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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Protective Placement of Elizabeth L., Unpublished, Appeal No. 2011AP152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