, which is to protect a child from an abusive situation. In light of Wisconsin’s strong and long-standing interest in the protection and well-being of its minors, interpreting these statutes in a manner that would allow a respondent to undercut the purpose of the statute would be unreasonable. S.O. v. T.R., 2016 WI App 24, 367 Wis. 2d 669, 877 N.W.2d 408, 15-0548.

48.02 Annotation Evidence of the treatment obtained or steps taken by a parent, guardian, or legal custodian to address and remedy the person’s actions can benefit the child within the meaning sub. (1) (gm) and s. 813.122. However, when evidence of such actions is introduced to establish that the parent, guardian, or legal custodian has not “neglected, refused or been unable ... to obtain the necessary treatment or to take steps to ameliorate the symptoms,” there must also be testimony or other evidence showing an actual benefit to the child in terms of treating the child and ameliorating the child’s symptoms of emotional abuse. S.O. v. T.R., 2016 WI App 24, 367 Wis. 2d 669, 877 N.W.2d 408, 15-0548.

48.02 Annotation Viewpoint: Wisconsin’s Undeveloped Surrogacy Law. Walsh. Wis. Law. Mar. 2012.

48.02 Annotation Child Abuse: Beware the “Unsubstantiated” Finding. Kornblum & Pollack. Wis. Law. Sept. 2018.

48.022 48.022 Electronic filing. Section 801.18 governs the electronic filing of documents under this chapter.

48.022 History History: Sup. Ct. Order No. 14-03, 2016 WI 29, 368 Wis. 2d xiii.

48.023 48.023 Guardianship. Except as limited by an order of the court under s. 48.977 (5) (b) or 48.978 (6) (b) 2., a person appointed by the court to be the guardian of a child under this chapter has 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, including but not limited to:

48.023(1) (1) The authority to consent to marriage, enlistment in the U.S. armed forces, major medical, psychiatric and surgical treatment, and obtaining a motor vehicle operator’s license.

48.023(2) (2) The authority to represent the child in legal actions and make other decisions of substantial legal significance concerning the child but not the authority to deny the child the assistance of counsel as required by this chapter.

48.023(3) (3) The right and duty of reasonable visitation of the child.

48.023(4) (4) The rights and responsibilities of legal custody except when legal custody has been vested in another person or when the child is under the supervision of the department of corrections under s. 938.183, 938.34 (4h), or 938.357 (3) or (4) or the supervision of a county department under s. 938.34 (4d), (4m), or (4n).

48.023 History History: 1977 c. 354; 1993 a. 385; 1995 a. 27, 77, 275, 352; 1997 a. 334; 2017 a. 185; 2019 a. 8 ss. 11, 71.

48.023 Annotation A guardian may not recover for the loss of society and companionship of a ward, nor may the guardian bring a separate claim for costs incurred or income lost on account of injuries to the ward. Conant v. Physicians Plus Medical Group, Inc., 229 Wis. 2d 271, 600 N.W.2d 21 (Ct. App. 1999), 98-3285.

48.023 Annotation A guardian has general authority to consent to medication for a ward but may consent to psychotropic medication only in accordance with ss. 880.07 (1m) and 880.33 (4m) and (4r). The guardian’s authority to consent to medication or medical treatment of any kind is not affected by an order for protective placement or services. OAG 5-99.

48.025 48.025 Declaration of paternal interest in matters affecting children.

48.025(1) (1) Any person claiming to be the father of a nonmarital child who is not adopted or whose parents do not subsequently intermarry under s. 767.803 and whose paternity has not been established may, in accordance with procedures under this section, file with the department a declaration of his interest in matters affecting the child. The department may not charge a fee for filing a declaration under this section.

48.025(2) (2) 

48.025(2)(a) (a) A declaration under sub. (1) may be filed at any time before a termination of the father’s parental rights under subch. VIII. This paragraph does not apply to a declaration that is filed on or after July 1, 2006.

