AB 47 — Relating to: guardianships of children. (FE)

48, Stats.

The bill also specifies that a petition filed under the new statute may not seek to change preexisting orders entered in certain actions under chs.

48 and 938, Stats.

If any such actions are pending, the bill requires the court to stay any subsequent proceedings under the new statute until the pending action is resolved, subject to certain exceptions.

In addition, the bill prohibits a dispositional order under the new statute from changing the placement of a child under the supervision of a court in certain types of actions.

Types of Guardianship The bill creates four types of guardianships of a child's person:

full;

limited;

temporary;

and emergency.

The bill clarifies that a parent retains all rights and duties that are not assigned to the guardian or otherwise limited by statute or court order.

For each type of guardian, the bill provides the following standards for and duties upon appointment:

A full guardianship requires a finding that the child's parents are unfit, unwilling, or unable to provide for the care, custody, and control of the child or other compelling facts and circumstances demonstrate that a full guardianship is necessary.

Once appointed, the bill grants a full guardian the duties and authority granted to other guardians under ch.

48, Stats., as well as the following:

the authority, subject to a court order, to determine - 2020 Legislature - 3 - LRB-0241/2 EAW:amn&cjs ASSEMBLY BILL 47 reasonable visitation with the child;

the right to change the child's residence from this state to another state;

and the duty to report to the court immediately regarding any address changes and annually regarding the child's condition.

A limited guardianship requires a finding that the child's parents need assistance in providing for the care, custody, and control of the child.

The court must specify the limited guardian's duties and authority, and may limit such authority to allow a parent to retain certain decision-making powers.

If in the child's best interest, the court may also allow shared physical custody among the limited guardian and the parent.

A temporary guardianship requires a finding that the child's particular situation, including the inability of the child's parents to provide for the care, custody, and control of the child for a temporary period of time, requires the appointment of a temporary guardian.

A temporary guardian may be appointed for a period not to exceed 180 days, though the court may grant one additional 180-day period for good cause shown.

In its order, the court must limit the temporary guardian's authority to those acts that are reasonably related to the reasons for the appointment.

An emergency guardianship requires a finding that the child's welfare requires the immediate appointment of an emergency guardian.

The court may appoint an emergency guardian for a period not to exceed 60 days and must limit the emergency guardian's authority to those acts reasonably related to the reasons for the appointment.

Procedure for Full, Limited and Temporary Guardianships Under the bill, any person, including a child 12 years of age or older, may petition for the appointment of a guardian for a child.

The petition must contain certain information including the type of guardianship sought, the facts and circumstances establishing that a guardianship is needed, the name and address of a proposed guardian, and other information as specified in the bill.

A parent or a child 12 years or older may also nominate a guardian under the bill.

Under the bill, the court must appoint the person nominated as the guardian by the parent, unless the court finds that appointment of the person nominated is not in the child's best interest.

The bill requires that an initial hearing be held within 45 days after a petition is filed.

At least 96 hours before the initial hearing, the proposed guardian must submit a report to the court as to his or her existing parental, guardianship, or custodial responsibilities and financial situation, and as to whether he or she is charged with or has been convicted of a crime or child abuse or neglect.

Any interested person, as defined in the bill, may become a party to the hearing.

At the initial hearing, the court must first determine whether any party wishes to contest the petition.

If the petition is not contested, the court must immediately proceed to a fact-finding and dispositional hearing, unless an adjournment is requested.

If the petition is contested and all parties consent, the court may proceed immediately to a fact-finding and dispositional hearing.

If any party does not consent or if an adjournment is requested, the court must set a date for a fact-finding and dispositional hearing that allows reasonable time for the parties to prepare but is not more than 30 days after the initial hearing.

At the fact-finding and dispositional hearing, any party may present evidence, including expert testimony, and argument relating to the allegations in the petition.

The court must determine whether the petitioner has proven the allegations in the petition by clear and convincing evidence and must immediately proceed to determine the appropriate disposition.

The bill requires the court to consider all of the following factors in determining the appropriate disposition:

1) any nomination of a guardian made by a parent or the child, if 12 years of age or older, and the opinions of the parents and child as to what is in the child's best interests;

2) whether the proposed guardian would be fit, willing, and able to serve as the child's guardian;

3) if the child is an Indian child, the order of placement preference required for an Indian child in an Indian child custody proceeding, unless the - 2020 Legislature - 4 - LRB-0241/2 EAW:amn&cjs ASSEMBLY BILL 47 court finds good cause for departing from that order;

and 4) whether appointment of the proposed guardian is in the child's best interests.

