48.13 Annotation
A viable fetus is not a "person" within the definition of a child under s. 48.02 (2). A court does not have jurisdiction over a fetus under this section. State ex rel. Angela M.W. v. Kruzicki,
209 Wis. 2d 112,
561 N.W.2d 729 (1997).
48.13 Annotation
A child's need for protection or services should be determined as of the date the petition is filed. Children can be adjudicated in need of protection or services when divorced parents have joint custody, one parent committed acts proscribed by sub. (10), and at the time of the hearing the other can provide the necessary care for the children. State v. Gregory L.S. 2002 WI App 101, ___ Wis. 2d ___,
643 N.W.2d 890.
48.133
48.133
Jurisdiction over unborn children in need of protection or services and the expectant mothers of those unborn children. The court has exclusive original jurisdiction over an unborn child alleged to be in need of protection or services which can be ordered by the court whose expectant mother habitually lacks self-control in the use of alcohol beverages, controlled substances or controlled substance analogs, exhibited to a severe degree, to the extent that there is a substantial risk that the physical health of the unborn child, and of the child when born, will be seriously affected or endangered unless the expectant mother receives prompt and adequate treatment for that habitual lack of self-control. The court also has exclusive original jurisdiction over the expectant mother of an unborn child described in this section.
48.133 History
History: 1997 a. 292.
48.135
48.135
Referral of children and expectant mothers of unborn children to proceedings under chapter 51 or 55. 48.135(1)(1) If a child alleged to be in need of protection or services or a child expectant mother of an unborn child alleged to be in need of protection or services is before the court and it appears that the child or child expectant mother is developmentally disabled, mentally ill or drug dependent or suffers from alcoholism, the court may proceed under
ch. 51 or
55. If an adult expectant mother of an unborn child alleged to be in need of protection or services is before the court and it appears that the adult expectant mother is drug dependent or suffers from alcoholism, the court may proceed under
ch. 51.
48.135(2)
(2) Except as provided in
ss. 48.19 to
48.21 and
s. 48.345 (14), any voluntary or involuntary admissions, placements or commitments of a child made in or to an inpatient facility, as defined in
s. 51.01 (10), shall be governed by
ch. 51 or
55. Except as provided in
ss. 48.193 to
48.213 and
s. 48.347 (6), any voluntary or involuntary admissions, placements or commitments of an adult expectant mother of an unborn child made in or to an inpatient facility, as defined in
s. 51.01 (10), shall be governed by
ch. 51.
48.14
48.14
Jurisdiction over other matters relating to children. The court has exclusive jurisdiction over:
48.14(1)
(1) The termination of parental rights to a minor in accordance with
subch. VIII.
48.14(2)
(2) The appointment and removal of a guardian of the person in the following cases:
48.14(2)(a)
(a) For a minor, where parental rights have been terminated under
subch. VIII; or
48.14(5)
(5) Proceedings under
chs. 51 and
55 which apply to minors and proceedings under
ch. 51 which apply to the adult expectant mothers of unborn children, if those adult expectant mothers appear to be drug dependent or to suffer from alcoholism.
48.14(8)
(8) Runaway children, but only as provided under
s. 48.227 for the limited purpose described in that section.
48.14 Annotation
If two actions between the same parties, on the same subject, to test the same rights are brought in different courts with concurrent jurisdiction, it is error for the second court to assume jurisdiction. Interest of Tiffany W. & Myokra W.
192 Wis. 2d 407,
532 N.W.2d 135 (Ct. App. 1995).
48.15
48.15
Jurisdiction of other courts to determine legal custody. Nothing contained in
ss. 48.13,
48.133 and
48.14 deprives other courts of the right to determine the legal custody of children by habeas corpus or to determine the legal custody or guardianship of children if the legal custody or guardianship is incidental to the determination of causes pending in the other courts. But the jurisdiction of the court assigned to exercise jurisdiction under this chapter and
ch. 938 is paramount in all cases involving children alleged to come within the provisions of
ss. 48.13 and
48.14 and unborn children and their expectant mothers alleged to come within the provisions of
ss. 48.133 and
48.14 (5).
48.15 Note
Judicial Council Note, 1981: Reference to "writs" of habeas corpus has been removed because that remedy is now available in an ordinary action. See s. 781.01, stats., and the note thereto. [Bill 613-A]
48.16
48.16
Jurisdiction over petitions for waiver of parental consent to a minor's abortion. Any circuit court within this state has jurisdiction over a proceeding under
s. 48.375 (7) for waiver of the parental consent requirement under
s. 48.375 (4).
