“Out-of-home care provider" means a foster parent, guardian, relative other than a parent, or nonrelative in whose home a child is placed, or the operator of a group home, residential care center for children and youth, or shelter care facility in which a child is placed, under the placement and care responsibility of the department or a county department. “Out-of-home care provider" also includes, in the case of a child placed in a group home, residential care center for children and youth, or shelter care facility, a staff member employed on the site of that home, center, or facility who has been designated by the operator of that home, center, or facility as an out-of-home care provider for purposes of making decisions concerning the child's participation in age or developmentally appropriate activities.
“Parent" means 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. For purposes of the application of s. 48.028
and the federal Indian Child Welfare Act, 25 USC 1901
, “parent" means a biological parent, an Indian husband who has consented to the artificial insemination of his wife under s. 891.40
, or an Indian person who has lawfully adopted an Indian child, including an adoption under tribal law or custom, and includes, in the case of a nonmarital child who is not adopted or whose parents do not subsequently intermarry under s. 767.803
, a person acknowledged under s. 767.805
, a substantially similar law of another state, or tribal law or custom to be the biological father or a person adjudicated to be the biological father, but does not include any person whose parental rights have been terminated.
“Physical custody" means actual custody of the person in the absence of a court order granting legal custody to the physical custodian.
“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)
“Reasonable and prudent parent standard" means a standard for an out-of-home care provider to use in making decisions concerning a child's participation in age or developmentally appropriate extracurricular, enrichment, cultural, and social activities that is characterized by careful and sensible parental decisions that maintain the health, safety, best interests, and cultural, religious, and tribal values of the child while at the same time encouraging the emotional and developmental growth of the child.
“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. For purposes of the application of s. 48.028
and the federal Indian Child Welfare Act, 25 USC 1901
, “relative" includes an extended family member, as defined in s. 48.028 (2) (am)
, whether by blood, marriage, or adoption, including adoption under tribal law or custom. For purposes of placement of a child, “relative" also includes a parent of a sibling of the child who has legal custody of that sibling.
“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.
“Secretary" means the secretary of children and families.
“Secured residential care center for children and youth" has the meaning given in s. 938.02 (15g)
“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)
“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.
“Trial" means a fact-finding hearing to determine jurisdiction.
“Tribal court" means a court that has jurisdiction over Indian child custody proceedings, and that is either a court of Indian offenses or a court established and operated under the code or custom of an Indian tribe, or any other administrative body of an Indian tribe that is vested with authority over Indian child custody proceedings.
“Unborn child" means a human being from the time of fertilization to the time of birth.
History: 1971 c. 41
; 1971 c. 164
; 1973 c. 263
; 1977 c. 205
; 1979 c. 135
; 1981 c. 81
; 1983 a. 189
; 1985 a. 176
; 1987 a. 27
; 1989 a. 31
; Sup. Ct. Order, 151 Wis. 2d xxv (1989); 1989 a. 107
; 1991 a. 39
; 1993 a. 98
; 1995 a. 27
, 9126 (19)
, 9145 (1)
; 1995 a. 77
; 1997 a. 27
; 1999 a. 9
; 2001 a. 16
; 2005 a. 113
; 2005 a. 443
; 2007 a. 20
; 2009 a. 28
; 2009 a. 94
; 2009 a. 185
; 2009 a. 302
; 2013 a. 362
; 2015 a. 101
; 2017 a. 34
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
, 483 N.W.2d 803
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
While the second sentence of sub. (13) applies exclusively to nonmarital children, the first sentence does not apply exclusively to children of married individuals. The biological father of a nonmarital child satisfies the definition of parent in s. 48.02 (13) as he is a biological parent notwithstanding that he has not officially been adjudicated as the child's biological father. State v. James P. 2005 WI 80
, 281 Wis. 2d 685
, 698 N.W.2d 95
