2023 Wisconsin Statutes & Annotations › Chapter 48 - Children's code. › 48.9795 - Appointment of guardian of the person for a child.

48.9795
Appointment of guardian of the person for a child.
(1)
Definitions. In this section:
(a)
“Interested person" means any of the following:
1.
For purposes of a petition for guardianship of a child, any of the following:
a.
The child, if he or she has attained 12 years of age, and the child's guardian ad litem and counsel, if any.
b.
The child's parent, guardian, legal custodian, and physical custodian.
c.
Any person who has filed a declaration of paternal interest under s. 48.025, who is alleged to the court to be the father of the child, or who may, based on the statements of the mother or other information presented to the court, be the father of the child.
d.
Any individual who is nominated as guardian or as a successor guardian.
e.
If the child has no living parent, any individual nominated to act as fiduciary for the child in a will or other written instrument that was executed by a parent of the child.
f.
If the child is receiving or in need of any public services or benefits, the county department or, in a county having a population of 750,000 or more, the department that is providing the services or benefits, through the district attorney, corporation counsel, or other officials designated under s. 48.09.
g.
If the child is an Indian child, the Indian child's Indian custodian and Indian tribe.
h.
Any other person that the court may require.
2.
For purposes of proceedings subsequent to an order for guardianship of a child, any of the following:
a.
The child, if the child has attained 12 years of age, the child's guardian ad litem, and the child's counsel.
b.
The child's parent and guardian.
c.
The county of venue, through the district attorney, corporation counsel, or other official designated under s. 48.09, if the county has an interest in the guardianship.
d.
If the child is an Indian child, the Indian child's tribe.
e.
Any other person that the court may require.
(b)
“Party" means the person petitioning for the appointment of a guardian for a child or any interested person other than a person who is alleged to the court to be the father of the child or who may, based on the statements of the mother or other information presented to the court, be the father of the child.
(2)
Appointment; venue; nomination; duty and authority.
(a)
Venue. Except as provided under par. (b) 2., venue for guardianship under this section shall be in the child's county of residence, the county in which the child is physically present, or, if the child is a nonresident, the county in which the petitioner proposes that the child reside. The court may, upon a motion and for good cause shown, transfer the case, along with all appropriate records, to the county in which a dispositional order has been issued under this chapter.
(b)
Appointment.
1.
This section may be used for the appointment of a guardian of the person for a child. An appointment of a guardian of the estate of a child shall be conducted under the procedures specified in ch. 54. If the court assigned to exercise jurisdiction under this chapter has jurisdiction over a proceeding for the appointment of a guardian of the person for a child or continuing jurisdiction over such a guardianship and the court assigned to exercise probate jurisdiction has jurisdiction over a proceeding for the appointment of a guardian of the estate of the child or continuing jurisdiction over such a guardianship, the court assigned to exercise jurisdiction under this chapter may order those proceedings or guardianships to be consolidated under the jurisdiction of the court assigned to exercise jurisdiction under this chapter. Upon such consolidation, the court assigned to exercise jurisdiction under this chapter shall order all records relating to the guardianship of the estate of the child to be transferred to the court assigned to exercise jurisdiction under this chapter and that court shall retain those records as required under SCR chapter 72. This section does not prohibit a person from petitioning a court under s. 48.831, 48.977, or 48.978 for the appointment of a guardian of the person for a child.
2.
If the child is the subject of any matter pending under s. 48.13, 48.133, or 48.14 (1) to (10) or (12) or ch. 938, any subsequent petition filed under this section shall be heard by the court authorized to exercise jurisdiction over the pending matter. The court shall stay a guardianship proceeding for the appointment of a full, limited, or temporary guardian of the person for a child under par. (d) 1., 2., or 3. until the matter pending under s. 48.13, 48.133, or 48.14 (1) to (10) or (12) or ch. 938 is resolved. The court may appoint an emergency guardian under sub. (6) while any matter is pending under s. 48.13, 48.133, or 48.14 (1) to (10) or (12) or ch. 938 if the court finds that the best interests of the child require the immediate appointment of a guardian.
3.
A petition filed under this section may not seek to change an order under s. 48.13, 48.133, or 48.14 (1) to (10) or (12) or ch. 938.
4.
The court may appoint coguardians of the person for a child under this section, subject to any conditions that the court imposes. Unless the court orders otherwise, any decision concerning the child must be concurred in by all coguardians or is void.
(c)
Nomination by parent or child.
1.
A parent may nominate a guardian and successor guardian for any of his or her children who is in need of guardianship, including a nomination by will. Subject to the rights of a surviving parent, the court shall appoint the person nominated as guardian or successor guardian, unless the court finds that appointment of the person nominated is not in the child's best interests.
2.
