48.01
48.01
Title and legislative purpose. 48.01(1)
(1) This chapter may be cited as "The Children's Code". In construing this chapter, the best interests of the child or unborn child shall always be of paramount consideration. This chapter shall be liberally construed to effectuate the following express legislative purposes:
48.01(1)(a)
(a) While recognizing that the paramount goal of this chapter is to protect children and unborn children, to preserve the unity of the family, whenever appropriate, by strengthening family life through assisting parents and the expectant mothers of unborn children, whenever appropriate, in fulfilling their responsibilities as parents or expectant mothers. The courts and agencies responsible for child welfare, while assuring that a child's health and safety are the paramount concerns, should assist parents and the expectant mothers of unborn children in changing any circumstances in the home which might harm the child or unborn child, which may require the child to be placed outside the home or which may require the expectant mother to be taken into custody. The courts should recognize that they have the authority, in appropriate cases, not to reunite a child with his or her family. The courts and agencies responsible for child welfare should also recognize that instability and impermanence in family relationships are contrary to the welfare of children and should therefore recognize the importance of eliminating the need for children to wait unreasonable periods of time for their parents to correct the conditions that prevent their safe return to the family.
48.01(1)(ad)
(ad) To provide judicial and other procedures through which children and all other interested parties are assured fair hearings and their constitutional and other legal rights are recognized and enforced, while protecting the public safety.
48.01(1)(ag)
(ag) To recognize that children have certain basic needs which must be provided for, including the need for adequate food, clothing and shelter; the need to be free from physical, sexual or emotional injury or exploitation; the need to develop physically, mentally and emotionally to their potential; and the need for a safe and permanent family. It is further recognized that, under certain circumstances, in order to ensure that the needs of a child, as described in this paragraph, are provided for, the court may determine that it is in the best interests of the child for the child to be removed from his or her parents, consistent with any applicable law relating to the rights of parents.
48.01(1)(am)
(am) To recognize that unborn children have certain basic needs which must be provided for, including the need to develop physically to their potential and the need to be free from physical harm due to the habitual lack of self-control of their expectant mothers in the use of alcohol beverages, controlled substances or controlled substance analogs, exhibited to a severe degree. It is further recognized that, when an expectant mother of an unborn child suffers from a habitual lack of self-control in the use of alcohol beverages, controlled substances or controlled substance analogs, exhibited to a severe degree, in order to ensure that the needs of the unborn child, as described in this paragraph, are provided for, the court may determine that it is in the best interests of the unborn child for the expectant mother to be ordered to receive treatment, including inpatient treatment, for that habitual lack of self-control, consistent with any applicable law relating to the rights of the expectant mother.
48.01(1)(ap)
(ap) To recognize the compelling need to reduce the harmful financial, societal and emotional impacts that arise and the tremendous burdens that are placed on families and the community and on the health care, social services, educational and criminal justice systems as a result of the habitual lack of self-control of expectant mothers in the use of alcohol beverages, controlled substances or controlled substance analogs, exhibited to a severe degree, during all stages of pregnancy.
48.01(1)(bg)1.1. To ensure that children are protected against the harmful effects resulting from the absence of parents or parent substitutes, from the inability, other than financial inability, of parents or parent substitutes to provide care and protection for their children and from the destructive behavior of parents or parent substitutes in providing care and protection for their children.
48.01(1)(bg)2.
2. To ensure that children are provided good substitute parental care in the event of the absence, temporary or permanent inability, other than financial inability, or unfitness of parents to provide care and protection for their children.
48.01(1)(bm)
(bm) To ensure that unborn children are protected against the harmful effects resulting from the habitual lack of self-control of their expectant mothers in the use of alcohol beverages, controlled substances or controlled substance analogs, exhibited to a severe degree. To effectuate this purpose and the purpose specified in
par. (am), it is the intent of the legislature that the provisions of this chapter that protect unborn children against those harmful effects and that provide for the needs of unborn children, as described in
par. (am), shall be construed to apply throughout an expectant mother's pregnancy to the extent that application of those provisions throughout an expectant mother's pregnancy is constitutionally permissible and that expectant mothers who habitually lack self-control in the use of alcohol beverages, controlled substances or controlled substance analogs, exhibited to a severe degree, be encouraged to seek treatment for that habitual lack of self-control voluntarily when voluntary treatment would be practicable and effective.
48.01(1)(br)
(br) To encourage innovative and effective prevention, intervention and treatment approaches, including collaborative community efforts and the use of community-based programs, as significant strategies in planning and implementing legislative, executive and local government policies and programs relating to children and their families and substitute families and to unborn children and their expectant mothers.
48.01(1)(dm)
(dm) To divert children and unborn children from formal proceedings under this chapter to the extent that this is consistent with protection of children, unborn children and the public safety.
48.01(1)(f)
(f) To assure that children pending adoptive homes will be placed in the best homes available and protected from adoption by persons unfit to have responsibility for raising children.
48.01(1)(gg)
(gg) To promote the adoption of children into safe and stable families rather than allowing children to remain in the impermanence of foster or treatment foster care.
48.01(1)(gr)
(gr) To allow for the termination of parental rights at the earliest possible time after rehabilitation and reunification efforts are discontinued in accordance with this chapter and termination of parental rights is in the best interest of the child.
