(Part 1) (Part 2) (PART
3) (PART 4) (PART 5)
48.85(2)
(2) The guardian's recommendation shall be presumed to be in the best interests of the child unless the fair preponderance of the credible evidence is to
the contrary. If the guardian's recommendation is in opposition to the granting of the petition, the court shall take testimony as to whether or not the
proposed adoption is in the best interests of the child.
48.85(3)
(3) At the conclusion of the hearing, the court shall enter its order in accordance with s. 48.91 (3).
48.85 - ANNOT.
History: 1973 c. 263.
48.871
48.871 Filing of recommendation by guardian. In the case of a recommendation by a guardian, the guardian shall file with its recommendation satisfactory
evidence of its authority to file such recommendation relative to the adoption of the minor. In the case where the parents' rights have been judicially
terminated, this evidence shall be a certified copy of the order terminating their rights and appointing the guardian. In other cases of a guardian appointed
by a court, this evidence shall be a certified copy of the order appointing it guardian. In the case of a guardian having the authority to consent or file
its recommendation under an instrument other than a court order, valid under the laws of another state, that instrument shall serve as evidence of the authority
to consent or file its recommendation.
48.88
48.88 Notice of hearing; investigation.
48.88(1)
(1) In this section, unless otherwise qualified, "agency" means any public or private entity except an individual.
48.88(1m)
(1m) Upon the filing of a petition for adoption, the court shall schedule a hearing within 90 days of the filing. Notice of the hearing shall be mailed,
not later than 3 days from the date of the order for hearing and investigation, to the guardian of the child, if any, to the agency making the investigation
under sub. (2), to the department when its recommendation is required by s. 48.89 and to the child if the child is 12 years of age or over.
48.88(2)
(2)
48.88(2)(a)
(a) Except as provided under par. (c), when a petition to adopt a child is filed, the court shall order an investigation to determine whether the child
is a proper subject for adoption and whether the petitioner's home is suitable for the child. The court shall order one of the following to conduct the
investigation:
48.88(2)(a)1.
1. If an agency has guardianship of the child, the guardianship agency, unless the agency has already filed its recommendation under s. 48.85 and has filed
with the recommendation a report of an investigation as required under this paragraph.
48.88(2)(a)2.
2. If no agency has guardianship of the child and a relative other than a stepparent has filed the petition for adoption, the department, a county department
under s. 48.57 (1) (e) or (hm) or a licensed child welfare agency.
48.88(2)(a)4.
4. If the child is a citizen of a foreign jurisdiction and is under the guardianship of an individual, the agency which conducted the home study required
under federal law prior to the child's entry into the United States.
48.88(2)(b)
(b) The agency making the investigation shall file its report with the court at least 10 days before the hearing unless the time is reduced for good cause
shown by the petitioner. The report shall be part of the record of the proceedings.
48.88(2)(c)
(c) If a stepparent has filed a petition for adoption and no agency has guardianship of the child, the court shall order the department, in a county having
a population of 500,000 or more, or a county department or, with the consent of the department in a county having a population of less than 500,000 or a
licensed child welfare agency, order the department or the child welfare agency to conduct a screening, consisting of no more than one interview with the
petitioner and a check of the petitioner's background through public records, including records maintained by the department or any county department under
s. 48.981. The department, county department or child welfare agency that conducts the screening shall file a report of the screening with the court within
30 days. After reviewing the report, the court may proceed to act on the petition, may order the department in a county having a population of 500,000 or
more or the county department to conduct an investigation as described under par. (a) (intro.) or may order the department in a county having a population
of less than 500,000 or a licensed child welfare agency to make the investigation if the department or child welfare agency consents.
48.88(3)
(3) If the report of the investigation is unfavorable or if it discloses a situation which, in the opinion of the court, raises a serious question as to
the suitability of the proposed adoption, the court may appoint a guardian ad litem for the minor whose adoption is proposed. The guardian ad litem may
have witnesses subpoenaed and present proof at the hearing.
48.88 - ANNOT.
History: 1975 c. 39, 199, 307; 1977 c. 271; 1981 c. 81, 384; 1983 a. 190; 1985 a. 176; 1997 a. 27.
48.89
48.89 Recommendation of the department.
48.89(1)
(1) The recommendation of the department is required for the adoption of a child if the child is not under the guardianship of a county department under
s. 48.57 (1) (e) or (hm) or a child welfare agency under s. 48.61 (5).
48.89(2)
(2) The department shall make its recommendation to the court at least 10 days before the hearing unless the time is extended by the court. The recommendation
shall be part of the record of the proceedings.
48.89(3)
(3) The recommendation of the department shall not be required if the recommendation of the department, a licensed child welfare agency or a county department
under s. 48.57 (1) (e) or (hm) is required by s. 48.841, if a report of an investigation by the department, a county department under s. 48.57 (1) (e) or
(hm) or a licensed child welfare agency is required by s. 48.88 (2) (a) 2. or if one of the petitioners is a relative of the child.
48.89 - ANNOT.
History: 1973 c. 263; 1977 c. 271; 1981 c. 81; 1983 a. 447; 1985 a. 176; 1995 a. 443.
48.90
48.90 Filing of adoption petition; preadoption residence.
48.90(1)
(1) A petition for adoption may be filed at any time if:
48.90(1)(a)
(a) One of the petitioners is a relative of the child by blood or by adoption, excluding parents whose parental rights have been terminated and persons
whose relationship to the child is derived through such parents.
48.90(1)(b)
(b) The petitioner is the child's stepparent.
48.90(1)(c)
(c) The petition is accompanied by a written approval of the guardian.
48.90(1)(d)
(d) The petitioner is the proposed adoptive parent with whom the child has been placed under s. 48.839.
48.90(2)
(2) Except as provided under sub. (1), no petition for adoption may be filed unless the child has been in the home of the petitioners for 6 months or more.
48.90(3)
(3) No petition for adoption may be filed unless the petitioners have complied with all applicable provisions of this chapter relating to adoptive placements.
48.90 - ANNOT.
History: 1973 c. 263; 1977 c. 354; 1977 c. 418 s. 929 (18); 1981 c. 81; 1997 a. 104.
48.90 - ANNOT.
Once administrative proceedings have commenced under s. 48.64 and the person with whom the child had been placed is seeking a review of the removal order,
a children's court has no jurisdiction of an attempted adoption. Adoption of Shawn, 65 Wis. 2d 190, 222 N.W.2d 139 (1974).
48.90 - ANNOT.
Standing to object to adoption proceedings turns on the right to petition for adoption; grandparents excluded from petitioning under sub. (1) (a) had no
standing to object to the adoption of their grandchildren. Adoption of J.C.G. 177 Wis. 2d 424, 501 N.W.2d 908 (Ct. App. 1993).
48.91
48.91 Hearing; order.
48.91(1)
(1) The hearing may be in chambers unless an interested person objects. The petitioner and the minor to be adopted, if 14 or older, shall attend unless
the court orders otherwise.
48.91(2)
(2) In an adoption proceeding for a nonmarital child who is not adopted or whose parents do not subsequently intermarry under s. 767.60, the court shall
establish whether the rights of any persons who have filed declarations of paternal interest under s. 48.025 have been determined or whether paternity has
been acknowledged under s. 767.62 (1) or a substantially similar law of another state or adjudicated in this state or in another jurisdiction. If the court
finds that no such determination has been made, the court shall proceed, prior to any action on the petition for adoption, to attempt to ascertain the paternity
of the child and the rights of any person who has filed a declaration under s. 48.025.
