LRB-0965/1
EHS:cjs
2015 - 2016 LEGISLATURE
November 18, 2015 - Introduced by Representatives Jacque, Tittl, Bernier,
Horlacher, Kahl, Kremer, Murphy, Quinn, Rohrkaste, Sargent and
Zamarripa, cosponsored by Senator Lasee. Referred to Committee on Family
Law.
AB528,1,3
1An Act to amend 48.42 (2) (a); and
to create 48.41 (2) (bm) of the statutes;
2relating to: the disclaimer of parental rights by a birth parent and his or her
3appearance in court.
Analysis by the Legislative Reference Bureau
This bill makes certain changes relating to disclaimers of parental rights in
cases in which a private child welfare agency negotiates or arranges for the
placement of a child for adoption (private adoption).
Subject to certain exceptions, current law generally requires a birth parent to
appear in court to consent to the termination of his or her parental rights. This bill
adds an exception in the case of a private adoption that allows a birth parent to avoid
appearing in court if he or she files with the court an affidavit disclaiming his or her
parental rights. The affidavit must comply with certain requirements, including
that it must be witnessed by two individuals and notarized and must include a
statement that the parent understands the effect of an order to terminate parental
rights and that he or she voluntarily disclaims any rights that he or she may have
to the child.
Under the bill, the affidavit containing a disclaimer of parental rights may be
executed by the child's father before the birth of the child. If executed prior to the
child's birth, the father may revoke the disclaimer at any time before 72 hours after
the birth of the child. The bill provides that the disclaimer is void if the affidavit is
executed less than 72 hours after the birth of the child by either parent. If executed
72 hours or more after the birth of the child by either parent, or if not revoked before
72 hours after the birth of the child, the disclaimer is irrevocable unless obtained by
fraud or duress. The disclaimer is not voidable because the parent who executed it
was a minor. Under the bill, no action to void or revoke a disclaimer, including an
action based on fraud or duress, may be commenced more than six months after the
affidavit was executed.
The people of the state of Wisconsin, represented in senate and assembly, do
enact as follows:
AB528,1
1Section
1. 48.41 (2) (bm) of the statutes is created to read:
AB528,2,72
48.41
(2) (bm) 1. If a child welfare agency licensed under s. 48.60 negotiates or
3arranges for the placement of a child for adoption, the child's parent may consent to
4the termination of any parental rights that he or she may have as provided in par.
5(a) or (b) or by filing with the court an affidavit of disclaimer of parental rights that
6is witnessed by 2 persons and notarized and that meets the requirements under
7subds. 2. to 7.
AB528,2,98
2. All of the following apply to the disclaimer of parental rights in an affidavit
9under subd. 1.:
AB528,2,1110
a. The disclaimer is void if executed by either parent less than 72 hours after
11the birth of the child or if executed by the mother before the birth of the child.
AB528,2,1312
b. The disclaimer, if executed by the father before the birth of the child, is
13revocable until 72 hours after the birth of the child, as provided under subd. 8.
AB528,2,1514
c. The disclaimer is not voidable because the parent who executed it was a
15minor.
AB528,3,216
d. The disclaimer is irrevocable if executed 72 hours or more after the birth of
17the child or if not not revoked before 72 hours after the birth of the child, unless it
18was obtained by fraud or duress. No action to void or revoke the disclaimer, including
1an action based on fraud or duress, may be commenced more than 6 months after the
2date the affidavit was executed.
AB528,3,33
3. An affidavit under subd. 1. is void unless it contains all of the following:
AB528,3,54
a. The name, county of residence, and age of the parent whose parental rights
5are being terminated.
AB528,3,66
b. The name, age, and birth date of the child, if born.
AB528,3,87
c. The names and addresses of the guardians of the person and of the estate of
8the child, if any.
AB528,3,119
d. A statement of whether the parent whose parental rights are being
10terminated is or is not presently obligated by court order to make payments for the
11support of the child.
AB528,3,1312
e. A full description and statement of value of all property the child owns or
13possesses.
AB528,3,1514
f. An allegation that termination of parental rights is in the best interest of the
15child.
AB528,3,1816
g. The name and county of residence of the other parent, a statement that the
17parental rights of the other parent have been terminated by death or court order, or
18a statement that the child has no presumed father.
AB528,3,2019
h. A statement containing the information and understandings specified in
20subd. 4.
AB528,3,2321
4. An affidavit under subd. 1. shall contain a statement that the parent whose
22parental rights are being terminated has been informed of and understands all of the
23following:
AB528,3,2424
a. His or her parental rights and duties.
AB528,3,2525
b. The effect of an order to terminate parental rights.
AB528,4,2
1c. That he or she voluntarily disclaims any rights that he or she may have to
2the child, including the right to notice of proceedings under this chapter.
AB528,4,43
d. That the disclaimer is void if the affidavit is executed less than 72 hours after
4the birth of the child or if it is executed by the mother before the birth of the child.
AB528,4,65
e. That the father has the right to revoke a disclaimer in an affidavit executed
6before the birth of the child until 72 hours after the birth of the child.
AB528,4,87
f. That a disclaimer is not voidable because the parent who executed the
8affidavit was a minor.
AB528,4,119
g. That the disclaimer is irrevocable if the affidavit is executed 72 hours or more
10after the birth of the child or if not not revoked before 72 hours after the birth of the
11child, unless it was obtained by fraud or duress.
AB528,4,1412
h. That no action to void or revoke the disclaimer, including an action based on
13fraud or duress, may be commenced more than 6 months after the date the affidavit
14was executed.
AB528,4,1515
5. An affidavit under subd. 1. may contain any of the following:
AB528,4,1716
a. A waiver of process in a petition for termination of parental rights or a
17petition for termination of parental rights joined with a petition for adoption.
AB528,4,1918
b. If a guardian has not been appointed under s. 48.977, the nomination of an
19individual to serve as guardian of the child and the individual's address.
AB528,4,2120
6. A copy of the affidavit shall be provided to the parent at the time the parent
21signs the affidavit.
AB528,4,2422
7. The affidavit may not contain terms for post-termination contact between
23the child and the parent whose parental rights are to be terminated as a condition
24of the disclaimer of parental rights.
AB528,5,5
18. To revoke a disclaimer of parental rights in an affidavit under subd. 1., the
2father shall sign a statement revoking the disclaimer of parental rights that is
3witnessed by 2 persons and notarized. A copy of the revocation shall be filed with the
4clerk of court. The revocation is not valid unless it is executed and filed before 72
5hours after the birth of the child.
AB528,2
6Section
2. 48.42 (2) (a) of the statutes is amended to read:
AB528,5,87
48.42
(2) (a) The parent or parents of the child, unless the child's parent has
8waived the right to notice under s. 48.41 (2)
(bm) or (d).
