Chapter 48

48.9795(10) (10) Review of conduct of guardian.

48.9795(10)(a) (a) Continuing jurisdiction of court. The court that appointed the guardian of a child has continuing jurisdiction over the guardian.

48.9795(10)(b) (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:

48.9795(10)(b)1. 1. Abuses or neglects the child or knowingly permits others to do so.

48.9795(10)(b)2. 2. Fails to disclose information specified in sub. (4) (d) that would have prevented appointment of the person as guardian.

48.9795(10)(b)3. 3. Fails to follow or comply with the court’s order.

48.9795(10)(b)4. 4. Otherwise fails to perform any of his or her duties as a guardian under s. 48.023.

48.9795(10)(c) (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.

48.9795(10)(d) (d) Remedies of the court. If after a 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:

48.9795(10)(d)1. 1. Remove the guardian.

48.9795(10)(d)2. 2. Remove the guardian and appoint a successor guardian.

48.9795(10)(d)3. 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.

48.9795(10)(d)4. 4. Modify the duties and authority of the guardian.

48.9795(10)(d)5. 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.

48.9795(11) (11) Termination of guardianship.

48.9795(11)(a) (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:

48.9795(11)(a)1. 1. The guardianship is for a lesser period of time and that time has expired.

48.9795(11)(a)2. 2. The child marries.

48.9795(11)(a)3. 3. The child dies.

48.9795(11)(a)4. 4. The child’s residence changes from this state to another state and a guardian is appointed in the new state of residence.

48.9795(11)(a)5. 5. The guardian dies, or resigns and the resignation is accepted by the court, and a successor guardian is not appointed.

48.9795(11)(a)6. 6. The guardian is removed for cause under sub. (10) (d) 1. and a successor guardian is not appointed.

48.9795(11)(a)7. 7. The court terminates the guardianship on the request of a parent of the child or the child under par. (b).

48.9795(11)(a)8. 8. The court terminates the guardianship upon the adoption of the child.

48.9795(11)(b) (b) Termination on request of parent or child.

48.9795(11)(b)1. 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.

48.9795(11)(b)2. 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.

48.9795(11)(b)3. 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.

48.9795(12) (12) Visitation by a child’s grandparents and stepparents.

48.9795(12)(a) (a) In this subsection, “stepparent” means the surviving spouse of a deceased parent of a child, whether or not the surviving spouse has remarried.

48.9795(12)(b) (b) If one or both parents of a child are deceased and the child is in the custody of the surviving parent or any other person, a grandparent or stepparent of the child may petition for visitation privileges with respect to the 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 section that affects the child or may file the petition to commence an independent action under this subsection. Except as provided in 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 child has notice of the hearing and if the court determines that visitation is in the best interests of the child.

48.9795(12)(c) (c) Whenever possible, in making a determination under par. (b), the court shall consider the wishes of the child.

48.9795(12)(cm) (cm)

48.9795(12)(cm)1. 1. Except as provided in subd. 2., the court may not grant visitation privileges to a grandparent or stepparent under this 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 child, and the conviction has not been reversed, set aside, or vacated.

48.9795(12)(cm)2. 2. 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 child. The court shall consider the wishes of the child in making the determination.

48.9795(12)(d) (d) The court may issue any necessary order to enforce a visitation order that is granted under this subsection, and may from time to time modify the visitation privileges or enforcement order for good cause shown.

48.9795(12)(dm) (dm)

48.9795(12)(dm)1. 1. If a grandparent or stepparent granted visitation privileges with respect to a child under this 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 child, and the conviction has not been reversed, set aside, or vacated, the court shall modify the visitation order by denying visitation with the child upon petition, motion, or order to show cause by a person having custody of the child, or upon the court’s own motion, and upon notice to the grandparent or stepparent granted visitation privileges.

48.9795(12)(dm)2. 2. 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 child. The court shall consider the wishes of the child in making the determination.

48.9795(12)(e) (e) This subsection applies to every child in this state whose parent or parents are deceased, regardless of the date of death of the parent or parents.