A child who has attained 12 years of age may nominate his or her own guardian, but if the child is outside of the state or if other good reason exists, the court may dispense with the child's right of nomination. If neither parent of a child who has attained 12 years of age is fit, willing, and able to carry out the duties of a guardian, the court may appoint the nominee of the child.
3.
In determining who is appointed as guardian, the court shall consider the nominations of the parents and child and the opinions of the parents and child as to what is in the best interests of the child, but the best interests of the child as determined by the court shall control in making the determination when those nominations and opinions are in conflict with those best interests.
(d)
Duties and authority of guardian.
1.
`Full guardianship.' Subject to subds. 2. and 5., a guardian appointed under sub. (4) (h) 2. has all of the following duties and authority:
a.
All of the duties and authority specified in s. 48.023.
b.
Subject to an order of a court of competent jurisdiction, the authority to determine reasonable visitation with the child.
c.
The right to change the residence of the child from this state to another state.
d.
The duty to immediately notify the court that appointed the guardian of any change in the address of the guardian or child and to make an annual report to that court on the condition of the child. The report shall include the location of the child, the health condition of the child, and any recommendations regarding the child.
2.
`Limited guardianship.' The court may order that the duties and authority of a guardian appointed under sub. (4) (h) 2. be limited. The duties and authority of a limited guardian shall be as specified by the order of appointment under sub. (4) (h) 2. The duties and authority of a full guardian shall apply to a limited guardian to the extent relevant to the duties or authority of the limited guardian, except as limited by the order of appointment. The court may limit the authority of a guardian with respect to any power 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 a guardian to allow shared physical custody with the parent if shared physical custody is in the best interests of the child. The court shall set an expiration date for a limited guardianship order, which may be extended for good cause shown.
3.
`Temporary guardianship.' If it is demonstrated to the court that a 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 court may appoint a temporary guardian as provided under sub. (5).
4.
`Emergency guardianship.' If it is demonstrated to the court that the welfare of a child requires the immediate appointment of an emergency guardian, the court may appoint an emergency guardian as provided under sub. (6).
5.
`Powers of guardian.' 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 court order. A guardian acting on behalf of a child may exercise only those powers that the guardian is authorized to exercise by statute or court order. The 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. This paragraph does not abridge the duties and authorities of a guardian appointed under this chapter outside of this section.
(3)
Guardian ad litem.
(a)
The court shall appoint a guardian ad litem when a petition is filed for appointment of a guardian or termination of a guardianship under this section. Except as provided under sub. (6) (b) 3., the court shall appoint the guardian ad litem as soon as possible and before the initial hearing. The court shall appoint a guardian ad litem when it determines that a hearing for modification is to be held under sub. (9) (b). In a case that is contested, the guardian ad litem may file a motion pursuant to s. 48.235 (8) (b).
(b)
The guardian ad litem has the duties and responsibilities required under s. 48.235 (3) (a). The guardian ad litem represents the best interests of the child throughout the proceedings but must apply in all court proceedings the applicable standard under sub. (4) (b) 4. to 7. The guardian ad litem shall conduct a diligent investigation sufficient to represent the best interests of the child in court. As appropriate to the circumstances, the investigation may include, personally or through a trained designee, meeting with or observing the child, meeting with the proposed guardian, meeting with interested persons, and visiting the homes of the child and the proposed guardian. The guardian ad litem shall attend all 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 court at every stage of the proceedings.
(c)
To the extent necessary to fulfill the duties and responsibilities required of the guardian ad litem in the proceedings, the guardian ad litem shall inspect reports and records relating to the child and, upon presentation of necessary releases, the child's family and the proposed guardian, including law enforcement reports and records under ss. 48.396 (1) and 938.396 (1) (a), court records under ss. 48.396 (2) (a) and 938.396 (2), social welfare agency records under ss. 48.78 (2) (a) and 938.78 (2) (a), abuse and neglect reports and records under s. 48.981 (7) (a) 11v., pupil records under s. 118.125 (2) (L), mental health records under s. 51.30 (4) (b) 4., and health care records under s. 146.82 (2) (a) 4. The court shall include in the order appointing the guardian ad litem an order requiring the custodian of any report or record relating to the child specified in this paragraph to permit the guardian ad litem to inspect and copy the report or record on presentation by the guardian ad litem of a copy of the order.
(4)
Procedures.
(a)
Petition; who may file.
1.
Except as provided in subd. 2., 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 for a child.
2.
If there is any matter pending under s. 48.13, 48.133, or 48.14 (1) to (10) or (12) or ch. 938, a petition under this subsection may be filed by any party to the pending matter or any person approved by the court if the petition is consistent with the goal or goals of the child's permanency plan and does not seek to change the requirements of any preexisting court order issued under s. 48.13, 48.133, or 48.14 (1) to (10) or (12) or ch. 938.
