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2011 - 2012 LEGISLATURE
March 14, 2012 - Introduced by Senator Risser. Referred to Committee on Senate
Organization.
SB560,2,6 1An Act to repeal 48.978 (2) (e) 4., 48.978 (2) (f) 4. and 938.345 (4); to renumber
2and amend
54.56, 54.57 and 808.075 (4) (f) 3.; to amend 48.02 (8), 48.023
3(intro.), 48.023 (3), 48.023 (4), 48.09 (5), 48.14 (2) (b), 48.14 (11), 48.185 (2),
448.235 (1) (c), 48.255 (1) (cm), 48.255 (1m) (d), 48.299 (4) (a), 48.299 (4) (b),
548.299 (6) (intro.), 48.299 (6) (d), 48.299 (7), 48.345 (intro.), 48.345 (3) (a), 48.368
6(1), 48.42 (1) (d), 48.62 (2), 48.831 (1), 48.831 (1m) (e), 48.977 (2) (a), 48.977 (2)
7(e), 48.977 (2) (f), 48.977 (4) (b) 3., 48.977 (4) (b) 5., 48.977 (4) (b) 6., 48.977 (4)
8(c) 2., 48.977 (4) (i), 48.977 (6) (c), 48.977 (7) (b) 3., 48.977 (7) (d) 3., 48.977 (8),
948.978 (2) (a) 1., 48.978 (2) (a) 2., 48.978 (2) (a) 3., 48.978 (2) (b) 6., 48.978 (2)
10(b) 7., 48.978 (2) (b) 8., 48.978 (2) (b) 10., 48.978 (2) (b) 11., 48.978 (2) (e) 1.,
1148.978 (2) (e) 2., 48.978 (2) (f) 1., 48.978 (2) (f) 2., 48.978 (2) (f) 5., 48.978 (3) (b)
122., 48.978 (3) (e) 1., 48.978 (3) (e) 3., 48.978 (3) (g) 3., 48.978 (3) (g) 4., 48.978 (3)
13(g) 5., 48.978 (7), 49.32 (1) (am), 51.30 (4) (b) 18. a., 51.30 (4) (b) 18. c., 54.01 (10),
1454.10 (1), 54.52 (1), 55.03 (1), 55.08 (1) (b), 55.08 (2) (a), 55.10 (4) (intro.), 115.76

1(12) (b) 2., 118.125 (2) (L), 146.82 (2) (a) 9. a., 146.82 (2) (a) 9. c., 214.37 (4) (k)
21., 215.26 (8) (e) 1., 757.69 (1m) (e), 808.075 (4) (a) 11., 814.66 (1) (m), 938.02 (8),
3938.255 (1) (cm), 938.34 (3) (a), 938.34 (3) (c), 938.345 (1) (e), 938.355 (6) (an)
41., 938.355 (6) (b) and 938.355 (6m) (am) 1.; and to create 48.235 (3) (c), 48.976,
548.977 (4) (cm) 1m., 48.978 (2) (d) 1m., 48.981 (7) (a) 11v., 808.075 (4) (a) 9m. and
6808.075 (4) (a) 13. of the statutes; relating to: guardianships of children.
Analysis by the Legislative Reference Bureau
Introduction
Current law permits the court assigned to exercise jurisdiction under the
Children's Code (juvenile court) to appoint a guardian of the person of a child under
the Children's Code only under certain circumstances, including:
1. When a child does not have a living parent and a finding as to the adoptability
of the child is sought.
2. When a child who has been adjudged to be in need of protection or services
under the Children's Code on any grounds other than on the grounds of
relinquishment of custody of not having been immunized as required by law, or
adjudged to be in need of protection or services under the Juvenile Justice Code on
the grounds of uncontrollability, and placed outside the home is likely to be placed
in the home of the guardian for an extended period or until the child attains the age
of 18 years, it is not in the best interests of the child that a petition for termination
of parental rights be filed, and the child's parent is neglecting, refusing, or unable
to carry out the duties of a guardian (protection or services guardianship).
3. When a parent wishes to have a standby guardian appointed to assume the
duties and authority of guardianship on the incapacity, debilitation, or death of the
parent.
Under any other circumstances, however, the chapter of the statutes governing
guardianships generally, which include guardianships of the estates of children and
guardianships of the persons and estates of adults who are found incompetent,
govern a guardianship of the person of a child.
This bill removes guardianships of the persons of children from the chapter of
the statutes governing guardianships generally and instead creates a new provision
in the Children's Code that may be used for the appointment of a guardian of the
person of a child. The bill also makes certain changes relating to protection or
services guardianships, standby guardianships, and protective placement of
children.