48.91(3)
(3) If after the hearing and a study of the report required by s. 48.88 and the recommendation required by s. 48.841 or 48.89, the court is satisfied that
the necessary consents or recommendations have been filed and that the adoption is in the best interests of the child, the court shall make an order granting
the adoption. The order may change the name of the minor to that requested by petitioners.
48.91 - ANNOT.
History: 1973 c. 263; 1979 c. 330; 1981 c. 81; 1983 a. 447; 1987 a. 383; 1995 a. 443; 1997 a. 191.
48.91 - ANNOT.
Meaning of "best interests of the child" is discussed. Adoption of Tachick, 60 Wis. 2d 540, 210 N.W.2d 865.
48.913
48.913 Payments by adoptive or proposed adoptive parents to a birth parent or child or on behalf of a birth parent or child.
48.913(1)
(1) Payments allowed. The proposed adoptive parents of a child, or a person acting on behalf of the proposed adoptive parents, may pay the actual cost of
any of the following:
913(1)(a)
(a) Preadoptive counseling for a birth parent of the child or an alleged or presumed father of the child.
48.913(1)(b)
(b) Post-adoptive counseling for a birth parent of the child or an alleged or presumed father of the child.
48.913(1)(c)
(c) Maternity clothes for the child's birth mother, not to exceed a reasonable amount.
48.913(1)(d)
(d) Local transportation expenses of a birth parent of the child that are related to the pregnancy or adoption.
48.913(1)(e)
(e) Services provided by a licensed child welfare agency in connection with the adoption.
48.913(1)(f)
(f) Medical and hospital care received by the child's birth mother in connection with the pregnancy or birth of the child. Medical and hospital care does
not include lost wages or living expenses.
48.913(1)(g)
(g) Medical and hospital care received by the child.
48.913(1)(h)
(h) Legal and other services received by a birth parent of the child, an alleged or presumed father of the child or the child in connection with the adoption.
48.913(1)(i)
(i) Living expenses of the child's birth mother, in an amount not to exceed $1,000, if payment of the expenses by the proposed adoptive parents or a person
acting on their behalf is necessary to protect the health and welfare of the birth mother or the fetus.
48.913(1)(j)
(j) Any investigation ordered under s. 48.837 (4) (c), according to a fee schedule established by the department based on ability to pay.
48.913(1)(k)
(k) If the adoption is completed, the cost of any care provided for the child under s. 48.837 (4) (d).
48.913(1)(L)
(L) Birthing classes.
48.913(1)(m)
(m) A gift to the child's birth mother from the proposed adoptive parents, of no greater than $50 in value.
48.913(2)
(2) Payment of expenses when birth parent is residing in another state. Notwithstanding sub. (1), the proposed adoptive parents of a child or a person acting
on behalf of the proposed adoptive parents of a child may pay for an expense of a birth parent of the child or an alleged or presumed father of the child
if the birth parent or the alleged or presumed father was residing in another state when the payment was made and when the expense was incurred and if all
of the following apply:
48.913(2)(a)
(a) The child was placed for adoption in this state in accordance with s. 48.988.
48.913(2)(b)
(b) The state in which the birth parent or the alleged or presumed father was residing when the payment was made permits the payment of that expense by
the proposed adoptive parents of the child.
48.913(2)(c)
(c) A listing of all payments made under this subsection, a copy of the statutory provisions of the state in which the birth parent or the alleged or presumed
father was residing when the payments were made that permit those payments to be made by the proposed adoptive parents of the child and a copy of all orders
entered in the state in which the birth parent or the alleged or presumed father was residing when the payments were made that relate to the payment of
expenses of the birth parent or the alleged or presumed father by the proposed adoptive parents of the child is submitted to the court as follows:
48.913(2)(c)1.
1. With the report under sub. (6), if the parental rights of either birth parent of the child are terminated in this state.
48.913(2)(c)2.
2. With a petition under s. 48.837 (2), if the parental rights of both birth parents of the child are terminated in another state and the child is placed
for adoption under s. 48.837 (2).
48.913(2)(c)3.
3. With a petition under s. 48.90, if the parental rights of both parents of the child are terminated in another state and the child is placed for adoption
under s. 48.833.
48.913(3)
(3) Method of payment. Any payment under sub. (1) or (2) shall be made directly to the provider of a good or service except that a payment under sub. (1)
or (2) may be made to a birth parent of the child or to an alleged or presumed father of the child as reimbursement of an amount previously paid by the
birth parent or by the alleged or presumed father if documentation is provided showing that the birth parent or alleged or presumed father has made the
previous payment.
48.913(4)
(4) Other payments prohibited. The proposed adoptive parents of a child or a person acting on behalf of the proposed adoptive parents may not make any payments
to or on behalf of a birth parent of the child, an alleged or presumed father of the child or the child except as provided in subs. (1) and (2).
48.913(5)
(5) Payments after finalization of adoption. The adoptive parents of a child or a person acting on behalf of the proposed adoptive parents may make a payment
that is authorized under subs. (1) and (2) after finalization of the adoption, if the payment is included in the report under sub. (6) or an amendment to
that report filed with the court.
48.913(6)
(6) Report to the court; when required. A report containing the information specified in sub. (7) shall be provided to the court at the time of the hearing
on the petition for adoptive placement under s. 48.837 (2) or upon the order of the court under s. 48.422 (7) (bm).
48.913(7)
(7) Report to the court; contents required. The report required under sub. (6) shall include a list of all transfers of anything of value made or agreed
to be made by the proposed adoptive parents or by a person acting on their behalf to a birth parent of the child, an alleged or presumed father of the child
or the child, on behalf of a birth parent of the child, an alleged or presumed father of the child or the child, or to any other person in connection with
the pregnancy, the birth of the child, the placement of the child with the proposed adoptive parents or the adoption of the child by the proposed adoptive
parents. The report shall be itemized and shall show the goods or services for which payment was made or agreed to be made. The report shall include the
dates of each payment, the names and addresses of each attorney, doctor, hospital, agency or other person or organization receiving any payment from the
proposed adoptive parents or a person acting on behalf of the proposed adoptive parents in connection with the pregnancy, the birth of the child, the placement
of the child with the proposed adoptive parents or the adoption of the child by the proposed adoptive parents.
48.913(8)
(8) Adoption of foreign children and adoption by relatives of the child. This section does not apply to an adoptive or proposed adoptive parent of a child
with whom the child has been placed under s. 48.839 or to an adoptive or proposed adoptive parent of a child who is a relative of the child.
48.913 - ANNOT.
History: 1997 a. 104.
48.913 - ANNOT.
NOTE: 1997 Wis. Act 104, which affected this section, contains explanatory notes.
48.915
48.915 Adoption appeals given preference. An appeal from a judgment granting or denying an adoption shall be given preference.
48.915 - ANNOT.
History: 1987 a. 383; 1993 a. 395 s. 30; Stats. 1993 s. 48.915.
92
48.92 Effect of adoption.
48.92(1)
(1) After the order of adoption is entered the relation of parent and child and all the rights, duties and other legal consequences of the natural relation
of child and parent thereafter exists between the adopted person and the adoptive parents.
48.92(2)
(2) After the order of adoption is entered the relationship of parent and child between the adopted person and the adopted person's birth parents, unless
the birth parent is the spouse of the adoptive parent, shall be completely altered and all the rights, duties and other legal consequences of the relationship
shall cease to exist. Notwithstanding the extinction of all parental rights under this subsection, a court may order reasonable visitation under s. 48.925.