(b)
Petition; form and content. A petition for guardianship may include an application for protective placement or protective services or both under ch. 55. The petition shall be entitled “In the interest of .... (child's name), a person under the age of 18" and shall state all of the following, if known to the petitioner:
1.
The name, date of birth, and address of the child.
2.
The names and addresses of the petitioner, the child's parents, current guardian, and legal custodian, if any, the proposed guardian, any proposed successor guardians, and all other interested persons.
3.
Whether the petitioner is requesting a full guardianship, a limited guardianship, a temporary guardianship, or an emergency guardianship.
4.
If the petitioner is requesting a full guardianship, the facts and circumstances establishing 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 demonstrating that a full guardianship is necessary.
5.
If the petitioner is requesting a limited guardianship, the facts and circumstances establishing that the child's parents need assistance in providing for the care, custody, and control of the child and a statement of the specific duties and authority under sub. (2) (d) sought by the petitioner for the proposed guardian and the specific parental rights and duties that the petitioner seeks to have transferred.
6.
If the petitioner is requesting a temporary guardianship, the facts and circumstances establishing 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; the reasons for the appointment of a temporary guardian; and the powers requested for the temporary guardian.
7.
If the petitioner is requesting an emergency guardianship, the facts and circumstances establishing that the welfare of the child requires the immediate appointment of an emergency guardian.
8.
The facts and circumstances establishing that the proposed guardian is fit, willing, and able to serve as the child's guardian.
9.
The information required under s. 822.29 (1).
10.
Whether the child may be subject to s. 48.028 or the federal Indian Child Welfare Act, 25 USC 1901 to 1963, and, if the child may be subject to s. 48.028 or that act, the names and addresses of the child's Indian custodian, if any, and Indian tribe, if known.
11.
If the petitioner knows or has reason to know that the child is an Indian child, reliable and credible information showing that continued custody of the child by the child's parent or Indian custodian is likely to result in serious emotional or physical damage to the child under s. 48.028 (4) (d) 1. and that active efforts under s. 48.028 (4) (d) 2. have been made to prevent the breakup of the Indian child's family and that those efforts have proved unsuccessful and, if the proposed guardianship would change the placement of the child from the home of his or her parent or Indian custodian to a placement outside that home, a statement as to whether the new placement is in compliance with the order of placement preference under s. 48.028 (7) (b) or, if applicable, s. 48.028 (7) (c) and, if the new placement is not in compliance with that order, specific information showing good cause, as described in s. 48.028 (7) (e), for departing from that order.
12.
Whether the petitioner is aware of any guardianship or other related proceeding involving the child that is pending in another court and, if so, the details of the guardianship, termination of parental rights, or related proceeding.
13.
Whether there is any matter pending or the child is subject to a court order under s. 48.13, 48.133, or 48.14 or ch. 938.
(c)
Service of petition and notice.
1.
Except as provided in subd. 3. and sub. (6) (b) 2., the petitioner shall cause the petition and notice of the time and place of the hearing under par. (e) to be served at least 7 days before the time of the hearing upon all interested persons. Failure of the petitioner to provide notice to all interested persons shall deprive the court of jurisdiction unless notice is specifically waived by an interested person or by the court for good cause shown.
2.
A notice shall be in writing. A copy of the petition and any other required document shall be attached to the notice. Except as provided in subd. 3. and sub. (6) (b) 2., notice shall be delivered in person or by certified mail. Notice is considered to be given by proof of personal delivery, by proof that the notice was sent by certified mail to the last-known address of the recipient, or, if the recipient is an adult, by the written admission of service of the person served.
3.
If the petitioner knows or has reason to know that the child is an Indian child, notice to the Indian child's parent, Indian custodian, and Indian tribe shall be provided in the manner specified in s. 48.028 (4) (a). No hearing may be held under par. (e) or (f) until at least 10 days after receipt of the notice by the Indian child's parent, Indian custodian, and Indian tribe or, if the identity or location of the Indian child's parent, Indian custodian, or tribe cannot be determined, until at least 15 days after receipt of the notice by the U.S. secretary of the interior. On request of the Indian child's parent, Indian custodian, or Indian tribe, the court shall grant a continuance of up to 20 additional days to enable the requester to prepare for the hearing.
(d)
Statement by proposed guardian. At least 96 hours before the hearing under par. (e), the proposed guardian shall submit to the 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 s. 48.981 (3) (c) to have abused or neglected a child. If the proposed guardian is currently charged with or has been convicted of a crime or has been determined under s. 48.981 (3) (c) to have abused or neglected a child, he or she shall include in the sworn and notarized statement a description of the circumstances surrounding the charge, conviction, or determination.
