AB859: Bill Text

LRB-3803/3

GMM:kmg/kaf/mfd:lp

1997 - 1998 LEGISLATURE

1997 Assembly BILL 859

March 2, 1998 - Introduced by Representatives R. Young, Baldwin, Bock, Boyle, Carpenter, Hanson, Murat, Notestein, R. Potter, Riley, Travis and L. Young, cosponsored by Senator Risser. Referred to Committee on Children and Families.

AB859,1,12 An Act to renumber 880.09 (2); to renumber and amend 880.155 (1); to amend 48.835 (title), 48.835 (1), 48.835 (2), 48.835 (3), 49.90 (2r), 565.30 (5m), 767.05 (5), 767.077 (intro.), 767.085 (1) (a), 767.085 (1) (b), 767.085 (2) (a), 767.10 (1), 767.115 (1) (a), 767.21 (1) (a), 767.24 (1), 767.25 (1) (intro.), 767.25 (1m) (c), 767.25 (4m) (b), 801.05 (11), 880.155 (title), 880.155 (2), 880.155 (3) and 880.155 (5); to repeal and recreate 48.81; and to create 48.82 (1) (c), 48.90 (1) (e), 48.90 (1) (f), 767.02 (1) (n), 880.09 (2) (b), 880.09 (2) (c), 880.15 (1g) and 880.155 (1) (a) of the statutes; relating to: the adoption of a child; custody, child support and physical placement of an adoptive child when the unmarried parents of the child cease residing together; and guardianship of and visitation with a minor if one of the minor's parents dies or if the minor's last surviving parent dies.

Analysis by the Legislative Reference Bureau

This bill makes various changes relating to the adoption of a child; custody, child support and physical placement of an adoptive child when the unmarried parents of the child cease residing together; and guardianship of and visitation with a child if one of the child's parents dies or if the child's last surviving parent dies. Specifically, the bill does all of the following:

Adoption

Under current law, a minor who is present in this state at the time that a petition for adoption is filed and whose parental rights have been terminated may be adopted, except that a foreign child who has been freed for adoption or a child without a living parent who has had a guardian appointed for him or her need not have his or her parental rights terminated in order to be adopted. This bill permits any child who is present in this state at the time that a petition for adoption is filed to be adopted if any of the following criteria is met:

1. Both of the child's parents are deceased.

2. The parental rights of both of the child's parents with respect to the child have been terminated.

3. The parental rights of one of the child's parents with respect to the child have been terminated and the child's other parent is deceased.

4. The child was born as a result of artificial insemination under circumstances in which the child's mother is not the wife of the sperm donor, the child has no other parent and the child's mother is deceased or her parental rights have been terminated.

5. The parental rights of one of the child's parents with respect to the child have been terminated or one of the child's parents is deceased and the person filing the petition for adoption (petitioner) is the child's stepparent with whom the child and the child's remaining parent reside.

6. The parental rights of one of the child's parents with respect to the child have been terminated or one of the child's parents is deceased and all of the following apply:

a. The petitioner is an unmarried adult with whom the child and the child's remaining parent reside.

b. The petitioner has maintained and is maintaining a relationship with the child that is similar to a parent-child relationship.

c. The child's remaining parent has custody of the child.

d. The child's remaining parent consents to the adoption.

7. The child has 2 living parents, but only one of those parents has custody of the child, and all of the following apply:

a. The petitioner is an unmarried adult with whom the child and the parent who has custody of the child reside.

b. The petitioner has maintained and is maintaining a relationship with the child that is similar to a parent-child relationship.

c. The parent who has custody of the child consents to the adoption.

d. The parental rights of the parent who does not have custody of the child are terminated.

8. The child was born as a result of artificial insemination under circumstances in which the child's mother is not the wife of the sperm donor, the child has no other parent, the child's mother has custody of the child and any of the following applies:

a. The petitioner is the child's stepparent with whom the child and the child's parent reside.

b. The petitioner is an unmarried adult with whom the child and the child's parent reside, the petitioner has maintained and is maintaining a relationship with the child that is similar to a parent-child relationship and the child's parent consents to the adoption.

9. The child is a foreign child who has been freed for adoption.

10. The child has been adopted in another jurisdiction and is being readopted in this state.

Under current law, a husband and wife jointly, a stepparent or an unmarried adult may adopt a child. This bill permits 2 unmarried adults who reside together in the same home to adopt a child jointly.

Current adoption procedures distinguish between placement of a child with a nonrelative for adoption and placement of a child with a relative, including a stepparent, for adoption. To place a child with a nonrelative for adoption, a parent having custody of the child and the proposed adoptive parent or parents must petition the court assigned to exercise jurisdiction under the children's code (juvenile court) to permit the placement. To place a child with a relative for adoption, a parent having custody of the child does not need a juvenile court order permitting that placement. Before a nonrelative may file a petition to finalize an adoption, the child must have been placed in the nonrelative's home for 6 months or more. A relative, on the other hand, may petition for adoption at any time.

This bill applies the current procedure for adoption by a relative to adoptions by unmarried adults described in items 6. and 7. above.

Custody, Support and Physical Placement

Under current law, a court of civil and criminal jurisdiction exercising the jurisdiction of a family court (family court) has jurisdiction over certain types of actions known as actions affecting the family. Those actions include actions for annulment, divorce, legal separation, child custody, child support and periods of physical placement of a child. This bill grants to the family court jurisdiction over actions for custody, child support and periods of physical placement of a child who has been adopted by an unmarried adult under the circumstances described in items 6. or 7. above or by 2 unmarried adults jointly, whose parents no longer reside together with the child in the same home and one or both of whose parents do not intend, in the future, either to reside together with the child in the same home or to permit the other parent to reside with the child and that parent in the same home.