48.92(3)
(3) Rights of inheritance by, from and through an adopted child are governed by ss. 854.20 and 854.21.
48.92(4)
(4) Nothing in this section shall be construed to abrogate the right of the department to make payments to adoptive families under s. 48.48 (12).
48.92 - ANNOT.
History: 1973 c. 90; 1981 c. 359 s. 16; 1991 a. 191, 316; 1997 a. 35, 188.
48.92 - ANNOT.
A valid adoption of the petitioner by his aunt would preclude his right to inherit as the son of his natural mother, although he would be entitled to inherit
as a nephew. Estate of Komarr, 68 Wis. 2d 473, 228 N.W.2d 681 (1975).
48.92 - ANNOT.
Biological grandparents had no right to visitation following termination of their son's parental rights and adoption by the child's stepfather. In re Marriage
of Soergel, 154 Wis. 2d 564, 453 N.W.2d 624 (1990).
48.92 - ANNOT.
Adoption of the child of a deceased parent does not terminate the decedent's parents' grandparental visitation rights under s. 880.115. Grandparental Visitation
of C.G.F., 168 Wis. 2d 62, 483 N.W.2d 803 (1992).
48.92 - ANNOT.
Except in the case of stepparent adoption, the parental rights of both birth parents are terminated, effectively preventing a birth parent's nonmarital
partner from adopting the birth parent's child. This provision does not violate the constitutional rights of either the child or nonmarital partner. Interest
of Angel Lace M. 184 Wis. 2d 492, 516 N.W.2d 678 (1994).
48.92 - ANNOT.
Adoption proceedings confer all parental rights on the adoptive parents and therefore resolve all issues relating to the biological grandparents' rights
to assert claims for custody and guardianship. Following adoption, a change requires a showing of unfitness in the adoptive parents. Elgin and Carol W.
v. DHFS, 221 Wis. 2d 36, 584 N.W.2d 195 (Ct. App. 1998), 97-3595.
48.925
48.925 Visitation rights of certain persons.
48.925(1)
(1) Upon petition by a relative who has maintained a relationship similar to a parent-child relationship with a child who has been adopted by a stepparent
or relative, the court, subject to subs. (1m) and (2), may grant reasonable visitation rights to that person if the petitioner has maintained such a relationship
within 2 years prior to the filing of the petition, if the adoptive parent or parents, or, if a birth parent is the spouse of an adoptive parent, the adoptive
parent and birth parent, have notice of the hearing and if the court determines all of the following:
48.925(1)(a)
(a) That visitation is in the best interest of the child.
48.925(1)(b)
(b) That the petitioner will not undermine the adoptive parent's or parents' relationship with the child or, if a birth parent is the spouse of an adoptive
parent, the adoptive parent's and birth parent's relationship with the child.
48.925(1)(c)
(c) That the petitioner will not act in a manner that is contrary to parenting decisions that are related to the child's physical, emotional, educational
or spiritual welfare and that are made by the adoptive parent or parents or, if a birth parent is the spouse of an adoptive parent, by the adoptive parent
and birth parent.
48.925(1m)
(1m)
48.925(1m)(a)
(a) Except as provided in par. (b), the court may not grant visitation rights under sub. (1) to a relative who has maintained a relationship similar to
a parent-child relationship with a child if the relative 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.
48.925(1m)(am)
(am) Except as provided in par. (b), if a relative who is granted visitation rights with a child under sub. (1) 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 issue an order prohibiting the relative from having visitation with the child on petition of the child or the parent,
guardian or legal custodian of the child, or on the court's own motion, and on notice to the relative.
48.925(1m)(b)
(b) Paragraphs (a) and (am) do 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 that determination.
48.925(2)
(2) Whenever possible, in making a determination under sub. (1), the court shall consider the wishes of the adopted child.
48.925(3)
(3) This section applies to every child in this state who has been adopted, by a stepparent or relative, regardless of the date of the adoption.
48.925(4)
(4) Any person who interferes with visitation rights granted under sub. (1) may be proceeded against for contempt of court under ch. 785, except that a
court may impose only the remedial sanctions specified in s. 785.04 (1) (a) and (c) against that person.
48.925 - ANNOT.
History: 1991 a. 191; 1999 a. 9.
48.925 - ANNOT.
Grandparents' Visitation Rights Following Adoption: Expanding Traditional Boundaries in Wisconsin. Hintz. 1994 WLR 484.
48.925 - ANNOT.
Grandparent Visitation Rights. Rothstein. Wis. Law. Nov. 1992.
48.925 - ANNOT.
The Effect of C.G.F. and Section 48.925 on Grandparental Visitation Petitions. Hughes. Wis. Law. Nov. 1992.
48.93
48.93 Records closed.
48.93(1)
(1) In this section, "adoptee" has the meaning given in s. 48.432 (1) (a).
48.93(1d)
(1d) All records and papers pertaining to an adoption proceeding shall be kept in a separate locked file and may not be disclosed except under sub. (1g)
or (1r), s. 46.03 (29), 48.432, 48.433, 48.434, 48.48 (17) (a) 9. or 48.57 (1) (j), or by order of the court for good cause shown.
Unofficial text from Wis Stats. database. See printed Statutes and Wis. Acts for official text under s. 35.18(2) stats. Report errors to the Revisor
of Statutes at (608) 266-2011, FAX 264-6978, send email to the Revisor's Bureau
.93(1g)
(1g) At the time a court enters an order granting an adoption, it shall provide the adoptive parents with a copy of the child's medical record under s.
48.425 (1) (am) or with any information provided to the court under s. 48.422 (9) or 48.425 (2), after deleting the names and addresses of the child's birth
parents and the identity of any provider of health care to the child or the child's birth parents.
48.93(1r)
(1r) Any agency which has placed a child for adoption shall, at the request of an adoptive parent or of the adoptee, after he or she has reached age 18,
provide the requester without charge, except for the actual cost of reproduction, with medical or genetic information about the adoptee or about the adoptee's
birth parents which it has on file and with nonidentifying social history information about the adoptee's family which it has on file, after deleting the
names and addresses of the birth parents and any provider of health care to the adoptee or the adoptee's birth parents. The agency may charge a requester
a fee for the cost of verifying, purging, summarizing, copying and mailing the information according to the fee schedule established by the department under
s. 48.432 (3) (c). The fee may not be more than $150 and may be waived by the agency.
48.93(2)
(2) All correspondence and papers, relating to the investigation, which are not a part of the court record, except those in the custody of agencies authorized
to place children for adoption shall be transferred to the department and placed in its closed files.
48.93 - ANNOT.
History: 1979 c. 34; 1981 c. 359; 1983 a. 471; 1989 a. 31; 1997 a. 27, 104, 252.
48.93 - ANNOT.
Adoption records reform: Impact on adoptees. 67 MLR 110 (1983).
48.94
48.94 New birth certificate. After entry of the order granting the adoption the clerk of the court shall promptly mail a copy thereof to the state bureau
of vital statistics and furnish any additional data needed for the new birth certificate. Whenever the parents by adoption, or the adopting parent and a
birth parent who is the spouse of the adopting parent, request, that the birth certificate for the person adopted be not changed, then the court shall so
order. In such event no new birth certificate shall be filed by the state registrar of vital statistics, notwithstanding the provisions of s. 69.15 (2)
or any other law of this state.
48.94 - ANNOT.
History: 1981 c. 359 s. 16; 1985 a. 315 s. 22; 1991 a. 316.
48.94 - ANNOT.
Fundamental Rights Debate: Should Wisconsin Allow Adult Adoptees Unconditional Access to Adoption Records and Original Birth Certificates? Racine. 2002
WLR 1437.