The bill
Types of guardianships
Full guardianships. Under the bill, the juvenile court may appoint a
guardian to be a child's full guardian when the child's parents are unfit, unwilling,
or unable to provide for the care, custody, and control of the child or when other
compelling facts and circumstances demonstrate that a full guardianship is
necessary.
Under current law, a full guardian 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. Those duties and authority include: 1) the authority to consent to marriage,
enlistment in the U.S. Armed Forces, major medical, psychiatric, and surgical
treatment, and to obtaining a driver's license; 2) the authority to represent the child
in legal actions and to make other decisions of substantial legal significance
concerning the child; 3) the right and duty of reasonable visitation of the child; and
4) the rights and responsibilities of legal custody, which rights and responsibilities
include 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 for the
child.
This bill expands the duties and authority of a full guardian of a child to include
the authority to determine reasonable visitation with the child, the rights and
responsibilities of physical custody of the child, and the right to change the residence
of the child to another state. The bill also requires the full guardian of a child to notify
the court immediately of any change of address of the child or guardian and to make
annual reports to the court on the condition of the child.
In addition, the bill specifies that a guardian acting on behalf of a child may
exercise only those powers that the guardian is authorized to exercise by statute or
juvenile court order and that the juvenile court may authorize a guardian to exercise
only those powers that are necessary to provide for the care, custody, and control of
the child and to exercise those powers in a manner that is appropriate to the child.
Otherwise, the parent retains all rights and duties accruing to the parent as a result
of the parent-child relationship that are not assigned to the guardian or otherwise
limited by statute or juvenile court order.
Limited guardianships. Under the bill, the juvenile court may appoint a
guardian to be a child's limited guardian when the child's parents need assistance
in providing for the care, custody, and control of the child. Under a limited
guardianship, the duties and authority of the guardian are limited as specified by the
order appointing the guardian. The juvenile court may limit the authority of a
guardian to allow the parent to retain such power to make decisions as is within the
parent's ability to exercise effectively and may limit the physical custody of the
guardian to allow shared physical custody with the parent if shared physical custody
is in the best interests of the child. The juvenile court must set an expiration date
for a limited guardianship order, which may be extended for good cause shown.
Temporary guardianships. Under the bill, the juvenile court may appoint
a guardian to be a child's temporary guardian when the child's particular situation,

including the inability of the child's parent to provide for the care, custody, and
control of the child for a temporary period of time, requires the appointment of a
temporary guardian. The order appointing a temporary guardian must specify the
authority of the guardian, which must be limited to those acts that are reasonably
related to the reasons for the appointment as specified in the petition for temporary
guardianship. A temporary guardianship may not exceed 180 days, but may be
extended for one additional 180-day period for good cause shown. A temporary
guardianship ceases on expiration of that period or on termination of the situation
of the child that was the cause of the temporary guardianship.
Emergency guardianships. Under the bill, the juvenile court may appoint
a guardian to be a child's emergency guardian when the child's welfare requires the
immediate appointment of an emergency guardian. The order appointing an
emergency guardian must specify the authority of the guardian, which must be
limited to those acts that are reasonably related to the reasons for the appointment
as specified in the petition for emergency guardianship. An emergency guardianship
may not exceed 60 days and ceases on expiration of that period or on termination of
the situation of the child that was the cause of the emergency guardianship.
Procedures for appointment of full, limited, or temporary guardian
Petition. Any person, including a child 12 years of age or over on his or her own
behalf, may petition for the appointment of a guardian of a child. The petitioner must
cause the petition and notice of the time and place of the hearing on the petition to
be served upon all interested persons, as defined in the bill, unless notice is waived
by an interested person or by the juvenile court for good cause shown.
For purposes of a petition for guardianship of a child, "interested person"
means: 1) the child, if 12 years of age or over, and the child's guardian ad litem and
counsel, if any; 2) the child's parent, current guardian, legal custodian, and physical
custodian; 3) if the child is a nonmarital child whose parents have not intermarried
and if paternity of the child has not been established, any person who has filed a
declaration of parental interest and any person who is alleged to be, or who may be,
the father of the child; 4) the individual who is nominated as the guardian or as a
successor guardian; 5) if the child has no living parent, any individual nominated to
act as fiduciary for the child in a will or other written instrument executed by a
parent of the child; 6) if the child is receiving or in need of any public services or
benefits, the county department of human services or social services (county
department) or, in Milwaukee County, the Department of Children and Families
(DCF); 7) if the child is an Indian child, the child's Indian custodian and tribe; and
8) any other person that the juvenile court may require. In addition, for purposes of
standing to present evidence and argument in a proceeding on a guardianship
petition, the bill defines "party" as the petitioner and any interested person other
than a person who is alleged to be, or who may be, the father of the child.
Guardian ad litem. The juvenile court must appoint a guardian ad litem
(GAL) for a child who is the subject of a guardianship proceeding. In addition to his
or her general duty to advocate for the best interests of the child, a GAL appointed
for a child who is the subject of a guardianship proceeding must, unless granted leave
by the juvenile court not to do so, do all of the following:

1. Personally, or through a trained designee, meet with or observe the child,
assess the appropriateness and safety of the environment of the child, and, if
appropriate to the age and developmental level of the child, interview the child and
determine the child's goals and concerns regarding the proposed guardianship. If the
child is 12 years of age or over, the GAL must also advise the child that he or she may
request the appointment of counsel or retain counsel of his or her own choosing to
oppose the guardianship petition.
2. Interview the proposed guardian, personally or through a trained designee,
visit the guardian's home, if appropriate, and report to the juvenile court concerning
the suitability of the proposed guardian to serve as guardian of the child.
3. Attend all juvenile court proceedings relating to the guardianship, present
evidence concerning the best interests of the child, if necessary, and make clear and
specific recommendations to the juvenile court concerning the best interests of the
child at every stage of the guardianship proceeding.
4. Report to the juvenile court on any matter that the juvenile court requests.
5. Inspect reports and records relating to the child, the child's family, and the
proposed guardian, including law enforcement, juvenile court, social welfare agency,
child abuse and neglect, pupil, mental health, and health care records, to the extent
necessary to fulfill the duties and responsibilities required of the GAL in the
proceeding. The bill requires the juvenile court to include in the order appointing the
GAL an order requiring the custodian of those reports or records to permit the GAL
to inspect and copy those reports or records on presentation by the GAL of a copy of
the order.
Statement by proposed guardian. At least 96 hours before the hearing on
the petition, the proposed guardian must submit to the juvenile court a sworn and
notarized statement as to the number of persons for whom the proposed guardian is
responsible, whether as a parent, guardian, or legal custodian, as to the proposed
guardian's income, assets, debts, and living expenses, and as to whether the
proposed guardian is currently charged with or has been convicted of a crime or has
been determined under the child abuse and neglect reporting law to have abused or
neglected a child.
Hearing. The initial hearing on a guardianship petition must be heard within
45 days after the filing of the petition. If the petition is not contested, the juvenile
court must immediately proceed to a fact-finding and dispositional hearing, unless
an adjournment is requested. If the petition is contested or an adjournment is
requested, the juvenile 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 initial hearing.
If the petition is contested, any party may request, or the juvenile court may
propose on its own motion, that an investigation be conducted to determine whether
the child is a proper subject for guardianship and whether the proposed guardian
would be a suitable guardian for the child. If the juvenile court determines that such
an investigation is necessary and that the welfare of the child demands such an
investigation, the juvenile court may order the county department, a licensed child
welfare agency, or, in Milwaukee County, DCF or an agency under contract with DCF

