Chapter 48

48.9795(4)(h)1. 1. A disposition dismissing the petition if the court finds that the petitioner has not proved the allegations in the petition by clear and convincing evidence or determines that appointment of the proposed guardian as the child’s guardian is not in the best interests of the child. Dismissal of a petition under this subdivision does not preclude the court from referring the child to the intake worker for an intake inquiry under s. 48.24 or from acting as an intake worker at the court’s discretion under s. 48.10.

48.9795(4)(h)2. 2. A disposition ordering the guardianship and issuing letters of guardianship if the court finds that the petitioner has proved the allegations in the petition by clear and convincing evidence and determines that such an appointment is in the best interests of the child. A dispositional order under this section may not change the placement of a child under the supervision of a court pursuant to s. 48.13, 48.133, or 48.14 (1) to (10) or (12) or ch. 938. The disposition shall include all of the following:

48.9795(4)(h)2.a. a. Whether the appointment is for a full, limited, or temporary guardianship, and, if limited or temporary, the limitations and expiration date of the guardianship.

48.9795(4)(h)2.b. b. If applicable, the amount of support to be paid by the child’s parents.

48.9795(4)(h)2.c. c. If applicable, and subject to sub. (13), reasonable rules of parental visitation. Subject to a court order under this subdivision or sub. (9) or (13), the guardian’s decision regarding visitation is presumed to be in the best interests of the child and, if the court reviews the decision, the petitioner has the burden of proving by clear and convincing evidence that the decision of the guardian is not in the best interests of the child.

48.9795(4)(i) (i) Adjournment; proposed guardian unfit or not in best interests. If at the conclusion of the hearing under par. (f) the court finds that the petitioner has proved the allegations in the petition, other than the allegation specified in par. (b) 8., by clear and convincing evidence, but that the proposed guardian is not fit, willing, and able to serve as the guardian of the child, or if the court finds that the petitioner has so proved all of the allegations in the petition, but that appointment of the proposed guardian as the child’s guardian is not in the best interests of the child, the court may, in lieu of granting a disposition dismissing the petition under par. (h) 1., adjourn the hearing for not more than 30 days, request the petitioner or any other party to nominate a new proposed guardian, and order the guardian ad litem to report to the court concerning whether the new proposed guardian is fit, willing, and able to serve as the guardian of the child.

48.9795(5) (5) Temporary guardianships.

48.9795(5)(a) (a) Duration and extent of authority. The court may appoint a temporary guardian for a child for a period not to exceed 180 days, except that the court may extend this period for good cause shown for one additional 180-day period. The court’s determination and order appointing the temporary guardian shall specify the authority of the temporary guardian, which shall be limited to those acts that are reasonably related to the reasons for the appointment that are specified in the petition for temporary guardianship. The authority of the temporary guardian is limited to the performance of those acts stated in the order of appointment.

48.9795(5)(b) (b) Procedures for appointment. A petition for the appointment of a temporary guardian shall be heard in the same manner and is subject to the same requirements as provided in this section for the appointment of a full or limited guardian.

48.9795(5)(c) (c) Cessation of powers. The duties and powers of the temporary guardian cease upon the expiration of the period specified in par. (a), or the termination as determined by the court of the situation of the child that was the cause of the temporary guardianship. Upon cessation of a temporary guardianship, the temporary guardian shall file with the court any report that the court requires.

48.9795(6) (6) Emergency guardianships.

48.9795(6)(a) (a) Duration and extent of authority. The court may appoint an emergency guardian for a child for a period not to exceed 60 days. The court’s determination and order appointing the emergency guardian shall specify the authority of the emergency guardian and shall be limited to those acts that are reasonably related to the reasons for the appointment that are specified in the petition for emergency guardianship. The authority of the emergency guardian is limited to the performance of those acts stated in the order of appointment. An order appointing an emergency guardian may not change the placement of a child under the supervision of a court pursuant to s. 48.13, 48.133, or 48.14 (1) to (10) or (12) or ch. 938.

48.9795(6)(b) (b) Procedures for appointment. All of the following procedures apply to the appointment of an emergency guardian:

48.9795(6)(b)1. 1. Any person may petition for the appointment of an emergency guardian for a child. The petition shall contain the information required under sub. (4) (b) and shall specify the reasons for the appointment of an emergency guardian and the powers requested for the emergency guardian.

48.9795(6)(b)2. 2. The petitioner shall give notice of the petition and of the time and place of the hearing under subd. 4. to the child, if 12 years of age or over, the child’s guardian ad litem, and the child’s counsel, if any; the child’s parents, guardian, and legal custodian; and the person nominated as emergency guardian. The notice and a copy of the petition shall be served as soon after the filing of the petition as possible, shall be served by the most practical means possible, including personal service or service by electronic mail or telephone, and shall include notice of the right to petition for reconsideration or modification of the emergency guardianship under subd. 5. If the petitioner serves notice of the hearing after the hearing is conducted and the court has entered an order, the petitioner shall include the court’s order with the notice of the hearing.

48.9795(6)(b)3. 3. The court shall appoint a guardian ad litem for the child as soon as possible after the filing of the petition. The court shall attempt to appoint the guardian ad litem before the hearing on the petition, but may appoint the guardian ad litem after the hearing if the court finds that exigent circumstances require the immediate appointment of an emergency guardian. The guardian ad litem shall conduct a diligent investigation sufficient to represent the best interests of the child in court. If the court appoints a guardian ad litem after entry of the order granting the emergency guardianship, the guardian ad litem may petition for reconsideration or modification of the emergency guardianship under subd. 5. If the court dismisses the petition for emergency guardianship prior to appointing a guardian ad litem, the court need not appoint a guardian ad litem unless the petition is refiled.