48.95
48.95 Withdrawal or denial of petition. Except as provided under s. 48.839 (3) (b), if the petition is withdrawn or denied, the circuit court shall order
the case transferred to the court assigned to exercise jurisdiction under this chapter and ch. 938 for appropriate action, except that if parental rights
have been terminated and the guardian of the minor is the department, a licensed child welfare agency or a county department under s. 48.57 (1) (e) or (hm),
the minor shall remain in the legal custody of the guardian.
48.95 - ANNOT.
History: 1977 c. 271, 449; 1981 c. 81; 1985 a. 176; 1995 a. 77.
48.96
48.96 Subsequent adoption. The adoption of an adopted person is authorized and, in that case, the references to parent and birth parent are to adoptive
parent.
48.96 - ANNOT.
History: 1981 c. 359 s. 16.
48.97
48.97 Adoption orders of other jurisdictions. When the relationship of parent and child has been created by an order of adoption of a court of any other
state or nation, the rights and obligations of the parties as to matters within the jurisdiction of this state shall be determined by s. 48.92. If the adoptive
parents were residents of this state at the time of the foreign adoption, the preceding sentence applies only if the department has approved the placement.
A child whose adoption would otherwise be valid under this section may be readopted in accordance with this chapter.
48.97 - ANNOT.
History: 1971 c. 187; 1981 c. 81; 1995 a. 443.
48.975
48.975 Adoption assistance.
48.975(1)
(1) Definition. In this section, "adoption assistance" means payments by the department to the adoptive or proposed adoptive parents of a child
which are designed to assist in the cost of care of that child after an agreement under sub. (4) has been signed and the child has been placed for adoption
with the adoptive or proposed adoptive parents.
48.975(2)
(2) Applicability. The department may provide adoption assistance only for a child with special needs and only when the department has determined that such
assistance is necessary to assure the child's adoption.
48.975(3)
(3) Types. The department may provide adoption assistance for maintenance, medical care or nonrecurring adoption expenses, or for any combination of those
types of adoption assistance, according to the following criteria:
48.975(3)(a)
(a) Maintenance.
48.975(3)(a)1.
1. Except as provided in subd. 3., for support of a child who was in foster care, treatment foster care, or subsidized guardianship care immediately prior
to placement for adoption, the initial amount of adoption assistance for maintenance shall be equivalent to the amount of that child's foster care, treatment
foster care, or subsidized guardianship care payment at the time that the agreement under sub. (4) (a) is signed or a lesser amount if agreed to by the
proposed adoptive parents and specified in that agreement.
48.975(3)(a)2.
2. Except as provided in subd. 3., for support of a child not in foster care, treatment foster care, or subsidized guardianship care immediately prior to
placement for adoption, the initial amount of adoption assistance for maintenance shall be equivalent to the uniform foster care rate in effect at the time
that the agreement under sub. (4) (a) is signed or a lesser amount if agreed to by the proposed adoptive parents and specified in that agreement.
48.975(3)(a)3.
3. For support of a child who is defined under rules promulgated by the department under sub. (5) (b) as a child with special needs based solely on being
at high risk of developing moderate or intensive difficulty-of-care problems, the initial amount of adoption assistance for maintenance shall be $0.
48.975(3)(a)4.
4. The amount of adoption assistance for maintenance may be changed under an amended agreement under sub. (4) (b) or (c). If an agreement is amended under
sub. (4) (b) or (c), the amount of adoption assistance for maintenance shall be the amount specified in the amended agreement but may not exceed the uniform
foster care rate that would be applicable to the child if the child were in foster care during the time for which the adoption assistance for maintenance
is paid.
48.975(3)(b)
(b) Medical. The adoption assistance for medical care shall be sufficient to pay expenses due to a physical, mental or emotional condition of the child
which is not covered by a health insurance policy insuring the child or the parent.
48.975(3)(c)
(c) Nonrecurring adoption expenses. Subject to any maximum amount provided by the department by rule promulgated under sub. (5), the adoption assistance
for nonrecurring adoption expenses shall be sufficient to pay the reasonable and necessary adoption fees, court costs, legal fees and other expenses that
are directly related to the adoption of the child and that are not incurred in violation of any state or federal law.
48.975(3m)
(3m) Duration. The adoption assistance may be continued after the adoptee reaches the age of 18 if that adoptee is a full-time high school student.
48.975(4)
(4) Procedure.
48.975(4)(a)
(a) Except in extenuating circumstances, as defined by the department by rule promulgated under sub. (5) (a), a written agreement to provide adoption assistance
shall be made prior to adoption. An agreement to provide adoption assistance may be made only for a child who, at the time of placement for adoption, is
in the guardianship of the department or other agency authorized to place children for adoption, in the guardianship of an American Indian tribal agency
in this state, or in a subsidized guardianship under s. 48.62 (5).
48.975(4)(b)
(b) If an agreement to provide adoption assistance is in effect and if the adoptive or proposed adoptive parents of the child who is the subject of the
agreement believe there has been a substantial change in circumstances, as defined by the department by rule promulgated under sub. (5) (c), the adoptive
or proposed adoptive parents may request that the agreement be amended to increase the amount of adoption assistance for maintenance. If a request is received
under this paragraph, the department shall do all of the following:
48.975(4)(b)1.
1. Determine whether there has been a substantial change in circumstances, as defined by the department by rule promulgated under sub. (5) (c) and whether
there has been a substantiated report of abuse or neglect of the child by the adoptive or proposed adoptive parents.
48.975(4)(b)2.
2. If there has been a substantial change in circumstances and if there has been no substantiated report of abuse or neglect of the child by the adoptive
or proposed adoptive parents, offer to increase the amount of adoption assistance for maintenance based on criteria established by the department by rule
promulgated under sub. (5) (d).
48.975(4)(b)3.
3. If an increased amount of adoption assistance for maintenance is agreed to by the adoptive or proposed adoptive parents, amend the agreement in writing
to specify the increased amount of adoption assistance for maintenance.
48.975(4)(bm)
(bm) Annually, the department shall review an agreement that has been amended under par. (b) to determine whether the substantial change in circumstances
that was the basis for amending the agreement continues to exist. If that substantial change in circumstances continues to exist, the agreement, as amended,
shall remain in effect. If that substantial change in circumstances no longer exists, the department shall offer to decrease the amount of adoption assistance
for maintenance based on criteria established by the department under sub. (5) (dm). If the decreased amount of adoption assistance for maintenance is agreed
to by the adoptive or proposed adoptive parents, the department shall amend the agreement in writing to specify the decreased amount of adoption assistance
for maintenance. If the decreased amount of adoption assistance for maintenance is not agreed to by the adoptive or proposed adoptive parents, the adoptive
or proposed adoptive parents may appeal the decision of the department regarding the decrease under the procedure established by the department under sub.
(5) (dm).
48.975(4)(c)
(c) The department may propose to the adoptive or proposed adoptive parents that an agreement to provide adoption assistance be amended to adjust the amount
of adoption assistance for maintenance. If an adjustment in the amount of adoption assistance for maintenance is agreed to by the adoptive or proposed adoptive
parents, the agreement shall be amended in writing to specify the adjusted amount of adoption assistance for maintenance.
48.975(4)(d)
(d) An agreement to provide adoption assistance may be amended more than once under par. (b) or (c).
