Kinship Guardianship as a Permanency Option - Wisconsin

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Definitions

Citation: Ann. Stat. § 48.02

'Guardian' means the person named by the court having the duty and authority of guardianship.

'Legal custodian' means a person, other than a parent or guardian, or an agency to whom legal custody of the child has been transferred by a court, but does not include a person who has only physical custody of the child.

'Relative' means a parent, stepparent, brother, sister, stepbrother, stepsister, half-brother, half-sister, brother-in-law, sister-in-law, first cousin, second cousin, nephew, niece, uncle, aunt, stepuncle, stepaunt, or any person of a preceding generation as denoted by the prefix of grand, great, or great-great, whether by blood, marriage, or legal adoption, or the spouse of any person named above, even if the marriage is terminated by death or divorce. For purposes of the Federal Indian Child Welfare Act, 25 USC 1901 to 1963, 'relative' includes an extended family member, as defined in § 48.028(2)(am), whether by blood, marriage, or adoption, including adoption under Tribal law or custom. For purposes of placement of a child, 'relative' also includes a parent of a sibling of the child who has legal custody of that sibling.

Purpose of Guardianship

Citation: Ann. Stat. § 48.977

The court may appoint a guardian of the person for a child if the court finds all of the following:

  • That the child has been adjudged to be in need of protection or services and been placed or continued in a placement outside of his or her home pursuant to court order
  • 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 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 reaches age 18
  • 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 reaches age 18
  • That it is not in the best interests of the child that a petition to terminate parental rights be filed
  • That the child's parent or parents are neglecting, refusing, or unable to carry out the duties of a guardian
  • That the agency primarily responsible for providing services to the child 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 his or her parent or parents is unlikely or contrary to the best interests of the child

A Guardian's Rights and Responsibilities

Citation: Ann. Stat. §§ 48.02; 48.023

Legal custody is a legal status created by the order of a court that confers the right and duty to protect, train, and discipline the child and to provide food, shelter, legal services, education, and ordinary medical and dental care, subject to the rights, duties, and responsibilities of the guardian of the child and subject to any residual parental rights and responsibilities and the provisions of any court order.

Except as limited by an order of the court under § 48.977(5)(b) or 48.978(6)(b)2., a person appointed by the court to be the guardian of a child has the duty and authority to make important decisions in matters having a permanent effect on the life and development of the child and the duty to be concerned about the child's general welfare, including, but not limited to the following:

  • The authority to consent to marriage; enlistment in the U.S. armed forces; major medical, psychiatric, and surgical treatment; and obtaining a motor vehicle operator's license
  • The authority to represent the child in legal actions and make other decisions of substantial legal significance concerning the child but not the authority to deny the child the assistance of counsel as required by this chapter
  • The right and duty of reasonable visitation of the child
  • The rights and responsibilities of legal custody, except when legal custody has been vested in another person or when the child is under the supervision of the Department of Corrections or a county department

Qualifying the Guardian

Citation: Ann. Stat. § 48.977

In determining the appropriateness of appointing a guardian under this section, the best interests of the child shall be the prevailing factor to be considered by the court. In making this decision, the court shall consider, but not be limited to, all of the following:

  • Whether the person would be a suitable guardian of the child
  • The willingness and ability of the person to serve as the child's guardian for an extended period of time or until the child reaches age 18
  • The wishes of the child
  • If the child is an Indian child, whether the proposed guardian satisfies the order of placement preference under § 48.028(7)(b) or, if applicable, § 48.028(7)(c), unless the court finds good cause, as described in § 48.028(7)(e), for departing from that order

A strong attachment of the child to the person or a strong commitment of the person to caring permanently for the child does not, in itself, constitute good cause for departing from that order.