48.9795(13) (13) Prohibiting visitation if parent kills other parent.

48.9795(13)(a) (a) Except as provided in par. (b), a court may not grant to a parent of a child who is the subject of a proceeding under this section visitation rights with the child if the parent 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 the child’s other parent, and the conviction has not been reversed, set aside, or vacated.

48.9795(13)(b) (b) Paragraph (a) does not apply if the court determines by clear and convincing evidence that visitation would be in the best interests of the child. The court shall consider the wishes of the child in making the determination.

48.9795 History History: 2019 a. 109 ss. 21, 32, 33; 2021 a. 240 s. 30.

48.9795 Annotation An unfit parent’s nomination of a person to serve as guardian of the parent’s children should be weighed by the court. Brezinski v. Barkholtz, 71 Wis. 2d 317, 237 N.W.2d 919 (1976).

48.9795 Annotation The adoption of a child of a deceased parent does not terminate the decedent’s parents’ grandparental visitation rights under s. 880.155 [now sub. (12)]. H.F. v. T.F., 168 Wis. 2d 62, 483 N.W.2d 803 (1992).

48.9795 Annotation Section 767.24 (5) [now s. 767.41 (5) (am)] sets out an appropriate standard for determining the best interests of a child under s. 880.155 [now sub. (12)]. The court did not exceed its authority under s. 880.155 [now sub. (12)] or violate a parent’s constitutional rights to raise a child by ordering grandparent visitation, nor did the court violate s. 880.155 [now sub. (12)] by ordering a guardian ad litem, mediation, and psychological evaluations. The court was not authorized by s. 880.155 [now sub. (12)] to order psychotherapeutic treatment that was arguably in the child’s best interests but outside the scope of visitation. F.R. v. T.B., 225 Wis. 2d 628, 593 N.W.2d 840 (Ct. App. 1999), 98-0819.

48.9795 Annotation A parent’s fundamental liberty interest in the care, custody, and control of a child is not violated if the parent’s nomination of a guardian is not presumed to be in the child’s best interests when the parent is unable to have custody and provide care. The circuit court is to only give the nomination of a surviving parent who is not suitable to be a guardian the weight that the circuit court considers appropriate in light of all the evidence. Anna S. v. Diana M., 2004 WI App 45, 270 Wis. 2d 411, 678 N.W.2d 285, 02-2640.

48.9795 Annotation Under former s. 880.03, 2003 stats., in evaluating a petition for a permanent guardianship on behalf of a minor filed by a non-parent when a parent objects, a court must first determine whether the party bringing the guardianship petition has shown that the child is in need of a guardian because there exist extraordinary circumstances requiring medical aid or the prevention of harm. Absent a showing of such extraordinary circumstances or need for a guardian, the court cannot appoint a guardian. Robin K. v. Lamanda M., 2006 WI 68, 291 Wis. 2d 333, 718 N.W.2d 38, 04-0767.

48.9795 Annotation In a custody dispute triggered by a petition for guardianship between a birth parent and a non-parent, the threshold inquiry is whether the parent is unfit, unable to care for the child, or there are compelling reasons for awarding custody to the non-parent. Consideration of a minor’s nomination of a guardian presupposes that the need for a guardian has been established. If it is determined that the birth parent is fit and able to care for the child and no compelling reasons exist to appoint a non-parent guardian, the minor’s nomination of a guardian becomes moot. Nicholas C.L. v. Julie R.L., 2006 WI App 119, 293 Wis. 2d 819, 719 N.W.2d 508, 05-1754.

48.9795 Annotation Grandparent Visitation Rights. Rothstein. Wis. Law. Nov. 1992.

48.9795 Annotation The Effect of C.G.F. and Section 48.925 on Grandparental Visitation Petitions. Hughes. Wis. Law. Nov. 1992.

48.9795 Note NOTE: The above annotations relate to guardianships under former ch. 880, 2003 stats., prior to the revision of and renumbering of that chapter to ch. 54 by 2005 Wis. Act 387.