Guardianship and Visitation

Under current law, the juvenile court, in appointing a guardian or temporary guardian of the person or of the estate, or both, of a minor, must consider nominations made by the parent of the minor in the parent's will. This bill requires the juvenile court, if both parents of a minor are deceased and if the last surviving parent did not nominate a guardian by will, to appoint as guardian or temporary guardian of the person or of the estate, or both, of the minor a person who meets all of the following qualifications, unless the juvenile court finds that the appointment is not in the best interests of the minor:

1. The last surviving parent consented to and fostered the person's formation of a parent-like relationship with the minor.

2. The person resided with the minor and the last surviving parent prior to the death of that parent.

3. The person assumed obligations of parenthood by taking significant responsibility for the minor's care, education and development, including contributing towards the minor's support, without expectation of financial compensation.

4. The person has been in a parental role for a length of time sufficient for the person to have established with the minor a bonded, dependent relationship that is parental in nature.

5. The person states that he or she agrees to serve as guardian or temporary guardian if appointed by the juvenile court.

The bill also requires the juvenile court, if one parent of a minor is deceased and if the deceased parent did not nominate a guardian by will, to appoint as guardian or temporary guardian of the person or of the estate, or both, of the minor a person who states that he or she agrees to serve as guardian or temporary guardian if appointed by the juvenile court and whose appointment is consented to by the surviving parent, unless the juvenile court finds that the appointment is not in the best interests of the minor.

Under current law, if one or both of the parents of a minor are deceased, a grandparent or stepparent may petition the juvenile court for visitation privileges with respect to the minor and the juvenile court may grant reasonable visitation privileges to the grandparent or stepparent if the surviving parent or other person who has custody of the minor has notice of the hearing on the petition and if the juvenile court determines that the visitation is in the best interests of the minor.

This bill permits a person who is not a parent of a minor, but who has resided with the minor and a parent of the minor prior to the parent's death and who has maintained a relationship similar to a parent-child relationship with the minor within 2 years prior to the date on which a petition for visitation privileges is filed to petition the juvenile court for visitation privileges with respect to the minor in the same manner as a grandparent or stepparent may petition for visitation privileges under current law. The bill also permits a juvenile court to grant reasonable visitation privileges to such a person on the same basis as the juvenile court may grant visitation privileges to a grandparent or stepparent under current law.

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:

AB859, s. 1 Section 1. 48.81 of the statutes is repealed and recreated to read:

AB859,4,4 48.81 Who may be adopted. Any child who is present in this state at the time that the petition for adoption is filed may be adopted if any of the following criteria is met:

AB859,4,5 (1) Both of the child's parents are deceased.

AB859,5,2 (2) The parental rights of both the child's parents with respect to the child have been terminated under subch. VIII or in another state or a foreign jurisdiction.

AB859,5,5 (3) The parental rights of one of the child's parents with respect to the child have been terminated under subch. VIII or in another state or a foreign jurisdiction and the child's other parent is deceased.

AB859,5,9 (4) The child was born as a result of artificial insemination under the circumstances described in s. 891.40 (2), the child has only one parent and that parent is deceased or the parental rights of that parent with respect to that child have been terminated under subch. VIII or in another state or foreign jurisdiction.

AB859,5,12 (5) The parental rights of one of the child's parents with respect to the child have been terminated under subch. VIII or in another state or a foreign jurisdiction or one of the child's parents is deceased and all of the following apply:

AB859,5,14 (a) The person filing the petition for adoption is the spouse of the child's remaining parent.

AB859,5,16 (b) The child and the child's remaining parent reside in the same home with the person filing the petition for adoption.

AB859,5,19 (6) The parental rights of one of the child's parents with respect to the child have been terminated under subch. VIII or in another state or a foreign jurisdiction or one of the child's parents is deceased and all of the following apply:

AB859,5,21 (a) The person filing the petition for adoption is an unmarried adult with whom the child and the child's remaining parent reside in the same home.

AB859,5,24 (b) The person filing the petition for adoption has maintained and is maintaining a relationship with the child that is similar to a parent-child relationship.

AB859,6,2 (c) The child's remaining parent has custody, as defined in s. 48.835 (1), of the child.

AB859,6,3 (d) The child's remaining parent consents to the adoption.

AB859,6,5 (7) The child has 2 living parents, but only one of those parents has custody, as defined in s. 48.835 (1), of the child, and all of the following apply:

AB859,6,7 (a) The person filing the petition for adoption is an unmarried adult with whom the child and the parent who has custody of the child reside in the same home.

AB859,6,10 (b) The person filing the petition for adoption has maintained and is maintaining a relationship with the child that is similar to a parent-child relationship.

AB859,6,11 (c) The parent who has custody of the child consents to the adoption.

AB859,6,13 (d) The parental rights of the parent who does not have custody of the child are terminated under subch. VIII.

AB859,6,17 (8) The child was born as a result of artificial insemination under the circumstances described in s. 891.40 (2), the child has only one living parent, that parent has custody, as defined in s. 48.835 (1), of the child and any of the following applies:

AB859,6,20 (a) The person filing the petition for adoption is the spouse of the child's parent and the child and the child's parent reside in the same home with the person filling the petition for adoption.

AB859,6,25 (b) The person filing the petition for adoption is an unmarried adult with whom the child and the child's parent reside in the same home, the person filing the petition for adoption has maintained and is maintaining a relationship with the child that is similar to a parent-child relationship and the child's parent consents to the adoption.

AB859,7,1 (9) Section 48.839 (3) (b) applies.