Procedure for Emergency Guardianships Under the bill, any person may petition for the appointment of an emergency guardian for a child.

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

The bill requires the court to hold a hearing on an emergency petition as soon as possible after the filing of the petition or, for good cause shown, the court may issue a temporary order appointing an emergency guardian without a hearing, which remains in effect until a hearing is held.

Any person who receives notice of the emergency guardianship petition under the bill has a right to a hearing for reconsideration or modification of an emergency guardianship.

Role of the Guardian ad Litem Generally, the bill requires appointment of a guardian ad litem (GAL) in proceedings to appoint a guardian or terminate a guardianship, as well as in proceedings to modify a guardianship, if a hearing will be held.

The GAL represents the best interests of the child throughout the proceedings but must apply in all court proceedings the applicable standard specified in the bill.

In addition to certain specific duties and responsibilities required of a GAL under the Children's Code, the GAL must conduct a diligent investigation sufficient to represent the best interests of the child in court.

As appropriate to the circumstances, this investigation may include, personally or through a trained designee, meeting with or observing the child, meeting with any proposed guardian, meeting with interested persons, and visiting the homes of the child and the proposed guardian.

The GAL is required to attend all court proceedings relating to the guardianship, present evidence concerning the best interest of the child, if necessary, and make clear and specific recommendations to the court at every stage of the proceedings.

Further, the bill requires the GAL to inspect certain reports and records relating to the child and, upon presentation of necessary releases, the child's family and the proposed guardian.

The court must order custodians of the specified reports or records to permit inspection and copying of such reports or records by the GAL.

Post-Appointment Matters The bill allows a court, on its own motion or upon the petition of any interested person, to appoint a successor guardian after a guardian has died, been removed, or resigned, or as a part of the original appointment or any time after, even while the current guardianship is still in place.

Under the bill, if the guardian abuses or neglects the child or knowingly permits others to do so, fails to disclose information that would have prevented his or her appointment as guardian, fails to follow or comply with the court's order, or otherwise fails to perform any of his or her duties as guardian, the court may exercise its continuing jurisdiction to impose certain remedies, including removal of the guardian and appointment of a successor guardian, modification of the duties and authority of the guardian, or entry of an order that may be necessary or appropriate to compel the guardian to carry out the guardian's duties.

The court may also require the guardian to pay any costs of the proceeding if the guardian's conduct was egregious.

The bill requires the court to hold a hearing on a petition for the review of the conduct of a guardian within days of the filing of the petition.

The bill authorizes a court to modify a guardianship order, if the court finds that there has been a substantial change in circumstances since the last order affecting the guardianship was entered and that the proposed modification is in the child's best interests.

Under the bill, a guardianship continues until the child attains the age of 18 years unless 1) the guardianship is for a lesser period of time and that time has expired;

2) the LRB-0241/2 - 2020 Legislature - 5 - EAW:amn&cjs ASSEMBLY BILL 47 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 approved by the court, and a successor guardian is not appointed;

6) the guardian is removed for cause and a successor guardian is not appointed;

7) the guardianship is terminated on the request of a parent or the child;

or 8) the court terminates the guardianship upon the adoption of the child.

The bill also allows a parent or child to petition for termination of a guardianship.

Specifically, the court must terminate the guardianship if it finds that the petitioner has shown by a preponderance of the evidence that 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.

SECTION 1.

48.09 (5) of the statutes is amended to read:

48.09 (5) By the district attorney or, if designated by the county board of supervisors, by the corporation counsel, in any matter arising under s.

48.13, 48.133, or 48.977 or, if applicable, s.

48.9795.

If the county board transfers this authority to or from the district attorney on or after May 11, 1990, the board may do so only if the action is effective on September 1 of an odd-numbered year and the board notifies the department of administration of that change by January 1 of that odd-numbered year.

SECTION 2.

48.14 (2) (b) of the statutes is amended to read:

48.14 (2) (b) The appointment and removal of a guardian of the person for a child under ss.

48.427, 48.43, 48.831, 48.832, 48.839 (4) (a), 48.977, and.978, and ch.

54 48.9795 and for a child found to be in need of protection or services under s.

