(6) A marital property agreement executed before or during
marriage is not enforceable if the spouse against whom
enforcement is sought proves any of the following:
(a) The marital property agreement was unconscionable
when made.
(b) That spouse did not execute the marital property
agreement voluntarily.
(c) Before execution of the marital property agreement, that
spouse:
1. Did not receive fair and reasonable disclosure, under the
circumstances, of the other spouse's property or financial
obligations; and
2. Did not have notice of the other spouse's property or
financial obligations.
(7)
(a) Unless the marital property agreement expressly provides
otherwise, a marital property agreement that classifies a
deferred employment benefit plan or an individual
retirement account as marital property does not affect the
operation of s. 766.62 (5).
(b) Unless the marital property agreement expressly
provides otherwise, marital property agreement that
classifies as marital property the noninsured spouse's interest
in a policy that designates the other spouse as the owner and
insured does not affect the operation of s. 766.61 (7). In this
paragraph, “owner" has the meaning given in s. 766.61 (1)
(a) and “policy" has the meaning given in s. 766.61 (1) (c).
(8) The issue of whether a marital property agreement is
unconscionable is for the court to decide as a matter of law.
In the event that legal counsel is retained in connection with
a marital property agreement the fact that both parties are
represented by one counsel or that one party is represented
by counsel and the other party is not represented by counsel
does not by itself make a marital property agreement
unconscionable or otherwise affect its enforceability.
(9)
(a) Modification or elimination of spousal support during the
marriage may not result in a spouse having less than
necessary and adequate support, taking into consideration all
sources of support.
(b) If a marital property agreement modifies or eliminates
spousal support so as to make one spouse eligible for public
assistance at the time of dissolution of the marriage or
termination of the marriage by death, the court may require
the other spouse or the other spouse's estate to provide
support necessary to avoid that eligibility, notwithstanding
the marital property agreement.
(10) If the spouses agree in writing to arbitrate any
controversies arising under this chapter or a marital property
agreement, the arbitration agreement is enforceable under ch.
788.
(11) Married persons or persons intending to marry each
other may record a marital property agreement in the county
register of deeds office under s. 59.43 (1c) (r).
Family Contracts
766.58
Marital property agreements.
(1) A marital property agreement shall be a document
signed by both spouses. Only the spouses may be parties to
a marital property agreement. A marital property agreement
is enforceable without consideration.
(2) A marital property agreement may not adversely affect
the right of a child to support.
(3) Except as provided in ss. 766.15, 766.55 (4m), 766.57
(3) and 859.18 (6), and in sub. (2), in a marital property
agreement spouses may agree with respect to any of the
following:
(a) Rights in and obligations with respect to any of either or
both spouses' property whenever and wherever acquired or
located.
(b) Management and control of any of either or both spouses'
property.
(c) Disposition of any of either or both spouses' property
upon dissolution or death or upon the occurrence or
nonoccurrence of any other event.
(d) Modification or elimination of spousal support, except as
provided in sub. (9).
(e) Making a will, trust or other arrangement to carry out the
marital property agreement.
(f) Providing that upon the death of either spouse any of
either or both spouses' property, including after-acquired
property, passes without probate to a designated person, trust
or other entity by nontestamentary disposition. Any such
provision in a marital property agreement is revoked upon
dissolution of the marriage as provided in s. 767.375 (1). If
a marital property agreement provides for the
nontestamentary disposition of property, without probate, at
the death of the 2nd spouse, at any time after the death of the
first spouse the surviving spouse may amend the marital
property agreement with regard to property to be disposed of
at his or her death unless the marital property agreement
expressly provides otherwise and except to the extent
property is held in a trust expressly established under the
marital property agreement.
(g) Choice of law governing construction of the marital
property agreement.
(h) Any other matter affecting either or both spouses'
property not in violation of public policy or a statute
imposing a criminal penalty.
(3m) Chapter 854 applies to transfers at death under a
marital property agreement.
(4) A marital property agreement may be amended or
revoked only by a later marital property agreement.
(5) Persons intending to marry each other may enter into a
marital property agreement as if married, but the marital
property agreement becomes effective only upon their
marriage.
1
affirmation that the marriage is irretrievably broken, or if the
parties have voluntarily lived apart continuously for 12
months or more immediately prior to commencement of the
action and one party has so stated, the court, after hearing,
shall make a finding that the marriage is irretrievably broken
for purposes of s. 767.35 (1) (b) 1.
(b) If the parties to a legal separation or divorce action have
not voluntarily lived apart for at least 12 months immediately
prior to commencement of the action and if only one party
has stated under oath or affirmation that the marriage is
irretrievably broken, the court shall consider all relevant
factors, including the circumstances that gave rise to filing
the petition and the prospect of reconciliation, and proceed
as follows:
1. If the court finds no reasonable prospect of reconciliation,
it shall make a finding that the marriage is irretrievably
broken for purposes of s. 767.35 (1) (b) 1.
2. If the court finds that there is a reasonable prospect of
reconciliation, it shall continue the matter for further hearing
not fewer than 30 nor more than 60 days later, or as soon
thereafter as the matter may be reached on the court's
calendar, and may suggest to the parties that they seek
counseling. The court, at the request of either party or on its
own motion, may order counseling. At the adjourned
hearing, if either party states under oath or affirmation that
the marriage is irretrievably broken, the court shall make a
finding whether the marriage is irretrievably broken for
purposes of s. 767.35 (1) (b) 1.
(2) Breakdown of marital relationship. If both of the parties
to a legal separation or divorce action by petition or
otherwise have stated under oath or affirmation that the
marital relationship is broken, the court, after hearing, shall
make a finding that the marital relationship is broken for
purposes of s. 767.35 (1) (b) 2.
(12)
(a) A provision of a document signed before the
determination date by spouses or unmarried persons who
subsequently married each other, which provision affects the
property of either of them and is enforceable by either of
them without reference to this chapter, is not affected by this
chapter except as provided otherwise in a marital property
agreement made after the determination date.
(b) If a provision or an amendment to a provision in a
document described under par. (a) is intended to negate,
apply or modify any right or obligation which may be
acquired under 1983 Wisconsin Act 186, 1985 Wisconsin
Act 37, or a community property system, the provision or
amendment is enforceable after the determination date if the
document was enforceable when executed or, if it is executed
after April 4, 1984, either was enforceable when executed or
would be enforceable if it were executed after the
determination date.
(c) This subsection does not affect a marital property
agreement executed under s. 766.585.
(13)
(a) With respect to a provision of a marital property
agreement that is effective upon or after dissolution of the
marriage or termination of the marriage by death, any statute
of limitations applicable to enforcement of the provision is
tolled until dissolution of the marriage or termination of the
marriage by death, respectively.
(b) After the death of a spouse, no action concerning a
marital property agreement may be brought later than 6
months after the inventory is filed under s. 858.01. If an
amended inventory is filed, the action may be brought within
6 months after the filing of the amended inventory if the
action relates to information contained in the amended
inventory that was not contained in a previous inventory.
(c) The court may extend the 6-month period under par. (b)
for cause if a motion for extension is made within the
applicable 6-month period.
767.61(3)(L)
767.317
Previously existing defenses to divorce and legal separation,
including but not limited to condonation, connivance,
collusion, recrimination, insanity, and lapse of time, are
abolished.
Property division.
Presumption of equal division. Court shall presume that all
property is to be divided equally between the parties, but may alter
this distribution without regard to marital misconduct after
considering –– Any written agreement made by the parties before
or during the marriage concerning any arrangement for property
distribution; such agreements shall be binding upon the court
except that no such agreement shall be binding where the terms of
the agreement are inequitable as to either party. The court shall
presume any such agreement to be equitable as to both parties.
767.323 Suspension
reconciliation.
of
proceedings
to
effect
During the pendency of an action for divorce or legal
separation, the court may, upon written stipulation of both
parties that they desire to attempt a reconciliation, enter an
order suspending any and all orders and proceedings for such
period, not exceeding 90 days, as the court determines
advisable to permit the parties to attempt a reconciliation
without prejudice to their respective rights. During the
suspension period, the parties may resume living together as
husband and wife and their acts and conduct do not constitute
an admission that the marriage is not irretrievably broken or
a waiver of the ground that the parties have voluntarily lived
apart continuously for 12 months or more immediately prior
to the commencement of the action. Suspension may be
Divorce Procedure
767.315
Defenses abolished.
Grounds for divorce and legal separation.
(1) Irretrievable breakdown.
(a) If both of the parties to a legal separation or divorce
action by petition or otherwise have stated under oath or
2
revoked upon the motion of either party by an order of the
court. If the parties become reconciled, the court shall
dismiss the action. If the parties are not reconciled after the
period of suspension, the action shall proceed as though no
reconciliation period was attempted.
767.34
marriage entitled to support, the maintenance of either
spouse, the support of the family under s. 767.531, and the
disposition of property.
(2) Granting divorce or legal separation. When a party
requests a legal separation rather than a divorce, the court
shall grant a judgment of legal separation unless the other
party requests a divorce, in which case the court shall hear
and determine which judgment shall be granted.
(3) When divorce judgment effective. A judgment of
divorce is effective when granted. A court granting a
judgment of divorce shall inform the parties appearing in
court that the judgment is effective when granted but that it
is unlawful under s. 765.03 (2) for a party to marry again
until 6 months after the judgment is granted.
(4) Revocation of legal separation judgment upon
reconciliation. A judgment of legal separation shall provide
that, if a reconciliation occurs at any time after the judgment,
the parties may apply for a revocation of the judgment. Upon
application for a revocation of the judgment, the court shall
make such orders as may be just and reasonable.
(5) Conversion of legal separation to divorce. By stipulation
of both parties, or upon motion of either party not earlier than
one year after entry of a judgment of legal separation, the
court shall convert the judgment to a judgment of divorce.
(6) Vacating or modifying divorce judgment as it affects
marital status. So far as a judgment of divorce affects the
marital status of the parties, the court may vacate or modify
the judgment for sufficient cause shown, upon its own
motion, or upon the application of both parties to the action,
at any time within 6 months from the granting of the
judgment. If the judgment is vacated it shall restore the
parties to the marital relation that existed before the granting
of the judgment. If a judgment of divorce is set aside under
this subsection, the court shall order the record in the action
impounded without regard to s. 767.13. After the record is
impounded, the record may not be offered or admitted in
whole or in part into evidence in any action or proceeding
except by special order of the court of jurisdiction upon good
cause shown in any paternity proceedings under this chapter
or by special order of a court of record upon a showing of
necessity to clear title to real estate.
(7) Divorce judgment revoked on remarriage of parties.