(e)
Initial hearing.
1.
The initial hearing on a petition for guardianship, other than a petition for emergency guardianship under sub. (6), shall be heard within 45 days after the filing of the petition. At the hearing, the court shall first determine whether any party wishes to contest the petition. If the petition is not contested, the court shall 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 shall 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.
2.
The proposed guardian and any proposed successor guardian shall be physically present at all hearings unless the court excuses the attendance of either or, for good cause shown, permits attendance by telephone. The child is not required to attend any hearings, but if the child has nominated the proposed guardian, the child shall provide to the guardian ad litem sufficient information for the guardian ad litem to advise the court on whether the nomination is in the best interests of the child.
3.
If a man who has been given notice under par. (c) 1. appears at the initial hearing, alleges that he is the father of the child, and states that he wishes to establish the paternity of the child, s. 48.299 (6) applies. The court may order a temporary guardianship under sub. (5) pending the outcome of the paternity proceedings.
(f)
Fact-finding and dispositional hearing. The court shall hold the fact-finding and dispositional hearing at the time specified or set by the court under par. (e) 1., at which any party may present evidence, including expert testimony, and argument relating to the allegations in the petition. The court shall determine whether the petitioner has proven the allegations in the petition under par. (b) by clear and convincing evidence and shall immediately proceed to determine the appropriate disposition under par. (h), considering the factors under par. (g).
(g)
Dispositional factors. In determining the appropriate disposition under par. (h), the court shall consider all of the following:
1.
Any nominations made under sub. (2) (c) 1. or 2. and the opinions of the parents and child as to what is in the best interests of the child, but the best interests of the child as determined by the court shall control in making the determination when those nominations and opinions are in conflict with those best interests.
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 under s. 48.028 (7) (b) or, if applicable, s. 48.028 (7) (c), unless the court finds good cause, as described in s. 48.028 (7) (e), for departing from that order.
4.
Whether appointment of the proposed guardian as the child's guardian is in the best interests of the child.
(h)
Disposition. At the conclusion of the hearing under par. (f), the court shall grant one of the following dispositions, unless the court adjourns the hearing under par. (i):
1.
A disposition dismissing the petition if the 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 as the child's guardian is not in the best interests of the child. Dismissal of a petition under this subdivision does not preclude the court from referring the child to the intake worker for an intake inquiry under s. 48.24 or from acting as an intake worker at the court's discretion under s. 48.10.
2.
A disposition ordering the guardianship and issuing letters of guardianship if the court finds that the petitioner has proved the allegations in the petition by clear and convincing evidence and determines that such an appointment is in the best interests of the child. A dispositional order under this section may not change the placement of a child under the supervision of a court pursuant to s. 48.13, 48.133, or 48.14 (1) to (10) or (12) or ch. 938. The disposition shall include all of the following:
a.
Whether the appointment is for a full, limited, or temporary guardianship, and, if limited or temporary, the limitations and expiration date of the guardianship.
b.
If applicable, the amount of support to be paid by the child's parents.
c.
If applicable, and subject to sub. (13), reasonable rules of parental visitation. Subject to a court order under this subdivision or sub. (9) or (13), the guardian's decision regarding visitation is presumed to be in the best interests of the child and, if the court reviews the decision, the petitioner has the burden of proving by clear and convincing evidence that the decision of the guardian is not in the best interests of the child.
(i)
Adjournment; proposed guardian unfit or not in best interests. If at the conclusion of the hearing under par. (f) the court finds that the petitioner has proved the allegations in the petition, other than the allegation specified in par. (b) 8., 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 if the court finds that the petitioner has so proved all of the allegations in the petition, but that appointment of the proposed guardian as the child's guardian is not in the best interests of the child, the court may, in lieu of granting a disposition dismissing the petition under par. (h) 1., 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 guardian ad litem to report to the court concerning whether the new proposed guardian is fit, willing, and able to serve as the guardian of the child.
(5)
Temporary guardianships.
(a)
Duration and extent of authority. The court may appoint a temporary guardian for a child for a period not to exceed 180 days, except that the court may extend this period for good cause shown for one additional 180-day period. The court's determination and order appointing the temporary guardian shall specify the authority of the temporary guardian, which shall be limited to those acts that are reasonably related to the reasons for the appointment that are specified in the petition for temporary guardianship. The authority of the temporary guardian is limited to the performance of those acts stated in the order of appointment.
(b)
Procedures for appointment. A petition for the appointment of a temporary guardian shall be heard in the same manner and is subject to the same requirements as provided in this section for the appointment of a full or limited guardian.
(c)
Cessation of powers. The duties and powers of the temporary guardian cease upon the expiration of the period specified in par. (a), or the termination as determined by the court of the situation of the child that was the cause of the temporary guardianship. Upon cessation of a temporary guardianship, the temporary guardian shall file with the court any report that the court requires.