48.975(4m)
(4m) Recovery of incorrect payments. The department may recover an overpayment of adoption assistance from an adoptive parent who continues to receive adoption
assistance for maintenance by reducing the amount of the adoptive parent's monthly payment of adoption assistance for maintenance. The department may by
rule specify other methods for recovering overpayments of adoption assistance.
48.975(5)
(5) Rules. The department shall promulgate rules necessary to implement this section, which shall include all of the following:
48.975(5)(a)
(a) A rule defining the extenuating circumstances under which an initial agreement to provide adoption assistance under sub. (4) (a) may be made after adoption.
This definition shall include all circumstances under which federal statutes, regulations or guidelines provide that federal matching funds for adoption
assistance are available to the state if an initial agreement is made after adoption, but may not include circumstances under which federal statutes, regulations
or guidelines provide that federal matching funds for adoption assistance are not available if an initial agreement is made after adoption.
48.975(5)(b)
(b) A rule defining a child with special needs, which shall include a child who the department determines has, at the time of placement for adoption, moderate
or intensive difficulty-of-care problems, as defined by the department, or who the department determines is, at the time of placement for adoption, at high
risk of developing those problems.
48.975(5)(c)
(c) A rule defining the substantial change in circumstances under which adoptive or proposed adoptive parents may request that an agreement made under sub.
(4) be amended to increase the amount of adoption assistance for maintenance. The definition shall include all of the following:
48.975(5)(c)1.
1. Situations in which a child who was defined as a child with special needs based solely on being at high risk of developing moderate or intensive difficulty-of-care
problems has developed those problems.
48.975(5)(c)2.
2. Situations in which a child's difficulty-of-care problems have increased from the moderate level to the intensive level as set forth in the department's
schedule of difficulty-of-care levels promulgated by rule.
48.975(5)(d)
(d) Rules establishing requirements for submitting a request under sub. (4) (b), criteria for determining the amount of the increase in adoption assistance
for maintenance that the department shall offer if there has been a substantial change in circumstances and if there has been no substantiated report of
abuse or neglect of the child by the adoptive or proposed adoptive parents, and the procedure to appeal the decision of the department regarding the request.
48.975(5)(dm)
(dm) Rules establishing the criteria for determining the amount of the decrease in adoption assistance for maintenance that the department shall offer under
sub. (4) (bm) if a substantial change in circumstances no longer exists and the procedure to appeal the decision of the department regarding the decrease.
The criteria shall provide that the amount of the decrease offered by the department under sub. (4) (bm) may not result in an amount of adoption assistance
for maintenance that is less than the initial amount of adoption assistance for maintenance provided for the child under sub. (3) (a) 1., 2. or 3.
48.975(5)(e)
(e) A rule regarding when a child must be photolisted with the adoption information exchange under s. 48.55 in order to be eligible for adoption assistance.
The rule may not require photolisting under any circumstances in which photolisting is not required by federal statutes, regulations or guidelines as a
prerequisite for the state to receive federal matching funds for adoption assistance.
48.975 - ANNOT.
History: 1977 c. 418; 1985 a. 308; 1989 a. 31; 1993 a. 16, 446; 1997 a. 308; 2005 a. 25.
48.975 - ANNOT.
Cross Reference: See also ch. HFS 50, Wis. adm. code.
48.977
48.977 Appointment of guardians for certain children in need of protection or services.
48.977(2)
(2) Type of guardianship. This section may be used for the appointment of a guardian of the person for a child if the court finds all of the following:
48.977(2)(a)
(a) That the child has been adjudged to be in need of protection or services under s. 48.13 (1), (2), (3), (3m), (4), (5), (8), (9), (10), (10m), (11),
or (11m) or 938.13 (4) and been placed, or continued in a placement, outside of his or her home pursuant to one or more court orders under s. 48.345, 48.357,
48.363, 48.365, 938.345, 938.357, 938.363, or 938.365 or that the child has been so adjudged and placement of the child in the home of a guardian under
this section has been recommended under s. 48.33 (1) or 938.33 (1).
48.977(2)(b)
(b) That the person nominated as the guardian of the child is a person with whom the child has been placed or in whose home placement of the child is recommended
under par. (a) and that it is likely that the child will continue to be placed with that person for an extended period of time or until the child attains
the age of 18 years.
48.977(2)(c)
(c) That, if appointed, it is likely that the person would be willing and able to serve as the child's guardian for an extended period of time or until
the child attains the age of 18 years.
48.977(2)(d)
(d) That it is not in the best interests of the child that a petition to terminate parental rights be filed with respect to the child.
48.977(2)(e)
(e) That the child's parent is neglecting, refusing or unable to carry out the duties of a guardian or, if the child has 2 parents, both parents are neglecting,
refusing or unable to carry out the duties of a guardian.
48.977(2)(f)
(f) That the agency primarily responsible for providing services to the child under a court order has made reasonable efforts to make it possible for the
child to return to his or her home, while assuring that the child's health and safety are the paramount concerns, but that reunification of the child with
the child's parent or parents is unlikely or contrary to the best interests of the child and that further reunification efforts are unlikely to be made
or are contrary to the best interests of the child or that the agency primarily responsible for providing services to the child under a court order has
made reasonable efforts to prevent the removal of the child from his or her home, while assuring the child's health and safety, but that continued placement
of the child in the home would be contrary to the welfare of the child, except that the court is not required to find that the agency has made those reasonable
efforts with respect to a parent of the child if any of the circumstances specified in s. 48.355 (2d) (b) 1. to 5. applies to that parent. The court shall
make the findings specified in this paragraph on a case-by-case basis based on circumstances specific to the child and shall document or reference the specific
information on which those findings are based in the guardianship order. A guardianship order that merely references this paragraph without documenting
or referencing that specific information in the order or an amended guardianship order that retroactively corrects an earlier guardianship order that does
not comply with this paragraph is not sufficient to comply with this paragraph.
48.977(3)
(3) Designation as a permanent placement. If a court appoints a guardian for a child under sub. (2), the court may designate the child's placement with
that guardian as the child's permanent foster placement, but only for purposes of s. 48.368 (2) or 938.368 (2).
48.977(3r)
(3r) Subsidized guardianship. Subject to s. 48.62 (5) (d), if a county department or, in a county having a population of 500,000 or more, the department
has determined under s. 48.62 (5) (a) 2. that appointing a guardian under sub. (2) for a child who does not meet the conditions specified under s. 48.62
(5) (a) 1. and providing monthly subsidized guardianship payments to the guardian are in the best interests of the child, the petitioner under sub. (4)
(a) shall include in the petition under sub. (4) (b) a statement of that determination and a request for the court to include in the court's findings under
sub. (4) (d) a finding confirming that determination. If the court confirms that determination and appoints a guardian for the child under sub. (2), the
county department or department shall provide monthly subsidized guardianship payments to the guardian under s. 48.62 (5).
48.977(4)
(4) Procedure and disposition.
48.977(4)(a)
(a) Who may file petition. Any of the following persons may file a petition for the appointment of a guardian for a child under sub. (2):
48.977(4)(a)1.
1. The child or the child's guardian or legal custodian.
48.977(4)(a)2.
2. The child's guardian ad litem.
48.977(4)(a)3.
3. The child's parent.
48.977(4)(a)4.
4. The person with whom the child is placed or in whose home placement of the child is recommended as described in sub. (2) (a), if the person is nominated
as the guardian of the child in the petition.
48.977(4)(a)5.
5. The department.
48.977(4)(a)6.
6. A county department under s. 46.22 or 46.23 or, if the child has been placed pursuant to an order under ch. 938 or the child's placement with the guardian
is recommended under ch. 938, a county department under s. 46.215, 46.22, or 46.23.