When a judgment of divorce has been granted and the parties
subsequently intermarry, the court, upon their joint
application and upon satisfactory proof of the marriage, shall
revoke all judgments and any orders that will not affect the
right of 3rd persons. If the judgment is revoked, the court
shall order the record impounded without regard to s. 767.13,
and the record may not be offered or admitted, in whole or
in part, into evidence in any action or proceeding except by
special order of the court of jurisdiction upon good cause
shown in a paternity proceeding under this chapter or by
special order of a court of record upon a showing of necessity
to clear title to real estate.
Court-approved stipulation.
(1) Authority. The parties in an action for an annulment,
divorce, or legal separation may, subject to the approval of
the court, stipulate for a division of property, for
maintenance payments, for the support of children, for
periodic family support payments under s. 767.531, or for
legal custody and physical placement, in case a divorce or
legal separation is granted or a marriage annulled.
(2) Limitations on court approval.
(a) A court may not approve a stipulation for child support
or family support unless the stipulation provides for payment
of child support determined in a manner consistent with s.
767.511 or 767.89.
(am) A court may not approve a stipulation for expressing
child support or family support as a percentage of the payer's
income unless all of the following apply:
1. The state is not a real party in interest in the action under
any of the circumstances specified in s. 767.205 (2) (a).
2. The payer is not subject to any other order, in any other
action, for the payment of child or family support or
maintenance.
3. All payment obligations included in the order, other than
the annual receiving and disbursing fee under s. 767.57 (1e)
(a), are expressed as a percentage of the payer's income.
(b) A court may not approve a stipulation for a division of
property that assigns substantially all of the property to one
of the parties in the action if the other party in the action is
in the process of applying for medical assistance under
subch. IV of ch. 49 or if the court determines that it can be
reasonably anticipated that the other party in the action will
apply for medical assistance under subch. IV of ch. 49 within
30 months of the stipulation.
767.35
Judgment of divorce or legal separation.
(1) When granted. A court shall grant a judgment of divorce
or legal separation if all of the following conditions are met:
(a) The requirements of this chapter as to residence and
attendance at an educational program under s. 767.401 have
been complied with.
(b)
1. In connection with a judgment of divorce or legal
separation, the court finds that the marriage is irretrievably
broken under s. 767.315 (1) (a) or (b) 1. or 2., unless subd.
2. applies.
2. In connection with a judgment of legal separation, the
court finds that the marital relationship is broken under s.
767.315 (2).
(c) To the extent that it has jurisdiction to do so, the court has
considered and approved or made provision for legal custody
and physical placement, the support of any child of the
3
(i) The amount and duration of an order under s. 767.56
granting maintenance payments to either party, any order for
periodic family support payments under s. 767.531 and
whether the property division is in lieu of such payments.
(j) Other economic circumstances of each party, including
pension benefits, vested or unvested, and future interests.
(k) The tax consequences to each party.
(L) Any written agreement made by the parties before or
during the marriage concerning any arrangement for
property distribution; such agreements shall be binding upon
the court except that no such agreement shall be binding
where the terms of the agreement are inequitable as to either
party. The court shall presume any such agreement to be
equitable as to both parties.
(m) Such other factors as the court may in each individual
case determine to be relevant.
(4) Separate fund or trust option. In dividing the property of
the parties under this section, the court may protect and
promote the best interests of a child of the parties described
under s. 767.511 (4) by setting aside a portion of the property
in a separate fund or trust for the support, maintenance,
education, and general welfare of the child.
(5) Related provisions of judgment. In a judgment
described under sub. (1), the court shall do all of the
following:
(a) Direct that title to the property of the parties be
transferred as necessary, in accordance with the division of
property set forth in the judgment.
(b) Include all of the following in the judgment:
1. Notification that it may be necessary for the parties to take
additional actions in order to transfer interests in their
property in accordance with the division of property set forth
in the judgment, including such interests as interests in real
property, interests in retirement benefits, and contractual
interests.
2. Notification that the judgment does not necessarily affect
the ability of a creditor to proceed against a party or against
that party's property even though the party is not responsible
for the debt under the terms of the judgment.
3. Notification that an instrument executed by a party before
the judgment naming the other party as a beneficiary is not
necessarily affected by the judgment and it may be necessary
to revise the instrument if a change in beneficiary is desired.
(6) Recording judgment affecting real property sufficient.
A certified copy of the portion of the judgment affecting title
to real property, or a deed consistent with the judgment, shall
be recorded in the office of the register of deeds of the county
in which the real property is located.
Property Division
767.61
Property division.
(1) Division required. Upon every judgment of annulment,
divorce, or legal separation, or in rendering a judgment in an
action under s. 767.001 (1) (h), the court shall divide the
property of the parties.
(2) Property subject to division.
(a) Except as provided in par. (b), any property shown to
have been acquired by either party prior to or during the
course of the marriage in any of the following ways shall
remain the property of that party and is not subject to a
property division under this section:
1. As a gift from a person other than the other party.
2. By reason of the death of another, including, but not
limited to, life insurance proceeds; payments made under a
deferred employment benefit plan, as defined in s. 766.01 (4)
(a), or an individual retirement account; and property
acquired by right of survivorship, by a trust distribution, by
bequest or inheritance or by a payable on death or a transfer
on death arrangement under ch. 705.
3. With funds acquired in a manner provided in subd. 1. or
2.
(b) Paragraph (a) does not apply if the court finds that refusal
to divide the property will create a hardship on the other
party or on the children of the marriage. If the court makes
such a finding, the court may divest the party of the property
in a fair and equitable manner.
(3) Presumption of equal division. The court shall presume
that all property not described in sub. (2) (a) is to be divided
equally between the parties, but may alter this distribution
without regard to marital misconduct after considering all of
the following:
(a) The length of the marriage.
(b) The property brought to the marriage by each party.
(c) Whether one of the parties has substantial assets not
subject to division by the court.
(d) The contribution of each party to the marriage, giving
appropriate economic value to each party's contribution in
homemaking and child care services.
(e) The age and physical and emotional health of the parties.
(f) The contribution by one party to the education, training
or increased earning power of the other.
(g) The earning capacity of each party, including educational
background, training, employment skills, work experience,
length of absence from the job market, custodial
responsibilities for children and the time and expense
necessary to acquire sufficient education or training to
enable the party to become self-supporting at a standard of
living reasonably comparable to that enjoyed during the
marriage.
(h) The desirability of awarding the family home or the right
to live therein for a reasonable period to the party having
physical placement for the greater period of time.
Spousal, Family or Child Support
767.501
Actions to compel support.
(1) Definitions. In this section:
(a) “Nonlegally responsible relative" means a relative who
assumes responsibility for the care of a child without legal
4
custody, but is not in violation of a court order. “Nonlegally
responsible relative" does not include a relative who has
physical custody of a child during a court-ordered visitation
period.
(b) “Relative" means any person connected with a child by
blood, marriage or adoption.
(2) Who may commence; support determination.
(a) If a person does not provide for the support and
maintenance of his or her spouse or minor child, any of the
following may commence a court action to compel the
person to provide support and maintenance:
1. The person's spouse.
2. The minor child.
3. The person with legal custody of the child.
4. A nonlegally responsible relative.
(b) The court in the action shall, under s. 767.511 or 767.56,
determine the amount, if any, that the person should
reasonably contribute to the support and maintenance of the
spouse or child and how the sum shall be paid. The amount
shall be expressed as a fixed sum unless the parties have
stipulated to expressing the amount as a percentage of the
payer's income and the requirements under s. 767.34 (2) (am)
1. to 3. are satisfied. The amount ordered to be paid may be
modified by the court under s. 767.59 upon sufficient
evidence.
(c) The determination may be enforced by contempt
proceedings, an account transfer under s. 767.76, or other
enforcement mechanisms under s. 767.77.
(d) In an action under this section, no filing fee or other costs
are taxable to the person's spouse, the minor child, the person
with legal custody, or the nonlegally responsible relative, but
after the action has been commenced the court may order that
all or part of any fees and costs incurred be paid by either
party.
(3) Public assistance recipients; action by state. If the state
or any subdivision of the state furnishes public aid to a
spouse or dependent child for support and maintenance and
the spouse, person with legal custody, or nonlegally
responsible relative does not commence an action under this
chapter for support or maintenance, the person in charge of
county welfare activities, the county child support agency
under s. 59.53 (5), or the department is a real party in interest
under s. 767.205 (2) and shall commence an action under this
section. An attorney employed by the state or a subdivision
of the state may commence an action under this section. The
title of the action shall be “In re the support or maintenance
of A.B. (Child)".
(4) Legal custody and physical placement. Upon request of
a party to an action under this section, the court may make
orders concerning the legal custody and physical placement
of any minor child of the parties in accordance with s.
767.41.
767.511
Child support.
(1) When ordered. When the court approves a stipulation
for child support under s. 767.34, enters a judgment of
annulment, divorce, or legal separation, or enters an order or
a judgment in a paternity action or in an action under s.
767.001 (1) (f) or (j), 767.501, or 767.805 (3), the court shall
do all of the following:
(a) Order either or both parents to pay an amount reasonable
or necessary to fulfill a duty to support a child. The support
amount must be expressed as a fixed sum unless the parties
have stipulated to expressing the amount as a percentage of
the payer's income and the requirements under s. 767.34 (2)
(am) 1. to 3. are satisfied.
(b) Ensure that the parties have stipulated which party, if
either is eligible, will claim each child as an exemption for
federal income tax purposes under 26 USC 151 (c), or as an
exemption for state income tax purposes under s. 71.07 (8)
(b) or under the laws of another state. If the parties are unable
to reach an agreement about the tax exemption for each child,
the court shall make the decision in accordance with state
and federal tax laws. In making its decision, the court shall
consider whether the parent who is assigned responsibility
for the child's health care expenses under s. 767.513 is
covered under a health insurance policy or plan, including a
self-insured plan, that is not subject to s. 632.897 (10) and
that conditions coverage of a dependent child on whether the
child is claimed by the insured parent as an exemption for
purposes of federal or state income taxes.
(c) In addition to ordering child support for a child under par.
(a), assign as a support obligation responsibility for, and
direct the manner of payment of, the child's health care
expenses under s. 767.513.
(1g) Consideration of financial information. In determining
child support payments, the court may consider all relevant
financial information or other information relevant to the
parent's earning capacity, including information reported
under s. 49.22 (2m) to the department or the county child
support agency under s. 59.53 (5).
(1j) Percentage standard generally required. Except as
provided in sub. (1m), the court shall determine child support
payments by using the percentage standard established by
the department under s. 49.22 (9).
(1m) Deviation from standard; factors. Upon request by a
party, the court may modify the amount of child support
payments determined under sub. (1j) if, after considering the
following factors, the court finds by the greater weight of the
credible evidence that use of the percentage standard is
unfair to the child or to any of the parties:
(a) The financial resources of the child.
