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)
48.15 of the statutes is amended to read:
1748.15 Jurisdiction of other courts to determine legal custody.
as provided in s. ss.
48.028 (3) and 48.9795 (2) (b) 2.
, nothing in this chapter deprives 19
another court of the right to determine the legal custody of a child by habeas corpus
or to determine the legal custody or guardianship of a child if the legal custody or 2
guardianship is incidental to the determination of an action pending in that court. 3
Except as provided in s. 48.028 (3), the jurisdiction of the court assigned to exercise 4
jurisdiction under this chapter and ch. 938 is paramount in all cases involving 5
children alleged to come within the provisions of ss. 48.13 and 48.14 and unborn 6
children and their expectant mothers alleged to come within the provisions of ss. 7
48.133 and 48.14 (5).
48.235 (1) (c) of the statutes is amended to read:
(c) The court shall appoint a guardian ad litem for any child who is 10
the subject of a proceeding to terminate parental rights, whether voluntary or 11
involuntary, for a child who is the subject of a contested adoption proceeding,
and for 12
a child who is the subject of a proceeding under s. 48.977 or,
48.978, or 48.9795
48.255 (1) (intro.) of the statutes is amended to read:
(intro.) A petition initiating proceedings under this chapter, other 15
than a petition under s. 48.133 or 48.9795
, shall be entitled, “In the interest of (child's 16
name), a person under the age of 18'' and shall set forth with specificity:
48.293 (2) of the statutes is amended to read:
All records relating to a child, or to an unborn child and the unborn 19
child's expectant mother, that are relevant to the subject matter of a proceeding 20
under this chapter shall be open to inspection by a guardian ad litem or counsel for 21
any party and to inspection by the court-appointed special advocate for the child, 22
upon demand and upon presentation of releases when necessary, at least 48 hours 23
before the proceeding. Persons entitled to inspect the records may obtain copies of 24
the records with the permission of the custodian of the records or with permission 25
of the court. The court may instruct counsel, a guardian ad litem, or a
court-appointed special advocate not to disclose specified items in the materials to 2
the child or the parent, or to the expectant mother, if the court reasonably believes 3
that the disclosure would be harmful to the interests of the child or the unborn child.
4This subsection does not apply to a guardianship proceeding under s. 48.9795.
48.299 (4) (a) of the statutes is amended to read:
(a) Chapters 901 to 911 shall govern the presentation of evidence at 7
the fact-finding hearings under ss. 48.31, 48.42, 48.977 (4) (d)
48.978 (2) (e) and 8
(3) (f) 2., and 48.9795.
48.299 (4) (b) of the statutes is amended to read:
(b) Except as provided in s. 901.05, neither common law nor 11
statutory rules of evidence are binding at a hearing for a child held in custody under 12
s. 48.21, a hearing for an adult expectant mother held in custody under s. 48.213, a 13
runaway home hearing under s. 48.227 (4), a dispositional hearing, or a hearing 14
about changes in placement, trial reunifications, revision of dispositional orders, 15
extension of dispositional orders, or termination of guardianship orders entered 16
under s. 48.977 (4) (h) 2. or (6) or,
48.978 (2) (j) 2. or (3) (g), or 48.9795
. At those 17
hearings, the court shall admit all testimony having reasonable probative value, but 18
shall exclude immaterial, irrelevant, or unduly repetitious testimony or evidence 19
that is inadmissible under s. 901.05. Hearsay evidence may be admitted if it has 20
demonstrable circumstantial guarantees of trustworthiness. The court shall give 21
effect to the rules of privilege recognized by law. The court shall apply the basic 22
principles of relevancy, materiality, and probative value to proof of all questions of 23
fact. Objections to evidentiary offers and offers of proof of evidence not admitted may 24
be made and shall be noted in the record.
48.299 (6) (intro.) of the statutes is amended to read:
(intro.) If a man who has been given notice under s. 48.27 (3) (b) 1.,
248.977 (4) (c) 1., 48.978 (2) (c) 1., or 48.9795 (4) (c) 1.
appears at any hearing for which 3
he received the notice, alleges that he is the father of the child
and states that he 4
wishes to establish the paternity of the child, all of the following apply:
48.299 (6) (d) of the statutes is amended to read:
(d) The court may stay the proceedings under this chapter pending 7
the outcome of the paternity proceedings under subch. IX of ch. 767 if the court 8
determines that the paternity proceedings will not unduly delay the proceedings 9
under this chapter and the determination of paternity is necessary to the court's 10
disposition of the child if the child is found to be in need of protection or services 11proceedings
or if the court determines or has reason to know that the paternity 12
proceedings may result in a finding that the child is an Indian child and in a petition 13
by the child's parent, Indian custodian, or tribe for transfer of the proceeding 14proceedings
to the jurisdiction of the tribe.
48.299 (7) of the statutes is amended to read:
If a man who has been given notice under s. 48.27 (3) (b) 1., 48.977
17(4) (c) 1., 48.978 (2) (c) 1., or 48.9795 (4) (c) 1.
appears at any hearing for which he 18
received the notice but does not allege that he is the father of the child and state that 19
he wishes to establish the paternity of the child or if no man to whom such notice was 20
given appears at a hearing, the court may refer the matter to the state or to the 21
attorney responsible for support enforcement under s. 59.53 (6) (a) for a 22
determination, under s. 767.80, of whether an action should be brought for the 23
purpose of determining the paternity of the child.