48.01(1)(gt)
(gt) To reaffirm that the duty of a parent to support and maintain his or her child continues during any period in which the child may be removed from the custody of the parent.
48.01(1)(h)
(h) To provide a just and humane program of services to nonmarital children, children and unborn children in need of protection or services, and the expectant mothers of those unborn children; to avoid duplication and waste of effort and money on the part of public and private agencies; and to coordinate and integrate a program of services to children and families.
48.01(2)
(2) In proceedings involving an American Indian child, the best interests of the child shall be determined consistent with the Indian child welfare act,
25 USC 1901 to
1963. In this subsection, "American Indian child" means any unmarried person who is under 18 years of age and who is one of the following:
48.01(2)(b)
(b) Eligible for membership in an Indian tribe and is the biological child of a member of an Indian tribe.
48.01 Annotation
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).
48.01 Annotation
Jurisdictional questions relating to the Indian child welfare act are discussed. 70 Atty. Gen. 237.
48.01 Annotation
Adoption and termination proceedings in Wisconsin: Straining the wisdom of Solomon. Hayes and Morse, 66 MLR 439 (1983).
48.01 Annotation
The Indian child welfare act-tribal self-determination through participation in child custody proceedings. 1979 WLR 1202.
48.02
48.02
Definitions. In this chapter, unless otherwise defined:
48.02(1)
(1) "Abuse", other than when used in referring to abuse of alcohol beverages or other drugs, means any of the following:
48.02(1)(a)
(a) Physical injury inflicted on a child by other than accidental means.
48.02(1)(am)
(am) 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.
48.02(1)(g)1.
1. With a child physically present during the manufacture.
48.02(1)(g)2.
2. 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.
48.02(1)(g)3.
3. Under any other circumstances in which a reasonable person should have known that the manufacture would be seen, smelled, or heard by a child.
48.02(1)(gm)
(gm) 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.
48.02(1d)
(1d) "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.
48.02(1e)
(1e) "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.
48.02(2)
(2) "Child" 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.
48.02(2g)
(2g) "County department" means a county department under
s. 46.22 or
46.23, unless the context requires otherwise.
48.02(2m)
(2m) "Court", when used without further qualification, means the court assigned to exercise jurisdiction under this chapter and
ch. 938.
48.02(3)
(3) "Court intake worker" means any person designated to provide intake services under
s. 48.067.
48.02(4)
(4) "Department" means the department of children and families.
48.02(5)
(5) "Developmentally disabled" means having a developmental disability, as defined in
s. 51.01 (5).
48.02(5j)
(5j) "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.
48.02(5m)
(5m) "Foreign jurisdiction" means a jurisdiction outside of the United States.
48.02(6)
(6) "Foster home" means any facility that is operated by a person required to be licensed by
s. 48.62 (1) (a) 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.
48.02(7)
(7) "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).
48.02(8)
(8) "Guardian" means the person named by the court having the duty and authority of guardianship.
48.02(10)
(10) "Judge", if used without further qualification, means the judge of the court assigned to exercise jurisdiction under this chapter and
ch. 938.
48.02(10r)
(10r) " 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.
48.02(11)
(11) "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.
48.02(12)
(12) "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.
48.02(12m)
(12m) "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:
48.02(12m)(h)
(h) Reason for placing the child for adoption or for the termination of parental rights.
48.02(13)
(13) "Parent" means either 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.
48.02(14)
(14) "Physical custody" means actual custody of the person in the absence of a court order granting legal custody to the physical custodian.
48.02(14g)
(14g) "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).
48.02(15)
(15) "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.
48.02(15d)
(15d) "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.
48.02(16)
(16) "Secretary" means the secretary of children and families.
48.02(17)
(17) "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).
48.02(17m)
(17m) "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.
48.02(17q)
(17q) "Treatment foster home" means any facility that is operated by a person required to be licensed under
s. 48.62 (1) (b), that is operated under the supervision of the department, a county department or a licensed child welfare agency, and that provides to no more than 4 children care, maintenance and structured, professional treatment by trained individuals, including the treatment foster parents.
48.02(18)
(18) "Trial" means a fact-finding hearing to determine jurisdiction.
48.02(19)
(19) "Unborn child" means a human being from the time of fertilization to the time of birth.
48.02 History
History: 1971 c. 41 s.
12;
1971 c. 164;
1973 c. 263;
1977 c. 205,
299,
354,
418,
447,
449;
1979 c. 135,
300,
352;
1981 c. 81;
1983 a. 189,
447,
471;
1985 a. 176;
1987 a. 27,
285,
339;
1989 a. 31; Sup. Ct. Order, 151 Wis. 2d xxv (1989);
1989 a. 107;
1991 a. 39;
1993 a. 98,
375,
377,
385,
446,
491;
1995 a. 27 ss.
2423 to
2426p,
9126 (19),
9145 (1);
1995 a. 77,
275,
352,
448;
1997 a. 27,
104,
191,
292;
1999 a. 9;
2001 a. 16,
59,
69;
2005 a. 113,
232,
277,
344;
2005 a. 443 s.
265;
2007 a. 20.
48.02 Annotation
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, N.W.2d 803 (1992).
48.02 Annotation
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 (1997),
95-2480.