48.025(2)(b) (b) A declaration under sub. (1) may be filed at any time before the birth of the child or within 14 days after the birth of the child, except that a man who receives a notice under s. 48.42 (1g) (b) may file a declaration within 21 days after the date on which the notice was mailed. This paragraph does not apply to a declaration filed before July 1, 2006.

48.025(2)(c) (c) The declaration shall be in writing, shall be signed and verified upon oath or affirmation by the person filing the declaration, and shall contain the person’s name and address, the name and last-known address of the mother, the month and year of the birth or expected birth of the child, and a statement that the person filing the declaration has reason to believe that he may be the father of the child. If the person filing the declaration is under 18 years of age, the declaration shall also be signed by a parent or guardian of the person.

48.025(2)(d) (d) A person who has filed a declaration under sub. (1) may revoke the declaration at any time by filing with the department a statement, signed and verified upon oath or affirmation, that the person, to the best of his knowledge and belief, is not the father of the child or that another person has been adjudicated as the father of the child. If the person filing the revocation is under 18 years of age, the revocation shall also be signed by a parent or guardian of the person.

48.025(3) (3) 

48.025(3)(a) (a) The department shall keep confidential and may not open to public inspection or disclose the contents of any declaration, revocation of a declaration, or response to a declaration filed under this section, except as provided under pars. (b) and (c) or by order of the court for good cause shown.

48.025(3)(b) (b) A copy of a declaration filed with the department under sub. (1) shall be sent to the mother at her last-known address. Nonreceipt of such copy shall not affect the validity of the declaration. The mother may send a written response to the declaration to the department, and the written response shall be filed with the declaration. Failure to send a written response shall not constitute an admission of the statements contained in the declaration.

48.025(3)(c) (c) A court in a proceeding under s. 48.13, 48.133, 48.14, or 938.13 or under a substantially similar law of another state or a person authorized to file a petition under s. 48.25, 48.42, 48.837, or 938.25 or under a substantially similar law of another state may request the department to search its files to determine whether a person who may be the father of the child who is the subject of the proceeding has filed a declaration under this section. If the department has on file a declaration of paternal interest in matters affecting the child, the department shall issue to the requester a copy of the declaration. If the department does not have on file a declaration of paternal interest in matters affecting the child, the department shall issue to the requester a statement that no declaration could be located. The department may require a person who requests a search under this paragraph to pay a reasonable fee that is sufficient to defray the costs to the department of maintaining its file of declarations and publicizing information relating to declarations of paternal interest under this section.

48.025(3)(d) (d) Any person who obtains any information under this subsection may use or disclose that information only for the purposes of a proceeding under s. 48.13, 48.133, 48.14, or 938.13 or under a substantially similar law of another state and may not use or disclose that information for any other purpose except by order of the court for good cause shown.

48.025(4) (4) Filing a declaration under this section shall not extend parental rights to the person filing such declaration.

48.025(5) (5) 

48.025(5)(a) (a) The department shall publicize, in a manner calculated to provide maximum notice to all persons who might claim to be the father of a nonmarital child, all of the following information:

48.025(5)(a)1. 1. That a person claiming to be the father of a nonmarital child may affirmatively protect his parental rights by filing a declaration of interest under this section.

48.025(5)(a)2. 2. The procedures for filing a declaration of interest.

48.025(5)(a)3. 3. The consequences of filing a declaration of interest.

48.025(5)(a)4. 4. The consequences of not filing a declaration of interest.

48.025(5)(b) (b) The department may publicize the information under par. (a) by posting the information on the Internet, by creating a pamphlet for use by schools and health care providers, and by requiring agencies that provide services under contract with the department to provide the information to clients.

48.025(6) (6) 

48.025(6)(a) (a) Any person who makes a false statement in a declaration, revocation of a declaration, or response to a declaration filed under this section that the person does not believe is true is subject to prosecution for false swearing under s. 946.32 (2).

48.025(6)(b) (b) Except as permitted under sub. (3), any person who intentionally obtains, uses, or discloses information that is confidential under this section may be fined not more than $1,000 or imprisoned for not more than 90 days or both.