48.977(4)(a)7.
7. A licensed child welfare agency that has been assigned primary responsibility for providing services to the child under a court order.
48.977(4)(a)8.
8. The person representing the interests of the public under s. 48.09.
48.977(4)(b)
(b) Contents of petition. A proceeding for the appointment of a guardian for a child under sub. (2) shall be initiated by a petition which shall be entitled
"In the interest of .... (child's name), a person under the age of 18" and shall set forth all of the following with specificity:
48.977(4)(b)1.
1. The name, birth date and address of the child.
48.977(4)(b)2.
2. The names and addresses of the child's parent or parents, guardian and legal custodian.
48.977(4)(b)3.
3. The date on which the child was adjudged in need of protection or services under s. 48.13 (1), (2), (3), (3m), (4), (5), (8), (9), (10), (10m), (11),
or (11m) or 938.13 (4) and the dates on which the child has been placed, or continued in a placement, outside of his or her home pursuant to one or more
court orders under s. 48.345, 48.357, 48.363, 48.365, 938.345, 938.357, 938.363, or 938.365 or, if the child has been so adjudged, but not so placed, the
date of the report under s. 48.33 (1) or 938.33 (1) in which placement of the child in the home of the person is recommended.
48.977(4)(b)4.
4. A statement of the facts and circumstances which the petition alleges establish that the conditions specified in sub. (2) (b) to (f) are met.
48.977(4)(b)5.
5. A statement of whether the proceedings are subject to the uniform child custody jurisdiction act under ch. 822.
48.977(4)(b)6.
6. A statement of whether the child may be subject to the federal Indian child welfare act, 25 USC 1911 to 1963.
48.977(4)(c)
(c) Service of petition and notice.
48.977(4)(c)1.
1. The petitioner shall cause the petition and notice of the time and place of the hearing under par. (cm) to be served upon all of the following persons:
48.977(4)(c)1.a.
a. The child if the child is 12 years of age or older.
48.977(4)(c)1.b.
b. The child's guardian and legal custodian.
48.977(4)(c)1.c.
c. The child's guardian ad litem.
48.977(4)(c)1.d.
d. The child's counsel.
48.977(4)(c)1.e.
e. The child's parent.
48.977(4)(c)1.f.
f. The persons to whom notice is required to be given under s. 48.27 (3) (b) 1.
48.977(4)(c)1.g.
g. The person with whom the child is placed or in whose home placement of the child is recommended as described in sub. (2) (a), if the person is nominated
as the guardian of the child in the petition.
48.977(4)(c)1.h.
h. The person representing the interests of the public under s. 48.09.
48.977(4)(c)1.i.
i. The agency primarily responsible for providing services to the child under a court order.
48.977(4)(c)2.
2. Service shall be made by 1st class mail at least 7 days before the hearing or by personal service at least 7 days before the hearing or, if with reasonable
diligence a party specified in subd. 1. cannot be served by mail or personal service, service shall be made by publication of a notice published as a class
1 notice under ch. 985. In determining which newspaper is likely to give notice as required under s. 985.02 (1), the petitioner shall consider the residence
of the party, if known, or the residence of the relatives of the party, if known, or the last-known location of the party.
48.977(4)(cm)
(cm) Plea hearing.
48.977(4)(cm)1.
1. A hearing to determine whether any party wishes to contest a petition filed under par. (a) shall take place on a date which allows reasonable time for
the parties to prepare but is no more than 30 days after the filing of the petition. At the hearing, the nonpetitioning parties and the child, if he or
she is 12 years of age or over or is otherwise competent to do so, shall state whether they wish to contest the petition. Before accepting a plea of no
contest to the allegations in the petition, the court shall do all of the following:
48.977(4)(cm)1.a.
a. Address the parties present and determine that the plea is made voluntarily and with understanding of the nature of the facts alleged in the petition,
the nature of the potential disposition and the nature of the legal consequences of that disposition.
48.977(4)(cm)1.b.
b. Establish whether any promises or threats were made to elicit the plea of no contest and alert all unrepresented parties to the possibility that an attorney
may discover grounds to contest the petition that would not be apparent to those parties.
48.977(4)(cm)1.c.
c. Make inquiries to establish to the satisfaction of the court that there is a factual basis for the plea of no contest.
48.977(4)(cm)2.
2. If the petition is not contested and if the court accepts the plea of no contest, the court may immediately proceed to a dispositional hearing under
par. (fm), unless an adjournment is requested. If a party requests an adjournment, the court shall set a date for the dispositional hearing which allows
reasonable time for the parties to prepare but is no more than 30 days after the plea hearing.
48.977(4)(cm)3.
3. If the petition is contested or if the court does not accept the plea of no contest, the court shall set a date for a fact-finding hearing under par.
(d) which allows reasonable time for the parties to prepare but is not more than 30 days after the plea hearing.
48.977(4)(d)
(d) Fact-finding hearing. The court shall hold a fact-finding hearing on the petition on the date set by the court under par. (cm) 3., at which any party
may present evidence relevant to the issue of whether the conditions specified in sub. (2) (a) to (f) have been met. If the court, at the conclusion of
the fact-finding hearing, finds by clear and convincing evidence that the conditions specified in sub. (2) (a) to (f) have been met, the court shall immediately
proceed to a dispositional hearing unless an adjournment is requested. If a party requests an adjournment, the court shall set a date for the dispositional
hearing which allows reasonable time for the parties to prepare but is no more than 30 days after the fact-finding hearing.
48.977(4)(e)
(e) Court report. For a child who has been placed, or continued in a placement, outside of his or her home for 6 months or longer, the court shall order
the person or agency primarily responsible for providing services to the child under a court order to file with the court a report containing the written
summary under s. 48.38 (5) (e) and as much information relating to the appointment of a guardian as is reasonably ascertainable. For a child who has been
placed, or continued in a placement, outside of his or her home for less than 6 months, the court shall order the person or agency primarily responsible
for providing services to the child under a court order to file with the court the report submitted under s. 48.33 (1) or 938.33 (1), the permanency plan
prepared under s. 48.38 or 938.38, if one has been prepared, and as much information relating to the appointment of a guardian as is reasonably ascertainable.
The agency shall file the report at least 48 hours before the date of the dispositional hearing under par. (fm).
48.977(4)(fm)
(fm) Dispositional hearing. The court shall hold a dispositional hearing on the petition at the time specified or set by the court under par. (cm) 2. or
(d), at which any party may present evidence, including expert testimony, relevant to the disposition.
48.977(4)(g)
(g) Dispositional factors. In determining the appropriate disposition under this section, the best interests of the child shall be the prevailing factor
to be considered by the court. In making a decision about the appropriate disposition, the court shall consider any report submitted under par. (e) and
shall consider, but not be limited to, all of the following:
48.977(4)(g)1.
1. Whether the person would be a suitable guardian of the child.
48.977(4)(g)2.
2. The willingness and ability of the person to serve as the child's guardian for an extended period of time or until the child attains the age of 18 years.
48.977(4)(g)3.
3. The wishes of the child.
48.977(4)(h)
(h) Disposition. After receiving any evidence relating to the disposition, the court shall enter one of the following dispositions within 10 days after
the dispositional hearing:
48.977(4)(h)1.
1. A disposition dismissing the petition if the court determines that appointment of the person as the child's guardian is not in the best interests of
the child.
48.977(4)(h)2.
2. A disposition ordering that the person with whom the child has been placed or in whose home placement of the child is recommended as described in sub.
