Chapter 48

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.

48.981(1)(ct) (ct) “Indian unborn child” means an unborn child who, when born, may be eligible for affiliation with an Indian tribe in any of the following ways:

48.981(1)(ct)1. 1. As a member of the Indian tribe.

48.981(1)(ct)2. 2. As a person who is eligible for membership in an Indian tribe and the biological child of a member of an Indian tribe.

48.981(1)(cu) (cu) “Juvenile correctional officer” means a person employed by the state, a political subdivision of the state, a child welfare agency that is licensed under s. 48.66 (1) (b), or a private entity contracting under s. 938.222 whose principal duty is the supervision of juveniles held in a juvenile detention facility, a juvenile correctional facility, or a secured residential care center for children and youth.

48.981(1)(cv) (cv) “Member of a religious order” means an individual who has taken vows devoting himself or herself to religious or spiritual principles and who is authorized or appointed by his or her religious order or organization to provide spiritual or religious advice or service.

48.981(1)(cx) (cx) “Member of the clergy” has the meaning given in s. 765.002 (1) or means a member of a religious order, and includes brothers, ministers, monks, nuns, priests, rabbis, and sisters.

48.981(1)(f) (f) “Record” means any document relating to the investigation, assessment and disposition of a report under this section.

48.981(1)(g) (g) “Reporter” means a person who reports suspected abuse or neglect or a belief that abuse or neglect will occur under this section.

48.981(1)(h) (h) “Subject” means a person or unborn child named in a report or record as any of the following:

48.981(1)(h)1. 1. A child who is the victim or alleged victim of abuse or neglect or who is threatened with abuse or neglect.

48.981(1)(h)1m. 1m. An unborn child who is the victim or alleged victim of abuse or who is at substantial risk of abuse.

48.981(1)(h)2. 2. A person who is suspected of abuse or neglect or who has been determined to have abused or neglected a child or to have abused an unborn child.

48.981(1)(i) (i) “Tribal agent” means the person designated under 25 CFR 23.12 by an Indian tribe to receive notice of involuntary child custody proceedings under the federal Indian Child Welfare Act, 25 USC 1901 to 1963.

48.981(2) (2) Persons required to report.

48.981(2)(a) (a) Any of the following persons who has reasonable cause to suspect that a child seen by the person in the course of professional duties has been abused or neglected or who has reason to believe that a child seen by the person in the course of professional duties has been threatened with abuse or neglect and that abuse or neglect of the child will occur shall, except as provided under subs. (2m) and (2r), report as provided in sub. (3):

48.981(2)(a)1. 1. A physician.

48.981(2)(a)1m. 1m. A naturopathic doctor.

48.981(2)(a)2. 2. A coroner.

48.981(2)(a)3. 3. A medical examiner.

48.981(2)(a)4. 4. A nurse.

48.981(2)(a)5. 5. A dentist.

48.981(2)(a)6. 6. A chiropractor.

48.981(2)(a)7. 7. An optometrist.

48.981(2)(a)8. 8. An acupuncturist.

48.981(2)(a)9. 9. A medical or mental health professional not otherwise specified in this paragraph.

48.981(2)(a)10. 10. A social worker.

48.981(2)(a)11. 11. A marriage and family therapist.

48.981(2)(a)12. 12. A professional counselor.

48.981(2)(a)13. 13. A public assistance worker, including a financial and employment planner, as defined in s. 49.141 (1) (d).

48.981(2)(a)14. 14. A school teacher.

48.981(2)(a)15. 15. A school administrator.

48.981(2)(a)16. 16. A school counselor.

48.981(2)(a)16m. 16m. A school employee not otherwise specified in this paragraph.

48.981(2)(a)17. 17. A mediator under s. 767.405.

48.981(2)(a)18. 18. A child care worker in a child care center, group home, or residential care center for children and youth.

48.981(2)(a)19. 19. A child care provider.

48.981(2)(a)20. 20. An alcohol or other drug abuse counselor.

48.981(2)(a)20m. 20m. A genetic counselor.

48.981(2)(a)21. 21. A member of the treatment staff employed by or working under contract with a county department under s. 46.23, 51.42, or 51.437 or a residential care center for children and youth.

48.981(2)(a)22. 22. A physical therapist.

48.981(2)(a)22m. 22m. A physical therapist assistant.