The “paramount consideration" of the child's best interest does not mandate that the child's interests will always outweigh the public's. In Interest of B.B. 166 Wis. 2d 202
, 479 N.W.2d 205
(Ct. App. 1991).
Jurisdictional questions relating to the Indian child welfare act are discussed. 70 Atty. Gen. 237.
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.
With a child physically present during the manufacture.
In a child's home, on the premises of a child's home, or in a motor vehicle located on the premises of a child's home.
Under any other circumstances in which a reasonable person should have known that the manufacture would be seen, smelled, or heard by a child.
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.
“Age or developmentally appropriate activities" means activities that are generally accepted as suitable for children of a given chronological age or level of maturity or that are determined to be developmentally appropriate for a child based on the cognitive, emotional, physical, and behavioral capacities that are typical for children of a given age or age group or, in the case of a specific child, activities that are suitable for the child based on the cognitive, emotional, physical, and behavioral capacities of that child.
“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," when used without further qualification, 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.
“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
“Dental care,” for purposes of providing ordinary medical and dental care, means routine dental care, including diagnostic and preventative services, and treatment including restoring teeth, tooth extractions, and use of nitrous oxide.
“Department" means the department of children and families.
“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)
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, as provided in s. 48.625 (1)
“Guardian" means the person named by the court having the duty and authority of guardianship.
“Indian" means any person who is a member of an Indian tribe or who is an Alaska native and a member of a regional corporation, as defined in 43 USC 1606
“Indian child" means any unmarried person who is under the age of 18 years and is affiliated with an Indian tribe in any of the following ways:
As a person who is eligible for membership in an Indian tribe and is the biological child of a member of an Indian tribe.
“Indian child's tribe" means one of the following:
The Indian tribe in which an Indian child is a member or eligible for membership.
In the case of an Indian child who is a member of or eligible for membership in more than one tribe, the Indian tribe with which the Indian child has the more significant contacts.
“Indian custodian" means an Indian person who has legal custody of an Indian child under tribal law or custom or under state law or to whom temporary physical care, custody, and control has been transferred by the parent of the child.
“Indian tribe" means any Indian tribe, band, nation, or other organized group or community of Indians that is recognized as eligible for the services provided to Indians by the U.S. secretary of the interior because of Indian status, including any Alaska native village, as defined in 43 USC 1602
“Judge", if used without further qualification, means the judge of the court assigned to exercise jurisdiction under this chapter and ch. 938
“Juvenile 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.
“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.
“Neglect" means failure, refusal or inability on the part of a caregiver, for reasons other than poverty, to provide necessary care, food, clothing, medical or dental care or shelter so as to seriously endanger the physical health of the child.
“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.
“Out-of-home care provider" means a foster parent, guardian, relative other than a parent, or nonrelative in whose home a child is placed, or the operator of a group home, residential care center for children and youth, or shelter care facility in which a child is placed, under the placement and care responsibility of the department or a county department. “Out-of-home care provider" also includes, in the case of a child placed in a group home, residential care center for children and youth, or shelter care facility, a staff member employed on the site of that home, center, or facility who has been designated by the operator of that home, center, or facility as an out-of-home care provider for purposes of making decisions concerning the child's participation in age or developmentally appropriate activities.
“Parent" means 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. 767.803
, “parent" includes a person acknowledged under s. 767.805
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. For purposes of the application of s. 48.028
and the federal Indian Child Welfare Act, 25 USC 1901
, “parent" means a biological parent, an Indian husband who has consented to the artificial insemination of his wife under s. 891.40
, or an Indian person who has lawfully adopted an Indian child, including an adoption under tribal law or custom, and includes, in the case of a nonmarital child who is not adopted or whose parents do not subsequently intermarry under s. 767.803
, a person acknowledged under s. 767.805
, a substantially similar law of another state, or tribal law or custom to be the biological father or a person adjudicated to be the biological father, but 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)
“Reasonable and prudent parent standard" means a standard for an out-of-home care provider to use in making decisions concerning a child's participation in age or developmentally appropriate extracurricular, enrichment, cultural, and social activities that is characterized by careful and sensible parental decisions that maintain the health, safety, best interests, and cultural, religious, and tribal values of the child while at the same time encouraging the emotional and developmental growth of the child.