(b) The financial resources of both parents.
(bj) Maintenance received by either party.
(bp) The needs of each party in order to support himself or
herself at a level equal to or greater than that established
under 42 USC 9902 (2).
5
(bz) The needs of any person, other than the child, whom
either party is legally obligated to support.
(c) If the parties were married, the standard of living the child
would have enjoyed had the marriage not ended in
annulment, divorce or legal separation.
(d) The desirability that the custodian remain in the home as
a full-time parent.
(e) The cost of child care if the custodian works outside the
home, or the value of custodial services performed by the
custodian if the custodian remains in the home.
(ej) The award of substantial periods of physical placement
to both parents.
(em) Extraordinary travel expenses incurred in exercising
the right to periods of physical placement under s. 767.41.
(f) The physical, mental, and emotional health needs of the
child, including any costs for health insurance as provided
for under s. 767.513.
(g) The child's educational needs.
(h) The tax consequences to each party.
(hm) The best interests of the child.
(hs) The earning capacity of each parent, based on each
parent's education, training and work experience and the
availability of work in or near the parent's community.
(i) Any other factors which the court in each case determines
are relevant.
(1n) Deviation from standard; record. If the court finds
under sub. (1m) that use of the percentage standard is unfair
to the child or the requesting party, the court shall state in
writing or on the record the amount of support that would be
required by using the percentage standard, the amount by
which the court's order deviates from that amount, its reasons
for finding that use of the percentage standard is unfair to the
child or the party, its reasons for the amount of the
modification and the basis for the modification.
(2) Separate fund or trust. The court may protect and
promote the best interests of the minor children by setting
aside a portion of the child support which either party is
ordered to pay in a separate fund or trust for the support,
education and welfare of such children.
(3) Effect of physical placement violation. Violation of
physical placement rights by the custodial parent does not
constitute reason for failure to meet child support
obligations.
(4) Age of child eligible for support. The court shall order
either party or both to pay for the support of any child of the
parties who is less than 18 years old, or any child of the
parties who is less than 19 years old if the child is pursuing
an accredited course of instruction leading to the acquisition
of a high school diploma or its equivalent.
(5) Liability for past support. Subject to ss. 767.805 (4m)
and 767.89 (4), liability for past support is limited to the
period after the birth of the child.
(6) Interest on arrearage. Subject to sub. (6m), a party
ordered to pay child support under this section shall pay
simple interest at the rate of 1 percent per month on any
amount in arrears that is equal to or greater than the amount
of child support due in one month. Subject to sub. (6m), if
the party no longer has a current obligation to pay child
support, interest at the rate of 1 percent per month shall
accrue on the total amount of child support in arrears, if any.
Interest under this subsection is in lieu of interest computed
under s. 807.01 (4), 814.04 (4), or 815.05 (8) and is paid to
the department or its designee under s. 767.57. Except as
provided in s. 767.57 (1m)and except as required under
federal statutes or regulations, the department or its designee
shall apply all payments received for child support as
follows:
(a) First, to payment of child support due within the calendar
month during which the payment is received.
(b) Second, to payment of unpaid child support due before
the payment is received.
(c) Third, to payment of interest accruing on unpaid child
support.
(6m) Pilot program on interest rate. The department may
conduct a pilot program under which the interest that accrues
on the amounts in arrears specified in sub. (6) and in s.
767.531 shall be at the rate of 0.5 percent per month instead
of 1 percent per month. If the department conducts a pilot
program under this subsection, the program may begin at any
time after December 31, 2013, and the new rate shall apply
to interest that accrues during that time.
(7) Effect of joint legal custody. An order of joint legal
custody under s. 767.41 does not affect the amount of child
support ordered.
767.513
Child health care expenses.
(1) Definition. In this section, “health insurance" does not
include medical assistance provided under subch. IV of ch.
49.
(2) Responsibility and payment. In addition to ordering
child support for a child under s. 767.511 (1), the court shall
specifically assign responsibility for and direct the manner
of payment of the child's health care expenses. In assigning
responsibility for a child's health care expenses, the court
shall consider whether a child is covered under a parent's
health insurance policy or plan at the time the court approves
a stipulation for child support under s. 767.34, enters a
judgment of annulment, divorce, or legal separation, or
enters an order or a judgment in a paternity action or in an
action under s. 767.001 (1) (f) or (j), 767.501, or 767.805 (3),
the availability of health insurance to each parent through an
employer or other organization, the extent of coverage
available to a child, and the costs to the parent for the
coverage of the child. A parent may be required to initiate or
continue health care insurance coverage for a child under this
section. If a parent is required to do so, he or she shall
provide copies of necessary program or policy identification
to the custodial parent and is liable for any health care costs
for which he or she receives direct payment from an insurer.
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This section shall not be construed to limit the authority of
the court to enter or modify support orders containing
provisions for payment of medical expenses, medical costs,
or insurance premiums that are in addition to and not
inconsistent with this section.
(2m) Health insurance identification card.
(a) The court shall order a parent who is required to provide
health insurance coverage for a child under this section to
provide to the other parent a health insurance identification
card evidencing the child's health insurance coverage.
(b) If the parent ordered to provide a health insurance
identification card for the child fails to do so, the other parent
may attempt to obtain a card for the child by presenting to
the health insurance provider or to the employer through
which the insurance is provided a copy of the order requiring
the provision of a card.
(c) If the other parent is unable to obtain a health insurance
identification card for the child in the manner provided in
par. (b), the intentional failure to comply with the order to
provide the card by the parent so ordered constitutes a
contempt of court, punishable under ch. 785.
(3) Income withholding and assignment.
(a) In directing the manner of payment of a child's health care
expenses, the court may order that payment, including
payment for health insurance premiums, be withheld from
income and sent to the appropriate health care insurer,
provider, or plan, as provided in s. 767.75 (3h), or sent to the
department or its designee for disbursement to the person for
whom the payment has been awarded if that person is not a
health care insurer, provider, or plan. If the court orders
income withholding and assignment for the payment of
health care expenses, the court or county child support
agency under s. 59.53 (5) shall send notice of assignment in
the manner provided under s. 767.75 (2r) and may include
the notice of assignment under this paragraph with a notice
of assignment under s. 767.75. The department or its
designee shall keep a record of all moneys received and
disbursed for health care expenses that are directed to be paid
to the department or its designee.
(b) If the court orders a parent to initiate or continue health
insurance coverage for a child under a health insurance
policy that is available to the parent through an employer or
other organization but the court does not specify the manner
in which payment of the health insurance premiums shall be
made, the court or county child support agency under s.
59.53 (5) may provide notice of assignment in the manner
provided under s. 767.75 (2r) for the withholding from
income of the amount necessary to pay the health insurance
premiums. The notice of assignment under this paragraph
may be sent with or included as part of any other notice of
assignment under s. 767.75. A person who receives notice of
assignment under this paragraph shall send the withheld
health insurance premiums to the appropriate health care
insurer, provider, or plan, as provided in s. 767.75 (3h).
(4) Health benefit plan; employer obligation. If the court
orders a parent to provide coverage of the health care
expenses of the parent's child and the parent is eligible for
family coverage of health care expenses under a health
benefit plan that is provided by an employer on an insured or
on a self-insured basis, the employer shall do all of the
following:
(a) Permit the parent to obtain family coverage of health care
expenses for the child, if eligible for coverage, without
regard to any enrollment period or waiting period restrictions
that may apply.
(b) Provide family coverage of health care expenses for the
child, if eligible for coverage, upon application by the parent,
the child's other parent, the department, or the county child
support agency under s. 59.53 (5), or upon receiving a notice
under sub. (6) (a).
(bm) Notify the county child support agency under s. 59.53
(5) when coverage of the child under the health benefit plan
is in effect and, upon request, provide copies of necessary
program or policy identification to the child's other parent.
(c) After the child has coverage under the employer's health
benefit plan, and as long as the parent is eligible for family
coverage under the employer's health benefit plan, continue
to provide coverage for the child unless the employer
receives satisfactory written evidence that the court order is
no longer in effect or that the child has coverage of health
care expenses under another health insurance policy or
health benefit plan that provides comparable coverage of
health care expenses.
(5) Recovery by state of 3rd party payments.
(a) If a parent who has been ordered by a court to provide
coverage of the health care expenses of a child who is
eligible for medical assistance under subch. IV of ch. 49
receives payment from a 3rd party for the cost of services
provided to the child but does not pay the health care
provider for the services or reimburse the department or any
other person who paid for the services on behalf of the child,
the department may obtain a judgment against the parent for
the amount of the 3rd-party payment.
(b) Section 767.75 (4) applies to a garnishment based on a
judgment obtained under par. (a).
(6) Change of employment; notice.
(a) If a parent who provides coverage of the health care
expenses of a child under an order under this section changes
employers and that parent has a court-ordered child support
obligation with respect to the child, the county child support
agency under s. 59.53 (5) shall provide notice of the order to
provide coverage of the child's health care expenses to the
new employer and to the parent.
(b) The notice provided to the parent shall inform the parent
that coverage for the child under the new employer's health
benefit plan will be in effect upon the employer's receipt of
the notice. The notice shall inform the parent that he or she
may, within 10 business days after receiving the notice, by
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motion request a hearing before the court on the issue of
whether the order to provide coverage of the child's health
care expenses should remain in effect. A motion under this
paragraph may be heard by a circuit court commissioner. If
the parent requests a hearing and the court determines that
the order to provide coverage of the child's health care
expenses should not remain in effect, the court shall provide
notice to the employer that the order is no longer in effect.
767.521
required under this section, the court may award to the party
bringing the action costs and, notwithstanding s. 814.04 (1),
reasonable attorney fees.
767.55
Action by state for child support.
The state or its delegate under s. 49.22 (7) shall bring an
action for support of a minor child under s. 767.001 (1) (f) or
for paternity determination and child support under s. 767.80
if the child's right to support is assigned to the state under s.
48.57 (3m) (b) 2. or (3n) (b) 2., 48.645 (3), 49.145 (2) (s),
49.19 (4) (h) 1. b., or 49.775 (2) (bm) and all of the following
apply:
(1) The child has been deprived of parental support by
reason of the continued absence of a parent from the home.
(2) A court has not issued an order under s. 767.511
requiring the parent who is absent from the home to support
the child.
767.531
Family support.
The court may make a financial order designated “family
support" as a substitute for child support orders under s.
767.511 and maintenance payment orders under s. 767.56.