48.9795(6)(b)4. 4. The court shall hold a hearing on the emergency guardianship petition as soon as possible after the filing of the petition or, for good cause shown, may issue a temporary order appointing an emergency guardian without a hearing that shall remain in effect until a hearing is held on the emergency guardianship petition. If appointed prior to the hearing, the guardian ad litem shall attend the hearing in person or by telephone.

48.9795(6)(b)5. 5. If the court appoints an emergency guardian, any person specified in subd. 2. may petition for reconsideration or modification of the emergency guardianship and the court shall hold a rehearing on the issue of appointment of the emergency guardian within 30 calendar days after the filing of the petition.

48.9795(6)(b)6. 6. If the court determines that the welfare of the child does not require the immediate appointment of an emergency guardian, the court may dismiss the petition. Dismissal of a petition under this subdivision does not preclude the court from referring the child to the intake worker for an intake inquiry under s. 48.24 or from acting as an intake worker at the judge’s discretion under s. 48.10.

48.9795(6)(c) (c) Immunity. An emergency guardian of a child is immune from civil liability for his or her acts or omissions in performing the duties of emergency guardianship if he or she performs the duties in good faith, in the best interests of the child, and with the degree of diligence and prudence that an ordinarily prudent person exercises in his or her own affairs.

48.9795(6)(d) (d) Cessation of powers. The duties and powers of the emergency guardian cease upon the expiration of the period specified in par. (a), or the termination as determined by the court of the situation of the child that was the cause of the emergency guardianship. Upon cessation of an emergency guardianship, the emergency guardian shall file with the court any report that the court requires.

48.9795(7) (7) Standby guardianship. A petition for the appointment of a standby guardian of the person for a child to assume the duty and authority of guardianship on the incapacity, death, or debilitation and consent, of the child’s parent shall be brought under s. 48.978.

48.9795(8) (8) Successor guardian.

48.9795(8)(a) (a) Appointment; initial petition or during guardianship.

48.9795(8)(a)1. 1. As part of a petition for the initial appointment of a guardian of a child or at any time after that appointment, a person may petition for the appointment of one or more successor guardians of the child to assume the duty and authority of full, limited, or temporary guardianship in the event of an occurrence specified in subd. 2. Except as provided in par. (b), if the petition for the appointment of a successor guardian is brought after the initial appointment of a guardian, the petition shall be heard in the same manner and subject to the same requirements as provided under this section for an initial appointment of a guardian.

48.9795(8)(a)2. 2. After a hearing, the court may designate one or more successor guardians whose appointment shall become effective immediately upon the death, unwillingness or inability to act, resignation, or removal by the court of the initially appointed guardian or during a period, as determined by the initially appointed guardian, when the initially appointed guardian is temporarily unable to fulfill his or her duties, including during an extended vacation or illness. The powers and duties of the successor guardian shall be the same as those of the initially appointed guardian. The successor guardian shall receive a copy of the court order establishing or modifying the initial guardianship and of the order designating the successor guardian. Upon the occurrence of an event specified in this subdivision, the successor guardian shall so notify the court and request the court to issue new letters of guardianship. Upon notification, the court shall issue new letters of guardianship that specify that the successor guardianship is permanent or that specify the period for a temporary successor guardianship.

48.9795(8)(b) (b) Appointment; when no guardian.

48.9795(8)(b)1. 1. If a guardian dies, is removed by order of the court, or resigns and the resignation is accepted by the court, the court, on its own motion or upon petition of any interested person, may appoint a person who is fit, willing, and able to serve as successor guardian. The court may, upon request of any interested person or on its own motion, direct that the petition or motion for the appointment of a successor guardian be heard in the same manner and subject to the same requirements as provided under this section for an initial appointment of a guardian.

48.9795(8)(b)2. 2. If the appointment under subd. 1. is made without a hearing, the successor guardian shall provide notice to all interested persons of the appointment and the right to petition for reconsideration of the appointment of the successor guardian. The notice shall be served personally or by mail not later than 7 days after the appointment.

48.9795(9) (9) Modification of guardianship order.

48.9795(9)(a) (a) Any interested person or other person approved by the court may request a modification of a guardianship order entered under this subsection or sub. (4) (h) 2. or the court may, on its own motion, propose such a modification. The request or motion shall set forth in detail the nature of the proposed modification, shall allege facts sufficient to show that there has been a substantial change in circumstances since the last order affecting the guardianship was entered and that the proposed modification would be in the best interests of the child, and shall allege any other information that affects the advisability of the court’s disposition.

48.9795(9)(b) (b) The court shall hold a hearing on the matter prior to any modification of the guardianship order if the request or motion indicates that new information is available that affects the advisability of the court’s guardianship order, unless written waivers of objections to the modification are signed by all interested persons other than the child and the court approves the waivers.

48.9795(9)(c) (c) If a hearing is to be held, the person requesting or proposing the modification shall notify all interested persons at least 7 days prior to the hearing of the date, place, and purpose of the hearing. A copy of the request or proposal shall be attached to the notice. The court may order a modification if, at the hearing, the court finds that the person proposing the modification has proved by clear and convincing evidence that there has been a substantial change in circumstances and determines that a modification would be in the best interests of the child. An order for modification under this subsection may not change the placement of a child under the supervision of a court pursuant to s. 48.13, 48.133, or 48.14 (1) to (10) or (12) or ch. 938, other than to modify a guardianship order entered under this section.

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.