“Relative" means a parent, stepparent, brother, sister, stepbrother, stepsister, half brother, half sister, brother-in-law, sister-in-law, first cousin, 2nd cousin, nephew, niece, uncle, aunt, stepuncle, stepaunt, or any person of a preceding generation as denoted by the prefix of grand, great, or great-great, whether by blood, marriage, or legal adoption, or the spouse of any person named in this subsection, even if the marriage is terminated by death or divorce. For purposes of the application of s. 48.028
and the federal Indian Child Welfare Act, 25 USC 1901
, “relative" includes an extended family member, as defined in s. 48.028 (2) (am)
, whether by blood, marriage, or adoption, including adoption under tribal law or custom. For purposes of placement of a child, “relative" also includes a parent of a sibling of the child who has legal custody of that sibling.
“Residential care center for children and youth" 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.
“Secretary" means the secretary of children and families.
“Secured residential care center for children and youth" has the meaning given in s. 938.02 (15g)
“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.
“Trial" means a fact-finding hearing to determine jurisdiction.
“Tribal court" means a court that has jurisdiction over Indian child custody proceedings, and that is either a court of Indian offenses or a court established and operated under the code or custom of an Indian tribe, or any other administrative body of an Indian tribe that is vested with authority over Indian child custody proceedings.
“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
; 2001 a. 16
; 2005 a. 113
; 2005 a. 443
; 2007 a. 20
; 2009 a. 28
; 2009 a. 94
; 2009 a. 185
; 2009 a. 302
; 2013 a. 362
; 2015 a. 101
; 2017 a. 34
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
, 483 N.W.2d 803
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
While the second sentence of sub. (13) applies exclusively to nonmarital children, the first sentence does not apply exclusively to children of married individuals. The biological father of a nonmarital child satisfies the definition of parent in s. 48.02 (13) as he is a biological parent notwithstanding that he has not officially been adjudicated as the child's biological father. State v. James P. 2005 WI 80
, 281 Wis. 2d 685
, 698 N.W.2d 95
An interpretation of “severe bruising" under sub. (14g) that includes consideration of the circumstances surrounding the physical injury is reasonable. A child's bruises were severe based on the combination of: 1) the sensitive location of the bruising, on the child's skull; 2) the vulnerability of a child of the victim's age; and 3) the means by which the court determined the bruises were created, by an adult hand pressing on the child's skull. Kristi L. M. v. Dennis E. M. 2007 WI 85
, 302 Wis. 2d 185
, 734 N.W.2d 375
Parentage may be established in one of 3 ways: by initiating a paternity action under s. 767.80, by petitioning for adoption under ch. 48, or by virtue of the presumption established by the artificial insemination statute. While a circuit court possesses common law authority to order visitation, it has no authority outside of the statutes to confer parental rights. Dustardy H. v. Bethany H. 2011 WI App 2
, 331 Wis. 2d 158
, 794 N.W.2d 230
Enforcement of surrogacy agreements promotes stability and permanence in family relationships because it allows the intended parents to plan for the arrival of their child, reinforces the expectations of all parties to the agreement, and reduces contentious litigation. The surrogacy agreement in this case was enforceable except for the portions of the agreement requiring a voluntary termination of parental rights (TPR). The TPR provisions did not comply with the procedural safeguards set forth in s. 48.41 for a voluntary TPR because the biological mother would not consent to the TPR and there was no legal basis for involuntary termination. The TPR provisions were severable. Rosecky v. Schissel, 2013 WI 66
, 349 Wis. 2d 84
, 833 N.W.2d 634
Construing sub. (1) (gm) and s. 813.122 as allowing a trial court to consider evidence of the treatment a respondent obtained or steps a respondent took to ameliorate a child's symptoms of emotional damage after the filing of the petition but prior to the injunction hearing would undercut the purpose of the injunction, which is to protect a child from an abusive situation. In light of Wisconsin's strong and long-standing interest in the protection and well-being of its minors, interpreting these statutes in a manner that would allow a respondent to undercut the purpose of the statute would be unreasonable. S.O. v. T.R. 2016 WI App 24
, 367 Wis. 2d 669
, 877 N.W.2d 408