An interpretation of “severe bruising" under sub. (14g) that includes consideration of the circumstances surrounding the physical injury is reasonable. A child's bruises were severe based on the combination of: 1) the sensitive location of the bruising, on the child's skull; 2) the vulnerability of a child of the victim's age; and 3) the means by which the court determined the bruises were created, by an adult hand pressing on the child's skull. Kristi L. M. v. Dennis E. M. 2007 WI 85
, 302 Wis. 2d 185
, 734 N.W.2d 375
Parentage may be established in one of 3 ways: by initiating a paternity action under s. 767.80, by petitioning for adoption under ch. 48, or by virtue of the presumption established by the artificial insemination statute. While a circuit court possesses common law authority to order visitation, it has no authority outside of the statutes to confer parental rights. Dustardy H. v. Bethany H. 2011 WI App 2
, 331 Wis. 2d 158
, 794 N.W.2d 230
Enforcement of surrogacy agreements promotes stability and permanence in family relationships because it allows the intended parents to plan for the arrival of their child, reinforces the expectations of all parties to the agreement, and reduces contentious litigation. The surrogacy agreement in this case was enforceable except for the portions of the agreement requiring a voluntary termination of parental rights (TPR). The TPR provisions did not comply with the procedural safeguards set forth in s. 48.41 for a voluntary TPR because the biological mother would not consent to the TPR and there was no legal basis for involuntary termination. The TPR provisions were severable. Rosecky v. Schissel, 2013 WI 66
, 349 Wis. 2d 84
, 833 N.W.2d 634
Construing sub. (1) (gm) and s. 813.122 as allowing a trial court to consider evidence of the treatment a respondent obtained or steps a respondent took to ameliorate a child's symptoms of emotional damage after the filing of the petition but prior to the injunction hearing would undercut the purpose of the injunction, which is to protect a child from an abusive situation. In light of Wisconsin's strong and long-standing interest in the protection and well-being of its minors, interpreting these statutes in a manner that would allow a respondent to undercut the purpose of the statute would be unreasonable. S.O. v. T.R. 2016 WI App 24
, 367 Wis. 2d 669
, 877 N.W.2d 408
Evidence of the treatment obtained or steps taken by a parent, guardian, or legal custodian to address and remedy his or her actions can benefit the child within the meaning sub. (1) (gm) and s. 813.122. However, when evidence of such actions is introduced to establish that the parent, guardian, or legal custodian has not “neglected, refused or been unable ... to obtain the necessary treatment or to take steps to ameliorate the symptoms," there must also be testimony or other evidence showing an actual benefit to the child in terms of treating the child and ameliorating the child's symptoms of emotional abuse. S.O. v. T.R. 2016 WI App 24
, 367 Wis. 2d 669
, 877 N.W.2d 408
Wisconsin's Undeveloped Surrogacy Law. Walsh. Wis. Law. March 2012.
Child Abuse: The “Unsubstantiated” Finding. Kornblum & Pollack. Wis. Law. Sept. 2018.
governs the electronic filing of documents under this chapter.
Sup. Ct. Order No. 14-03
, 2016 WI 29, filed 4-28-16, eff. 7-1-16.
Except as limited by an order of the court under s. 48.977 (5) (b)
or 48.978 (6) (b) 2.
, a person appointed by the court to be the guardian of a child under this chapter 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, including but not limited to:
The authority to consent to marriage, enlistment in the U.S. armed forces, major medical, psychiatric and surgical treatment, and obtaining a motor vehicle operator's license.
The authority to represent the child in legal actions and make other decisions of substantial legal significance concerning the child but not the authority to deny the child the assistance of counsel as required by this chapter.
The right and duty of reasonable visitation of the child.
The rights and responsibilities of legal custody except when legal custody has been vested in another person or when the child is under the supervision of the department of corrections under s. 938.183
, 938.34 (4h)
, or (4n)
, or 938.357 (3)
or the supervision of a county department under s. 938.34 (4d)
, or (4n)
Sub. (4) is amended by 2017 Wis. Act 185
effective on the date specified in the department of corrections notice published in the Wisconsin Administrative Register under 2017 Wis. Act 185
, section 110 (2) (b)
, or 1-1-21, whichever is earlier, to read:
Effective date text
(4) The rights and responsibilities of legal custody except when legal custody has been vested in another person or when the child is under the supervision of the department of corrections under s. 938.183, 938.34 (4h) or (4n), or 938.357 (3) or (4) or the supervision of a county department under s. 938.34 (4d), (4m), or (4n).