48.025 History History: 1973 c. 263; 1979 c. 330; 1981 c. 359; 1983 a. 447; 2005 a. 293; 2005 a. 443 s. 265.

48.025 Annotation The Constitutional Rights of a Putative Father to Establish His Parentage and Assert Parental Rights. Koesterer. 58 MLR 175 (1975).

48.027 48.027 Child custody jurisdiction. All proceedings relating to the custody of children shall comply with the requirements of ch. 822.

48.027 History History: 1975 c. 283.

48.028 48.028 Indian child welfare.

48.028(1) (1) Declaration of policy. In Indian child custody proceedings, the best interests of the Indian child shall be determined in accordance with s. 48.01 (2).

48.028(2) (2) Definitions. In this section:

48.028(2)(a) (a) “Adoptive placement” means the permanent placement of an Indian child for adoption.

48.028(2)(am) (am) “Extended family member” means a person who is defined as a member of an Indian child’s extended family by the law or custom of the Indian child’s tribe or, in the absence of such a law or custom, a person who has attained the age of 18 years and who is the Indian child’s grandparent, aunt, uncle, brother, sister, brother-in-law, sister-in-law, niece, nephew, first cousin, 2nd cousin, or stepparent.

48.028(2)(b) (b) “Former Indian custodian” means a person who was the Indian custodian of an Indian child before termination of parental rights to and adoption of the Indian child.

48.028(2)(c) (c) “Former parent” means a person who was the parent of an Indian child before termination of parental rights to and adoption of the Indian child.

48.028(2)(d) (d) “Indian child custody proceeding” means a proceeding governed by the federal Indian Child Welfare Act, 25 USC 1901 to 1963, in which any of the following may occur:

48.028(2)(d)1. 1. An adoptive placement.

48.028(2)(d)2. 2. An out-of-home care placement.

48.028(2)(d)3. 3. A preadoptive placement.

48.028(2)(d)4. 4. A termination of parental rights, as defined in s. 48.40 (2) to an Indian child.

48.028(2)(d)5. 5. A delegation of powers by a parent regarding the care and custody of an Indian child for longer than one year under s. 48.979.

48.028(2)(e) (e) “Out-of-home care placement” means the removal of an Indian child from the home of his or her parent or Indian custodian for temporary placement in a foster home, group home, residential care center for children and youth, or shelter care facility, in the home of a relative other than a parent, in the home of like-kin, or in the home of a guardian, from which placement the parent or Indian custodian cannot have the child returned upon demand. “Out-of-home care placement” does not include an adoptive placement, a preadoptive placement, a delegation of powers, as described in par. (d) 5., an emergency change in placement under s. 48.357 (2) (b), or holding an Indian child in custody under ss. 48.19 to 48.21.

48.028(2)(f) (f) “Preadoptive placement” means the temporary placement of an Indian child in a foster home, group home, or residential care center for children and youth, in the home of a relative other than a parent, in the home of like-kin, or in the home of a guardian after a termination of parental rights but prior to or in lieu of an adoptive placement. “Preadoptive placement” does not include an emergency change in placement under s. 48.437 (2).

48.028(2)(g) (g) “Qualified expert witness” means a person who is any of the following:

48.028(2)(g)1. 1. A member of the Indian child’s tribe recognized by the Indian child’s tribal community as knowledgeable regarding the tribe’s customs relating to family organization or child-rearing practices.

48.028(2)(g)2. 2. A member of another tribe who is knowledgeable regarding the customs of the Indian child’s tribe relating to family organization or child-rearing practices.

48.028(2)(g)3. 3. A professional person having substantial education and experience in the person’s professional specialty and having substantial knowledge of the customs, traditions, and values of the Indian child’s tribe relating to family organization and child-rearing practices.

48.028(2)(g)4. 4. A layperson having substantial experience in the delivery of child and family services to Indians and substantial knowledge of the prevailing social and cultural standards and child-rearing practices of the Indian child’s tribe.