48.16 History
History: 1991 a. 263.
48.185(1)(1) Subject to
sub. (2), venue for any proceeding under
ss. 48.13,
48.133,
48.135 and
48.14 (1) to
(9) may be in any of the following: the county where the child or the expectant mother of the unborn child resides or the county where the child or expectant mother is present. Venue for proceedings brought under
subch. VIII is as provided in this subsection except where the child has been placed and is living outside the home of the child's parent pursuant to a dispositional order, in which case venue is as provided in
sub. (2). Venue for a proceeding under
s. 48.14 (10) is as provided in
s. 801.50 (5s).
48.185(2)
(2) In an action under
s. 48.41, venue shall be in the county where the birth parent or child resides at the time that the petition is filed. Venue for any proceeding under
s. 48.363,
48.365 or
48.977, or any proceeding under
subch. VIII when the child has been placed outside the home pursuant to a dispositional order under
s. 48.345 or
48.347, shall be in the county where the dispositional order was issued, unless the child's county of residence has changed, or the parent of the child or the expectant mother of the unborn child has resided in a different county of this state for 6 months. In either case, the court may, upon a motion and for good cause shown, transfer the case, along with all appropriate records, to the county of residence of the child, parent or expectant mother.
48.185 Annotation
This section does not authorize change of venue, upon motion of party or upon stipulation of parties, after adjudication but before the first dispositional hearing.
75 Atty. Gen. 100.
HOLDING A CHILD OR AN EXPECTANT MOTHER IN CUSTODY
48.19
48.19
Taking a child into custody. 48.19(1)
(1) A child may be taken into custody under any of the following:
48.19(1)(c)
(c) An order of the judge if made upon a showing satisfactory to the judge that the welfare of the child demands that the child be immediately removed from his or her present custody. The order shall specify that the child be held in custody under
s. 48.207 (1).
48.19(1)(cm)
(cm) An order of the judge if made upon a showing satisfactory to the judge that the child is an expectant mother, that due to the child expectant mother's habitual lack of self-control in the use of alcohol beverages, controlled substances or controlled substance analogs, exhibited to a severe degree, there is a substantial risk that the physical health of the unborn child, and of the child when born, will be seriously affected or endangered unless the child expectant mother is taken into custody and that the child expectant mother is refusing or has refused to accept any alcohol or other drug abuse services offered to her or is not making or has not made a good faith effort to participate in any alcohol or other drug abuse services offered to her. The order shall specify that the child expectant mother be held in custody under
s. 48.207 (1).
48.19(1)(d)
(d) Circumstances in which a law enforcement officer believes on reasonable grounds that any of the following conditions exists:
48.19(1)(d)1.
1. A capias or a warrant for the child's apprehension has been issued in this state, or that the child is a fugitive from justice.
48.19(1)(d)2.
2. A capias or a warrant for the child's apprehension has been issued in another state.
48.19(1)(d)4.
4. The child has run away from his or her parents, guardian or legal or physical custodian.
48.19(1)(d)5.
5. The child is suffering from illness or injury or is in immediate danger from his or her surroundings and removal from those surroundings is necessary.
48.19(1)(d)7.
7. The child has violated the conditions of an order under
s. 48.21 (4) or the conditions of an order for temporary physical custody by an intake worker.
48.19(1)(d)8.
8. The child is an expectant mother and there is a substantial risk that the physical health of the unborn child, and of the child when born, will be seriously affected or endangered due to the child expectant mother's habitual lack of self-control in the use of alcohol beverages, controlled substances or controlled substance analogs, exhibited to a severe degree, unless the child expectant mother is taken into custody.
48.19(2)
(2) When a child is taken into physical custody as provided in this section, the person taking the child into custody shall immediately attempt to notify the parent, guardian and legal custodian of the child by the most practical means. The person taking the child into custody shall continue such attempt until the parent, guardian and legal custodian of the child are notified, or the child is delivered to an intake worker under
s. 48.20 (3), whichever occurs first. If the child is delivered to the intake worker before the parent, guardian and legal custodian are notified, the intake worker, or another person at his or her direction, shall continue the attempt to notify until the parent, guardian and legal custodian of the child are notified.
48.19(3)
(3) Taking into custody is not an arrest except for the purpose of determining whether the taking into custody or the obtaining of any evidence is lawful.