48.13 because the child is without parent or guardian.

SECTION 3.

48.14 (11) of the statutes is amended to read:

48.14 (11) Granting visitation privileges under s.

54.56 48.9795 (12).

SECTION 4.

48.15 of the statutes is amended to read:

48.15 Jurisdiction of other courts to determine legal custody.

Except as provided in s.s.

48.028 (3) and 48.9795 (2) (b) 2., nothing in this chapter deprives another court of the right to determine the legal custody of a child by habeas corpus - 2020 Legislature - 6 - LRB-0241/2 EAW:amn&cjs ASSEMBLY BILL 47 SECTION 4 or to determine the legal custody or guardianship of a child if the legal custody or guardianship is incidental to the determination of an action pending in that court.

Except as provided in s.

48.028 (3), the jurisdiction of the court assigned to exercise jurisdiction under this chapter and ch.

938 is paramount in all cases involving children alleged to come within the provisions of ss.

48.13 and 48.14 and unborn children and their expectant mothers alleged to come within the provisions of ss.

48.133 and 48.14 (5).

SECTION 5.

48.235 (1) (c) of the statutes is amended to read:

48.235 (1) (c) The court shall appoint a guardian ad litem for any child who is the subject of a proceeding to terminate parental rights, whether voluntary or involuntary, for a child who is the subject of a contested adoption proceeding, a child who is the subject of a proceeding under s.

48.977 or, 48.978, or 48.9795.

SECTION 6.

48.255 (1) (intro.) of the statutes is amended to read:

48.255 (1) (intro.) A petition initiating proceedings under this chapter, other than a petition under s.

48.133 or 48.9795l be entitled, “In the interest of (child's name), a person under the age of 18'' and shall set forth with specificity:

SECTION 7.

48.293 (2) of the statutes is amended to read:

48.293 (2) All records relating to a child, or to an unborn child and the unborn child's expectant mother, that are relevant to the subject matter of a proceeding under this chapter shall be open to inspection by a guardian ad litem or counsel for any party and to inspection by the court-appointed special advocate for the child, upon demand and upon presentation of releases when necessary, at least 48 hours before the proceeding.

Persons entitled to inspect the records may obtain copies of the records with the permission of the custodian of the records or with permission of the court.

The court may instruct counsel, a guardian ad litem, or a LRB-0241/2 - 2020 Legislature - 7 - EAW:amn&cjs SECTION 7 ASSEMBLY BILL 47 court-appointed special advocate not to disclose specified items in the materials to the child or the parent, or to the expectant mother, if the court reasonably believes that the disclosure would be harmful to the interests of the child or the unborn child.

This subsection does not apply to a guardianship proceeding under s.

48.9795.

SECTION 8.

48.299 (4) (a) of the statutes is amended to read:

48.299 (4) (a) Chapters 901 to 911 shall govern the presentation of evidence at the fact-finding hearings under ss.

48.31, 48.42, 48.977 (4) (d) and, 48.978 (2) (e) and (3) (f) 2., and 48.9795.

SECTION 9.

48.299 (4) (b) of the statutes is amended to read:

48.299 (4) (b) Except as provided in s.

901.05, neither common law nor statutory rules of evidence are binding at a hearing for a child held in custody under s.

48.21, a hearing for an adult expectant mother held in custody under s.

48.213, a runaway home hearing under s.

48.227 (4), a dispositional hearing, or a hearing about changes in placement, trial reunifications, revision of dispositional orders, extension of dispositional orders, or termination of guardianship orders entered under s.

48.977 (4) (h) 2.

or (6) or, 48.978 (2) (j) 2.

or (3) (g), or 48.9795.

At those hearings, the court shall admit all testimony having reasonable probative value, but shall exclude immaterial, irrelevant, or unduly repetitious testimony or evidence that is inadmissible under s.

901.05.

Hearsay evidence may be admitted if it has demonstrable circumstantial guarantees of trustworthiness.

The court shall give effect to the rules of privilege recognized by law.

The court shall apply the basic principles of relevancy, materiality, and probative value to proof of all questions of fact.

Objections to evidentiary offers and offers of proof of evidence not admitted may be made and shall be noted in the record.

SECTION 10.

48.299 (6) (intro.) of the statutes is amended to read:

- 2020 Legislature - 8 - LRB-0241/2 EAW:amn&cjs ASSEMBLY BILL 47 SECTION 10 48.299 (6) (intro.) If a man who has been given notice under s.

