By John DiMotto
In Wisconsin, a guardianship of the person and a guardianship of the estate for a minor can be created either under Chapter 54 or under Chapter 48. In this blog, I will examine the Chapter 54 Guardianship of the Person for a Minor.
A Guardianship of the Person for a Minor creates a legal relationship between "the ward" -- the child for whom a guardian has been appointed by the court and "the guardian" -- the individual appointed by the court to provide for the essential requirements for health and safety and personal needs of a minor. Furthermore, in all respects the guardian must honor his/her fiduciary obligation to exercise the degree of care, diligence, and good faith when acting on behalf of the ward, advocate for the ward's best interests and exhibit the utmost degree of trustworthiness, loyalty and fidelity in relation to the ward.
Before a court can appoint a guardian of the person for a minor, it must be shown that there is a need for the appointment of a guardian and that the person seeking the guardianship is appropriate and qualified to serve.
Under 54.34(1), any person may petition for the appointment of a guardian for a minor. However, 54.15 sets forth that if one or both of the parents of a minor are suitable and willing, the court shall appoint one or both as guardian unless the courts finds that the appointment is not in the proposed ward's best interest. Where a non-parent seeks to become guardian, before the court can appoint the non-parent the must be evidence that is clear and convincing that the parent/s are unfit, and if so, that appointment of the non-parent is in the best interest of the child.
In every Chapter 54 guardianship action, the court must appoint an attorney to serve as Guardian Ad Litem (GAL) for the minor child. 54.40(3) sets forth the responsibilities of the GAL. The GAL is THE advocate for the best interests of the minor and functions independent of the petitioner and all other persons interested in the action. The GAL is the "Voice" for the best interests of the child.
Under 54.42, there is a right to a jury trial, a right to counsel and a right to be present at the hearing. Jury trials, however, are rare. Most petitioners and wards want a court trial.
Under 54.44, the burden of proof is on the petitioner seeking the guardianship to establish by clear, convincing and satisfactory evidence that there is a need for a guardian -- that grounds exist for the appointment of a guardian. Whether the proposed guardian is suitable is a determination made by the court and the court alone.
Under 54.44, the hearing on the petition must be held within 90 days of the filing of the petition. There is no provision in the statute for any extensions. If the hearing is not conducted in a timely fashion, the court loses competency to act and jurisdiction to proceed. The 90 day time limit does not require that the hearing be concluded within 90 days, only that it commence within 90 days.
Under 54.46, at the conclusion of the hearing the court shall either dismiss the petition, if the petitioner fails to meet the burden of proving the necessity for the guardianship or shall grant the petition and enter a determination and order appointing a guardian and setting forth the specific powers granted to the guardian.
Under 54.64, the guardianship remains in effect until the child reaches the age of 18 years unless it is terminated for good cause at an earlier time.
It is important to note that whenever the petition for a minor guardianship of the person has the potential of supplanting the "natural guardianship" rights that attend parenthood, THE condition precedent is proof of the "unfitness" of the parent/s which must be established by clear, convincing and satisfactory evidence. This is known as "The Barstad Rule" from Barstad v. Frazier, 118 Wis.2d 549 (1984). Only if "unfitness" is proven does the court consider what is in the best interest of the child.
Barstad is the legal standard for minor guardianship in a dispute between a parent and non-parent third party. "Best Interests" is not the proper standard and is not to be considered unless "unfitness" is proven. This is because if "Best Interests" was the proper standard most young parents could not compete on an equal level with their established older relatives.
In addressing the Barstad standard, the court in In the Matter of the Guardianship of Clive Ro, 322 Wis.2d 615 (Ct. App. 2009), recognized that while transfer of legal custody from a parent to a third party does not have the finality of a Termination of Parental Rights (TPR), a change in custody may result in as complete a severance of child-parent times as does termination. The court went on to state that in the absence of compelling reasons, principles followed in TPR cases should be followed where change of custody from a parent to a third party is presented to the court. The court very strongly stated that parents' constitutional right to be a parent must be considered.
In my next blog, I will look at the provision for a minor guardianship under Chapter 48.