(2) (a) be appointed as the child's guardian under sub. (5) (a) or limited guardian under sub. (5) (b), if the court determines that such an appointment
is in the best interests of the child.
48.977(4)(i)
(i) Effect of disposition on permanency plan review process. After a disposition under par. (h), the child's permanency plan shall continue to be reviewed
under s. 48.38 (5), if applicable.
48.977(5)
(5) Duties and authority of guardian.
48.977(5)(a)
(a) Full guardianship. Unless limited under par. (b), a guardian appointed under sub. (2) shall have all of the duties and authority specified in s. 48.023.
48.977(5)(b)
(b) Limited guardianship. The court may order that the duties and authority of a guardian appointed under sub. (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. or any revised order under sub. (6). All provisions of the
statutes concerning the duties and authority of a guardian shall apply to a limited guardian appointed under sub. (2) to the extent those provisions are
relevant to the duties or authority of the limited guardian, except as limited by the order of appointment.
48.977(6)
(6) Revision of guardianship order.
48.977(6)(a)
(a) Any person authorized to file a petition under sub. (4) (a) may request a revision in a guardianship order entered under this subsection or sub. (4)
(h) 2., or the court may, on its own motion, propose such a revision. The request or court proposal shall set forth in detail the nature of the proposed
revision, 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 revision would be in the best interests of the child and shall allege any other information that affects the advisability
of the court's disposition.
48.977(6)(b)
(b) The court shall hold a hearing on the matter prior to any revision of the guardianship order if the request or court proposal indicates that new information
is available which affects the advisability of the court's guardianship order, unless written waivers of objections to the revision are signed by all parties
entitled to receive notice under sub. (4) (c) and the court approves the waivers.
48.977(6)(c)
(c) If a hearing is to be held, the court shall notify the persons entitled to receive notice under sub. (4) (c) 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 revision if, at the
hearing, the court finds that it has been proved by clear and convincing evidence that there has been a substantial change in circumstances and if the court
determines that a revision would be in the best interests of the child.
48.977(7)
(7) Termination of guardianship.
48.977(7)(a)
(a) Term of guardianship. Unless the court order entered under sub. (4) (h) 2. or (6) specifies that a guardianship under this section be for a lesser period
of time, a guardianship under this section shall continue until the child attains the age of 18 years or until terminated by the court, whichever occurs
earlier.
48.977(7)(b)
(b) Removal for cause.
48.977(7)(b)1.
1. Any person authorized to file a petition under sub. (4) (a) may request that a guardian appointed under sub. (2) be removed for cause or the court may,
on its own motion, propose such a removal. The request or court proposal shall allege facts sufficient to show that the guardian is or has been neglecting,
is or has been refusing or is or has been unable to discharge the guardian's trust and may allege facts relating to any other information that affects the
advisability of the court's disposition.
48.977(7)(b)2.
2. The court shall hold a hearing on the matter unless written waivers of objections to the removal are signed by all parties entitled to receive notice
under sub. (4) (c) and the court approves the waivers.
48.977(7)(b)3.
3. If a hearing is to be held, the court shall notify the persons entitled to receive notice under sub. (4) (c) at least 7 days prior to the hearing of
the date, place and purpose of the hearing. A copy of the request or court proposal shall be attached to the notice. The court shall remove the guardian
for cause if, at the hearing, the court finds that it has been proved by clear and convincing evidence that the guardian is or has been neglecting, is or
has been refusing or is or has been unable to discharge the guardian's trust and if the court determines that removal of the guardian would be in the best
interests of the child.
48.977(7)(c)
(c) Resignation. A guardian appointed under sub. (2) may resign at any time if the resignation is accepted by the court.
48.977(7)(d)
(d) Termination on request of parent.
48.977(7)(d)1.
1. A parent of the child may request that a guardianship order entered under sub. (4) (h) 2. or a revised order entered under sub. (6) be terminated. The
request 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 willing and able to carry out the duties of a guardian and that the proposed termination of guardianship would be in the
best interests of the child.
48.977(7)(d)2.
2. The court shall hold a hearing on the matter unless written waivers of objections to the termination are signed by all parties entitled to receive notice
under sub. (4) (c) and the court approves the waivers.
48.977(7)(d)3.
3. If a hearing is to be held, the court shall notify the persons entitled to receive notice under sub. (4) (c) at least 7 days prior to the hearing of
the date, place and purpose of the hearing. A copy of the request shall be attached to the notice. The court shall terminate the guardianship if, at the
hearing, the court finds that it has been proved by clear and convincing evidence that there has been a substantial change in circumstances since the last
order affecting the guardianship was entered and the parent is willing and able to carry out the duties of a guardian and if the court determines that termination
of the guardianship would be in the best interests of the child.
48.977(7)(e)
(e) Termination on termination of parental rights. If a court enters an order under s. 48.427 (3p) or 48.428 (2) (b), the court shall terminate the guardianship
under this section.
48.977(8)
(8) Relationship to ch. 880.
48.977(8)(a)
(a) This section does not abridge the duties or authority of a guardian appointed under ch. 880.
48.977(8)(b)
(b) Nothing in this section prohibits an individual from petitioning a court under ch. 880 for appointment of a guardian.
48.977 - ANNOT.
History: 1995 a. 275; 1997 a. 27, 35, 80, 237; 1999 a. 133; 2001 a. 2, 109; 2005 a. 25.
48.978
48.978 Appointment or designation of standby guardian of a child.
48.978(1)
(1) Definitions. In this section:
48.978(1)(a)
(a) "Attending physician" means a physician licensed under ch. 448 who has primary responsibility for the treatment and care of a parent who has
filed a petition under sub. (2) (a) or made a written designation under sub. (3) (a) or, if more than one physician has responsibility for the treatment
and care of that parent, if a physician is acting on behalf of a physician who has primary responsibility for the treatment and care of that parent or if
no physician is responsible for the treatment and care of that parent, "attending physician" means any physician licensed under ch. 448 who is
familiar with the medical condition of that parent.
48.978(1)(b)
(b) "Debilitation" means a person's chronic and substantial inability, as a result of a physical illness, disease, impairment or injury, to care
for his or her child.
48.978(1)(c)
(c) "Incapacity" means a person's chronic and substantial inability, as a result of a mental impairment, to care for his or her child.
48.978(2)
(2) Judicial appointment.
48.978(2)(a)
(a) Who may file petition.
48.978(2)(a)1.
1. A parent of a child may file a petition for the judicial appointment of a standby guardian of the person or estate or both of the child under this subsection.
A parent may include in the petition the nomination of an alternate standby guardian for the court to appoint if the person nominated as standby guardian
is unwilling or unable to serve as the child's guardian or if the court determines that appointment of the person nominated as standby guardian as the child's
guardian is not in the best interests of the child. Subject to subds. 2. and 3., if a petition is filed under this subdivision, the petition shall be joined
by each parent of the child.
48.978(2)(a)2.
2. If a parent of a child cannot with reasonable diligence locate the other parent of the child, the parent may file a petition under subd. 1. without the
other parent joining in the petition and, if the parent filing the petition submits proof satisfactory to the court of that reasonable diligence, the court
may grant the petition.
48.978(2)(a)3.
3. If a parent of a child can locate the other parent of the child, but that other parent refuses to join in the petition or indicates that he or she is
unwilling or unable to exercise the duty and authority of guardianship, the parent may file a petition under subd. 1. without the other parent joining in
the petition and, if the parent filing the petition submits proof satisfactory to the court of that refusal, unwillingness or inability, the court may grant
the petition.