48.27 (3) (b) 1., 48.977 (4) (c) 1., 48.978 (2) (c) 1., or 48.9795 (4) (c) 1.

appears at any hearing for which he received the notice, alleges that he is the father of the child, and states that he wishes to establish the paternity of the child, all of the following apply:

SECTION 11.

48.299 (6) (d) of the statutes is amended to read:

48.299 (6) (d) The court may stay the proceedings under this chapter pending the outcome of the paternity proceedings under subch.

IX of ch.

767 if the court determines that the paternity proceedings will not unduly delay the proceedings under this chapter and the determination of paternity is necessary to the court's disposition of the child if the child is found to be in need of protection or services proceedings or if the court determines or has reason to know that the paternity proceedings may result in a finding that the child is an Indian child and in a petition by the child's parent, Indian custodian, or tribe for transfer of the proceeding proceedings to the jurisdiction of the tribe.

SECTION 12.

48.299 (7) of the statutes is amended to read:

48.299 (7) If a man who has been given notice under s.

48.27 (3) (b) 1., 48.977 (4) (c) 1., 48.978 (2) (c) 1., or 48.9795 (4) (c) 1.

appears at any hearing for which he received the notice but does not allege that he is the father of the child and state that he wishes to establish the paternity of the child or if no man to whom such notice was given appears at a hearing, the court may refer the matter to the state or to the attorney responsible for support enforcement under s.

59.53 (6) (a) for a determination, under s.

767.80, of whether an action should be brought for the purpose of determining the paternity of the child.

SECTION 13.

48.368 (1) of the statutes is amended to read:

LRB-0241/2 - 2020 Legislature - 9 - EAW:amn&cjs SECTION 13 ASSEMBLY BILL 47 48.368 (1) If a petition for termination of parental rights is filed under s.

48.41 or 48.415 or an appeal from a judgment terminating or denying termination of parental rights is filed during the year in which a dispositional order under s.

48.355, an extension order under s.

48.365, a voluntary agreement for placement of the child under s.

48.63, or a guardianship order under ch.

54, 2017 statsch.

880, 2003 stats., or s.

48.977 or ch.

54 48.9795 is in effect, the dispositional or extension order, voluntary agreement, or guardianship order shall remain in effect until all proceedings related to the filing of the petition or an appeal are concluded.

SECTION 14.

48.465 (3) of the statutes is amended to read:

48.465(3) EXCEPTIONS.This section does not apply to a termination of parental rights case under s.

48.43 oro a parental consent to abortion case under s.

48.375 (7), or to a guardianship proceeding under s.

48..795 SECTION 15.

48.62 (2) of the statutes is amended to read:

48.62 (2) A relative, a guardian of a child, or a person delegated care and custody of a child under s.

48.979 who provides care and maintenance for the child is not required to obtain the license specified in this section.

The department, county department, or licensed child welfare agency as provided in s.

48.75 may issue a license to operate a foster home to a relative who has no duty of support under s.

49.90 (1) (a) and who requests a license to operate a foster home for a specific child who is either placed by court order or who is the subject of a voluntary placement agreement under s.

48.63.

The department, a county department, or a licensed child welfare agency may, at the request of a guardian appointed under s.

48.977 or, 48.978, or 48.9795 or ch.

54, 2017 stats., or ch.

880, 2003 stats., license the guardian's home as a foster home for the guardian's minor ward who is living in the home and who is placed in the home by court order.

Relatives with no duty of support and guardians - 2020 Legislature - 10 - LRB-0241/2 EAW:amn&cjs ASSEMBLY BILL 47 SECTION 15 appointed under s.

48.977 or.978, or 48.9795 or ch.

54, 2017 stats., or ch.

880, 2003 stats., who are licensed to operate foster homes are subject to the department's licensing rules.

SECTION 16.

48.831 (1) of the statutes is amended to read:

48.831(1) TYPE OF GUARDIANSHIPThis section may be used for the appointment of a guardian of a child who does not have a living parent if a finding as to the adoptability of a child is sought.

Except as provided in ss.

48.977 and 48.978, ch.

54 s.

48.9795 applies to the appointment of a guardian for a child who does not have a living parent for all other purposes.

An appointment of a guardian of the estate of a child who does not have a living parent shall be conducted in accordance with the procedures specified in ch.