(6)
Emergency guardianships.
(a)
Duration and extent of authority. The court may appoint an emergency guardian for a child for a period not to exceed 60 days. The court's determination and order appointing the emergency guardian shall specify the authority of the emergency guardian and shall be limited to those acts that are reasonably related to the reasons for the appointment that are specified in the petition for emergency guardianship. The authority of the emergency guardian is limited to the performance of those acts stated in the order of appointment. An order appointing an emergency guardian may not change the placement of a child under the supervision of a court pursuant to s. 48.13, 48.133, or 48.14 (1) to (10) or (12) or ch. 938.
(b)
Procedures for appointment. All of the following procedures apply to the appointment of an emergency guardian:
1.
Any person may petition for the appointment of an emergency guardian for a child. The petition shall contain the information required under sub. (4) (b) and shall specify the reasons for the appointment of an emergency guardian and the powers requested for the emergency guardian.
2.
The petitioner shall give notice of the petition and of the time and place of the hearing under subd. 4. 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. The notice and a copy of the petition shall be served as soon after the filing of the petition as possible, shall be served by the most practical means possible, including personal service or service by electronic mail or telephone, and shall include notice of the right to petition for reconsideration or modification of the emergency guardianship under subd. 5. If the petitioner serves notice of the hearing after the hearing is conducted and the court has entered an order, the petitioner shall include the court's order with the notice of the hearing.
3.
The court shall appoint a guardian ad litem for the child as soon as possible after the filing of the petition. The court shall attempt to appoint the guardian ad litem before the hearing on the petition, but may appoint the guardian ad litem after the hearing if the court finds that exigent circumstances require the immediate appointment of an emergency guardian. The guardian ad litem shall conduct a diligent investigation sufficient to represent the best interests of the child in court. If the court appoints a guardian ad litem after entry of the order granting the emergency guardianship, the guardian ad litem may petition for reconsideration or modification of the emergency guardianship under subd. 5. If the court dismisses the petition for emergency guardianship prior to appointing a guardian ad litem, the court need not appoint a guardian ad litem unless the petition is refiled.
4.
The court shall 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 that shall remain in effect until a hearing is held on the emergency guardianship petition. If appointed prior to the hearing, the guardian ad litem shall attend the hearing in person or by telephone.
5.
If the court appoints an emergency guardian, any person specified in subd. 2. may petition for reconsideration or modification of the emergency guardianship and the court shall hold a rehearing on the issue of appointment of the emergency guardian within 30 calendar days after the filing of the petition.
6.
If the court determines that the welfare of the child does not require the immediate appointment of an emergency guardian, the court may dismiss the petition. Dismissal of a petition under this subdivision does not preclude the court from referring the child to the intake worker for an intake inquiry under s. 48.24 or from acting as an intake worker at the judge's discretion under s. 48.10.
(c)
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.
(d)
Cessation of powers. The duties and powers of the emergency guardian cease upon the expiration of the period specified in par. (a), or the termination as determined by the court of the situation of the child that was the cause of the emergency guardianship. Upon cessation of an emergency guardianship, the emergency guardian shall file with the court any report that the court requires.
(7)
Standby guardianship. A petition for the appointment of a standby guardian of the person for a child to assume the duty and authority of guardianship on the incapacity, death, or debilitation and consent, of the child's parent shall be brought under s. 48.978.
(8)
Successor guardian.
(a)
Appointment; initial petition or during guardianship.
1.
As part of a petition for the initial 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 of the child to assume the duty and authority of full, limited, or temporary guardianship in the event of an occurrence specified in subd. 2. Except as provided in par. (b), if the petition for the appointment of a successor guardian is brought after the initial appointment of a guardian, the petition shall be heard in the same manner and subject to the same requirements as provided under this section for an initial appointment of a guardian.
2.
After a hearing, the court may designate one or more successor guardians whose appointment shall become effective immediately upon the death, unwillingness or inability to act, resignation, or removal by the court of the initially appointed guardian or during a period, as determined by the initially appointed guardian, when the initially appointed guardian is temporarily unable to fulfill his or her duties, including during an extended vacation or illness. The powers and duties of the successor guardian shall be the same as those of the initially appointed guardian. The successor guardian shall receive a copy of the court order establishing or modifying the initial guardianship and of the order designating the successor guardian. Upon the occurrence of an event specified in this subdivision, the successor guardian shall so notify the court and request the court to issue new letters of guardianship. Upon notification, the court shall issue new letters of guardianship that specify that the successor guardianship is permanent or that specify the period for a temporary successor guardianship.
(b)
Appointment; when no guardian.