Subject to s. 767.511 (6m), a party ordered to pay family
support under this section shall pay simple interest at the rate
of 1 percent per month on any amount in arrears that is equal
to or greater than the amount of child support due in one
month. Subject to s. 767.511 (6m), if the party no longer has
a current obligation to pay child support, interest at the rate
of 1 percent per month shall accrue on the total amount of
child support in arrears, if any. Interest under this section is
in lieu of interest computed under s. 807.01 (4), 814.04 (4),
or 815.05 (8) and is paid to the department or its designee
under s. 767.57. Except as provided in s. 767.57 (1m), the
department or its designee shall apply all payments received
for family support as follows:
(1) First, to payment of family support due within the
calendar month during which the payment is received.
(2) Second, to payment of unpaid family support due before
the payment is received.
(3) Third, to payment of interest accruing on unpaid family
support.
767.54
Child support: employment-related orders.
(1) Generally. In an action for modification of a child
support order under s. 767.59 or an action in which an order
for child support is required under s. 767.511 (1), 767.805
(4), or 767.89 (3), the court may order either or both parents
of the child to seek employment or participate in an
employment or training program.
(2) Noncustodial parent.
(a) In this subsection, “custodial parent" means a parent who
lives with his or her child for substantial periods of time.
(am) In an action for modification of a child support order
under s. 767.59, an action in which an order for child support
is required under s. 767.511 (1), 767.805 (4), or 767.89 (3),
or a contempt of court proceeding to enforce a child support
or family support order in a county that contracts under s.
49.36 (2), the court may order a parent who is not a custodial
parent to register for a work experience and job training
program under s. 49.36 if all of the following conditions are
met:
1. The parent is able to work full time.
1m. The parent resides in a county, or resides within a
reasonable driving distance, as determined by the court, from
a county, that has a work experience and job training
program under s. 49.36 and that agrees to enroll the parent in
the program.
2. The parent works, on average, less than 32 hours per week,
and is not participating in an employment or training
program which meets guidelines established by the
department.
3. The parent's actual weekly gross income averages less
than 40 times the federal minimum hourly wage under 29
USC 206 (a) (1) or the parent is earning less than the parent
has the ability to earn, as determined by the court.
(b) Under this subsection, the parent is presumed to be able
to work full time. The parent has the burden of proving that
he or she is not able to work full time.
(c) If the court enters an order under par. (am), it shall order
the parent to pay child support equal to the amount
determined by applying the percentage standard established
under s. 49.22 (9) or equal to the amount of child support that
the parent was ordered to pay in the most recent
determination of support under this chapter. The child
support obligation ordered under this paragraph continues
until the parent makes timely payment in full for 3
consecutive months or until the person participates in the
program under s. 49.36 for 16 weeks, whichever occurs first.
The court shall provide in its order that the parent shall make
child support payments calculated under s. 767.511 (1j) or
(1m) after the obligation to make payments ordered under
this paragraph ceases.
(3) Absent parent.
Required exchange of financial information.
In an action in which the court has ordered a party to pay
child or family support under this chapter, including an
action to revise a judgment or order under s. 767.59, the court
shall require the parties annually to exchange financial
information. Information disclosed under this section is
subject to s. 767.127 (3). A party who fails to furnish
information required by the court under this section may be
proceeded against for contempt of court under ch. 785. If the
court finds that a party has failed to furnish information
8
(a) In this subsection, “case involving a dependent child"
means an action which meets all of the following criteria:
1. Is an action for modification of a child support order under
s. 767.59 or an action in which an order for child support is
required under s. 767.511 (1), 767.805 (4), or 767.89 (3).
2. The child's right to support is assigned to the state under
s. 48.57 (3m) (b) 2. or (3n) (b) 2., 48.645 (3), or 49.19 (4) (h)
1. b.
3. The child has been deprived of parental support by reason
of the continued absence of a parent from the home.
(b) Except as provided in par. (c), in a case involving a
dependent child, if the child's parent who is absent from the
home is not employed, the court shall order that parent to do
one or more of the following:
1. Register for work at a public employment office
established under s. 106.09.
2. Apply for jobs.
3. Participate in a job training program.
(c) An order is not required under par. (b) if the court makes
written findings that there is good cause for not issuing the
order.
(d) Paragraph (b) does not limit the authority of a court to
issue an order, other than an order under par. (b), regarding
employment of a parent in an action for modification of a
child support order under s. 767.59 or an action in which an
order for child support is required under s. 767.511 (1),
767.805 (4), or 767.89 (3).
(4) Unemployed teenage parent.
(a) In this subsection, “unemployed teenage parent" means a
parent who satisfies all of the following criteria:
1. Is less than 20 years of age.
2. Is unemployed.
3. Is financially unable to pay child support.
4. Would be ordered to make payments for the support of a
child but for subd. 3.
(b) In an action for revision of a judgment or order providing
for child support under s. 767.59 or an action in which an
order for child support is required under s. 767.511 (1),
767.805 (4), or 767.89 (3), the court shall order an
unemployed teenage parent to do one or more of the
following:
1. Register for work at a public employment office
established under s. 106.09.
2. Apply for jobs.
3. Participate in a job training program.
4. Pursue or continue to pursue an accredited course of
instruction leading to the acquisition of a high school
diploma or its equivalent if the unemployed teenage parent
has not completed a recognized high school course of study
or its equivalent, except that the court may not order the
unemployed teenage parent to pursue instruction if the
instruction requires the expenditure of funds by the
unemployed teenage parent other than normal transportation
and personal expenses.
767.553
Annual adjustments in support orders.
(1) When adjustment may be ordered.
(a) An order for child or family support under this chapter
may provide for an annual adjustment in the amount to be
paid based on a change in the payer's income if the amount
of child or family support is expressed in the order as a fixed
sum and based on the percentage standard established by the
department under s. 49.22 (9). No adjustment may be made
under this section unless the order provides for the
adjustment.
(b) An adjustment under this section may not be made more
than once in a year and shall be determined on the basis of
the percentage standard established by the department under
s. 49.22 (9).
(c) In the order the court shall specify what information the
parties must exchange to determine whether the payer's
income has changed, and shall specify the manner and timing
of the information exchange.
(2) Form for stipulating. If the court provides for an annual
adjustment, the court shall make available to the parties,
including the state if the state is a real party in interest under
s. 767.205 (2) (a), a form approved by the court for the
parties to use in stipulating to an adjustment of the amount
of child or family support and to modification of any
applicable income-withholding order. The form shall include
an order, to be signed by the court, for approval of the
stipulation of the parties.
(3) Income changes.
(a) If the payer's income changes from the amount found by
the court or stipulated to by the parties for the current child
or family support order, the parties may implement an
adjustment under this section by stipulating, on the form
under sub. (2), to the changed income amount and the
adjusted child or family support amount, subject to sub. (1)
(b).
(b) The stipulation form shall be signed by all parties,
including the state if the state is a real party in interest under
s. 767.205 (2) (a), and filed with the court. If the stipulation
is approved, the order shall be signed by the court and
implemented in the same manner as an order for a revision
under s. 767.59. An adjustment under this subsection is
effective as of the date on which the order is signed by the
court.
(4) Implementation; when effective.
(a) Any party, including the state if the state is a real party in
interest under s. 767.205 (2) (a), may file a motion, petition,
or order to show cause for implementation of an annual
adjustment under this section if any of the following applies:
1. A party refuses to provide the information required by the
court under sub. (1) (c).
2. The payer's income changes, but a party refuses to sign the
stipulation for an adjustment in the amount of child or family
support.
9
(b) If the court determines after a hearing that an adjustment
should be made, the court shall enter an order adjusting the
child or family support payments by the amount determined
by the court, subject to sub. (1) (b). An adjustment under this
subsection may not take effect before the date on which the
party responding to the motion, petition, or order to show
cause received notice of the action under this subsection.
(c) Notwithstanding par. (b), the court may direct that all or
part of the adjustment not take effect until such time as the
court directs, if any of the following applies:
1. The payee was seeking an adjustment and the payer
establishes that extraordinary circumstances beyond his or
her control prevent fulfillment of the adjusted child or family
support obligation.
2. The payer was seeking an adjustment and the payee
establishes that the payer voluntarily and unreasonably
reduced his or her income below his or her earning capacity.
3. The payer was seeking an adjustment and the payee
establishes that the adjustment would be unfair to the child.
(d) If in an action under this subsection the court determines
that a party has unreasonably failed to provide the
information required under sub. (1) (c) or to provide the
information on a timely basis, or unreasonably failed or
refused to sign a stipulation for an annual adjustment, the
court may award to the aggrieved party actual costs,
including service costs, any costs attributable to time missed
from employment, the cost of travel to and from court, and
reasonable attorney fees.
(5) Revision or remedial sanctions.
(a) Nothing in this section affects a party's right to file at any
time a motion, petition, or order to show cause under s.
767.59 for revision of a judgment or order with respect to an
amount of child or family support.
(b) Nothing in this section affects a party's right to move the
court for a finding of contempt of court or for remedial
sanctions under ch. 785 if the other party unreasonably fails
to provide or disclose information required under this section
or unreasonably fails or refuses to sign a stipulation for an
annual adjustment.
767.56
market, custodial responsibilities for children and the time
and expense necessary to acquire sufficient education or
training to enable the party to find appropriate employment.
(f) The feasibility that the party seeking maintenance can
become self-supporting at a standard of living reasonably
comparable to that enjoyed during the marriage, and, if so,
the length of time necessary to achieve this goal.
(g) The tax consequences to each party.
(h) Any mutual agreement made by the parties before or
during the marriage, according to the terms of which one
party has made financial or service contributions to the other
with the expectation of reciprocation or other compensation
in the future, if the repayment has not been made, or any
mutual agreement made by the parties before or during the
marriage concerning any arrangement for the financial
support of the parties.
(i) The contribution by one party to the education, training or
increased earning power of the other.
(j) Such other factors as the court may in each individual case
determine to be relevant.
(2c) Terminates at death of payee or payer. Unless already
terminated for another reason, maintenance granted under
this section terminates upon the death of the payee or the
payer, whichever occurs first.
767.59
Revision of support and maintenance orders.
(1) Definition. In this section, “support or maintenance
order" means a judgment or order providing for child support
under this chapter or s. 48.355 (2) (b) 4. or (4g) (a), 48.357
(5m) (a), 48.363 (2), 938.183 (4), 938.355 (2) (b) 4. or (4g)
(a), 938.357 (5m) (a), 938.363 (2), or 948.22 (7), for
maintenance payments under s. 767.56, for family support
payments under this chapter, or for the appointment of
trustees or receivers under s. 767.57 (5).
(1c) Court authority.
(a) On the petition, motion, or order to show cause of either
of the parties, the department, a county department under s.
46.215, 46.22, or 46.23, or a county child support agency
under s. 59.53 (5) if an assignment has been made under s.
