2019 - 2020 LEGISLATURE
February 28, 2019 - Introduced by
Joint Legislative Council. Referred to
Committee on Family Law.
1An Act to renumber
subchapter XX of chapter 48 [precedes 48.98]; to
2renumber and amend
54.56, 54.57, 808.075 (4) (f) 3. and 814.66 (1) (m); to
48.09 (5), 48.14 (2) (b), 48.14 (11), 48.15, 48.235 (1) (c), 48.255 (1) 4
(intro.), 48.293 (2), 48.299 (4) (a), 48.299 (4) (b), 48.299 (6) (intro.), 48.299 (6) (d), 5
48.299 (7), 48.368 (1), 48.465 (3), 48.62 (2), 48.831 (1), 48.831 (1m) (e), 48.977 6
(8), 48.978 (7), 51.30 (4) (b) 18. a., 51.30 (4) (b) 18. c., 54.01 (10), 54.10 (1), 54.15 7
(6), 54.25 (2) (d) 1., 54.25 (2) (d) 2. o., 54.52 (1), 55.03 (1), 115.76 (12) (b) 2., 8
118.125 (2) (L), 146.82 (2) (a) 9. a., 146.82 (2) (a) 9. c., 757.69 (1) (g) 5., 808.075 9
(4) (a) 11., 809.30 (1) (a), 809.30 (1) (b) 2., 809.30 (2) (a) and 938.345 (1) (e); and 10to create
subchapter XX (title) of chapter 48 [precedes 48.978], 48.9795, 48.981 11
(7) (a) 11v., 808.075 (4) (a) 9m. and 808.075 (4) (a) 13. of the statutes; relating
12to: guardianships of children.
Analysis by the Legislative Reference Bureau
This bill is explained in the Notes provided by the Joint Legislative Council in
For further information see the state and local fiscal estimate, which will be
printed as an appendix to this bill.
The people of the state of Wisconsin, represented in senate and assembly, do
enact as follows:
Joint legislative council prefatory note: This bill was prepared for the Joint
Legislative Council's Study Committee on Minor Guardianships. Generally, the bill
creates a new process and standards for appointment of a guardian of a minor's person.
A description of current law and a summary of the bill's key provisions are provided below.
Chapter 54, Stats., currently governs guardianships of the person, estate, or both
of minors, as well as incompetent or spendthrift adults. Unlike certain, specialized minor
guardianships under ch. 48, Stats., minor guardianships under ch. 54, Stats., do not
require involvement by the child welfare system and therefore are informally referred to
as “private” guardianships.
Under current law, a guardian of a minor's person has the authority to exercise
care, custody, and control over the minor. The court may appoint either a temporary
guardian, for a duration up to 60 days and one additional 60-day period, or a permanent
guardian, with the appointment terminating only upon certain events specified by
statute and case law.
Chapter 54, Stats., focuses primarily on incompetent and spendthrift adults,
rendering many of the chapter's provisions inapplicable to minors. Current statutory law
does not address certain issues relevant to minor guardianships, such as emergency
situations and parental visitation.
The bill removes guardianships of a minor's person from ch. 54, Stats., and creates
a new statute governing guardianships of a child's person in a new subchapter under ch.
48, Stats. This change transfers jurisdiction over private guardianships from the probate
court under ch. 54, Stats., to the children's court under ch. 48, Stats. Under the bill,
guardianships of a child's estate remain governed by ch. 54, Stats., but may be
consolidated with actions under the new procedure.
The bill does not change the process or standard for appointment of a guardian in
the specialized circumstances under ch. 48, Stats. The bill also specifies that a petition
filed under the new statute may not seek to change preexisting orders entered in certain
actions under chs. 48 and 938, Stats. If any such actions are pending, the bill requires the
court to stay any subsequent proceedings under the new statute until the pending action
is resolved, subject to certain exceptions. In addition, the bill prohibits a dispositional
order under the new statute from changing the placement of a child under the supervision
of a court in certain types of actions.