1.
If a guardian dies, is removed by order of the court, or resigns and the resignation is accepted by the court, the court, on its own motion or upon petition of any interested person, may appoint a person who is fit, willing, and able to serve as successor guardian. The court may, upon request of any interested person or on its own motion, direct that the petition or motion for the appointment of a successor guardian be heard in the same manner and subject to the same requirements as provided under this section for an initial appointment of a guardian.
2.
If the appointment under subd. 1. is made without a hearing, the successor guardian shall provide notice to all interested persons of the appointment and the right to petition for reconsideration of the appointment of the successor guardian. The notice shall be served personally or by mail not later than 7 days after the appointment.
(9)
Modification of guardianship order.
(a)
Any interested person or other person approved by the court may request a modification of a guardianship order entered under this subsection or sub. (4) (h) 2. or the court may, on its own motion, propose such a modification. The request or motion shall set forth in detail the nature of the proposed modification, shall allege facts sufficient to show that there has been a substantial change in circumstances since the last order affecting the guardianship was entered and that the proposed modification would be in the best interests of the child, and shall allege any other information that affects the advisability of the court's disposition.
(b)
The court shall hold a hearing on the matter prior to any modification of the guardianship order if the request or motion indicates that new information is available that affects the advisability of the court's guardianship order, unless written waivers of objections to the modification are signed by all interested persons other than the child and the court approves the waivers.
(c)
If a hearing is to be held, the person requesting or proposing the modification shall notify all interested persons at least 7 days prior to the hearing of the date, place, and purpose of the hearing. A copy of the request or proposal shall be attached to the notice. The court may order a modification if, at the hearing, the court finds that the person proposing the modification has proved by clear and convincing evidence that there has been a substantial change in circumstances and determines that a modification would be in the best interests of the child. An order for modification under this subsection may not change the placement of a child under the supervision of a court pursuant to s. 48.13, 48.133, or 48.14 (1) to (10) or (12) or ch. 938, other than to modify a guardianship order entered under this section.
(10)
Review of conduct of guardian.
(a)
Continuing jurisdiction of court. The court that appointed the guardian of a child has continuing jurisdiction over the guardian.
(b)
Cause for court action against a guardian. The court may impose a remedy under par. (d) if a guardian of a child does any of the following:
1.
Abuses or neglects the child or knowingly permits others to do so.
2.
Fails to disclose information specified in sub. (4) (d) that would have prevented appointment of the person as guardian.
3.
Fails to follow or comply with the court's order.
4.
Otherwise fails to perform any of his or her duties as a guardian under s. 48.023.
(c)
Procedure. Any interested person or other person approved by the court may file a petition requesting a review of the conduct of a guardian, or the court, on its own motion, may propose such a review. The request or motion shall allege facts sufficient to show cause under par. (b) for the court to impose a remedy under par. (d). The court shall hold a hearing on the request or motion not more than 30 days after the filing of the request or proposal. Not less than 7 days before the date of the hearing, the person requesting or proposing the review shall provide notice of the hearing to the child, his or her parents, the guardian, and any other persons required by the court. A copy of the request or motion shall be attached to the notice.
(d)
Remedies of the court. If after a hearing the court finds by clear and convincing evidence cause as specified in par. (b) to order a remedy under this paragraph, the court may do any of the following:
1.
Remove the guardian.
2.
Remove the guardian and appoint a successor guardian.
3.
Enter any other order that may be necessary or appropriate to compel the guardian to carry out the guardian's duties, including an order setting reasonable rules of visitation with the child.
4.
Modify the duties and authority of the guardian.
5.
Require the guardian to pay any costs of the proceeding, including costs of service and attorney fees, if the court finds that the guardian's conduct was egregious.
(11)
Termination of guardianship.
(a)
Term of guardianship. A guardianship under this section shall continue until the child attains the age of 18 years unless any of the following occurs:
1.
The guardianship is for a lesser period of time and that time has expired.
2.
The child marries.
3.
The child dies.
4.
The child's residence changes from this state to another state and a guardian is appointed in the new state of residence.
5.
The guardian dies, or resigns and the resignation is accepted by the court, and a successor guardian is not appointed.
6.
The guardian is removed for cause under sub. (10) (d) 1. and a successor guardian is not appointed.
7.
The court terminates the guardianship on the request of a parent of the child or the child under par. (b).
8.
The court terminates the guardianship upon the adoption of the child.
(b)
Termination on request of parent or child.
1.
A parent of the child or the child may file a petition requesting that a guardianship order entered under sub. (4) (h) 2., (5), (6), (8), or (9) be terminated. The petition shall allege facts sufficient to show that there has been a substantial change in circumstances since the last order affecting the guardianship was entered, that the parent is fit, willing, and able to carry out the duties of a guardian or that no compelling facts or circumstances exist demonstrating that a guardianship is necessary, and that termination of the guardianship would be in the best interests of the child.