54.

SECTION 17.

48.831 (1m) (e) of the statutes is amended to read:

48.831 (1m) (e) A guardian appointed under s.

48.9795 or ch.

54, 2017 stats., or ch.

880, 2003 stats., whose resignation as guardian has been accepted by a court under s.

48.9795 (11) or s.

54.54 (1), 2017 stats., or s.

880.17 (1), 2003 stats.

SECTION 18.

48.977 (8) of the statutes is amended to read:

48.977 (8) RELATIONSHIP TO CH.

54 AND CH.

880, 2003 STATS OTHER GUARDIANSHIP PROCEDURES.(a) This section does not abridge the duties or authority of a guardian appointed under s.

48.9795 or ch.

54, 2017 stats., or ch.

880, 2003 stats.

(b) Nothing in this section prohibits an individual from petitioning a court under ch.

54.

48.9795 for appointment of a guardian.

SECTION 19.

Subchapter XX (title) of chapter 48 [precedes 48.978] of the statutes is created to read:

OTHER GUARDIANSHIPS AND DELEGATION OF POWER BY PARENT LRB-0241/2 - 2020 Legislature - 11 - EAW:amn&cjs SECTION 20 ASSEMBLY BILL 47 S ECTION 20.

48.978 (7) of the statutes is amended to read:

48.978 (7) RELATIONSHIP TO CH.

54HER GUARDIANSHIP PROCEDURES.

(a) Except when a different right, remedyor procedure is provided under this section, the rights, remedies, and procedures provided in s.

48.9795 or ch.

54, whichever is applicable, shall govern a standby guardianship created under this section.

(b) This section does not abridge the duties or authority of a guardian appointed under s.

48.9795,h.

880, 2003 stats., or ch.

54.

(c) Nothing in this section prohibits an individual from petitioning a court for the appointment of a guardian of the person under s.

48.9795 or a guardian of the estate under ch.

54.

S ECTION 21.

48.9795 of the statutes is created to read:

48.9795 Appointment of guardian of the person for a child.

(1) DEFINITIONS.In this section:

(a) “Interested person" means any of the following:

PageFor 5,purposes lineof 11:a petition for guardianship of a child, any of the following:

deletea. the material beginning with “and ending with “48.9795" on line 12 and substitute “and 48.978 and ch.

54,”.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.

- 2020 Legislature - 12 - LRB-0241/2 EAW:amn&cjs ASSEMBLY BILL 47 S ECTION 21 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 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.

PageFor 5,purposes lineof 15:proceedings subsequent to an order for guardianship of a child, any of the following:

aftera. that line insert:

“SThe ECTIONchild, 3m.if the child has attained 12 years of age, the child's guardian ad litem, and the child's counsel.

48.14b. (13) of the statutes is created to read:

48.14 (13) The appointmentchild's parent and removalguardian. of a guardian of the person for a child under s.

48.9795.”.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.

LRB-0241/2 - 2020 Legislature - 13 - EAW:amn&cjs SECTION 21 ASSEMBLY BILL 47 (2) A PPOINTMENT;

VENUE;

NOMINATION;

DUTY AND AUTHORIT(a) Venue.

Except as provided under par.

(b) 2., venue for guardianship under this section shall be in the child's county of residence or in 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 resides.

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.

- 2020 Legislature - 14 - LRB-0241/2 EAW:amn&cjs ASSEMBLY BILL 47 S ECTION 21 2.

If the child is the subject of an action pending under s.

48.13, 48.133, or 48.14 or ch.

938, any subsequent petition filed under this section shall be heard by the court authorized to exercise jurisdiction over the pending action.

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 action pending under s.

48.13, 48.133, or 48.14 or ch.

938 is resolved.

The court may appoint an emergency guardian under sub.

(6) while an action is pending under s.

48.13, 48.133, or 48.14 or ch.

938 if the court finds that the best interests of the child require the immediate appointment of a guardian.

PageA 9,petition linefiled 12:under this section may not seek to change an order under s.

after48.13, that48.133, lineor insert:48.14 or ch.

“S938. ECTION 14f.

48.57 (3m) (am) 1.

of the statutes is amended to read:

48.57 (3m) (am) 1.

The kinship care relative applies to the county department or department for payments under this subsection and, if the child is placed in the home of the kinship care relative under a court order, other than a court order under s.