48.19 Annotation
A viable fetus is not a "person" within the definition of a child under s. 48.02 (2). A court may not order protective custody of a fetus by requiring custody of the mother. State ex rel. Angela M.W. v. Kruzicki,
209 Wis. 2d 112,
561 N.W.2d 729 (1997).
48.193
48.193
Taking an adult expectant mother into custody. 48.193(1)(1) An adult expectant mother of an unborn child may be taken into custody under any of the following:
48.193(1)(c)
(c) An order of the judge if made upon a showing satisfactory to the judge that due to the adult expectant mother's habitual lack of self-control in the use of alcohol beverages, controlled substances or controlled substance analogs, exhibited to a severe degree, there is a substantial risk that the physical health of the unborn child, and of the child when born, will be seriously affected or endangered unless the adult expectant mother is taken into custody and that the adult expectant mother is refusing or has refused to accept any alcohol or other drug abuse services offered to her or is not making or has not made a good faith effort to participate in any alcohol or other drug abuse services offered to her. The order shall specify that the adult expectant mother be held in custody under
s. 48.207 (1m).
48.193(1)(d)
(d) Circumstances in which a law enforcement officer believes on reasonable grounds that any of the following conditions exists:
48.193(1)(d)1.
1. A capias or warrant for the apprehension of the adult expectant mother has been issued in this state or in another state.
48.193(1)(d)2.
2. There is a substantial risk that the physical health of the unborn child, and of the child when born, will be seriously affected or endangered due to the adult expectant mother's habitual lack of self-control in the use of alcohol beverages, controlled substances or controlled substance analogs, exhibited to a severe degree, unless the adult expectant mother is taken into custody.
48.193(1)(d)3.
3. The adult expectant mother has violated the conditions of an order under
s. 48.213 (3) or the conditions of an order for temporary physical custody by an intake worker.
48.193(2)
(2) When an adult expectant mother of an unborn child is taken into physical custody as provided in this section, the person taking the adult expectant mother into custody shall immediately attempt to notify an adult relative or friend of the adult expectant mother by the most practical means. The person taking the adult expectant mother into custody shall continue such attempt until an adult relative or friend is notified, or the adult expectant mother is delivered to an intake worker under
s. 48.203 (2), whichever occurs first. If the adult expectant mother is delivered to the intake worker before an adult relative or friend is notified, the intake worker, or another person at his or her direction, shall continue the attempt to notify until an adult relative or friend of the adult expectant mother is notified.
48.193(3)
(3) Taking into custody is not an arrest except for the purpose of determining whether the taking into custody or the obtaining of any evidence is lawful.
48.193 History
History: 1997 a. 292.
48.195
48.195
Taking a newborn child into custody. 48.195(1)
(1)
Taking child into custody. In addition to being taken into custody under
s. 48.19, a child whom a law enforcement officer, emergency medical technician, or hospital staff member reasonably believes to be 72 hours old or younger may be taken into custody under circumstances in which a parent of the child relinquishes custody of the child to the law enforcement officer, emergency medical technician, or hospital staff member and does not express an intent to return for the child. If a parent who wishes to relinquish custody of his or her child under this subsection is unable to travel to a sheriff's office, police station, fire station, hospital, or other place where a law enforcement officer, emergency medical technician, or hospital staff member is located, the parent may dial the telephone number "911" or, in an area in which the telephone number "911" is not available, the number for an emergency medical service provider, and the person receiving the call shall dispatch a law enforcement officer or emergency medical technician to meet the parent and take the child into custody. A law enforcement officer, emergency medical technician, or hospital staff member who takes a child into custody under this subsection shall take any action necessary to protect the health and safety of the child, shall, within 24 hours after taking the child into custody, deliver the child to the intake worker under
s. 48.20, and shall, within 5 days after taking the child into custody, file a birth certificate for the child under
s. 69.14 (3).
48.195(2)(a)(a) Except as provided in this paragraph, a parent who relinquishes custody of a child under
sub. (1) and any person who assists the parent in that relinquishment have the right to remain anonymous. The exercise of that right shall not affect the manner in which a law enforcement officer, emergency medical technician, or hospital staff member performs his or her duties under this section. No person may induce or coerce or attempt to induce or coerce a parent or person assisting a parent who wishes to remain anonymous into revealing his or her identity, unless the person has reasonable cause to suspect that the child has been the victim of abuse or neglect, as defined in
s. 48.981 (1) (d), or that the person assisting the parent is coercing the parent into relinquishing custody of the child.