2.
The court shall hold a hearing on the petition unless written waivers of objections to termination of the guardianship are signed by all interested persons and the court approves the waivers.
3.
If a hearing is to be held, by no less than 7 days before the date of the hearing, the parent or child requesting the termination shall provide notice of the hearing to the child, the child's parents, the guardian, and any other persons required by the court. A copy of the petition shall be attached to the notice. The court shall terminate the guardianship if the court finds that the petitioner has proven the allegations in the petition under subd. 1. by a preponderance of the evidence.
(12)
Visitation by a child's grandparents and stepparents.
(a)
In this subsection, “stepparent" means the surviving spouse of a deceased parent of a child, whether or not the surviving spouse has remarried.
(b)
If one or both parents of a child are deceased and the child is in the custody of the surviving parent or any other person, a grandparent or stepparent of the child may petition for visitation privileges with respect to the child, whether or not the person with custody is married. The grandparent or stepparent may file the petition in a guardianship or temporary guardianship proceeding under this section that affects the child or may file the petition to commence an independent action under this subsection. Except as provided in par. (cm), the court may grant reasonable visitation privileges to the grandparent or stepparent if the surviving parent or other person who has custody of the child has notice of the hearing and if the court determines that visitation is in the best interests of the child.
(c)
Whenever possible, in making a determination under par. (b), the court shall consider the wishes of the child.
(cm)
1.
Except as provided in subd. 2., the court may not grant visitation privileges to a grandparent or stepparent under this subsection if the grandparent or stepparent has been convicted under s. 940.01 of the first-degree intentional homicide, or under s. 940.05 of the 2nd-degree intentional homicide, of a parent of the child, and the conviction has not been reversed, set aside, or vacated.
2.
Subdivision 1. does not apply if the court determines by clear and convincing evidence that the visitation would be in the best interests of the child. The court shall consider the wishes of the child in making the determination.
(d)
The court may issue any necessary order to enforce a visitation order that is granted under this subsection, and may from time to time modify the visitation privileges or enforcement order for good cause shown.
(dm)
1.
If a grandparent or stepparent granted visitation privileges with respect to a child under this subsection is convicted under s. 940.01 of the first-degree intentional homicide, or under s. 940.05 of the 2nd-degree intentional homicide, of a parent of the child, and the conviction has not been reversed, set aside, or vacated, the court shall modify the visitation order by denying visitation with the child upon petition, motion, or order to show cause by a person having custody of the child, or upon the court's own motion, and upon notice to the grandparent or stepparent granted visitation privileges.
2.
Subdivision 1. does not apply if the court determines by clear and convincing evidence that the visitation would be in the best interests of the child. The court shall consider the wishes of the child in making the determination.
(e)
This subsection applies to every child in this state whose parent or parents are deceased, regardless of the date of death of the parent or parents.
(13)
Prohibiting visitation if parent kills other parent.
(a)
Except as provided in par. (b), a court may not grant to a parent of a child who is the subject of a proceeding under this section visitation rights with the child if the parent has been convicted under s. 940.01 of the first-degree intentional homicide, or under s. 940.05 of the 2nd-degree intentional homicide, of the child's other parent, and the conviction has not been reversed, set aside, or vacated.
(b)
Paragraph (a) does not apply if the court determines by clear and convincing evidence that visitation would be in the best interests of the child. The court shall consider the wishes of the child in making the determination.
History:  2019 a. 109 ss. 21, 32, 33; 2021 a. 240 s. 30.
An unfit parent's nomination of a person to serve as guardian of the parent's children should be weighed by the court. Brezinski v. Barkholtz, 71 Wis. 2d 317, 237 N.W.2d 919 (1976).
The adoption of a child of a deceased parent does not terminate the decedent's parents' grandparental visitation rights under s. 880.155 [now sub. (12)]. H.F. v. T.F., 168 Wis. 2d 62, 483 N.W.2d 803 (1992).
Section 767.24 (5) [now s. 767.41 (5) (am)] sets out an appropriate standard for determining the best interests of a child under s. 880.155 [now sub. (12)]. The court did not exceed its authority under s. 880.155 [now sub. (12)] or violate a parent's constitutional rights to raise a child by ordering grandparent visitation, nor did the court violate s. 880.155 [now sub. (12)] by ordering a guardian ad litem, mediation, and psychological evaluations. The court was not authorized by s. 880.155 [now sub. (12)] to order psychotherapeutic treatment that was arguably in the child's best interests but outside the scope of visitation. F.R. v. T.B., 225 Wis. 2d 628, 593 N.W.2d 840 (Ct. App. 1999), 98-0819.