Types of Guardianship
The bill creates four types of guardianships of a child's person: full; limited;
temporary; and emergency. The bill clarifies that a parent retains all rights and duties
that are not assigned to the guardian or otherwise limited by statute or court order. For
each type of guardian, the bill provides the following standards for and duties upon
A full guardianship requires a finding that the child's parents are unfit, unwilling,
or unable to provide for the care, custody, and control of the child or other compelling facts
and circumstances demonstrate that a full guardianship is necessary. Once appointed,
the bill grants a full guardian the duties and authority granted to other guardians under
ch. 48, Stats., as well as the following: the authority, subject to a court order, to determine
reasonable visitation with the child; the right to change the child's residence from this
state to another state; and the duty to report to the court immediately regarding any
address changes and annually regarding the child's condition.
A limited guardianship requires a finding that the child's parents need assistance
in providing for the care, custody, and control of the child. The court must specify the
limited guardian's duties and authority, and may limit such authority to allow a parent
to retain certain decision-making powers. If in the child's best interest, the court may also
allow shared physical custody among the limited guardian and the parent.
A temporary guardianship requires a finding that the child's particular situation,
including the inability of the child's parents to provide for the care, custody, and control
of the child for a temporary period of time, requires the appointment of a temporary
guardian. A temporary guardian may be appointed for a period not to exceed 180 days,
though the court may grant one additional 180-day period for good cause shown. In its
order, the court must limit the temporary guardian's authority to those acts that are
reasonably related to the reasons for the appointment.
An emergency guardianship requires a finding that the child's welfare requires the
immediate appointment of an emergency guardian. The court may appoint an emergency
guardian for a period not to exceed 60 days and must limit the emergency guardian's
authority to those acts reasonably related to the reasons for the appointment.
Procedure for Full, Limited and Temporary Guardianships
Under the bill, any person, including a child 12 years of age or older, may petition
for the appointment of a guardian for a child. The petition must contain certain
information including the type of guardianship sought, the facts and circumstances
establishing that a guardianship is needed, the name and address of a proposed guardian,
and other information as specified in the bill. A parent or a child 12 years or older may
also nominate a guardian under the bill. Under the bill, the court must appoint the person
nominated as the guardian by the parent, unless the court finds that appointment of the
person nominated is not in the child's best interest.
The bill requires that an initial hearing be held within 45 days after a petition is
filed. At least 96 hours before the initial hearing, the proposed guardian must submit a
report to the court as to his or her existing parental, guardianship, or custodial
responsibilities and financial situation, and as to whether he or she is charged with or has
been convicted of a crime or child abuse or neglect. Any interested person, as defined in
the bill, may become a party to the hearing.
At the initial hearing, the court must first determine whether any party wishes to
contest the petition. If the petition is not contested, the court must immediately proceed
to a fact-finding and dispositional hearing, unless an adjournment is requested. If the
petition is contested and all parties consent, the court may proceed immediately to a
fact-finding and dispositional hearing. If any party does not consent or if an adjournment
is requested, the court must set a date for a fact-finding and dispositional hearing that
allows reasonable time for the parties to prepare but is not more than 30 days after the
At the fact-finding and dispositional hearing, any party may present evidence,
including expert testimony, and argument relating to the allegations in the petition. The
court must determine whether the petitioner has proven the allegations in the petition
by clear and convincing evidence and must immediately proceed to determine the
The bill requires the court to consider all of the following factors in determining the
appropriate disposition: 1) any nomination of a guardian made by a parent or the child,
if 12 years of age or older, and the opinions of the parents and child as to what is in the
child's best interests; 2) whether the proposed guardian would be fit, willing, and able to
serve as the child's guardian; 3) if the child is an Indian child, the order of placement
preference required for an Indian child in an Indian child custody proceeding, unless the
court finds good cause for departing from that order; and 4) whether appointment of the
proposed guardian is in the child's best interests.
Procedure for Emergency Guardianships
Under the bill, any person may petition for the appointment of an emergency
guardian for a child. The petition must contain the same information required for a full,
limited, or temporary guardianship, and must specify the reasons for the appointment
of and the powers requested for an emergency guardian.