48.9795 Annotation Under Troxel, 530 U.S. 57 (2000), the due process clause prevents a court from starting with a clean slate when assessing whether grandparent visitation is in the best interests of the child. Within the best interests framework, the court must afford a parent’s decision special weight by applying a rebuttable presumption that the fit parent’s decision regarding grandparent visitation is in the best interest of the child. It is up to the party advocating for nonparental visitation to rebut the presumption by presenting evidence that the offer is not in the child’s best interests. Martin L. v. Julie R.L., 2007 WI App 37, 299 Wis. 2d 768, 731 N.W.2d 288, 06-0199. But see Michels v. Lyons, 2019 WI 57, 387 Wis. 2d 1, 927 N.W.2d 486, 17-1142.

48.9795 Annotation Barstad, 118 Wis. 2d 549 (1984), rejected the “best interests” standard in custody disputes between parents and third parties. Barstad has not been quashed by the enactment of ch. 54 [now this section]. A best interests standard that does not consider a parent’s constitutional rights is incomplete. To conclude otherwise, parents would routinely have parental rights stripped from them simply because a third party might be better situated to tend to the needs of the child. Cynthia H. v. Joshua O., 2009 WI App 176, 322 Wis. 2d 615, 777 N.W.2d 664, 08-2456.

48.9795 Annotation Section 54.56 [now sub. (12)] is constitutional and does not violate the equal protection clause. Rick v. Opichka, 2010 WI App 23, 323 Wis. 2d 510, 780 N.W.2d 159, 09-0040.

48.9795 Annotation The award of overnights and a week during the summer in a grandparent visitation order was not contrary to law for being akin to a physical placement award found in divorce cases. There is no difference between the quantity of “physical placement” as that term is used in s. 767.001 (5) and the quantity of “visitation” as that word is used in s. 54.56 [now sub. (12)]. The proper amount of that time is a decision made by the family court in the best interests of the children. The quantity of time ordered does not depend on whether it is a visitation order or a physical placement order. Rick v. Opichka, 2010 WI App 23, 323 Wis. 2d 510, 780 N.W.2d 159, 09-0040.

48.9795 Annotation When children visit their grandparents and stay with them as guests, the grandparents have the responsibility to make routine daily decisions regarding the children’s care but may not make any decisions inconsistent with the major decisions made by a person having legal custody. The same is true of a parent who does not have joint legal custody but does have a right to physical placement. In both instances, the same rules apply: routine daily decisions may be made, but nothing greater. Rick v. Opichka, 2010 WI App 23, 323 Wis. 2d 510, 780 N.W.2d 159, 09-0040.

48.9795 Annotation An Intro to Minor Guardianship Actions. Viney. Wis. Law. Sept. 2014.

48.9795 Note NOTE: The above annotations relate to guardianships under ch. 54, prior to the creation of this section by 2019 Wis. Act 109.

subch. XXI of ch. 48 SUBCHAPTER XXI

MISCELLANEOUS PROVISIONS

48.98 48.98 Interstate placement of children.

48.98(1) (1) No person may bring a child into this state or send a child out of this state for the purpose of placing the child in foster care or for the purpose of adoption without a certificate from the department that the home is suitable for the child.

48.98(2) (2) 

48.98(2)(a) (a) Any person, except a county department or licensed child welfare agency, who brings a child into this state for the purpose of placing the child in a foster home shall, before the child’s arrival in this state, file with the department a $1,000 noncancelable bond in favor of this state, furnished by a surety company licensed to do business in this state. The condition of the bond shall be that the child will not become dependent on public funds for his or her primary support before the child reaches age 18 or is adopted.

48.98(2)(b) (b) By filing the bond required under par. (a), the person filing the bond and the surety submit to the jurisdiction of the court in the county in which the person resides for purposes of liability on the bond, and appoint the clerk of the court as their agent upon whom any papers affecting their bond liability may be served.