to conduct an investigation. The person conducting the investigation must file a
report of the investigation with the juvenile court at least 96 hours before the
fact-finding and dispositional hearing, and the parents of the child and the proposed
guardian must reimburse that person for the cost of the investigation according to
a fee schedule established by DCF based on ability to pay.
The proposed guardian and any successor guardian, which is a person
designated to become guardian on the death, unwillingness or inability to act,
resignation, or removal of the guardian or to act as guardian during a period of
temporary inability of the guardian to fulfill his or her duties, must be physically
present at the hearing, unless excused by the juvenile court or the juvenile court
permits attendance by telephone. The child is not required to attend the hearing, but
if the child has nominated the guardian, the child must provide to his or her GAL
sufficient information for the GAL to advise the juvenile court whether the
nomination is in the best interests of the child.
Dispositional factors. In determining the appropriate disposition of a
guardianship petition, the juvenile court must consider all of the following factors:
1. Any nomination of a guardian made by a parent or by the child, if 12 years
of age or over, and the opinions of the parents and child as to what is in the best
interests of the child.
2. Whether the proposed guardian would be fit, willing, and able to serve as the
guardian of the child.
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 juvenile court finds
good cause for departing from that order.
4. Whether appointment of the proposed guardian is in the best interests of the
child.
Disposition. At the conclusion of the fact-finding and dispositional hearing,
the juvenile court must do one of the following, unless the juvenile court adjourns the
hearing: 1) dismiss the petition if the juvenile court finds that the petitioner has not
proved the allegations in the petition by clear and convincing evidence or determines
that appointment of the proposed guardian is not in the best interests of the child;
or 2) order the proposed guardian to be appointed as the child's guardian if the
juvenile court finds that the petitioner has proved those allegations by clear and
convincing evidence and determines that the appointment is in the best interests of
the child. If the juvenile court orders the appointment of a guardian for a child who
has been adjudged to be delinquent or in need of protection or services and the order
changes the placement of the child, the disposition must, if applicable, include
certain findings, orders, statements, and determinations relating to, among other
things, the welfare of the child and reasonable efforts to prevent the removal of the
child from the home, that are required under current law when a juvenile court
changes the placement of such a child. A disposition ordering the appointment of a
guardian may also designate an amount of support to be paid by the child's parents
and may include reasonable rules of parental visitation.
Adjournment; proposed guardian unfit or not in best interests. If at the
conclusion of the fact-finding and dispositional hearing the juvenile court finds that

the petitioner has proved the allegations in the petition by clear and convincing
evidence, but that the proposed guardian is not fit, willing, and able to serve as the
guardian of the child or that appointment of the proposed guardian as the child's
guardian is not in the best interests of the child, the juvenile court may, in lieu of
granting a disposition dismissing the petition, adjourn the hearing for not more than
30 days, request the petitioner or any other party to nominate a new proposed
guardian, and order the GAL to report to the juvenile court concerning the suitability
of the new proposed guardian to serve as the guardian of the child.
Procedures for appointment of emergency guardian
Petition. Any person may petition for the appointment of an emergency
guardian for a child. The petitioner must give notice of the petition and of the time
and place of the hearing on the petition to the child, if 12 years of age or over, the
child's guardian ad litem, and the child's counsel, if any; the child's parents,
guardian, and legal custodian; and the person nominated as emergency guardian.
Notice of the petition and a copy of the petition must be served by the most practical
means possible, including personal service or service by electronic mail or telephone,
as soon after the filing of the petition as possible and must include notice of the right
to counsel and of the right to petition for reconsideration or modification of the
emergency guardianship.
GAL. The juvenile court must appoint a GAL for the child as soon as possible
after the filing of the petition and must attempt to appoint the GAL before the
hearing on the petition, but may appoint the GAL after the hearing if exigent
circumstances require the immediate appointment of an emergency guardian. The
GAL must attempt to meet with or observe the child before the hearing or as soon
as is practicable after the hearing, but not later than three days after the hearing,
and must report to the juvenile court on the advisability of the emergency
guardianship at the hearing or, if not appointed until after the hearing, not later than
seven days after the hearing.
Hearing. The juvenile court must hold a hearing on the emergency
guardianship petition as soon as possible after the filing of the petition or, for good
cause shown, may issue a temporary order appointing an emergency guardian
without a hearing, which remains in effect until a hearing is held on the petition.
If the juvenile court appoints an emergency guardian, any person entitled to receive
notice of the emergency guardianship petition may petition for reconsideration or
modification of the emergency guardianship and the juvenile court must hold a
rehearing on the issue of appointment of the emergency guardian within 30 days
after the filing of the petition.
Immunity. An emergency guardian of a child is immune from civil liability for
his or her acts or omissions in performing the duties of emergency guardianship if
he or she performs the duties in good faith, in the best interests of the child, and with
the degree of diligence and prudence that an ordinarily prudent person exercises in
his or her own affairs.
Post-appointment procedures
Successor guardian. As part of a petition for the original appointment of a
guardian of a child or at any time after that appointment, a person may petition for

the appointment of one or more successor guardians to assume the duty and
authority of full, limited, or temporary guardianship in the event of the death,
unwillingness or inability to act, resignation, or removal by the juvenile court of the
initially appointed guardian or during a period when the initially appointed
guardian is temporarily unable to fulfill his or her duties. If the petition for the
appointment of a successor guardian is brought after the original appointment of a
guardian, the petition must be heard in the same manner and subject to the same
requirements as provided for an original appointment of a guardian.
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