Adoption and termination proceedings in Wisconsin: Straining the wisdom of Solomon. Hayes and Morse, 66 MLR 439 (1983).
The Indian child welfare act—tribal self-determination through participation in child custody proceedings. 1979 WLR 1202.
In this chapter, unless otherwise defined:
"Abuse", other than when used in referring to abuse of alcohol beverages or other drugs, means any of the following:
Physical injury inflicted on a child by other than accidental means.
When used in referring to an unborn child, serious physical harm inflicted on the unborn child, and the risk of serious physical harm to the child when born, caused by the habitual lack of self-control of the expectant mother of the unborn child in the use of alcohol beverages, controlled substances or controlled substance analogs, exhibited to a severe degree.
Emotional damage for which the child's parent, guardian or legal custodian has neglected, refused or been unable for reasons other than poverty to obtain the necessary treatment or to take steps to ameliorate the symptoms.
"Adult" means a person who is 18 years of age or older, except that for purposes of investigating or prosecuting a person who is alleged to have violated any state or federal criminal law or any civil law or municipal ordinance, "adult" means a person who has attained 17 years of age.
"Alcohol and other drug abuse impairment" means a condition of a person which is exhibited by characteristics of habitual lack of self-control in the use of alcohol beverages, controlled substances or controlled substance analogs to the extent that the person's health is substantially affected or endangered or the person's social or economic functioning is substantially disrupted.
"Child" means a person who is less than 18 years of age, except that for purposes of investigating or prosecuting a person who is alleged to have violated a state or federal criminal law or any civil law or municipal ordinance, "child" does not include a person who has attained 17 years of age.
"Child caring institution" means a facility operated by a child welfare agency licensed under s. 48.60
for the care and maintenance of children residing in that facility.
"County department" means a county department under s. 46.22
, unless the context requires otherwise.
"Court", when used without further qualification, means the court assigned to exercise jurisdiction under this chapter and ch. 938
"Court intake worker" means any person designated to provide intake services under s. 48.067
"Department" means the department of health and family services.
"Developmentally disabled" means having a developmental disability, as defined in s. 51.01 (5)
"Emotional damage" means harm to a child's psychological or intellectual functioning. "Emotional damage" shall be evidenced by one or more of the following characteristics exhibited to a severe degree: anxiety; depression; withdrawal; outward aggressive behavior; or a substantial and observable change in behavior, emotional response or cognition that is not within the normal range for the child's age and stage of development.
"Foreign jurisdiction" means a jurisdiction outside of the United States.
"Foster home" means any facility that is operated by a person required to be licensed by s. 48.62 (1) (a)
and that provides care and maintenance for no more than 4 children or, if necessary to enable a sibling group to remain together, for no more than 6 children or, if the department promulgates rules permitting a different number of children, for the number of children permitted under those rules.
"Group home" means any facility operated by a person required to be licensed by the department under s. 48.625
for the care and maintenance of 5 to 8 children.
"Guardian" means the person named by the court having the duty and authority of guardianship.
"Judge", if used without further qualification, means the judge of the court assigned to exercise jurisdiction under this chapter and ch. 938
"Legal custodian" means a person, other than a parent or guardian, or an agency to whom legal custody of the child has been transferred by a court, but does not include a person who has only physical custody of the child.
"Legal custody" means a legal status created by the order of a court, which confers the right and duty to protect, train and discipline the child, and to provide food, shelter, legal services, education and ordinary medical and dental care, subject to the rights, duties and responsibilities of the guardian of the child and subject to any residual parental rights and responsibilities and the provisions of any court order.
"Nonidentifying social history information" means information about a person's birth parent that may aid the person in establishing a sense of identity. "Nonidentifying social history information" may include, but is not limited to, the following information about a birth parent, but does not include any information that would disclose the name, location or identity of a birth parent:
Reason for placing the child for adoption or for the termination of parental rights.
"Parent" means either a biological parent, a husband who has consented to the artificial insemination of his wife under s. 891.40
, or a parent by adoption. If the child is a nonmarital child who is not adopted or whose parents do not subsequently intermarry under s. 767.60
, "parent" includes a person acknowledged under s. 767.62 (1)
or a substantially similar law of another state or adjudicated to be the biological father. "Parent" does not include any person whose parental rights have been terminated.
"Physical custody" means actual custody of the person in the absence of a court order granting legal custody to the physical custodian.