48.028(2)(h) (h) “Reservation” means Indian country, as defined in 18 USC 1151, or any land not covered under that section to which title is either held by the United States in trust for the benefit of an Indian tribe or individual or held by an Indian tribe or individual, subject to a restriction by the United States against alienation.

48.028(3) (3) Jurisdiction over Indian child custody proceedings.

48.028(3)(a) (a) Applicability. This section and the federal Indian Child Welfare Act, 25 USC 1901 to 1963, apply to any Indian child custody proceeding regardless of whether the Indian child is in the legal custody or physical custody of an Indian parent, Indian custodian, extended family member, or other person at the commencement of the proceeding and whether the Indian child resides or is domiciled on or off of a reservation. A court assigned to exercise jurisdiction under this chapter may not determine whether this section and the federal Indian Child Welfare Act, 25 USC 1901 to 1963, apply to an Indian child custody proceeding based on whether the Indian child is part of an existing Indian family.

48.028(3)(b) (b) Exclusive tribal jurisdiction.

48.028(3)(b)1. 1. An Indian tribe shall have exclusive jurisdiction over any Indian child custody proceeding involving an Indian child who resides or is domiciled within the reservation of the tribe, except when that jurisdiction is otherwise vested in the state by federal law and except as provided in subd. 2. If an Indian child is a ward of a tribal court, the Indian tribe shall retain exclusive jurisdiction regardless of the residence or domicile of the child.

48.028(3)(b)2. 2. Subdivision 1. does not prevent an Indian child who resides or is domiciled within a reservation, but who is temporarily located off the reservation, from being taken into and held in custody under ss. 48.19 to 48.21 in order to prevent imminent physical harm or damage to the Indian child. The person taking the Indian child into custody or the intake worker shall immediately release the Indian child from custody upon determining that holding the Indian child in custody is no longer necessary to prevent imminent physical damage or harm to the Indian child and shall expeditiously restore the Indian child to his or her parent or Indian custodian, release the Indian child to an appropriate official of the Indian child’s tribe, or initiate an Indian child custody proceeding, as may be appropriate.

48.028(3)(c) (c) Transfer of proceedings to tribe. In any Indian child custody proceeding under this chapter involving an out-of-home placement of, termination of parental rights to, or delegation of powers, as described in sub. (2) (d) 5., regarding, an Indian child who is not residing or domiciled within the reservation of the Indian child’s tribe, the court assigned to exercise jurisdiction under this chapter shall, upon the petition of the Indian child’s parent, Indian custodian, or tribe, transfer the proceeding to the jurisdiction of the tribe unless any of the following applies:

48.028(3)(c)1. 1. A parent of the Indian child objects to the transfer.

48.028(3)(c)2. 2. The Indian child’s tribe does not have a tribal court, or the tribal court of the Indian child’s tribe declines jurisdiction.

48.028(3)(c)3. 3. The court determines that good cause exists to deny the transfer. In determining whether good cause exists to deny the transfer, the court may not consider any perceived inadequacy of the tribal social services department or the tribal court of the Indian child’s tribe. The court may determine that good cause exists to deny the transfer only if the person opposing the transfer shows by clear and convincing evidence that any of the following applies:

48.028(3)(c)3.a. a. The Indian child is 12 years of age or over and objects to the transfer.

48.028(3)(c)3.b. b. The evidence or testimony necessary to decide the case cannot be presented in tribal court without undue hardship to the parties or the witnesses and that the tribal court is unable to mitigate the hardship by making arrangements to receive the evidence or testimony by use of telephone or live audiovisual means, by hearing the evidence or testimony at a location that is convenient to the parties and witnesses, or by use of other means permissible under the tribal court’s rules of evidence.