48.98(2)(c) (c) If upon affidavit of the department it appears to the court that the condition of the bond has been violated, the court shall order the person who filed the bond and the surety to show cause why judgment on the bond should not be entered for the department. If neither the person nor the surety appears for the hearing on the order to show cause, or if the court concludes after the hearing that the condition of the bond has been violated, the court shall enter judgment on the bond for the department against the person who filed the bond and the surety.

48.98(2)(d) (d) The department shall periodically bill the person who filed the bond and the surety under s. 49.32 (1) (b) or 49.345 for the cost of care and maintenance of the child until the child is adopted or becomes age 18, whichever is earlier. The guardian and surety shall also be liable under the bond for costs incurred by the department in enforcing the bond.

48.98(2)(e) (e) The department may waive the bond requirement under par. (a).

48.98(3) (3) The person bringing or sending the child into or out of this state shall report to the department, at least once each year and at any other time required by the department, concerning the location and well-being of the child, until the child is 18 years of age or is adopted.

48.98(4) (4) 

48.98(4)(a) (a) This section applies only to interstate placements of children that are not governed by s. 48.988 or 48.99.

48.98(4)(b) (b) Section 48.839 governs the placement of children who are not U.S. citizens and not under agency guardianship who are brought into this state from a foreign jurisdiction for the purpose of adoption.

48.98(5) (5) The department may promulgate all rules necessary for the enforcement of this section.

48.98 History History: 1977 c. 354; 1979 c. 32 s. 92 (1); 1981 c. 81; 1985 a. 176; 1985 a. 332 s. 251 (5); 1993 a. 446; 2007 a. 20; 2009 a. 28, 339.

48.981 48.981 Abused or neglected children and abused unborn children.

48.981(1) (1) Definitions. In this section:

48.981(1)(ag) (ag) “Agency” means a county department, the department in a county having a population of 750,000 or more or a licensed child welfare agency under contract with a county department or the department in a county having a population of 750,000 or more to perform investigations under this section.

48.981(1)(am) (am) “Caregiver” means, with respect to a child who is the victim or alleged victim of abuse or neglect or who is threatened with abuse or neglect, any of the following persons:

48.981(1)(am)1. 1. The child’s parent, grandparent, greatgrandparent, stepparent, brother, sister, stepbrother, stepsister, half brother, or half sister.

48.981(1)(am)2. 2. The child’s guardian.

48.981(1)(am)3. 3. The child’s legal custodian.

48.981(1)(am)4. 4. A person who resides or has resided regularly or intermittently in the same dwelling as the child.

48.981(1)(am)5. 5. An employee of a residential facility or residential care center for children and youth in which the child was or is placed.

48.981(1)(am)6. 6. A person who provides or has provided care for the child in or outside of the child’s home.

48.981(1)(am)7. 7. Any other person who exercises or has exercised temporary or permanent control over the child or who temporarily or permanently supervises or has supervised the child.

48.981(1)(am)8. 8. Any relative of the child other than a relative specified in subd. 1.

48.981(1)(b) (b) “Community placement” means probation; extended supervision; parole; aftercare; conditional transfer into the community under s. 51.35 (1); conditional transfer or discharge under s. 51.37 (9); placement in a Type 2 residential care center for children and youth or a Type 2 juvenile correctional facility authorized under s. 938.539 (5); conditional release under s. 971.17; supervised release under s. 980.06 or 980.08; participation in the community residential confinement program under s. 301.046, the intensive sanctions program under s. 301.048, community supervision under s. 938.533, the intensive supervision program under s. 938.534, or the serious juvenile offender program under s. 938.538; or any other placement of an adult or juvenile offender in the community under the custody or supervision of the department of corrections, the department of health services, a county department under s. 46.215, 46.22, 46.23, 51.42, or 51.437 or any other person under contract with the department of corrections, the department of health services or a county department under s. 46.215, 46.22, 46.23, 51.42, or 51.437 to exercise custody or supervision over the offender.