48.57 (3m) (b) 2. or (3n) (b) 2., 48.645 (3), 49.19 (4) (h), or
49.45 (19) or if either party or their minor children receive
aid under s. 48.57 (3m) or (3n) or 48.645 or ch. 49, a court
may, except as provided in par. (b), do any of the following:
1. Revise and alter a support or maintenance order as to the
amount and payment of maintenance or child support and the
appropriation and payment of the principal and income of
property held in trust.
2. Make any judgment or order on any matter that the court
might have made in the original action.
(b) A court may not revise or modify a judgment or order
that waives maintenance payments for either party or a
judgment or order with respect to final division of property.
(1f) Support: substantial change in circumstances.
(a) Except as provided in par. (d), a revision under this
section of a judgment or order as to the amount of child or
Maintenance.
(1c) Factors to consider for granting. Upon a judgment of
annulment, divorce, or legal separation, or in rendering a
judgment in an action under s. 767.001 (1) (g) or (j), the court
may grant an order requiring maintenance payments to either
party for a limited or indefinite length of time, subject to sub.
(2c), after considering all of the following:
(a) The length of the marriage.
(b) The age and physical and emotional health of the parties.
(c) The division of property made under s. 767.61.
(d) The educational level of each party at the time of
marriage and at the time the action is commenced.
(e) The earning capacity of the party seeking maintenance,
including educational background, training, employment
skills, work experience, length of absence from the job
10
family support may be made only upon a finding of a
substantial change in circumstances.
(b) In an action under this section to revise a judgment or
order with respect to the amount of child support, any of the
following constitutes a rebuttable presumption of a
substantial change in circumstances sufficient to justify a
revision of the judgment or order:
1. Commencement of receipt of aid to families with
dependent children under s. 49.19 or participation in
Wisconsin works under ss. 49.141 to 49.161 by either parent
since the entry of the last child support order, including a
revision of a child support order under this section.
2. Unless the amount of child support is expressed in the
judgment or order as a percentage of parental income, the
expiration of 33 months after the date of the entry of the last
child support order, including a revision of a child support
order under this section.
3. Failure of the payer to furnish a timely disclosure under s.
767.54.
4. A difference between the amount of child support ordered
by the court to be paid by the payer and the amount that the
payer would have been required to pay based on the
percentage standard established by the department under s.
49.22 (9) if the court did not use the percentage standard in
determining the child support payments and did not provide
the information required under s. 46.10 (14) (d), 49.345 (14)
(d), 301.12 (14) (d), or 767.511 (1n), whichever is
appropriate.
(c) In an action under this section to revise a judgment or
order with respect to an amount of child support, any of the
following may constitute a substantial change of
circumstances sufficient to justify revision of the judgment
or order:
1. Unless the amount of child support is expressed in the
judgment or order as a percentage of parental income, a
change in the payer's income, evidenced by information
received under s. 49.22 (2m) by the department or the county
child support agency under s. 59.53 (5) or by other
information, from the payer's income determined by the
court in its most recent judgment or order for child support,
including a revision of a child support order under this
section.
2. A change in the needs of the child.
3. A change in the payer's earning capacity.
4. Any other factor that the court determines is relevant.
(d) In an action under this section to revise a judgment or
order with respect to child or family support, the court is not
required to make a finding of a substantial change in
circumstances to change to a fixed sum the manner in which
the amount of child or family support is expressed in the
judgment or order.
(1k) Maintenance: change in cost of living. In an action
under this section to revise maintenance payments, a
substantial change in the cost of living for either party or as
measured by the federal bureau of labor statistics may be
sufficient to support a revision of the amount of
maintenance, except that a change in an obligor's cost of
living is not by itself sufficient if payments are expressed as
a percentage of income.
(1m) Payment revisions prospective. In an action under
sub. (1c) to revise a judgment or order with respect to child
support, maintenance payments, or family support payments,
the court may not revise the amount of child support,
maintenance payments, or family support payments due, or
an amount of arrearages in child support, maintenance
payments, or family support payments that has accrued, prior
to the date that notice of the action is given to the respondent,
except to correct previous errors in calculations.
(1r) Credit to payer for certain payments. In an action under
sub. (1c) to revise a judgment or order with respect to child
support or family support, the court may grant credit to the
payer against support due prior to the date on which the
petition, motion, or order to show cause is served for
payments made by the payer other than payments made as
provided in s. 767.57 or 767.75, in any of the following
circumstances:
(b) The payer shows by documentary evidence that the
payments were made directly to the payee by check or
money order, and shows by a preponderance of the evidence
that the payments were intended for support and not intended
as a gift to or on behalf of the child, or as some other
voluntary expenditure, or for the payment of some other
obligation to the payee.
(c) The payer proves by clear and convincing evidence, with
evidence of a written agreement, that the payee expressly
agreed to accept the payments in lieu of child or family
support paid as provided in s. 767.57 or 767.75, not including
gifts or contributions for entertainment.
(d) The payer proves by documentary evidence that, for a
period during which unpaid support accrued, the child
received benefits under 42 USC 402 (d) based on the payer's
entitlement to federal disability insurance benefits under 42
USC 401 to 433. Any credit granted under this paragraph
shall be limited to the amount of unpaid support that accrued
during the period for which the benefits under 42 USC 402
(d) were paid.
(e) The payer proves by a preponderance of the evidence that
the child lived with the payer, with the agreement of the
payee, for more than 60 days beyond a court-ordered period
of physical placement. Credit may not be granted under this
paragraph if, with respect to the time that the child lived with
the payer beyond the court-ordered period of physical
placement, the payee sought to enforce the physical
placement order through civil or criminal process or if the
payee shows that the child's relocation to the payer's home
was not mutually agreed to by both parents.
(f) The payer proves by a preponderance of the evidence that
the payer and payee resumed living together with the child
11
and that, during the period for which a credit is sought, the
payer directly supported the family by paying amounts at
least equal to the amount of unpaid court-ordered support
that accrued during that period.
(2) Percentage standard required; exceptions.
(a) Except as provided in par. (b) or (c), if the court revises
a judgment or order with respect to child support payments,
it shall do so by using the percentage standard established by
the department under s. 49.22 (9).
(b) Upon request by a party, the court may modify the
amount of revised child support payments determined under
par. (a) if, after considering the factors listed in s. 767.511
(1m), the court finds, by the greater weight of the credible
evidence, that the use of the percentage standard is unfair to
the child or to any of the parties.
(c) If the court revises a judgment or order providing for
child support that was entered under s. 48.355 (2) (b) 4. or
(4g) (a), 48.357 (5m) (a), 48.363 (2), 938.183 (4), 938.355
(2) (b) 4. or (4g) (a), 938.357 (5m) (a), or 938.363 (2), the
court shall determine child support in the manner provided
in s. 49.345 (14) or 301.12 (14), whichever is applicable.
(2s) Stipulation for revision of support. In an action under
sub. (1c), the court may not approve a stipulation for the
revision of a judgment or order with respect to an amount of
child support or family support unless the stipulation
provides for payment of an amount of child support or family
support that is determined in the manner required under s.
46.10 (14), 49.345 (14), 301.12 (14), 767.511, 767.805 (4),
or 767.89, whichever is appropriate.
(2w) When revision effective. A revision of a judgment or
order with respect to child support, family support, or
maintenance payments has the effect of modifying the
original judgment or order with respect to the payments to
the extent of the revision from the date on which the order
revising the payments is effective. The child support, family
support, or maintenance payments modified by the order for
revision shall cease to accrue under the original judgment or
order from the date on which the order revising the payments
is effective.
(3) Remarriage; vacating maintenance order. After a final
judgment requiring maintenance payments has been
rendered and the payee has remarried, the court shall, on
application of the payer with notice to the payee and upon
proof of the payee's remarriage, or upon receiving notice
from the payee of the payee's remarriage, as required under
s. 767.58 (1) (c), vacate the order requiring the maintenance
payments.
(4) Review when the state is a real party in interest. In any
case in which the state is a real party in interest under s.
767.205 (2), the department shall review the support
obligation periodically and, if appropriate, petition the court
for revision of the judgment or order with respect to the
support obligation.
(5) Notice of child support information. A summons or
petition, motion, or order to show cause under this section
shall include notification of the availability of information
under s. 767.105 (2).
DCF 150.01
Introduction.
(1) Authority and purpose. This chapter is promulgated
under the authority of s. 49.22 (9), Stats., for the purpose of
establishing a standard to be used in determining child
support under ss. 767.225, 767.34, 767.501, 767.511,
767.513, 767.59, and 767.89, Stats.
(2) Applicability. This chapter applies to any petition for a
temporary or final order for child support of a marital or
nonmarital child in an action affecting a family under ch.
767, Stats., any stipulated child support settlement under s.
767.34, Stats., or any revision of judgment under s. 767.59,
Stats.
(3) Effect of rule change. A modification of any provision
in this chapter shall not in and of itself be considered a
substantial change in circumstances sufficient to justify a
revision of a judgment or order under s. 767.59, Stats.
Note: A modification of any provision in this chapter shall apply to orders
established after the effective date of the modification.
DCF 150.02
Definitions. In this chapter:
(1) “Acknowledgement of paternity" means both the mother
and the father voluntarily signed and filed a form under s.
69.15 (3) (b) 1. or 3., Stats., with the state registrar.
(2) “Adjusted monthly income available for child support"
means the monthly income at which the child support
obligation is determined for serial family payers, which is the
payer's monthly income available for child support less the
amount of any existing legal obligation for child support.
(3) “Basic support costs" means food, shelter, clothing,
transportation, personal care, and incidental recreational
costs.
(4) “Child" means the natural or adopted child of the payer.
(5) “Child support" or “child support obligation" means an
obligation to support a marital child either in an intact family
or as a result of a court order, an obligation to support the
payer's nonmarital child as a result of a court order, or an
obligation to support the payer's nonmarital child in an intact
family as a result of adoption, maternity or an
acknowledgement of paternity.
(6) “Court" means a circuit court judge or family court
commissioner.
(7) “Current 6-month treasury bill rate" means the yield of a
U.S. government security with a term of 6 months.
(8) “Department" means the Wisconsin department of
children and families.
(9) “Dependent household member" means a person for
whom a taxpayer is entitled to an exemption for the taxable
year under 26 USC 151.
(10) “Equivalent care” means a period of time during which
the parent cares for the child that is not overnight, but is
12
determined by the court to require the parent to assume the
basic support costs that are substantially equivalent to what
the parent would spend to care for the child overnight.
Blocks of time with the child of at least 6 hours may be
considered the equivalent of a half-day if a meal is provided
during that time period. Two half-day blocks may be
considered the equivalent of an overnight.