48.028(3)(c)3.c. c. The Indian child’s tribe received notice of the proceeding under sub. (4) (a), the tribe has not indicated to the court in writing that the tribe is monitoring the proceeding and may request a transfer at a later date, the petition for transfer is filed by the tribe, and the petition for transfer is filed more than 6 months after the tribe received notice of the proceeding or, if the proceeding is a termination of parental rights proceeding, more than 3 months after the tribe received notice of the proceeding.

48.028(3)(d) (d) Declination of jurisdiction. If the court assigned to exercise jurisdiction under this chapter determines that the petitioner in an Indian child custody proceeding has improperly removed the Indian child from the custody of his or her parent or Indian custodian or has improperly retained custody of the Indian child after a visit or other temporary relinquishment of custody, the court shall decline jurisdiction over the petition and immediately return the Indian child to the custody of the parent or Indian custodian, unless the court determines that returning the Indian child to his or her parent or Indian custodian would subject the Indian child to substantial and immediate danger or the threat of that danger.

48.028(3)(e) (e) Intervention. An Indian child’s Indian custodian or tribe may intervene at any point in an Indian child custody proceeding under this chapter involving an out-of-home care placement of, termination of parental rights to, or delegation of powers, as described in sub. (2) (d) 5., regarding, the Indian child.

48.028(3)(f) (f) Full faith and credit. The state shall give full faith and credit to the public acts, records, and judicial proceedings of any Indian tribe that are applicable to an Indian child custody proceeding to the same extent that the state gives full faith and credit to the public acts, records, and judicial proceedings of any other governmental entity.

48.028(4) (4) Court proceedings.

48.028(4)(a) (a) Notice. In any involuntary proceeding involving the out-of-home care placement of, termination of parental rights to, or delegation of powers, as described in sub. (2) (d) 5., regarding, a child whom the court knows or has reason to know is an Indian child, the party seeking the out-of-home care placement, termination of parental rights, or delegation of powers shall, for the first hearing of the proceeding, notify the Indian child’s parent, Indian custodian, and tribe, by registered mail, return receipt requested, of the pending proceeding and of their right to intervene in the proceeding and shall file the return receipt with the court. Notice of subsequent hearings in a proceeding shall be in writing and may be given by mail, personal delivery, or facsimile transmission, but not by electronic mail. If the identity or location of the Indian child’s parent, Indian custodian, or tribe cannot be determined, that notice shall be given to the U.S. secretary of the interior in like manner. The first hearing in the proceeding may not be held until at least 10 days after receipt of the notice by the parent, Indian custodian, and tribe or until at least 15 days after receipt of the notice by the U.S. secretary of the interior. On request of the parent, Indian custodian, or tribe, the court shall grant a continuance of up to 20 additional days to enable the requester to prepare for that hearing.

48.028(4)(b) (b) Appointment of counsel. Whenever an Indian child is the subject of a proceeding involving the removal of the Indian child from the home of his or her parent or Indian custodian, placement of the Indian child in an out-of-home care placement, or termination of parental rights to the Indian child, the Indian child’s parent or Indian custodian shall have the right to be represented by court-appointed counsel as provided in s. 48.23 (2g). The court may also, in its discretion, appoint counsel for the Indian child under s. 48.23 (1m) or (3) if the court finds that the appointment is in the best interests of the Indian child.

48.028(4)(c) (c) Examination of reports and other documents. Each party to a proceeding involving the out-of-home care placement of, termination of parental rights to, or return of custody under sub. (8) (a) of an Indian child shall have the right to examine all reports or other documents filed with the court upon which any decision with respect to the out-of-home care placement, termination of parental rights, or return of custody may be based.

48.028(4)(d) (d) Out-of-home care placement; serious damage and active efforts. The court may not order an Indian child to be removed from the home of the Indian child’s parent or Indian custodian and placed in an out-of-home care placement unless all of the following occur:

48.028(4)(d)1. 1. The court or jury finds by clear and convincing evidence, including the testimony of one or more qualified expert witnesses chosen in the order of preference listed in par. (f), that continued custody of the Indian child by the parent or Indian custodian is likely to result in serious emotional or physical damage to the child.