48.368 (1) of the statutes is amended to read:
If a petition for termination of parental rights is filed under s. 48.41 2
or 48.415 or an appeal from a judgment terminating or denying termination of 3
parental rights is filed during the year in which a dispositional order under s. 48.355, 4
an extension order under s. 48.365, a voluntary agreement for placement of the child 5
under s. 48.63, or a guardianship order under ch. 54, 2017 stats., or
ch. 880, 2003 6
stats., or s. 48.977 or ch. 54 48.9795
is in effect, the dispositional or extension order, 7
voluntary agreement, or guardianship order shall remain in effect until all 8
proceedings related to the filing of the petition or an appeal are concluded.
48.465 (3) of the statutes is amended to read:
48.465 (3) Exceptions.
This section does not apply to a termination of parental 11
rights case under s. 48.43 or,
to a parental consent to abortion case under s. 48.375 12
(7), or to a guardianship proceeding under s. 48.9795
48.62 (2) of the statutes is amended to read:
A relative, a guardian of a child, or a person delegated care and 15
custody of a child under s. 48.979 who provides care and maintenance for the child 16
is not required to obtain the license specified in this section. The department, county 17
department, or licensed child welfare agency as provided in s. 48.75 may issue a 18
license to operate a foster home to a relative who has no duty of support under s. 49.90 19
(1) (a) and who requests a license to operate a foster home for a specific child who is 20
either placed by court order or who is the subject of a voluntary placement agreement 21
under s. 48.63. The department, a county department, or a licensed child welfare 22
agency may, at the request of a guardian appointed under s. 48.977
ch. 54, 2017 stats.,
or ch. 880, 2003 stats., license the guardian's home as 24
a foster home for the guardian's minor ward who is living in the home and who is 25
placed in the home by court order. Relatives with no duty of support and guardians
appointed under s. 48.977 or,
48.978, or 48.9795 or
ch. 54, 2017 stats.,
or ch. 880, 2003 2
stats., who are licensed to operate foster homes are subject to the department's 3
48.831 (1) of the statutes is amended to read:
48.831 (1) Type of guardianship.
This section may be used for the appointment 6
of a guardian of a child who does not have a living parent if a finding as to the 7
adoptability of a child is sought. Except as provided in ss. 48.977 and 48.978, ch. 54 8s. 48.9795
applies to the appointment of a guardian for a child who does not have a 9
living parent for all other purposes. An appointment of a guardian of the estate of 10
a child who does not have a living parent shall be conducted in accordance with the 11
procedures specified in ch. 54.
48.831 (1m) (e) of the statutes is amended to read:
(e) A guardian appointed under s. 48.9795 or
ch. 54, 2017 stats., 14
or ch. 880, 2003 stats., whose resignation as guardian has been accepted by a court 15
under s. 48.9795 (11) or s.
54.54 (1), 2017 stats.,
or s. 880.17 (1), 2003 stats.
48.977 (8) of the statutes is amended to read:
48.977 (8) Relationship to ch. 54 and ch. 880, 2003 stats other guardianship
(a) This section does not abridge the duties or authority of a guardian 19
appointed under s. 48.9795 or
ch. 54, 2017 stats.,
or ch. 880, 2003 stats.
(b) Nothing in this section prohibits an individual from petitioning a court 21
under ch. 54 s. 48.9795
for appointment of a guardian.
Subchapter XX (title) of chapter 48 [precedes 48.978] of the 23
statutes is created to read:
OTHER GUARDIANSHIPS AND DELEGATION25
OF POWER BY PARENT
48.978 (7) of the statutes is amended to read:
48.978 (7) Relationship to ch. 54 other guardianship procedures
(a) Except 3
when a different right, remedy,
or procedure is provided under this section, the 4
rights, remedies, and procedures provided in s. 48.9795 or
ch. 54, whichever is
shall govern a standby guardianship created under this section.
(b) This section does not abridge the duties or authority of a guardian appointed 7
under s. 48.9795,
ch. 880, 2003 stats., or ch. 54.
(c) Nothing in this section prohibits an individual from petitioning a court for 9
the appointment of a guardian of the person under s. 48.9795 or a guardian of the
under ch. 54.
48.9795 of the statutes is created to read:
1248.9795 Appointment of guardian of the person for a child. (1) 13Definitions.
In this section:
(a) “Interested person" means any of the following:
1. For purposes of a petition for guardianship of a child, any of the following:
a. The child, if he or she has attained 12 years of age, and the child's guardian 17
ad litem and counsel, if any.
b. The child's parent, guardian, legal custodian, and physical custodian.
c. Any person who has filed a declaration of paternal interest under s. 48.025, 20
who is alleged to the court to be the father of the child, or who may, based on the 21
statements of the mother or other information presented to the court, be the father 22
of the child.
d. Any individual who is nominated as guardian or as a successor guardian.
e. If the child has no living parent, any individual nominated to act as fiduciary 2
for the child in a will or other written instrument that was executed by a parent of 3
f. If the child is receiving or in need of any public services or benefits, the county 5
department or, in a county having a population of 750,000 or more, the department 6
that is providing the services or benefits, through district attorney, corporation 7
counsel, or other officials designated under s. 48.09.
g. If the child is an Indian child, the Indian child's Indian custodian and Indian 9
h. Any other person that the court may require.
2. For purposes of proceedings subsequent to an order for guardianship of a 12
child, any of the following:
a. The child, if the child has attained 12 years of age, the child's guardian ad 14
litem, and the child's counsel.
b. The child's parent and guardian.
c. The county of venue, through the district attorney, corporation counsel, or 17
other official designated under s. 48.09, if the county has an interest in the 18
d. If the child is an Indian child, the Indian child's tribe.