Procedures for Establishing Guardianship

Citation: Ann. Stat. § 48.977

A petition for the appointment of a guardian for a child may be filed by:

  • The child or the child's guardian, legal custodian, or Indian custodian, or guardian ad litem
  • The child's parent
  • The person with whom the child is placed, if the person is nominated as the guardian
  • The Department of Children and Families or a county department
  • The person representing the interests of the public under § 48.09

Notice of the hearing shall be served on:

  • The child if the child is age 12 or older
  • The child's guardian and legal custodian
  • The child's guardian ad litem and counsel
  • The child's parent
  • The person with whom the child is placed if the person is nominated as the guardian of the child in the petition
  • Any person nominated as a successor guardian of the child in the petition
  • The agency primarily responsible for providing services to the child
  • If the child is an Indian child, the Indian child's Indian custodian, if any, and Tribe, if known

The court shall hold a fact-finding hearing on the petition at which any party may present evidence relevant to the issue of whether the conditions for appointing a guardian have been met. If the court, at the conclusion of the fact-finding hearing, finds by clear and convincing evidence that those conditions 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 that allows reasonable time for the parties to prepare but is no more than 30 days after the fact-finding hearing.

Contents of a Guardianship Order

Citation: Ann. Stat. § 48.977

After receiving any evidence relating to the petition for guardianship, the court shall enter one of the following dispositions within 10 days after the dispositional hearing:

  • 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
  • A disposition ordering that the person with whom the child has been placed or in whose home placement of the child is recommended be appointed as the child's guardian or limited guardian, if the court determines that such an appointment is in the best interests of the child

In a full guardianship, a guardian shall have all of the duties and authority specified in § 48.023. In a limited guardianship, the court may order that the duties and authority of a guardian be limited as specified by the order of appointment. All provisions of the statutes concerning the duties and authority of a guardian shall apply to a limited guardian to the extent those provisions are relevant to the duties or authority of the limited guardian, except as limited by the order of appointment.

Modification/Revocation of Guardianship

Citation: Ann. Stat. § 48.977

Any authorized person may request a revision in a guardianship order or the court may, on its own motion, propose 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. The court may order a revision if, at a hearing, the court finds that it has been proved by clear and convincing evidence that there has been a substantial change in circumstances and that a revision would be in the best interests of the child.

Unless the court order specifies that a guardianship be for a lesser period of time, a guardianship shall continue until the child reaches age 18 or until terminated by the court, whichever occurs earlier.

Any person authorized to petition for guardianship may request that a guardian 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.

A guardian may resign at any time if the resignation is accepted by the court.

A parent of the child may request that a guardianship order 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.

Kinship Guardianship Assistance

Citation: Ann. Stat. § 48.623

The department shall provide monthly subsidized guardianship payments to a guardian of a child if the conditions specified below have been met. The department also shall provide those payments for the care of a sibling of the child, regardless of whether the sibling meets the specified conditions if the department and the guardian agree on the appropriateness of placing the sibling in the home of the guardian.

To be eligible for a subsidized guardianship, the child must meet all of the following conditions:

  • The child has been removed from his or her home under a voluntary agreement or under a substantially similar Tribal law or under a court order finding that continued placement of the child in his or her home would be contrary to the welfare of the child.
  • The child has been residing in the home of the guardian for no less than 6 consecutive months.
  • The child's situation precludes returning the child to his or her home or adoption as appropriate permanency options for the child.
  • The child demonstrates a strong attachment to the guardian.
  • If the child is age 14 or older, the child has been consulted with regarding the guardianship arrangement.

The guardian must meet all of the following conditions:

  • The guardian is a relative of the child or is a person who has a significant emotional relationship with the child, similar to a familial relationship, that existed prior to or developed during the child's placement in out-of-home care.
  • The guardian has a strong commitment to caring permanently for the child.
  • The guardian is licensed as the child's foster parent, and the guardian and all adults residing in the guardian's home meet the requirements specified in § 48.685.
  • Prior to being named as the guardian of the child, the guardian entered into a subsidized guardianship agreement with the county department or department.

Links to Agency Policies

Wisconsin Administrative Code, Chapter DCF 58, Eligibility for the Kinship Care and Long-Term Kinship Care Program

Wisconsin Department of Children and Families, Subsidized Guardianship Policy (PDF - 404 KB)