(11) “Family support" means an amount which a person is
legally obligated to pay pursuant to an order under s.
767.531, Stats., as a substitute for child support under s.
767.511, Stats., and maintenance payments under s. 767.56,
Stats.
(12) “Federal dependency exemption" means the deduction
allowed in computing taxable income pursuant to 26 USC
151 for a child of the taxpayer who has not attained the age
of 19 or who is a student.
(12m) “Federal poverty guidelines" means the poverty
guidelines updated periodically in the Federal Register by
the U.S. department of health and human services under the
authority of 42 USC 9902 (2).
(13) “Gross income."
(a) “Gross income" means all of the following:
1. Salary and wages.
2. Interest and investment income.
3. Social Security disability and old-age insurance benefits
under 42 USC 401 to 433.
4. Net proceeds resulting from worker's compensation or
other personal injury awards intended to replace income.
5. Unemployment insurance.
6. Income continuation benefits.
7. Voluntary deferred compensation, employee contributions
to any employee benefit plan or profit–sharing, and
employee contributions to any pension or retirement account
whether or not the account provides for tax deferral or
avoidance.
8. Military allowances and veterans disability compensation
benefits.
9. Undistributed income of a corporation, including a
closely–held corporation, or any partnership, including a
limited or limited liability partnership, in which the parent
has an ownership interest sufficient to individually exercise
control or to access the earnings of the business, unless the
income included is an asset under s. DCF 150.03 (4). In this
paragraph:
a. “Undistributed income" means federal taxable income of
the closely held corporation, partnership, or other entity plus
depreciation claimed on the entity's federal income tax return
less a reasonable allowance for economic depreciation.
b. A “reasonable allowance for economic depreciation"
means the amount of depreciation on assets computed using
the straight line method and useful lives as determined under
federal income tax laws and regulations.
10. All other income, whether taxable or not, except that
gross income does not include any of the following:
a. Child support.
b. Foster care payments under s. 48.62, Stats.
c. Kinship care payments under s. 48.57 (3m) or (3n), Stats.
d. Public assistance benefits under ch. 49, Stats., except that
child care subsidy payments under s. 49.155, Stats., shall be
considered income to a child care provider.
e. Food stamps under 7 USC 2011 to 2036.
f. Cash benefits paid by counties under s. 59.53 (21), Stats.
g. Supplemental Security Income under 42 USC 1381 to
1383f and state supplemental payments under s. 49.77, Stats.
h. Payments made for social services or any other public
assistance benefits.
(b) This subsection defines gross income used in establishing
a child support order under this chapter and may not be used
to limit income withholding under s. 767.75, Stats., or the
assignment of worker's compensation benefits for child
support under s. 102.27 (2), Stats.
Note: This paragraph clarifies that although the portion of worker's compensation
awards not intended to replace income is excluded from gross income in
establishing a child support order, the full worker's compensation benefit is
assignable for the collection of child support.
(14) “Income imputed based on earning capacity" means the
amount of income that exceeds the parent's actual income
and represents the parent's ability to earn, based on the
parent's education, training and recent work experience,
earnings during previous periods, current physical and
mental health, history of child care responsibilities as the
parent with primary physical placement, and the availability
of work in or near the parent's community.
(15) “Income imputed from assets" means the amount of
income ascribed to assets that are unproductive and to which
income has been diverted to avoid paying child support or
from which income is necessary to maintain the child or
children at the standard of living they would have if they
were living with both parents, and that exceeds the actual
income from the assets.
(16) “Income modified for business expenses" means the
amount of income after adding wages paid to dependent
household members, adding undistributed income that the
court determines is not reasonably necessary for the growth
of the business, and subtracting business expenses that the
court determines are reasonably necessary for the production
of that income or operation of the business and that may
differ from the determination of allowable business expenses
for tax purposes.
(17) “Intact family" means a family in which the child or
children and the payer reside in the same household and the
payer shares his or her income directly with the child or
children and has a legal obligation to support the child or
children.
(18) “Legal obligation for child support" has the meaning
prescribed for “child support" or “child support obligation"
in sub. (5).
Note: Income considered under this subsection is subject to the adjustments under
s. DCF 150.03 (2).
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(19) “Low-income payer" means a payer for whom the court
uses the monthly support amount provided in the schedule in
Appendix C based on the court's determination that the
payer's total economic circumstances limit his or her ability
to pay support at the level provided under s. DCF 150.03 (1)
and the payer's income available for child support is at a level
set forth in the schedule in Appendix C.
(20) “Marital child" means a child determined to be a
marital child under s. 767.803, Stats.
(21) “Monthly income available for child support" means
the monthly income at which the child support obligation is
determined, which is calculated by adding the parent's
annual gross income or, if applicable, the parent's annual
income modified for business expenses; the parent's annual
income imputed based on earning capacity; and the parent's
annual income imputed from assets, and dividing that total
by 12.
(22) “Parent" means the natural or adoptive parent of the
child.
(23) “Payee" means the parent who is the recipient of child
support as a result of a court order.
(24) “Payer" means the parent who incurs a legal obligation
for child support as a result of a court order.
(25) “Serial-family parent" means a parent with an existing
legal obligation for child support who incurs an additional
legal obligation for child support in a subsequent family as a
result of a court order.
(25m) “Shared-placement parent" means a parent who has a
court-ordered period of placement of at least 25% and is
ordered by the court to assume the child's basic support costs
in proportion to the time that the parent has placement of the
child.
(26) “Shared-placement payer" means the shared-placement
parent who is determined to owe a greater support amount
than the other parent under the calculation in s. DCF 150.04
(2) (b).
(27) “Split-placement payer" means a payer who has 2 or
more children and who has physical placement of one or
more but not all of the children.
(28) “Standard" or “percentage standard" means the
percentage of income standard under s. DCF 150.03 (1)
which, when multiplied by the payer's monthly income
available for child support or adjusted monthly income
available for child support, results in the payer's child
support obligation.
(30) “Worksheet" means the department's percentage
standard worksheet, printed as Appendix B to this chapter.
DCF 150.03
Support orders.
(1) Determining child support using the percentage
standard. The court shall determine a parent's monthly
income available for child support by adding together the
parent's annual gross income or, if applicable, the parent's
annual income modified for business expenses; the parent's
annual income imputed based on earning capacity; and the
parent's annual income imputed from assets, and dividing
that total by 12. This may be done by completing the
worksheet in Appendix B, although use of the worksheet for
this purpose is not required. Except as provided in s. DCF
150.04 (4) and (5), the percentage of the parent's monthly
income available for child support or adjusted monthly
income available for child support that constitutes the child
support obligation shall be:
(a) 17% for one child;
(b) 25% for 2 children;
(c) 29% for 3 children;
(d) 31% for 4 children; and
(e) 34% for 5 or more children.
Note: See Appendix A which indicates the amount of child support at various
levels of income using the percentage standard.
(2) Determining income modified for business expenses. In
determining a parent's monthly income available for child
support under sub. (1), the court may adjust a parent's gross
income as follows:
(a) Adding wages paid to dependent household members.
(b) Adding undistributed income that meets the criteria in s.
DCF 150.02 (13) (a) 9. and that the court determines is not
reasonably necessary for the growth of the business. The
parent shall have the burden of proof to show that any
undistributed income is reasonably necessary for the growth
of the business.
(c) Reducing gross income by the business expenses that the
court determines are reasonably necessary for the production
of that income or operation of the business and that may
differ from the determination of allowable business expenses
for tax purposes.
(3) Determining income imputed based on earning capacity.
In situations where the income of a parent is less than the
parent's earning capacity or is unknown, and in the absence
of credible evidence to the contrary, the court may impute
income to the parent at an amount that represents the parent's
ability to earn, based on the parent's education, training and
recent work experience, earnings during previous periods,
current physical and mental health, history of child care
responsibilities as the parent with primary physical
placement, and the availability of work in or near the parent's
community. If evidence is presented that due diligence has
been exercised to ascertain information on the parent's actual
income or ability to earn and that information is unavailable,
the court may impute to the parent the income that a person
Note: The standard is based on national studies of the percentage of income used
to support a child or children, with adjustment downward of those percentages to
reflect costs incurred by the payer for what used to be called visitation under
Wisconsin law and is now called physical placement and to maintain health
insurance for the child or children.
(29) “Variable costs" means the reasonable costs above
basic support costs incurred by or on behalf of a child,
including but not limited to, the cost of child care, tuition, a
child's special needs, and other activities that involve
substantial cost.
14
would earn by working 35 hours per week for the higher of
the federal minimum hourly wage under 29 USC 206 (a) (1)
or the state minimum wage in s. DWD 272.03. As an
alternative to imputed income, the court may order the parent
who is not a custodial parent to search for a job or participate
in a work experience and job training program, including the
Children First program under s. 49.36, Stats. If a parent has
gross income or income modified for business expenses
below his or her earning capacity, the income imputed based
on earning capacity shall be the difference between the
parent's earning capacity and the parent's gross income or
income modified for business expenses.
(4) Determining income imputed from assets.
(a) The court may impute a reasonable earning potential to a
parent's assets if the court finds both of the following:
1. The parent has ownership and control over any real or
personal property, including but not limited to, life
insurance, cash and deposit accounts, stocks and bonds,
business interests, net proceeds resulting from worker's
compensation or other personal injury awards not intended
to replace income, and cash and corporate income in a
corporation in which the parent has an ownership interest
sufficient to individually exercise control and the cash or
corporate income is not included as gross income under s.
DCF 150.02 (13).
2. The parent's assets are underproductive and at least one of
the following applies:
a. The parent has diverted income into assets to avoid paying
child support.
b. Income from the parent's assets is necessary to maintain
the child or children at the standard of living they would have
had if they were living with both parents.
(b) The court shall impute income to assets by multiplying
the total net value of the assets by the current 6-month
treasury bill rate or any other rate that the court determines
is reasonable and subtracting the actual income from the
assets that was included as gross income under s. DCF
150.02 (13).
(5) Adjustment for child's social security.
(a) The court may consider a child's benefit under 42 USC
402 (d) based on a parent's entitlement to federal disability
or old-age insurance benefits under 42 USC 401 to 433 and
adjust a payer's child support obligation by subtracting the
amount of the child's benefit received by the payee. In no
case may this adjustment require the payee to reimburse the
payer for any portion of the child's benefit. If the payer is
receiving the child's benefit, the support amount is either the
percentage standard applied to the payer's income or the
amount of the child's benefit, whichever is greater.
