presented by: victoria davis, pledl & cohn, s.c., milwaukee, wi

Chapter 54 Minor Guardianships

Presented by: Victoria Davis,

Pledl & Cohn, S.C., Milwaukee, WI

TODAY’S TOPICSRelevant Statutes and Case Law – OutlineProcedure & Practice Tips – Atty. Neitzke

Chapter 48 GuardianshipsChild must be subject to one or more CHIPS

ordersFiling TPR must not be in child’s best interestDepartment has made reasonable efforts to

reunifyLasts until age 18 unless court terminates

earlierParent 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 – ContinuedTime limits may be extended upon a showing

of good cause

Chapter 54 GuardianshipsCovers minors, incompetence, spendthriftsJuvenile court has exclusive jurisdiction – sec.

48.14(2)(b)Private actionsGuardianship of person and estateStatute limits powers of guardianDifferent notice and time limit requirementsHas its own forms

Ch. 54 - NoticePetition and notice of hearing must be served

upon the following personally, by certified mail with return receipt, or by facsimileProposed ward’s spouse, if anyProposed ward’s parent, unless there has been

TPRThe proposed ward, if ward is over 14 Any other person with legal or physical custody

of the minorNotice must be served within 10 BUSINESS

days

Powers of Guardian of MinorUnlike 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 situationsSome 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 GuardiansCourt can appoint co-guardians (i.e. grandma

AND grandpa)Co-guardians must concur unless order states

otherwiseStandby guardians – nominated in event

guardian cannot actMust interview this person – you never know

what will happen

HearingMust be heard within 90 days of filingSee 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Protective Placement of Elizabeth L., Unpublished, Appeal No. 2011AP152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 daysNo procedure to extend time limits i.e. Ch. 48

StandardFound in case law – most important case is

Barstad v. Frazier, 118 Wis.2d 549 (1984).“Best Interests” is not the standardParent must be unfit or unable to care for kids

ORCompelling reasons must exist

Compelling ReasonsAbandonmentPersistent Neglect of Parental ResponsibilitiesExtended Disruption of Parental CustodyOther similar extraordinary circumstances

that would affect welfare of child

Barstad PrinciplesNot 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 relativesFinanciallyEmotionallyPhysically

Other case lawBarstad was a 767 caseJenae K.S. applied Barstad to guardianship

under Ch. 880Ch. 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 helpLasts for up to one yearAllows parent to delegate powers

Parental VisitationCourt has equitable power to order visitationStatute does provide for grandparent or

stepparent visitation

Post-Petition ProceedingsCourt has continuing jurisdictionStatute provides for review of conduct of

guardian proceedingsTermination under certain circumstances

enumerated

Parent initiated terminationNo statutory procedureBarstad standard is appliedSee cases cited in outlineGenerally, the length of the guardianship is

not considered a “Compelling circumstance” to keep guardianship in place.

Duties of GALAppointed when there is a petition for

guardianship, review of conduct of guardian, termination proceedings, and any other time the court thinks it’s necessary

QualificationsUnder SCR 35Local 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

ResponsibilitiesAdvocate for your wardFunction 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 interestBut you are not bound by them

Duties – in the StatuteMeet with your wardAdvise of rightsInterview proposed guardian and standby

guardian, for purposes of determining suitability

Make required notifications in sec. 54.40File your guardian ad litem report, Form GN-

3325

DutiesGather informationSpeak with birth parentsObtain necessary releasesLook into proposed guardian – CCAP, other

resourcesSee the child in the proposed environment

with proposed guardian

FeesCompensation 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 AppendixParties pay a deposit set by the court

Changes in the Wind?2011 SB 560 introduced – good authority that

it will be reintroducedMoves minor guardianships into Ch. 48Different types of guardianshipsChanges 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