21: Overview of Adoption in WI

Child’s Eligibility for Adoption

A child present within the state at the time an adoption petition is filed is eligible if any one of the following circumstances exists:

• Both of the child’s parents are deceased
• The parental rights of both of the child’s parents have been terminated
• The parental rights of one of the child’s parents have been terminated and the other parent is deceased
• The person seeking to adopt the child is the spouse of the child’s parent and the other parent is deceased or has had his/her parental rights terminated. (Wisconsin Statute §48.81)

A Guardian ad Litem must be appointed for the minor child. (Wisconsin Statute §48.235)

Who May Adopt

Adult residents of the State of Wisconsin may adopt a minor child. If the birth parent requests that the adoptive parent(s) be of the same religious faith as the birth parent, that request shall be granted when it is possible (although a person cannot be denied as an adoptive parent based on that person’s “religious belief in the use of spiritual means through prayer for healing.”). Both married adults and unmarried adults may adopt in Wisconsin, though the rules are different.

• Married adults
  • Both spouses can jointly petition for adoption, or,
  • If one of the spouses is already a parent of the adoptive child (as in a stepparent adoption), then only the spouse who is the stepparent would need to file a petition.
• Unmarried adults
  • An unmarried adult can also adopt a minor child unilaterally
  • However, two unmarried adults cannot jointly adopt a child; nor can the non-marital partner of a child’s parent adopt his/her partner’s child. (See In the matter of the adoption of M.M.C, 2024 WI 18, 411 Wis. 2d 389, 5 N,W.3d 238)

An otherwise qualified person cannot be disqualified as an adoptive parent based on the person’s physical disability, race, color, ancestry or national origin (unless the Indian Child Welfare Act applies). If the Indian Child Welfare Act applies, there is a preference for adoptive parents to be members of the child's extended family, other members of the child’s tribe, or other Native American families. (Wisconsin Statute §48.82)

Jurisdiction and Venue

As with other court proceedings, jurisdiction and the proper venue for adoption proceedings is determined by one of the following:

• The County in which the proposed adoptive parent resides
• The County in which the child resides
• The County in which a Termination of Parental Rights to the child was filed or granted

However, a Native American Tribe has exclusive jurisdiction over any Native American child who resides or is domiciled on tribal reservation land, or any Native American child who is a ward of the tribal court, pursuant to the Indian Child Welfare Act (ICWA). This means that pending adoption proceedings must be transferred to the Tribal Court if the transfer is requested by a parent, custodian, or another member of the child’s tribe unless good cause exists to deny the transfer, or either birth parent objects to the transfer, or the Tribal Court declines the transfer. (Wisconsin Statute §§48.83 and 48.028(3)(b))

Birth Parents

Unless the adoption is a stepparent adoption, the parental rights of both birth parents must be terminated as part of an adoption. This can get tricky when the birth parents have never been married. In that case, the child’s paternity must be established before any other proceedings can occur. Additionally, a Guardian ad Litem must be appointed to represent the best interest of each birth parent who is a minor or otherwise incompetent. (Wisconsin Statute §48.235)

Paternity Must be Established

In Wisconsin, paternity can be established through any of the following:

• The marital presumption if the birth mother was married at the time of the baby’s conception or birth
• Acknowledgement of paternity by the father
• Adjudication of paternity
• Conclusive determination through DNA testing

If paternity has not been established, the next step is to determine whether a Declaration of Paternal Interest has been filed by someone who might be the child’s father. Typically, the court makes an inquiry to the Wisconsin Parental Interest Registry. The court must attempt to determine the identity of the child’s father and provide him with the opportunity to assert his rights as the father.

Termination of Parental Rights of Non-Petitioning Birth Parent

If only one birth parent (typically the mother) petitions for voluntary termination of parental rights, the parental rights of the non-petitioning parent, whether that person’s identity is known or unknown, must occur first. Again, efforts must be made to identify and locate the child’s father before his parental rights can be terminated.

Adoptive Placement/Adoption Must be Approved

If the adoptive parents are not related to the child, they must file a Petition for Adoptive Placement; if at least one of the adoptive parents is related to the child by blood or as a stepparent, they can file a Petition for Minor Child Adoption (no waiting period or agency approval is necessary). The adoptive placement/final adoption must be approved prior to terminating the parental rights of a birth parent who petition for termination of parental rights; this is so that the birth parent knows that the adoptive placement/final adoption has been approved before consenting to termination of parental rights.

Typically, the petition by the adoptive parent is filed at the same time at least one of the birth parents files a Petition for Termination of Parental Rights. The court must hold hearings on these petitions within 30 days of the date on which they are filed unless the baby has not been born yet – the hearings cannot be held until after the baby has been born.

If the adoptive parents are not related to the child, they must be licensed as a foster home before adoptive placement can be granted. After the petitions are filed, the court will order an appropriate agency to conduct an investigation regarding adoptive placement. The agency must file its recommendations at least 5 days before the hearing on the petitions. Once the court approves the Petition for Adoptive Placement/Adoption, the child is immediately placed in the adoptive parent(s)’ home (unless the child was previously placed in the adoptive home pursuant to the request of the birth and adoptive parents and the approval of the agency).

Termination of Parental Rights of Petitioning Birth Parent

The petitioning parent(s)’ parental rights cannot be terminated until after the Petition for Adoptive Placement is granted. The birth mother is required to appear in court for the hearing and she can consent to the termination of her parental rights at any time after the child’s birth. The birth father is not required to be in court to consent to the termination of his parental rights if he previously signed a consent that was notarized. During the hearing on the Petition for Termination of Parental Rights (TPR), the court will receive evidence regarding the reasons for termination and to ensure that the birth parents fully understand the impact of the termination. Evidence that the termination is not the result of fraud, undue coercion, mistake, or inadvertence should also be included. After parental rights are terminated, an appropriate agency is usually appointed as the child’s guardian (unless at least one adoptive is related to the child, in which case the final adoption is approved). The TPR becomes final 30 days after the order for TPR has been entered.

Adoptive Placement with Non-Relatives

If no adoptive parent is related to the child, the adoptive parent must wait until the child has been placed in the adoptive home for 6 months before filing the Petition for Minor Child Adoption. During this time, the appropriate agency is appointed as the child’s guardian and continues its investigation and home study.

Petition for Minor Child Adoption by Non-Relative Adoptive Parent(s)

Once the child has been in the adoptive home for at least 6 months, the adoptive parent(s) can file a Petition for Minor Child Adoption. A hearing on the Petition must be held within 90 days after the Petition was filed. The agency must file its recommendation regarding the adoption at least 10 days before this hearing. If the Petition for Minor Child Adoption is approved, the court can also change the baby’s name and the birth certificate if requested by the adoptive parents.