(b) If the shared-placement guidelines under s. DCF 150.04
(2) apply, the child's benefit is split between the parents in
proportion to the amount of time the child spends with each
parent. Add the proportion of the child's benefit that
represents the proportion of time the child spends with the
parent not receiving the benefit to the support obligation of
the parent who is receiving the child's benefit. Support shall
be determined as follows:
1. Determine each parent's monthly income available for
child support under s. DCF 150.03 (1) (intro.). If a parent has
one or more previous child support obligations, determine
the parent's monthly income available for child support
adjusted for the previous obligations as provided in s. DCF
150.04 (1). Include the parent's federal disability or old age
insurance benefits under 42 USC 401 to 433 in that parent's
income, but do not include the child's benefit under 42 USC
402 (d) in either parent's income.
2. Multiply each parent's monthly income available for child
support by the appropriate percentage standard under s. DCF
150.03 (1).
3. Multiply each amount determined under subd. 2. by 150%.
4. Multiply the amount determined for each parent in subd.
3. by the proportion of time that the child spends with the
other parent.
5. Multiply the amount of the child's benefit by the
proportion of the time the child spends with the parent who
is not receiving the child's benefit.
6. Add the amount in subd. 5. to the child support obligation
calculated in subd. 4. for the parent who is receiving the
child's benefit.
7. Offset the resulting amounts against each other. The parent
with the greater child support obligation is the sharedplacement payer. The shared-placement payer shall pay
either the greater of the amount determined in this subsection
or the amount determined using the appropriate percentage
standard under s. DCF 150.03 (1).
Note: The following example shows how the child support obligation is
determined for a shared-placement parent who receives a child's benefit under 42
USC 402 (d):
Assumptions:
Two children
Parent A has placement 146 days or 40% of the year.
Parent B has placement 219 days or 60% of the year.
Parent A's current monthly income available for support is $2000.
Parent B's current monthly income available for support is $2500
Parent B receives a $1000 per month child's benefit under 42 USC 402(d) based on
Parent A's entitlement to federal disability or old-age insurance benefits under 42
USC 401 to 433.
(5m) adjustment for adoption assistance. The court may
consider adoption assistance received by either parent under
s. 48.975 (3) (a), Stats. If the shared placement guidelines
under s. DCF 150.04 (2) apply, the adoption assistance
should be split between the parents in proportion to the
amount of time the child spends with each parent. Add the
proportion of the adoption assistance that represents the
proportion of time the child spends with the parent not
receiving the adoption assistance to the support obligation of
the parent who is receiving the adoption assistance. Support
shall be determined as follows:
(a) Determine each parent's monthly income available for
child support under s. DCF 150.03 (1) (intro.). If a parent has
15
one or more previous child support obligations, determine
the parent's monthly income available for child support
adjusted for the previous obligations as provided in s. DCF
150.04 (1). Do not include the adoption assistance under s.
48.975 (3) (a), Stats., in either parent's income.
(b) Multiply each parent's monthly income available for
child support by the appropriate percentage standard under
s. DCF 150.03 (1).
(c) Multiply each amount determined under par. (b) by
150%.
(d) Multiply the amount determined for each parent in par.
(c) by the proportion of time that the child spends with the
other parent.
(e) Multiply the amount of the adoption assistance by the
proportion of the time the child spends with the parent who
is not receiving the child's benefit.
(f) Add the amount in par. (e) to the child support obligation
calculated in par. (d) for the parent who is receiving the
adoption assistance.
(g) Offset the resulting amounts against each other. The
parent with the greater child support obligation is the sharedplacement payer. The shared-placement payer shall pay the
lesser of the amount determined in this subsection or the
amount determined using the appropriate percentage
standard under s. DCF 150.03 (1).
(a) Upon request by a party, the court may modify the
amount of child support payments determined under sub. (1)
if, after considering the factors in s. 767.511 (1m), Stats., as
applicable, the court finds by the greater weight of the
credible evidence that use of the percentage standard is
unfair to the child or to any of the parties.
(b) If the court under par. (a) modifies the amount of child
support payment determined under sub. (1), the court shall
state in writing or on the record the amount of support that
would be required by using the percentage standard under
sub. (1), the amount by which the court's order deviates from
that amount, its reasons for finding that use of the percentage
standard is unfair to the child or the party, its reasons for the
amount of the modification and the basis for the modification
as provided under s. 767.511 (1n), Stats.
DCF 150.04 Determining the child support obligation
in special circumstances.
Child support may be determined under special
circumstances as follows:
(1) Determining the child support obligation of a serialfamily parent.
(a) Applicability. This subsection applies only if the support
obligation being calculated is for children from a subsequent
family
or
subsequent
paternity
judgment
or
acknowledgment. A parent may not use the provisions of this
subsection as a basis for seeking modification of an existing
order based on a subsequently incurred legal obligation for
child support. A parent with a legal obligation to support a
child in an intact family is a serial family payer for the
purpose of calculating a support obligation for children from
a subsequent family under the provisions of this subsection
and s. DCF 150.04 (6) (c).
(b) Determination. For a serial-family parent the child
support obligation incurred for a marital or nonmarital child
in a subsequent family as a result of a court order may be
determined as follows:
1. Determine the parent's monthly income available for child
support under s. DCF 150.03 (1) (intro.).
2. Determine the order of the parent's legal obligations for
child support by listing them according to the date each
obligation is incurred. For a marital child, the legal
obligation for child support is incurred on the child's date of
birth. For a nonmarital child, the father's legal obligation for
child support is incurred on the date that paternity is legally
established. For a nonmarital child in an intact family, it is
incurred on the date of adoption or the date that paternity is
legally established. For a nonmarital maternal child in an
intact family, it is incurred on the child's date of birth.
3. Determine the first child support obligation as follows:
a. If the parent is subject to an existing support order for that
legal obligation, except a shared-placement order under s.
DCF 150.04 (2), the support for that obligation is the
monthly amount of that order.
Note: Section 46.10 (14) (cm) 1., Stats., caps the amount that adoptive parent/s
may be ordered to pay for child support to the amount of the adoption assistance.
(6) Determine child support before maintenance. If a payer
will have obligations for both child support and maintenance
to the same payee, the court shall determine the payer's child
support obligation under this chapter before determining the
payer's maintenance obligation under s. 767.56, Stats.
(7) Calculation of family support. When the standard under
sub. (1) is used to calculate support under s. 767.531, Stats.,
the amount determined shall be increased by the amount
necessary to provide a net family support payment, after state
and federal income taxes are paid, of at least the amount of a
child support payment under the standard.
(8) Expression of ordered support. The support amount shall
be expressed as a fixed sum unless the parties have stipulated
to expressing the amount as a percentage of the payer's
income and the requirements under s. 767.34 (2) (am) 1. to
3., Stats., are satisfied.
(9) Trust. The court may protect and promote the best
interests of the minor children by setting aside a portion of
the child support that either party is ordered to pay in a
separate fund or trust for the support, education, and welfare
of such children.
(10) Dependency exemption. The court may order the payee
to waive the federal dependency exemption provided that the
payee's execution of the exemption waiver is made
contingent on the receipt of child support payments.
(11) Deviation from the percentage standard.
16
b. If the parent is in an intact family or is subject to a sharedplacement order under s. DCF 150.04 (2), the support is
determined by multiplying the appropriate percentage under
s. DCF 150.03 (1) for that number of children by the parent's
monthly income available for child support or, if applicable,
determine support under sub. (2), (3), (4), or (5).
4. Adjust the monthly income available for child support by
subtracting the support for the first legal obligation under
subd. 3. from the parent's monthly income available for child
support under subd. 1.
5. Determine the second child support obligation as follows:
a. If the parent is subject to an existing support order for that
legal obligation, except a shared-placement order under s.
DCF 150.04 (2), the support for that obligation is the
monthly amount of that order.
b. If the parent is in an intact family or is subject to a sharedplacement order under s. DCF 150.04 (2), the support is
determined by multiplying the appropriate percentage under
s. DCF 150.03 (1) for that number of children by the parent's
monthly income available for child support or, if applicable,
determine support under sub. (2), (3), (4), or (5).
6. Adjust the monthly income available for child support a
second time by subtracting the support for the second legal
obligation determined under subd. 5. from the first adjusted
monthly income available for child support determined
under subd. 4.
7. Repeat the procedure under subds. 5. and 6. for each
additional legal obligation for child support the serial-family
parent has incurred.
8. Multiply the appropriate percentage under s. DCF 150.03
(1) for the number of children subject to the new order by the
final adjusted monthly income available for child support
determined in either subd. 6. or 7. to determine the new child
support obligation or if applicable, determine the new child
support obligation under sub. (2), (3), (4), or (5). If multiple
child support obligations reduce a serial-family parent's
income to a level set forth in the schedule in ch. DCF 150
Appendix C, the court may combine the provisions of this
subsection with the provisions for determining the support
obligation of a low-income payer under s. DCF 150.04 (4).
(a) The shared-placement formula may be applied when both
of the following conditions are met:
1. Both parents have court-ordered periods of placement of
at least 25% or 92 days a year. When calculating periods of
placement based on “equivalent care” under s. DCF 150.02
(10), the total number of overnights may exceed 365. The
period of placement for each parent shall be determined by
calculating the number of overnights or equivalent care
ordered to be provided by the parent and dividing that
number by the total number of overnights in a year. The
combined periods of placement for both parents shall equal
the total number of overnights.
2. Each parent is ordered by the court to assume the child's
basic support costs in proportion to the time that the parent
has placement of the child.
(b) The child support obligations for parents who meet the
requirements of par. (a) may be determined as follows:
1. Determine each parent's monthly income available for
child support under s. DCF 150.03 (1). In determining
whether to impute income based on earning capacity for an
unemployed parent or a parent employed less than full time
under s. DCF 150.03 (3), the court shall consider benefits to
the child of having a parent remain in the home during
periods of placement and the additional variable day care
costs that would be incurred if the parent worked more. If a
parent has one or more previous child support obligations,
determine the parent's monthly income available for child
support adjusted for the previous obligations as provided in
sub. (1).
2. Multiply each parent's monthly income available for child
support by the appropriate percentage standard under s. DCF
150.03 (1).
3. Multiply each amount determined under subd. 2. by 150%.
Note: The 150% accounts for household maintenance expenditures duplicated by
both parents, such as a bedroom, clothes, and personal items.
4. Multiply the amount determined for each parent under
subd. 3. by the proportion of the time that the child spends
with the other parent to determine each parent's child support
obligation.
5. Offset resulting amounts under subd. 4. against each other.
The parent with a greater child support obligation is the
shared-placement payer. The shared-placement payer shall
pay the lesser of the amount determined under this subd. or
the amount determined using the appropriate percentage
standard under s. DCF 150.03 (1). If the shared-placement
payer is also a low-income or high-income payer, the court
may combine the provisions of either sub. (4) or (5) with the
provisions of this section.