48.195(2)(b)
(b) A parent who relinquishes custody of a child under
sub. (1) and any person who assists the parent in that relinquishment may leave the presence of the law enforcement officer, emergency medical technician, or hospital staff member who took custody of the child at any time, and no person may follow or pursue the parent or person assisting the parent, unless the person has reasonable cause to suspect that the child has been the victim of abuse or neglect, as defined in
s. 48.981 (1) (d), or that the person assisting the parent has coerced the parent into relinquishing custody of the child.
48.195(2)(c)
(c) No officer, employee, or agent of this state or of a political subdivision of this state may attempt to locate or ascertain the identity of a parent who relinquishes custody of a child under
sub. (1) or any person who assists the parent in that relinquishment, unless the officer, employee, or agent has reasonable cause to suspect that the child has been the victim of abuse or neglect, as defined in
s. 48.981 (1) (d), or that the person assisting the parent has coerced the parent into relinquishing custody of the child.
48.195(2)(d)
(d) Any person who obtains any information relating to the relinquishment of a child under
sub. (1) shall keep that information confidential and may not disclose that information, except to the following persons:
48.195(2)(d)1.
1. The birth parent of the child, if the birth parent has waived his or her right under
par. (a) to remain anonymous, or the adoptive parent of the child, if the child is later adopted.
48.195(2)(d)2.
2. Appropriate staff of the department, county department, or licensed child welfare agency that is providing services to the child.
48.195(2)(d)4.
4. An attending physician for purposes of diagnosis and treatment of the child.
48.195(2)(d)5.
5. The child's foster parent, treatment foster parent, or other person having physical custody of the child.
48.195(2)(d)6.
6. A court conducting proceedings under
s. 48.21, proceedings relating to a petition under
s. 48.13 (2m) or
48.42, or dispositional proceedings under
subch. VI or
VIII relating to the child, the county corporation counsel, district attorney, or agency legal counsel representing the interests of the public in those proceedings, or the guardian ad litem representing the interests of the child in those proceedings.
48.195(2)(d)7.
7. A tribal court, or other adjudicative body authorized by an American Indian tribe or band to perform child welfare functions, that is exercising jurisdiction over proceedings relating to the child, an attorney representing the interests of the American Indian tribe or band in those proceedings, or an attorney representing the interests of the child in those proceedings.
48.195(3)(a)(a) Subject to
par. (b), a law enforcement officer, emergency medical technician, or hospital staff member who takes a child into custody under
sub. (1) shall make available to the parent who relinquishes custody of the child the maternal and child health toll-free telephone number maintained by the department under
42 USC 705 (a) (5) (E).
48.195(3)(b)
(b) The decision whether to accept the information made available under
par. (a) is entirely voluntary on the part of the parent. No person may induce or coerce or attempt to induce or coerce any parent into accepting that information.
48.195(4)(a)(a) Any parent who relinquishes custody of his or her child under
sub. (1) and any person who assists the parent in that relinquishment are immune from any civil or criminal liability for any good faith act or omission in connection with that relinquishment. The immunity granted under this paragraph includes immunity for exercising the right to remain anonymous under
sub. (2) (a), the right to leave at any time under
sub. (2) (b), and the right not to accept any information under
sub. (3) (b) and immunity from prosecution under
s. 948.20 for abandonment of a child or under
s. 948.21 for neglecting a child.
48.195(4)(b)
(b) Any law enforcement officer, emergency medical technician, or hospital staff member who takes a child into custody under
sub. (1) is immune from any civil liability to the child's parents, or any criminal liability for any good faith act or omission occurring solely in connection with the act of receiving custody of the child from the child's parents, but is not immune from any civil or criminal liability for any act or omission occurring in subsequently providing care for the child.
48.195(4)(c)
(c) In any civil or criminal proceeding, the good faith of a person specified in
par. (a) or
(b) is presumed. This presumption may be overcome only by clear and convincing evidence.
48.195(5)
(5) Medical assistance eligibility. A child who is taken into custody under
sub. (1) is presumed to be eligible for medical assistance under
s. 49.46 or
49.47.
48.195(6)
(6) Rules. The department shall promulgate rules to implement this section. In promulgating those rules, the department shall consider the different circumstances under which a parent might relinquish custody of a child under
sub. (1). The rules shall include rules prescribing a means by which a parent who relinquishes custody of his or her child under
sub. (1) may, until the granting of an order terminating parental rights, choose to be identified as the child's parent.
48.195 History
History: 2001 a. 2.
48.20
48.20
Release or delivery of child from custody.