A guardian may not recover for the loss of society and companionship of a ward, nor may the guardian bring a separate claim for costs incurred or income lost on account of injuries to the ward. Conant v. Physicians Plus Medical Group, Inc. 229 Wis. 2d 271
, 600 N.W.2d 21
(Ct. App. 1999), 98-3285
A guardian has general authority to consent to medication for a ward, but may consent to psychotropic medication only in accordance with ss. 880.07 (1m) and 880.33 (4m) and (4r). The guardian's authority to consent to medication or medical treatment of any kind is not affected by an order for protective placement or services. OAG 5-99
Declaration of paternal interest in matters affecting children. 48.025(1)(1)
Any person claiming to be the father of a nonmarital child who is not adopted or whose parents do not subsequently intermarry under s. 767.803
and whose paternity has not been established may, in accordance with procedures under this section, file with the department a declaration of his interest in matters affecting the child. The department may not charge a fee for filing a declaration under this section.
A declaration under sub. (1)
may be filed at any time before a termination of the father's parental rights under subch. VIII
. This paragraph does not apply to a declaration that is filed on or after July 1, 2006.
A declaration under sub. (1)
may be filed at any time before the birth of the child or within 14 days after the birth of the child, except that a man who receives a notice under s. 48.42 (1g) (b)
may file a declaration within 21 days after the date on which the notice was mailed. This paragraph does not apply to a declaration filed before July 1, 2006.
The declaration shall be in writing, shall be signed and verified upon oath or affirmation by the person filing the declaration, and shall contain the person's name and address, the name and last-known address of the mother, the month and year of the birth or expected birth of the child, and a statement that the person filing the declaration has reason to believe that he may be the father of the child. If the person filing the declaration is under 18 years of age, the declaration shall also be signed by a parent or guardian of the person.
A person who has filed a declaration under sub. (1)
may revoke the declaration at any time by filing with the department a statement, signed and verified upon oath or affirmation, that the person, to the best of his knowledge and belief, is not the father of the child or that another person has been adjudicated as the father of the child. If the person filing the revocation is under 18 years of age, the revocation shall also be signed by a parent or guardian of the person.
The department shall keep confidential and may not open to public inspection or disclose the contents of any declaration, revocation of a declaration, or response to a declaration filed under this section, except as provided under pars. (b)
or by order of the court for good cause shown.
A copy of a declaration filed with the department under sub. (1)
shall be sent to the mother at her last-known address. Nonreceipt of such copy shall not affect the validity of the declaration. The mother may send a written response to the declaration to the department, and the written response shall be filed with the declaration. Failure to send a written response shall not constitute an admission of the statements contained in the declaration.
A court in a proceeding under s. 48.13
, or 938.13
or under a substantially similar law of another state or a person authorized to file a petition under s. 48.25
, or 938.25
or under a substantially similar law of another state may request the department to search its files to determine whether a person who may be the father of the child who is the subject of the proceeding has filed a declaration under this section. If the department has on file a declaration of paternal interest in matters affecting the child, the department shall issue to the requester a copy of the declaration. If the department does not have on file a declaration of paternal interest in matters affecting the child, the department shall issue to the requester a statement that no declaration could be located. The department may require a person who requests a search under this paragraph to pay a reasonable fee that is sufficient to defray the costs to the department of maintaining its file of declarations and publicizing information relating to declarations of paternal interest under this section.
Any person who obtains any information under this subsection may use or disclose that information only for the purposes of a proceeding under s. 48.13
, or 938.13
or under a substantially similar law of another state and may not use or disclose that information for any other purpose except by order of the court for good cause shown.
Filing a declaration under this section shall not extend parental rights to the person filing such declaration.
The department shall publicize, in a manner calculated to provide maximum notice to all persons who might claim to be the father of a nonmarital child, all of the following information:
That a person claiming to be the father of a nonmarital child may affirmatively protect his parental rights by filing a declaration of interest under this section.
The procedures for filing a declaration of interest.
The consequences of filing a declaration of interest.
The consequences of not filing a declaration of interest.
