1. What is a legal guardian?
A legal guardian is appointed by a court to have care, custody, and control of a minor. Wis. Stat. § 54.25(2)(d). A guardian must provide the child with education, food, medical and dental care, and shelter.
2. When is a legal guardian appointed?
A court may appoint a guardian when the child’s parents are neglecting, refusing, or unable to carry out parental duties, and when it is not in the child’s best interests for a petition to terminate parental rights to be filed. Wis. Stat. § 48.977.
For custody to be granted to someone other than a biological parent(s), the parent(s) must be unfit or unable to carry out parental duties or there must be compelling reasons (including abandonment or persistent neglect) for awarding custody to a third party. Barstad v. Frazier, N.W.2d 479, 489 (Wis. 1984).
3. What are the benefits of guardianship?
Becoming a legal guardian for a child has many benefits. Unlike foster parents or kinship caregivers, guardians have decision-making responsibilities for the minors in their care. For instance, they have the authority to consent to marriage, enlistment in the armed forces, and medical treatment. Unless granted by the court to another person, guardians have legal custody. Wis. Stat. § 48.023(1-4). In addition, guardians may claim the minors in their care as exemptions on their tax forms.
Guardianship is also viewed as a permanency option. Once guardianship is granted, the child welfare case is generally closed. In most instances, supervision by child protective services is no longer required.
4. Are there different types of guardianships?
Yes. In Wisconsin, the main types of guardianships are permanent and temporary. Wis. Stat. § 48.977(2-3); § 54.50. Temporary guardianship may be granted for up to 60 days. § 54.50(2). A judge may extend a temporary guardianship for one additional 60-day period. § 54.50(2). Permanent guardianship lasts until the child turns 18. § 48.977(2)(b).
Section 48.977 guardianship applies only to children on Child In Need of Protective Services (CHIPS) orders. Section 54.50 guardianship can be used regardless of whether a CHIPS order has been filed.
5. Can guardianship appointments be overturned?
Yes. A guardianship appointment may be overturned under the following circumstances:
- If a court determines that the guardian is no longer carrying out his or her guardianship duties;
- If the child’s biological parent requests that the guardianship be terminated and the parent shows that he or she is willing and able to care for the child; or
- If the guardian chooses to resign and the court accepts the resignation. A guardian may resign at any time. Wis. Stat. § 48.977(7).
6. Is guardianship the same as adoption?
No, guardianship is not the same as adoption. During the adoption process, the biological parents’ rights are terminated, and the adoptive parents become the child’s legal parents. Wis. Stat. § 48.92(1-2). One result is that the child becomes the adoptive parents’ heir. Wis. Stat. § 48.92(3). Once an adoption is finalized, biological parents no longer have visitation rights. § 48.92(2).
Guardianship does not terminate a child’s legal relationship with his or her birth parents, and the birth parents still have the right and responsibility of visitation and support. § 48.977(2)(d). Moreover, guardianship appointments may be overturned at any time (see above). Guardians also are not required to complete a home study (adoptive parents are). § 48.88(2).
Go to http://dcf.wisconsin.gov/children/adoption/INDEX.HTM for information on the adoption process.
7. I currently receive monthly payments to help support my foster children. Will I receive monthly payments if I become a legal guardian?
If a child’s case is closed and child protective services is no longer involved, a guardian may receive payments under the following circumstances:
- A foster parent who becomes a legal guardian of a related child may receive monthly subsidized guardianship payments. (Subsidized Guardianship payments are administered under the federal Guardianship Permanency Initiative to improve permanency outcomes for children in out-of-home care.) Wis. Stat. § 48.977(3r).
- A non-relative may receive subsidized guardianship payments if a judge determines that the payments are in the best interests of the child. Wis. Stat. § 48.977(3r).
Cases can remain open once guardianship is granted, though this is rare. These types of guardianships are known as long-term or extended guardianships. When a case is open, child protective services remains involved (i.e. case managers will still make visits even after long-term guardianship has been granted). Long-term guardians may continue receiving the monthly payments they received as foster parents or kinship caregivers. Wis. Stat. § 48.977(4)(i).
Subsidized guardianship payments are currently available only in Milwaukee County. If you do not qualify for subsidized guardianship payments and are caring for a related child, you may qualify for Kinship Care monthly payments (see below).
You can find more information on subsidized guardianships at http://dcf.wisconsin.gov/bmcw/progserv/INitiatives/SubGuardianship.HTM.
8. I am caring for a relative under Kinship Care and receive monthly Kinship Care payments. Will these payments stop if I become a legal guardian for my relative?
Probably not. Kinship Care payments will continue once you become a guardian as long as both you and the child’s parents meet the requirements of the Kinship Care program. The payments will stop if and when you no longer qualify for Kinship Care.
For instance, one requirement is that the child’s needs must be better met with you than with the parents. A kinship care assessor may decide that Kinship Care payments are no longer necessary if parent is successfully raising another child. In such a case, Kinship Care payments would stop even if the child continues living with you. Payments would also stop if the child’s parent begins living with you. See Wis. Stat. 48.57(3m). Go to http://dcf.wi.gov/children/Kinship/prgserv/eligreq.htm to view the full requirements of Kinship Care.
If you are currently receiving Kinship Care payments and are applying for guardianship, make sure you have court orders stating that the child was abused or neglected by his or her parent(s), if applicable. These documents will help show that the child’s placement with you was necessary.
9. Will I qualify for Kinship Care if I become a legal guardian for my relative?
Not necessarily. Qualifying for guardianship is a legal process, and is completely separate from the process of qualifying for financial support under Kinship Care. Becoming a guardian does not guarantee that you will qualify for Kinship Care benefits (generally $215 per month). Moreover, you can receive Kinship Care payments whether or not you have legal guardianship. Wis. Stat. § 48.57(3m).
To receive the benefits, the following criteria must be met:
- The child would be in need of protective services if he or she were to remain with the parent(s);
- The placement must be in the best interests of the child; and
- The parent(s) must be unable or unwilling to meet the basic needs of the child. § 48.57(3m).
Go to http://dcf.wisconsin.gov/children/Kinship/forms/forms.HTM to download an application for Kinship Care. Milwaukee County residents should mail the form to Perez-Pena Limited (the organization that administers Kinship Care) at 126 S. 2nd Street, Milwaukee, Wisconsin 53204. You can call Perez-Pena with questions at (414) 273-1262.
Residents of other counties can find out where to mail the forms by using the Kinship Care coordinator map. Not all Wisconsin counties have a Kinship Care program.
10. Are there monthly payments available to help adoptive families?
Yes, but only if the child has special needs and is under a Child in Need of Protection or Services (CHIPS) order.
Special needs include the following:
- Child is between the ages of 10 and 18
- Child is a member of a sibling group of three or more who must be placed together
- Child is a member of a minority race who cannot be readily placed due to lack of placement resources
- Child has or is at high risk of developing special care needs (see Wis. Admin. Code DCF 50.03 (1)
In addition to monthly payments, reimbursement for legal and medical fees may also be available. The payments are available on a case-by-case basis. The amount is determined by the special needs of the child.
Go to http://dcf.wisconsin.gov/Children/adoption for more information on adoption assistance. Wis. Stat. § 48.975.
The information provided on this website is general information about Wisconsin law and/or procedure, and is not intended to serve as legal advice. Every situation is unique. General information is not a substitute for legal counsel. Individuals needing legal advice or legal assistance should consult an attorney.