"Physical injury" includes but is not limited to lacerations, fractured bones, burns, internal injuries, severe or frequent bruising or great bodily harm, as defined in s. 939.22 (14)
"Relative" means a parent, grandparent, stepparent, brother, sister, first cousin, nephew, niece, uncle or aunt. This relationship shall be by blood, marriage or adoption.
"Secure detention facility" means a locked facility approved by the department of corrections under s. 301.36
for the secure, temporary holding in custody of children.
"Shelter care facility" means a nonsecure place of temporary care and physical custody for children, including a holdover room, licensed by the department under s. 48.66 (1) (a)
"Special treatment or care" means professional services which need to be provided to a child or his or her family to protect the well-being of the child, prevent placement of the child outside the home or meet the special needs of the child. "Special treatment or care" also means professional services which need to be provided to the expectant mother of an unborn child to protect the physical health of the unborn child and of the child when born from the harmful effects resulting from the habitual lack of self-control of the expectant mother in the use of alcohol, controlled substances or controlled substance analogs, exhibited to a severe degree. This term includes, but is not limited to, medical, psychological or psychiatric treatment, alcohol or other drug abuse treatment or other services which the court finds to be necessary and appropriate.
"Treatment foster home" means any facility that is operated by a person required to be licensed under s. 48.62 (1) (b)
, that is operated under the supervision of the department, a county department or a licensed child welfare agency, and that provides to no more than 4 children care, maintenance and structured, professional treatment by trained individuals, including the treatment foster parents.
"Trial" means a fact-finding hearing to determine jurisdiction.
"Unborn child" means a human being from the time of fertilization to the time of birth.
History: 1971 c. 41
; 1971 c. 164
; 1973 c. 263
; 1977 c. 205
; 1979 c. 135
; 1981 c. 81
; 1983 a. 189
; 1985 a. 176
; 1987 a. 27
; 1989 a. 31
; Sup. Ct. Order, 151 Wis. 2d xxv (1989); 1989 a. 107
; 1991 a. 39
; 1993 a. 98
; 1995 a. 27
, 9126 (19)
, 9145 (1)
; 1995 a. 77
; 1997 a. 27
; 1999 a. 9
See s. 46.011
for definitions applicable to chs. 46
Under sub. (13), a deceased parent continues to be parent; a deceased parent's parents continue to be grandparents. Grandparental Visitation of C.G.F., 168 Wis. 2d 62
, N.W.2d 803 (1992).
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
Due process and equal protection; classifications based on illegitimacy. Bazos, 1973 WLR 908.
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:
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.
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.
The right and duty of reasonable visitation of the child.
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 (4)
or the supervision of a county department under s. 938.34 (4d)
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).
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
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. 767.60
may, in accordance with procedures under this section, file with the department a declaration of his interest in matters affecting such child.
The declaration provided in sub. (1)
may be filed at any time except after a termination of the father's rights under subch. VIII
. The declaration shall be in writing, signed 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 he has reason to believe that he may be the father of the child.
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.
Filing a declaration under this section shall not extend parental rights to the person filing such declaration.
The constitutional rights of a a putative father to establish his parentage and assert parental rights. 58 MLR 175.
Child custody jurisdiction.
All proceedings relating to the custody of children shall comply with the requirements of ch. 822
History: 1975 c. 283
Custody of Indian children.
The Indian child welfare act, 25 USC 1911
, supersedes the provisions of this chapter in any child custody proceeding governed by that act.
History: 1981 c. 81
When the children's code provides additional safeguards, those safeguards should be followed. In Re Interest of D.S.P., 166 Wis. 2d 464
, 480 N.W.2d 234
Pregnancy testing prohibited.
No law enforcement agency, district attorney, corporation counsel, county department, licensed child welfare agency or other person involved in the investigation or prosecution of an allegation that an unborn child has been the victim of or is at substantial risk of abuse may, without a court order, require a person to take a pregnancy test in connection with that investigation or prosecution.
History: 1997 a. 292
ORGANIZATION OF COURT
Time and place of court; absence or disability of judge; court of record. 48.03(1)
The judge shall set apart a time and place to hold court on juvenile matters.
In the case of the absence or disability of the judge of a court assigned to exercise jurisdiction under this chapter and ch. 938
, another judge shall be assigned under s. 751.03
to act temporarily in the judge's place. If the judge assigned temporarily is from a circuit other than the one for which elected, the judge shall receive expenses as provided under s. 753.073