A parent's fundamental liberty interest in the care, custody, and control of a child is not violated if the parent's nomination of a guardian is not presumed to be in the child's best interests when the parent is unable to have custody and provide care. The circuit court is to only give the nomination of a surviving parent who is not suitable to be a guardian the weight that the circuit court considers appropriate in light of all the evidence. Anna S. v. Diana M., 2004 WI App 45, 270 Wis. 2d 411, 678 N.W.2d 285, 02-2640.
Under former s. 880.03, 2003 stats., in evaluating a petition for a permanent guardianship on behalf of a minor filed by a non-parent when a parent objects, a court must first determine whether the party bringing the guardianship petition has shown that the child is in need of a guardian because there exist extraordinary circumstances requiring medical aid or the prevention of harm. Absent a showing of such extraordinary circumstances or need for a guardian, the court cannot appoint a guardian. Robin K. v. Lamanda M., 2006 WI 68, 291 Wis. 2d 333, 718 N.W.2d 38, 04-0767.
In a custody dispute triggered by a petition for guardianship between a birth parent and a non-parent, the threshold inquiry is whether the parent is unfit, unable to care for the child, or there are compelling reasons for awarding custody to the non-parent. Consideration of a minor's nomination of a guardian presupposes that the need for a guardian has been established. If it is determined that the birth parent is fit and able to care for the child and no compelling reasons exist to appoint a non-parent guardian, the minor's nomination of a guardian becomes moot. Nicholas C.L. v. Julie R.L., 2006 WI App 119, 293 Wis. 2d 819, 719 N.W.2d 508, 05-1754.
Grandparent Visitation Rights. Rothstein. Wis. Law. Nov. 1992.
The Effect of C.G.F. and Section 48.925 on Grandparental Visitation Petitions. Hughes. Wis. Law. Nov. 1992.
NOTE:  The above annotations relate to guardianships under former ch. 880, 2003 stats., prior to the revision of and renumbering of that chapter to ch. 54 by 2005 Wis. Act 387.
Under Troxel, 530 U.S. 57 (2000), the due process clause prevents a court from starting with a clean slate when assessing whether grandparent visitation is in the best interests of the child. Within the best interests framework, the court must afford a parent's decision special weight by applying a rebuttable presumption that the fit parent's decision regarding grandparent visitation is in the best interest of the child. It is up to the party advocating for nonparental visitation to rebut the presumption by presenting evidence that the offer is not in the child's best interests. Martin L. v. Julie R.L., 2007 WI App 37, 299 Wis. 2d 768, 731 N.W.2d 288, 06-0199. But see Michels v. Lyons, 2019 WI 57, 387 Wis. 2d 1, 927 N.W.2d 486, 17-1142.
Barstad, 118 Wis. 2d 549 (1984), rejected the “best interests" standard in custody disputes between parents and third parties. Barstad has not been quashed by the enactment of ch. 54 [now this section]. A best interests standard that does not consider a parent's constitutional rights is incomplete. To conclude otherwise, parents would routinely have parental rights stripped from them simply because a third party might be better situated to tend to the needs of the child. Cynthia H. v. Joshua O., 2009 WI App 176, 322 Wis. 2d 615, 777 N.W.2d 664, 08-2456.
Section 54.56 [now sub. (12)] is constitutional and does not violate the equal protection clause. Rick v. Opichka, 2010 WI App 23, 323 Wis. 2d 510, 780 N.W.2d 159, 09-0040.
The award of overnights and a week during the summer in a grandparent visitation order was not contrary to law for being akin to a physical placement award found in divorce cases. There is no difference between the quantity of “physical placement" as that term is used in s. 767.001 (5) and the quantity of “visitation" as that word is used in s. 54.56 [now sub. (12)]. The proper amount of that time is a decision made by the family court in the best interests of the children. The quantity of time ordered does not depend on whether it is a visitation order or a physical placement order. Rick v. Opichka, 2010 WI App 23, 323 Wis. 2d 510, 780 N.W.2d 159, 09-0040.
When children visit their grandparents and stay with them as guests, the grandparents have the responsibility to make routine daily decisions regarding the children's care but may not make any decisions inconsistent with the major decisions made by a person having legal custody. The same is true of a parent who does not have joint legal custody but does have a right to physical placement. In both instances, the same rules apply: routine daily decisions may be made, but nothing greater. Rick v. Opichka, 2010 WI App 23, 323 Wis. 2d 510, 780 N.W.2d 159, 09-0040.
An Intro to Minor Guardianship Actions. Viney. Wis. Law. Sept. 2014.
NOTE:  The above annotations relate to guardianships under ch. 54, prior to the creation of this section by 2019 Wis. Act 109.