Presented by:
Victoria Davis,
Pledl & Cohn, S.C., Milwaukee, WI
TODAY’S TOPICS
 Relevant Statutes and Case Law – Outline
 Procedure & Practice Tips – Atty. Neitzke
Chapter 48 Guardianships
 Child must be subject to one or more CHIPS
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orders
Filing TPR must not be in child’s best interest
Department has made reasonable efforts to
reunify
Lasts until age 18 unless court terminates earlier
Parent may petition for termination, but must
prove fitness, substantial change in
circumstances and that termination is in the
child’s best interests
Chapter 48 Guardianships –
Continued
 Time limits may be extended upon a showing of
good cause
Chapter 54 Guardianships
 Covers minors, incompetence, spendthrifts
 Juvenile court has exclusive jurisdiction – sec.
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48.14(2)(b)
Private actions
Guardianship of person and estate
Statute limits powers of guardian
Different notice and time limit requirements
Has its own forms
Ch. 54 - Notice
 Petition and notice of hearing must be served
upon the following personally, by certified mail
with return receipt, or by facsimile
 Proposed ward’s spouse, if any
 Proposed ward’s parent, unless there has been
TPR
 The proposed ward, if ward is over 14
 Any other person with legal or physical custody of
the minor
 Notice must be served within 10 BUSINESS days
Powers of Guardian of Minor
 Unlike guardianship due to incompetency, the
guardianship over a minor will generally be
“full.”
 Guardian assumes care and custody of the
minor, and as such makes all major decisions for
the child
Temporary Guardianship
 Can be done in emergency situations
 Some leeway with notice (including after the
hearing if necessary)
 GAL must meet with child before hearing if
possible; if not, within 7 days of hearing
Co – or Standby Guardians
 Court can appoint co-guardians (i.e. grandma
AND grandpa)
 Co-guardians must concur unless order states
otherwise
 Standby guardians – nominated in event
guardian cannot act
 Must interview this person – you never know
what will happen
Hearing
 Must be heard within 90 days of filing
 See e.g. In the Matter of the Guardianship and
Protective Placement of Elizabeth L.,
Unpublished, Appeal No. 2011AP152
 Court loses competency to act after 90 days
 No procedure to extend time limits i.e. Ch. 48
Standard
 Found in case law – most important case is
Barstad v. Frazier, 118 Wis.2d 549 (1984).
 “Best Interests” is not the standard
 Parent must be unfit or unable to care for kids
OR
 Compelling reasons must exist
Compelling Reasons
 Abandonment
 Persistent Neglect of Parental Responsibilities
 Extended Disruption of Parental Custody
 Other similar extraordinary circumstances that
would affect welfare of child
Barstad Principles
 Not within court’s power to displace fit and
willing parent simply because someone else
could do a “better job” of a parent
 If best interests were the standard, in most cases
parents cannot compete on an equal level with
established older relatives
 Financially
 Emotionally
 Physically
Other case law
 Barstad was a 767 case
 Jenae K.S. applied Barstad to guardianship
under Ch. 880
 Ch. 54 came about – 2005
 Nicholas C.L. and Clive R.O. apply Barstad
principles to Ch. 54 guardianships
 James D.K. discusses burden of proof on person
seeking guardianship when a parent is
objecting; clarifies extraordinary circumstances
Alternative to guardianship?
 “Day to day interactions between parent and
child are bound to be diminished if not
eliminated where the parent comes on the
scene as a court-permitted visitor” – Barstad, 118
Wis. 2d 549 at 555.
 Consider whether POA under 48.979 will help
 Lasts for up to one year
 Allows parent to delegate powers
Parental Visitation
 Court has equitable power to order visitation
 Statute does provide for grandparent or
stepparent visitation
Post-Petition Proceedings
 Court has continuing jurisdiction
 Statute provides for review of conduct of
guardian proceedings
 Termination under certain circumstances
enumerated
Parent initiated termination
 No statutory procedure
 Barstad standard is applied
 See cases cited in outline
 Generally, the length of the guardianship is not
considered a “Compelling circumstance” to
keep guardianship in place.
Duties of GAL
 Appointed when there is a petition for
guardianship, review of conduct of guardian,
termination proceedings, and any other time
the court thinks it’s necessary
Qualifications
 Under SCR 35
 Local Rule 5.1 – must complete questionnaire,
statement of compliance, statement of
compliance with SCR 35.01
 If less than 5 years GAL experience, meet with
Waukesha Juvenile Court Mentor Committee
Responsibilities
 Advocate for your ward
 Function independently
 That means being prepared to advocate for your
ward at a contested hearing
 You may not be completely aligned with either
side
 Consider the wishes of your ward and others
regarding ward’s best interest
 But you are not bound by them
Duties – in the Statute
 Meet with your ward
 Advise of rights
 Interview proposed guardian and standby
guardian, for purposes of determining suitability
 Make required notifications in sec. 54.40
 File your guardian ad litem report, Form GN-3325
Duties
 Gather information
 Speak with birth parents
 Obtain necessary releases
 Look into proposed guardian – CCAP, other
resources
 See the child in the proposed environment with
proposed guardian
Fees
 Compensation for duties required under 54.40(4)
and any other acts approved by
court/reasonably necessary to promote ward’s
best interests
 See Local Rules in the Appendix
 Parties pay a deposit set by the court
Changes in the Wind?
 2011 SB 560 introduced – good authority that it
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will be reintroduced
Moves minor guardianships into Ch. 48
Different types of guardianships
Changes rules for termination of guardianship to
be more reflective of current ch. 48, i.e.
substantial change in circumstances
Other substantial changes – keep an eye out