48.9795 or ch.

54, 2017 stats., for a license to operate a foster home.

LRBa0408/1 - 2020 Legislature - 2 - EAW:cjs SECTION 14h.

48.57 (3n) (am) 1.

of the statutes is amended to read:

48.57 (3n) (am) 1.

The long-term kinship care relative applies to the county department or department for payments under this subsection, provides proof that he or she has been appointed as the guardian of the child, and, if the child is placed in the home of the long-term kinship care relative under a court order, other than a court order under s.

48.9795 or ch.

54, 2017 stats., applies to the county department or department for a license to operate a foster home.”.

PageThe 14,court linemay 1:appoint coguardians of the person for a child under this section, subject to any conditions that the court imposes.

deleteUnless “anthe action"court andorders substituteotherwise, “anyany matter".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 LRB-0241/2 - 2020 Legislature - 15 - EAW:amn&cjs SECTION 21 ASSEMBLY BILL 47 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 - 2020 Legislature - 16 - LRB-0241/2 EAW:amn&cjs ASSEMBLY BILL 47 S ECTION 21 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).

Page`Powers 14,of lineguardian.' 1: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.

afterA “48.14"guardian insertacting “(1)on behalf of a child may exercise only those powers that the guardian is authorized to (10)exercise by statute or (12)".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.

(3) G UARDIAN 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 LRB-0241/2 - 2020 Legislature - 17 - EAW:amn&cjs SECTION 21 ASSEMBLY BILL 47 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 - 2020 Legislature - 18 - LRB-0241/2 EAW:amn&cjs ASSEMBLY BILL 47 SECTION 21 specified in this subdivision 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 an action pending under s.

48.13, 48.133, or 48.14 or ch.

938, a petition under this subsection may be filed by any party to the pending action or any person approved by the court if the petition is consistent with 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 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.

LRB-0241/2 - 2020 Legislature - 19 - EAW:amn&cjs S ECTION 21 ASSEMBLY BILL 47 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.

PageIf 14,the linepetitioner 3: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;

deletethe “action"reasons andfor substitutethe “matter".appointment of a temporary guardian;

and the powers requested for the temporary guardian.

PageIf 14,the linepetitioner 5:is requesting an emergency guardianship, the facts and circumstances establishing that the welfare of the child requires the immediate appointment of an emergency guardian.

delete “action" and substitute “matter".

PageThe 14,facts lineand 6:circumstances establishing that the proposed guardian is fit, willing, and able to serve as the child's guardian.

after “48.14" insert “(1) to (10) or (12)".

PageThe 14,information linerequired 7:under s.

delete822.29 “an(1). action" and substitute “any matter".

PageWhether 14,the linechild 8:may be subject to s.

after48.028 “48.14"or insertthe “(1)federal Indian Child Welfare Act, 25 USC 1901 to (10)1963, orand, (12)".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.

PageIf 14,the linepetitioner 11: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.

after48.028 “48.14"(4) insert(d) “(1)1. to (10) or (12)".

and that active efforts under - 2020 Legislature - 20 - LRB-0241/2 EAW:amn&cjs ASSEMBLY BILL 47 S ECTION 21 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.

PageWhether 16,the linepetitioner 19: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.

after “child." insert “This paragraph does not abridge the duties and authorities of a guardian appointed under this chapter outside of this section.".

PageWhether 17,there lineis 24:an action pending or the child is subject to a court order under s.

after48.13, “record"48.133, insertor “relating48.14 toor thech. child".

14.938.

Page(c) 18,Service lineof 6:petition and notice.

delete1. “an action" and substitute “any matter".

15.Except as provided in subd.

Page3. 18, line 6:

afterand “48.14"sub. insert “(1) to (10) or (12)".

16.(6) (b) 2., the petitioner shall cause the petition and notice of the time and place of the hearing under par.

Page(e) 18,to linebe 7:served at least 7 days before the time of the hearing upon all interested persons.

deleteFailure “action"of andthe substitutepetitioner “matter".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.

LRBa0408/12. - 2020 Legislature - 3 - EAW:cjs 17.

PageA 18,notice lineshall 8:be in writing.

afterA “withcopy the"of insertthe “goalpetition orand goalsany ofother the".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.

LRB-0241/2 - 2020 Legislature - 21 - EAW:amn&cjs S ECTION 21 ASSEMBLY BILL 47 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.