The bill requires the court to hold a hearing on an emergency petition as soon as
possible after the filing of the petition or, for good cause shown, the court may issue a
temporary order appointing an emergency guardian without a hearing, which remains
in effect until a hearing is held. Any person who receives notice of the emergency
guardianship petition under the bill has a right to a hearing for reconsideration or
modification of an emergency guardianship.
Role of the Guardian ad Litem
Generally, the bill requires appointment of a guardian ad litem (GAL) in
proceedings to appoint a guardian or terminate a guardianship, as well as in proceedings
to modify a guardianship, if a hearing will be held.
The GAL represents the best interests of the child throughout the proceedings but
must apply in all court proceedings the applicable standard specified in the bill. In
addition to certain specific duties and responsibilities required of a GAL under the
Children's Code, the GAL must conduct a diligent investigation sufficient to represent the
best interests of the child in court. As appropriate to the circumstances, this investigation
may include, personally or through a trained designee, meeting with or observing the
child, meeting with any proposed guardian, meeting with interested persons, and visiting
the homes of the child and the proposed guardian.
The GAL is required to attend all court proceedings relating to the guardianship,
present evidence concerning the best interest of the child, if necessary, and make clear
and specific recommendations to the court at every stage of the proceedings. Further, the
bill requires the GAL to inspect certain reports and records relating to the child and, upon
presentation of necessary releases, the child's family and the proposed guardian. The
court must order custodians of the specified reports or records to permit inspection and
copying of such reports or records by the GAL.
The bill allows a court, on its own motion or upon the petition of any interested
person, to appoint a successor guardian after a guardian has died, been removed, or
resigned, or as a part of the original appointment or any time after, even while the current
guardianship is still in place.
Under the bill, if the guardian abuses or neglects the child or knowingly permits
others to do so, fails to disclose information that would have prevented his or her
appointment as guardian, fails to follow or comply with the court's order, or otherwise
fails to perform any of his or her duties as guardian, the court may exercise its continuing
jurisdiction to impose certain remedies, including removal of the guardian and
appointment of a successor guardian, modification of the duties and authority of the
guardian, or entry of an order that may be necessary or appropriate to compel the
guardian to carry out the guardian's duties. The court may also require the guardian to
pay any costs of the proceeding if the guardian's conduct was egregious. The bill requires
the court to hold a hearing on a petition for the review of the conduct of a guardian within
30 days of the filing of the petition.
The bill authorizes a court to modify a guardianship order, if the court finds that
there has been a substantial change in circumstances since the last order affecting the
guardianship was entered and that the proposed modification is in the child's best
Under the bill, a guardianship continues until the child attains the age of 18 years
unless 1) the guardianship is for a lesser period of time and that time has expired; 2) the
child marries; 3) the child dies; 4) the child's residence changes from this state to another
state and a guardian is appointed in the new state of residence; 5) the guardian dies, or
resigns and the resignation is approved by the court, and a successor guardian is not
appointed; 6) the guardian is removed for cause and a successor guardian is not
appointed; 7) the guardianship is terminated on the request of a parent or the child; or
8) the court terminates the guardianship upon the adoption of the child.
The bill also allows a parent or child to petition for termination of a guardianship.
Specifically, the court must terminate the guardianship if it finds that the petitioner has
shown by a preponderance of the evidence that 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.
48.09 (5) of the statutes is amended to read:
By the district attorney or, if designated by the county board of 3
supervisors, by the corporation counsel, in any matter arising under s. 48.13, 48.133, 4
or 48.977 or, if applicable, s. 48.9795
. If the county board transfers this authority to 5
or from the district attorney on or after May 11, 1990, the board may do so only if the 6
action is effective on September 1 of an odd-numbered year and the board notifies 7
the department of administration of that change by January 1 of that odd-numbered 8
48.14 (2) (b) of the statutes is amended to read:
(b) The appointment and removal of a guardian of the person for a 11
child under ss. 48.427, 48.43, 48.831, 48.832, 48.839 (4) (a), 48.977,
and 12ch. 54 48.9795
and for a child found to be in need of protection or services under s. 13
48.13 because the child is without parent or guardian.
48.14 (11) of the statutes is amended to read:
Granting visitation privileges under s. 54.56 48.9795 (12)