Wednesday, May 25, 2011

Minor Guardianship of the Person Under Chapter 54

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.


  1. If the child is going to be appointed guardianship as part of an ongoing CHIPs case, can one parent's parental rights be terminated? Transfer of guardianship does not affect one party because they live with the prospective guardians and child. The party has never worked and does not pay for any expenses of the child. Transferring guardianship will carry the same equivalent to TPR for the other party. The party in question has maintained no substantial relationship with the child and pays minimal child support (<$30) each month.

    1. One party TPR petitions are very complicated and oftentimes not granted for many reasons to numerous to set forth here. You should consult with an attorney with expertise in TPR cases to discuss your particular circumstances.

  2. Where would I go to begin the process of establishing Guardianship of my son's estate. His father passed away recently, and did not leave any provision for support through his insurances.

  3. i was wondering my step daughter wants to have me and my wife take guardianship of her newborn daughter. we don't know who the father is. i was wondering if you could point us in the right direction. my wife and i will be living out of the state of Wisconsin. in Indiana is there a petition for a mother to willingly transfer the guardianship of her child? my wife and i are not requesting any form of support from the mother or the state.

  4. When you intersect a guardianship for the estate of a minor with the probate issue you raise, you should consult with a probate attorney who can guide you through the process.

  5. What affect does a 54 Guradianship have on a Chapter 48 out of home placement? Would the County be required to place the child with the 54 Guardian (if it was granted)?

    1. The County would need to be notified about the Chapter 54 Guardianship Petition and given the opportunity to be heard since the County has a custody interest by virtue of the Chapter 48 placement.. All parties would be required to comply with the final order of the court in the Chapter 54 Guardianship action.

    2. If a minor is placed with a third party guardian under a Ch. 48 guardianship due to a protective placement chips order then 1 year later placement is modified to a ch. 54 guardianship with the same third party guardian, Does a county's DHS have a legal vested interest to be heard and involved in the parents petition for a removal of guardianship hearing of the ch. 54 placement or is the court's decision solely based on only the barstad standards and the guardian's ability to prove beyond a reasonable doubt that the parents are unfit.

    3. There is no easy answer to your question. It all depends on intimate details of the original Ch. 48 proceedings,the intimate details of the Ch. 54 transfer; the powers of DHS to step in under Ch. 48; etc. You should consult with a lawyer with expertise in guardianship cases.