Custody law’s lack of oversight worries attorneys

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The content of a law giving parents the right to assign temporary third-party guardianship doesn’t bother family law attorneys.

But the law’s absence of required oversight of those guardians is raising red flags about child safety. The temporary placements are not monitored by the courts or any state child welfare agency.

The law, which went into effect Nov. 23, gives parents the right to choose a nonfoster care guardian for up to one year when facing circumstances such as unemployment, incarceration or homelessness.

“It would be a concern I would discuss with clients, and I’d highly advise them to use a family member as opposed to a third party,” said De Pere attorney Thomas Walsh, of Walsh & Walsh SC, “because I’m the one drafting the document, and I would want to make sure the parent has a full understanding of what they are getting into.”

Before the law went into effect, documents drawn up as temporary guardianships were not universally recognized as legal, Walsh said, unless they were done through a court order.

Chicago-based Safe Families for Children, a nonprofit organization founded in 2002 that temporarily places children with volunteer families, was the driving force behind the Wisconsin legislation, said Milwaukee office director Jane Guffy. Safe Families operates in 13 states.

She said until passage of the law, Wisconsin parents in crisis had limited legal ability to choose where to place their kids.

“This is not a hotel service and not glorified babysitting,” Guffy said. “The objective and priority is family reunification.”

The law change gives parents flexibility but also introduces an element of risk because of a lack of monitoring, said McFarland attorney Randi L. Othrow, of Randi Othrow Law Office.

“If someone comes into my office and makes a request for one of those organizations, I don’t think I would recommend it,” Othrow said. “As an attorney, I would feel nervous that the parent would have liability for a poor choice.”

Guffy said she doesn’t know of any circumstances in which a child placed by Safe Families had to be removed because of abuse. But she acknowledged placing a child outside a network of family or friends absent state or court oversight raises concerns her organization has to overcome.

Safe Families conducts background checks of applicant families, requires a comprehensive in-home interview to assess the environment and requires up to nine hours of online training, Guffy said.

Safe Families requires three references from applicants and conducts checkups to make sure the child is safe, she said.

“There is oversight in that we have case coaches touching base and keeping an eye on the placements,” Guffy said. “I think the other thing to consider is that other family members or friends are not always the safest place to go.”

Jim Brennan, executive director of Catholic Charities of the Archdiocese of Milwaukee Inc., said he prefers court involvement when dealing with child placement and doesn’t plan to take on temporary child placements.

“As a child advocate, I prefer to have some type of third-party child supervision review of those sorts of decisions,” he said. “Where the parent is giving to somebody else their rights and responsibilities, I don’t think that should be undertaken casually.”

Walsh said he doesn’t think lawyers drafting power of attorney documents would be liable if the placement resulted in an abusive situation because the parents make the decision. But, he said, attorneys do have a responsibility to make sure their clients are making informed decisions.

That includes consideration of the most suitable situation for a client’s children.

No matter where parents place their children, Othrow said, she always advises clients to conduct, at minimum, a background check.

“I don’t think we can ensure the parents always make the right decisions,” she said. “I think a lot of it is a matter of trust.”