The department may publicize the information under par. (a)
by posting the information on the Internet, by creating a pamphlet for use by schools and health care providers, and by requiring agencies that provide services under contract with the department to provide the information to clients.
Any person who makes a false statement in a declaration, revocation of a declaration, or response to a declaration filed under this section that the person does not believe is true is subject to prosecution for false swearing under s. 946.32 (2)
Except as permitted under sub. (3)
, any person who intentionally obtains, uses, or discloses information that is confidential under this section may be fined not more than $1,000 or imprisoned for not more than 90 days or both.
The constitutional rights of a putative father to establish his parentage and assert parental rights. 58 MLR 175.
Child custody jurisdiction.
All proceedings relating to the custody of children shall comply with the requirements of ch. 822
History: 1975 c. 283
Indian child welfare. 48.028(1)(1)
Declaration of policy.
In Indian child custody proceedings, the best interests of the Indian child shall be determined in accordance with s. 48.01 (2)
“Adoptive placement" means the permanent placement of an Indian child for adoption.
“Extended family member" means a person who is defined as a member of an Indian child's extended family by the law or custom of the Indian child's tribe or, in the absence of such a law or custom, a person who has attained the age of 18 years and who is the Indian child's grandparent, aunt, uncle, brother, sister, brother-in-law, sister-in-law, niece, nephew, first cousin, 2nd cousin, or stepparent.
“Former Indian custodian" means a person who was the Indian custodian of an Indian child before termination of parental rights to and adoption of the Indian child.
“Former parent" means a person who was the parent of an Indian child before termination of parental rights to and adoption of the Indian child.
“Indian child custody proceeding" means a proceeding governed by the federal Indian Child Welfare Act, 25 USC 1901
, in which any of the following may occur:
A delegation of powers by a parent regarding the care and custody of an Indian child for longer than one year under s. 48.979
“Out-of-home care placement" means the removal of an Indian child from the home of his or her parent or Indian custodian for temporary placement in a foster home, group home, residential care center for children and youth, or shelter care facility, in the home of a relative other than a parent, or in the home of a guardian, from which placement the parent or Indian custodian cannot have the child returned upon demand. “Out-of-home care placement" does not include an adoptive placement, a preadoptive placement, a delegation of powers, as described in par. (d) 5.
, an emergency change in placement under s. 48.357 (2) (b)
, or holding an Indian child in custody under ss. 48.19
“Preadoptive placement" means the temporary placement of an Indian child in a foster home, group home, or residential care center for children and youth, in the home of a relative other than a parent, or in the home of a guardian after a termination of parental rights but prior to or in lieu of an adoptive placement. “Preadoptive placement" does not include an emergency change in placement under s. 48.437 (2)
“Qualified expert witness" means a person who is any of the following:
A member of the Indian child's tribe recognized by the Indian child's tribal community as knowledgeable regarding the tribe's customs relating to family organization or child-rearing practices.
A member of another tribe who is knowledgeable regarding the customs of the Indian child's tribe relating to family organization or child-rearing practices.
A professional person having substantial education and experience in the person's professional specialty and having substantial knowledge of the customs, traditions, and values of the Indian child's tribe relating to family organization and child-rearing practices.
A layperson having substantial experience in the delivery of child and family services to Indians and substantial knowledge of the prevailing social and cultural standards and child-rearing practices of the Indian child's tribe.
“Reservation" means Indian country, as defined in 18 USC 1151
, or any land not covered under that section to which title is either held by the United States in trust for the benefit of an Indian tribe or individual or held by an Indian tribe or individual, subject to a restriction by the United States against alienation.
(3) Jurisdiction over Indian child custody proceedings. 48.028(3)(a)(a)
This section and the federal Indian Child Welfare Act, 25 USC 1901
, apply to any Indian child custody proceeding regardless of whether the Indian child is in the legal custody or physical custody of an Indian parent, Indian custodian, extended family member, or other person at the commencement of the proceeding and whether the Indian child resides or is domiciled on or off of a reservation. A court assigned to exercise jurisdiction under this chapter may not determine whether this section and the federal Indian Child Welfare Act, 25 USC 1901
, apply to an Indian child custody proceeding based on whether the Indian child is part of an existing Indian family.