48.978(2)(b)
(b) Contents of petition. A proceeding for the appointment of a standby guardian for a child under this subsection shall be initiated by a petition that
shall be entitled "In the interest of .... (child's name), a person under the age of 18" and shall set forth with specificity all of the following:
48.978(2)(b)1.
1. The name, birth date and address of the child.
48.978(2)(b)2.
2. The names and addresses of the child's parent or parents, guardian and legal custodian.
48.978(2)(b)3.
3. The name and address of the person nominated as standby guardian and, if the petitioner is nominating an alternate standby guardian, the name and address
of the person nominated as alternate standby guardian.
48.978(2)(b)4.
4. The duties and authority that the petitioner wishes the standby guardian to exercise.
48.978(2)(b)5.
5. A statement of whether the duty and authority of the standby guardian are to become effective on the petitioner's incapacity, on the petitioner's death,
or on the petitioner's debilitation and consent to the beginning of the duty and authority of the standby guardian, or on whichever occurs first.
48.978(2)(b)6.
6. A statement that there is a significant risk that the petitioner will become incapacitated or debilitated or die, as applicable, within 2 years after
the date on which the petition is filed and the factual basis for that statement.
48.978(2)(b)7.
7. If a parent of the child cannot with reasonable diligence locate the other parent of the child, a statement that the child has no parent, other than
the petitioner, who is willing and able to exercise the duties and authority of guardianship and who, with reasonable diligence, can be located and a statement
of the efforts made to locate the other parent.
48.978(2)(b)8.
8. If a parent of the child can locate the other parent of the child, but that other parent refuses to join in the petition or indicates that he or she
is unwilling or unable to exercise the duty and authority of guardianship, a statement that the child has no parent, other than the petitioner, who is willing
and able to exercise the duty and authority of guardianship and a statement that the nonpetitioning parent has refused to join in the petition or has indicated
that he or she is unwilling or unable to exercise the duty and authority of guardianship.
48.978(2)(b)9.
9. A description of the child's income and assets, if any.
48.978(2)(b)10.
10. A statement of whether the proceedings are subject to the uniform child custody jurisdiction act under ch. 822.
48.978(2)(b)11.
11. A statement of whether the child may be subject to the federal Indian Child Welfare Act, 25 USC 1911 to 1963.
48.978(2)(c)
(c) Service of petition and notice.
.978(2)(c)1.
1. The petitioner shall cause the petition and notice of the time and place of the hearing under par. (d) to be served on all of the following persons:
48.978(2)(c)1.a.
a. The child if the child is 12 years of age or older.
48.978(2)(c)1.b.
b. The child's guardian and legal custodian.
48.978(2)(c)1.c.
c. The child's guardian ad litem.
48.978(2)(c)1.d.
d. The child's counsel.
48.978(2)(c)1.e.
e. The child's other parent, if that parent has not joined in the petition and if that parent can with reasonable diligence be located.
48.978(2)(c)1.f.
f. The persons to whom notice is required to be given under s. 48.27 (3) (b) 1.
48.978(2)(c)1.g.
g. The person who is nominated as the standby guardian of the child in the petition and, if an alternate standby guardian is nominated in the petition,
the person who is nominated as the alternate standby guardian.
48.978(2)(c)2.
2. Service shall be made by certified mail at least 7 days before the hearing or by personal service in the same manner as a summons is served under s.
801.11 (1) (a) or (b) at least 7 days before the hearing or, if with reasonable diligence a party specified in subd. 1. cannot be served by mail or by personal
or substituted service, service shall be made by publication of a notice published as a class 1 notice under ch. 985. In determining which newspaper is
likely to give notice as required under s. 985.02 (1), the petitioner shall consider the residence of the party, if known, or the residence of the relatives
of the party, if known, or the last-known location of the party.
48.978(2)(d)
(d) Plea hearing.
48.978(2)(d)1.
1. A hearing to determine whether any party wishes to contest a petition filed under par. (a) shall take place on a date that allows reasonable time for
the parties to prepare but is no more than 30 days after the filing of the petition. At the hearing, the nonpetitioning parties and the child, if he or
she is 12 years of age or over or is otherwise competent to do so, shall state whether they wish to contest the petition.
48.978(2)(d)2.
2. If the petition is not contested, the court may immediately proceed to a dispositional hearing under par. (g), unless an adjournment is requested under
par. (g).
48.978(2)(d)3.
3. If the petition is contested, the court shall set a date for a fact-finding hearing under par. (e) that allows reasonable time for the parties to prepare
but is no more than 30 days after the plea hearing.
48.978(2)(e)
(e) Fact-finding hearing. The court shall hold a fact-finding hearing on the petition on the date set by the court under par. (d) 3. at which any party
may present evidence relevant to any of the following issues:
48.978(2)(e)1.
1. Whether there is a significant risk that the petitioner will become incapacitated or debilitated or die within 2 years after the date on which the petition
was filed.
48.978(2)(e)2.
2. Whether the child has any parent, other than the petitioner, who is willing and able to exercise the duty and authority of guardianship.
48.978(2)(e)3.
3. If a parent cannot be located, whether the petitioner has made diligent efforts to locate that parent.
48.978(2)(e)4.
4. If a parent has refused to join in the petition, whether that refusal is unreasonable.
48.978(2)(f)
(f) Required findings by court. If the court, at the conclusion of the fact-finding hearing, makes all of the following findings by clear and convincing
evidence, the court shall immediately proceed to a dispositional hearing unless an adjournment is requested under par. (g):
48.978(2)(f)1.
1. That there is a significant risk that the petitioner will become incapacitated or debilitated or die within 2 years after the date on which the petition
was filed.
48.978(2)(f)2.
2. That the child has no parent, other than the petitioner, who is willing and able to exercise the duty and authority of guardianship.
48.978(2)(f)3.
3. That, if a parent cannot be located, the petitioner has made diligent efforts to locate that parent.
48.978(2)(f)4.
4. That, if a parent has refused to join in the petition, the refusal was unreasonable.
48.978(2)(f)5.
5. That the person nominated as standby guardian is willing and able to act as standby guardian or, if that person is not so willing and able, that the
person nominated as alternate standby guardian is willing and able to act as standby guardian.
48.978(2)(g)
(g) Dispositional hearing. The court shall hold a dispositional hearing on the petition at the time specified under par. (d) 2. or (e), at which any party
may present evidence, including expert testimony, relevant to the disposition. If at the plea hearing or the fact-finding hearing a party requests an adjournment
of the dispositional hearing, the court shall set a date for the dispositional hearing that allows reasonable time for the parties to prepare but is no
more than 30 days after the plea hearing or fact-finding hearing.
48.978(2)(h)
(h) Dispositional factors. In determining the appropriate disposition under this par. (j), the best interests of the child shall be the prevailing factor
to be considered by the court. In making a decision about the appropriate disposition, the court shall consider all of the following:
48.978(2)(h)1.
1. Whether the person nominated as standby guardian or alternate standby guardian would be a suitable guardian of the child.
48.978(2)(h)2.
2. The willingness and ability of the person nominated as standby guardian or alternate standby guardian to serve as the child's guardian if the petitioner
becomes incapacitated or debilitated or dies.
48.978(2)(h)3.
3. The wishes of the child.
48.978(2)(i)
(i) Appearance by petitioner. If the petitioner is medically unable to appear at a hearing under par. (d), (e) or (g), the court may dispense with the petitioner's
appearance, except on the motion of a party and for good cause shown.
(Part 1) (Part 2) (PART
3) (PART 4) (PART 5) |
