* Section 991.11, Wisconsin Statutes: Effective date of acts. “Every act and every portion of an act enacted by the legislature over the governor's partial veto which does not expressly prescribe the time when it takes effect shall take effect on the day after its date of publication."

An Act to renumber subchapter XX of chapter 48 [precedes 48.98]; to renumber and amend 54.56, 54.57, 808.075 (4) (f) 3. and 814.66 (1) (m); to amend 48.09 (5), 48.14 (2) (b), 48.14 (11), 48.15, 48.235 (1) (c), 48.255 (1) (intro.), 48.293 (2), 48.299 (4) (a), 48.299 (4) (b), 48.299 (6) (intro.), 48.299 (6) (d), 48.299 (7), 48.368 (1), 48.465 (3), 48.57 (3m) (am) 1., 48.57 (3n) (am) 1., 48.62 (2), 48.831 (1), 48.831 (1m) (e), 48.977 (8), 48.978 (7), 51.30 (4) (b) 18. a., 51.30 (4) (b) 18. c., 54.01 (10), 54.10 (1), 54.15 (6), 54.25 (2) (d) 1., 54.25 (2) (d) 2. o., 54.52 (1), 55.03 (1), 115.76 (12) (b) 2., 118.125 (2) (L), 146.82 (2) (a) 9. a., 146.82 (2) (a) 9. c., 757.69 (1) (g) 5., 808.075 (4) (a) 11., 809.30 (1) (a), 809.30 (1) (b) 2., 809.30 (2) (a) and 938.345 (1) (e); and to create 48.14 (13), subchapter XX (title) of chapter 48 [precedes 48.978], 48.9795, 48.981 (7) (a) 11v., 808.075 (4) (a) 9m. and 808.075 (4) (a) 13. of the statutes; relating to: guardianships of children.

Joint legislative council prefatory note: This bill was prepared for the Joint Legislative Council's Study Committee on Minor Guardianships. Generally, the bill creates a new process and standards for appointment of a guardian of a minor's person. A description of current law and a summary of the bill's key provisions are provided below.

Chapter 54, Stats., currently governs guardianships of the person, estate, or both of minors, as well as incompetent or spendthrift adults. Unlike certain, specialized minor guardianships under ch. 48, Stats., minor guardianships under ch. 54, Stats., do not require involvement by the child welfare system and therefore are informally referred to as “private” guardianships.

Under current law, a guardian of a minor's person has the authority to exercise care, custody, and control over the minor. The court may appoint either a temporary guardian, for a duration up to 60 days and one additional 60-day period, or a permanent guardian, with the appointment terminating only upon certain events specified by statute and case law.

Chapter 54, Stats., focuses primarily on incompetent and spendthrift adults, rendering many of the chapter's provisions inapplicable to minors. Current statutory law does not address certain issues relevant to minor guardianships, such as emergency situations and parental visitation.

The bill removes guardianships of a minor's person from ch. 54, Stats., and creates a new statute governing guardianships of a child's person in a new subchapter under ch. 48, Stats. This change transfers jurisdiction over private guardianships from the probate court under ch. 54, Stats., to the children's court under ch. 48, Stats. Under the bill, guardianships of a child's estate remain governed by ch. 54, Stats., but may be consolidated with actions under the new procedure.

The bill does not change the process or standard for appointment of a guardian in the specialized circumstances under ch. 48, Stats. The bill also specifies that a petition filed under the new statute may not seek to change preexisting orders entered in certain actions under chs. 48 and 938, Stats. If any such actions are pending, the bill requires the court to stay any subsequent proceedings under the new statute until the pending action is resolved, subject to certain exceptions. In addition, the bill prohibits a dispositional order under the new statute from changing the placement of a child under the supervision of a court in certain types of actions.

The bill creates four types of guardianships of a child's person: full; limited; temporary; and emergency. The bill clarifies that a parent retains all rights and duties that are not assigned to the guardian or otherwise limited by statute or court order. For each type of guardian, the bill provides the following standards for and duties upon appointment:

A full guardianship requires a finding that the child's parents are unfit, unwilling, or unable to provide for the care, custody, and control of the child or other compelling facts and circumstances demonstrate that a full guardianship is necessary. Once appointed, the bill grants a full guardian the duties and authority granted to other guardians under ch. 48, Stats., as well as the following: the authority, subject to a court order, to determine reasonable visitation with the child; the right to change the child's residence from this state to another state; and the duty to report to the court immediately regarding any address changes and annually regarding the child's condition.

A limited guardianship requires a finding that the child's parents need assistance in providing for the care, custody, and control of the child. The court must specify the limited guardian's duties and authority, and may limit such authority to allow a parent to retain certain decision-making powers. If in the child's best interest, the court may also allow shared physical custody among the limited guardian and the parent.

A temporary guardianship requires a finding that the child's particular situation, including the inability of the child's parents to provide for the care, custody, and control of the child for a temporary period of time, requires the appointment of a temporary guardian. A temporary guardian may be appointed for a period not to exceed 180 days, though the court may grant one additional 180-day period for good cause shown. In its order, the court must limit the temporary guardian's authority to those acts that are reasonably related to the reasons for the appointment.

An emergency guardianship requires a finding that the child's welfare requires the immediate appointment of an emergency guardian. The court may appoint an emergency guardian for a period not to exceed 60 days and must limit the emergency guardian's authority to those acts reasonably related to the reasons for the appointment.

Under the bill, any person, including a child 12 years of age or older, may petition for the appointment of a guardian for a child. The petition must contain certain information including the type of guardianship sought, the facts and circumstances establishing that a guardianship is needed, the name and address of a proposed guardian, and other information as specified in the bill. A parent or a child 12 years or older may also nominate a guardian under the bill. Under the bill, the court must appoint the person nominated as the guardian by the parent, unless the court finds that appointment of the person nominated is not in the child's best interest.

The bill requires that an initial hearing be held within 45 days after a petition is filed. At least 96 hours before the initial hearing, the proposed guardian must submit a report to the court as to his or her existing parental, guardianship, or custodial responsibilities and financial situation, and as to whether he or she is charged with or has been convicted of a crime or child abuse or neglect. Any interested person, as defined in the bill, may become a party to the hearing.

At the initial hearing, the court must first determine whether any party wishes to contest the petition. If the petition is not contested, the court must immediately proceed to a fact-finding and dispositional hearing, unless an adjournment is requested. If the petition is contested and all parties consent, the court may proceed immediately to a fact-finding and dispositional hearing. If any party does not consent or if an adjournment is requested, the 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.

At the fact-finding and dispositional hearing, any party may present evidence, including expert testimony, and argument relating to the allegations in the petition. The court must determine whether the petitioner has proven the allegations in the petition by clear and convincing evidence and must immediately proceed to determine the appropriate disposition.

The bill requires the court to consider all of the following factors in determining the appropriate disposition: 1) any nomination of a guardian made by a parent or the child, if 12 years of age or older, and the opinions of the parents and child as to what is in the child's best interests; 2) whether the proposed guardian would be fit, willing, and able to serve as the child's guardian; 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 court finds good cause for departing from that order; and 4) whether appointment of the proposed guardian is in the child's best interests.

Under the bill, any person may petition for the appointment of an emergency guardian for a child. The petition must contain the same information required for a full, limited, or temporary guardianship, and must specify the reasons for the appointment of and the powers requested for an emergency guardian.