6. In addition to the child support obligation determined
under subd. 5., the court shall assign responsibility for
payment of the child's variable costs in proportion to each
parent's share of physical placement, and based upon a
detailed list of the variable costs provided by the parties. Due
consideration shall be given to a disparity in the parents'
Note: The following example shows how the child support obligation is
determined for a serial-family parent whose additional child support obligation has
been incurred for a subsequent family.
Assumptions:
Parent A's current monthly income available for child support is $3000.
Parent A and Parent B were married, had a child in 2000 and divorced in 2001.
Parent A is subject to an existing support order of $450 per month.
Parent A remarries and has two children, one born in 2006 and the other in 2007,
and remains an intact family.
Parent A was adjudicated the father in 2008 for a child born in 2005. Child support
needs to be established for this child.
Order of parent A's legal obligation for child support.
First legal obligation: one child (2000) (divorce)
Second legal obligation: 2 children (2006 and 2007) (intact family)
Third legal obligation: one child (2008) (paternity)
(2) Determining the child support obligations of sharedplacement parents.
17
income and the transportation costs associated with each
parent's respective periods of physical placement. The court
shall direct the manner of payment of a variable cost order to
be either between the parents or from a parent to a third-party
service provider. The court shall not direct payment of
variable costs to be made to the department or the
department's designee.
7. A change in the child's variable costs shall not in and of
itself be considered a substantial change in circumstances
sufficient to justify a revision of a judgment or order under
s. 767.59, Stats.
(c) Offset resulting amounts under par. (b) against each
other. The parent with a greater child support obligation is
the split-placement payer.
Note: The following example shows how to calculate the amount of child support
for split-placement parents:
Assumptions:
Parent A and B have 3 children.
Parent A has placement of 2 children and Parent B has placement of one child.
Parent A's monthly income available for child support is $2,000.
Parent B's monthly income available for child support is $3,000.
Calculation:
Applicable percentage: 29%. Pro rata percentage is 9.67% per child.
Parent A: 2,000 X 9.67% (income x applicable pro rata % for one child placed with
Parent B) = 193.40
Parent B: 3,000 X 19.34% (income x sum of pro rata % for 2 children placed with
Parent A) = 580.20
Parent B is the payer. Obligation following offset = 386.80
Note: The following example shows how to calculate the child support obligations
of shared-placement parents.
Number of children: Two
Parent A: $2,000 monthly income available for child support
Court-ordered placement of the child for 219 days a year or 60%.
Parent B: $3,000 monthly income available for child support
Court-ordered placement of the child for 146 days a year or 40%.
(4) Determining the child support obligation of a lowincome payer.
(a) The court may use the monthly support amount provided
in the schedule in Appendix C as the support amount for a
payer with a monthly income available for child support at a
level set forth in the schedule if the payer's total economic
circumstances limit his or her ability to pay support at the
level determined under s. DCF 150.03 (1). If a payer's
monthly income available for child support is below the
lowest income level in Appendix C, the court may set an
order at an amount appropriate for the payer's total economic
circumstances. This amount may be lower than the lowest
support amount in Appendix C.
(b) The department shall revise the schedule in Appendix C
every year based on changes in the federal poverty guidelines
since the schedule was last revised. The department shall
publish revisions to the schedule in the Wisconsin
Administrative Register.
Example of equivalent care:
Number of children: Two
Parent A: $2,000 monthly income available for child support
Parent A has court-ordered placement of the child 271 days a year or 74%.
Parent B: $3,000 monthly income available for child support
Parent B has court-ordered placement of the child 94 days a year or 26%.
Parent B also provides day care 4 days a week from 3 pm – 9 pm and
Provides dinner to the children 46 weeks per year.
(4) 6 hour blocks per week = 2 overnights X 46 weeks= 92 overnights per year
Total number of overnights = 457 (271 + 94 + 92)
Parent A = 59%
Parent B = 41%
Time with Parent A = 59% (271/457 = .59)
Time with Parent B = 41% (94 = 92/457 = .407)
(3) Determining the child support obligations of splitplacement parents. For parents who have 2 or more children
and each parent has placement of one or more but not all of
the children, the child support obligations may be determined
as follows:
(a) Determine each parent's monthly income available for
child support under s. DCF 150.03 (1). If a parent has one or
more previous child support obligations, determine the
parent's monthly income available for child support adjusted
for the previous obligations as provided in sub. (1).
(b) Multiply the amount determined in par. (a) by the pro rata
percentage standard for the number of children in split
placement who are placed with the other parent. The pro rata
percentage standard for the number of children in split
placement who are placed with the other parent is calculated
by determining the appropriate percentage standard under s.
DCF 150.03 (1) for the total number of children, dividing by
the total number of children, and adding together the
percentages for the children in split-placement who are
placed with the other parent.
Note: The schedule in Appendix C provides reduced percentage rates that may be
used to determine the child support obligation for payers with an income below
150% of the federal poverty guidelines. If a payer's monthly income available for
child support is below 75% of the federal poverty guidelines, the court may order
an amount appropriate for the payer's total economic circumstances. For monthly
income amount for child support between 75% and 150% of the federal poverty
guidelines, the percentage rates in the schedule gradually increase as income
increases. The percentage rates used in s. DCF 150.03 (1) apply to payers with
income greater than or equal to 150% of the federal poverty guidelines.
(5) Determining the child support obligation of a highincome payer.
(a) The payer's full monthly income available for child
support shall be considered in determining the payer's child
support obligation. The court may apply the reduced
percentages under pars. (c) and (d) to income at the indicated
levels.
(b) The court shall apply the percentages in s. DCF 150.03
(1) to a payer's monthly income available for child support
that is less than $7,000.
Note: The pro-rata percentage standards for the number of children for whom
support is being established are as follows:
2 children 12.5% for each child (25% ÷ 2)
3 children 9.67% for each child (29% ÷ 3)
4 children 7.75% for each child (31% ÷ 4)
5 children 6.8% for each child (34% ÷ 5)
Note: A monthly income of $7,000 is an annual income of $84,000.
(c) The court may apply the following percentages to the
portion of a payer's monthly income available for child
support that is greater than or equal to $7,000 and less than
or equal to $12,500:
18
1. 14% for one child.
2. 20% for 2 children.
3. 23% for 3 children.
4. 25% for 4 children.
5. 27% for 5 or more children.
c. Multiply the amount determined under subd. 3. b. for each
parent by 150%.
Note: The 150% accounts for household maintenance expenditures duplicated by
both parents, such as a bedroom, clothes, and personal items.
d. Multiply each amount determined by the proportion of the
time that the child spends with the other parent to determine
each parent's child support obligation.
e. Offset resulting amounts under subd. 3. d. against each
other.
4. Add or offset the child support obligation for children
placed with the other parent full-time under subd. 2. with the
child support obligation for children in shared-placement
under subd. 3. e. The parent with a greater child support
obligation is the payer. The payer shall pay the lesser of the
amount determined under this subdivision or the amount
determined using the appropriate percentage standard under
s. DCF 150.03 (1). If the payer under this subdivision is also
a low-income payer, the child support obligation may be the
lesser of the amount determined under this subdivision or
under sub. (4).
5. In addition to the child support obligation determined
under subd. 4., the court shall assign responsibility for
payment of the child's variable costs in proportion to each
parent's share of physical placement, with due consideration
to a disparity in the parents' incomes. The court shall direct
the manner of payment of a variable cost order to be either
between the parents or from a parent to a third-party service
provider. The court shall not direct payment of variable costs
to be made to the department or the department's designee,
except as incorporated in the fixed sum or percentage
expressed child support order.
Note: A monthly income of $7,000 is an annual income of $84,000 and a monthly
income of $12,500 is an annual income of $150,000. The percentages that apply to
income between $84,000 and $150,000 are approximately 80% of the full
percentage standards.
(d) The court may apply the following percentages to the
portion of a payer's monthly income available for child
support that is greater than $12,500:
1. 10% for one child.
2. 15% for 2 children.
3. 17% for 3 children.
4. 19% for 4 children.
5. 20% for 5 or more children.
Note: A monthly income of $12,500 is an annual income of $150,000. The
standards that apply to income over $150,000 are approximately 60% of the full
percentage standards.
(6) Combination of special circumstances.
(a) General. The court may apply any combination of special
circumstance provisions under subs. (1) to (5) to determine a
child support obligation if the criteria apply and the
combination of provisions is not specifically prohibited.
(b) Shared and split placement. If the parents have a
combination of split-placement and shared-placement, the
child support obligation may be determined as follows:
1. Determine the pro rata percentage standard for the total
number of children for whom support is being established.
The pro rata percentage standard for the total number of
children for whom support is being established is calculated
by determining the appropriate percentage standard under s.
DCF 150.03 (1) for the total number of children and dividing
by the total number of children.
Note: Example of a combination of split-placement and shared-placement:
Assumptions:
3 children
Parent A:
2 children full time
1 child 30%
$2,000/month income
Parent B:
1 child 70%
$3,000/month income
Calculation:
Applicable percentage 29%. Pro rata percentage is 9.67% per child.
Parent A:
2,000 x 9.67% (income x applicable pro rata % for child shared with Parent B) =
193.40\
x 1.5 (150%) =290.10
x 70% (% of time child is with parent B) = 203.07
Parent B:
3,000 x 19.34% (income x sum of pro rata percentage standards for 2 children who
are placed full-time with Parent A) = 580.20
3,000 x 9.67% (income x applicable % for one child shared with parent A) = 290.10
x 1.5 (150%) = 435.15
x 30% (Child placed with parent A) = 130.55
Parent A's obligation = 203.07 (1 shared child)
Parent B's obligation = 130.55 (1 shared child) + 580.20 (2 children full-time with
Parent A) = 710.75
Parent B is the payer. Total obligation following offset = $507.68
Note: The pro-rata percentage standards for the number of children for whom
support is being established are as follows:
2 children 12.5% for each child (25% ÷ 2)
3 children 9.67% for each child (29% ÷ 3)
4 children 7.75% for each child (31% ÷ 4)
5 children 6.8% for each child (34% ÷ 5)
2. Determine support for the children who are placed with
the other parent full-time. First, add together the pro rata
percentage standards for the number of children who are
placed full-time with the other parent. Then, multiply the
sum of the pro-rata percentage standards by the parent's
monthly income available for child support, as adjusted for
any previous child support obligations, for the parent whose
child support obligation is being calculated.
3. Determine support for the children who are in sharedplacement as follows:
a. Add together the pro rata percentage standards for the
number of children who are in shared-placement.
b. Multiply the sum of the pro rata percentage standards by
the parent's monthly income available for child support,
adjusted for any previous child support obligations.
(c) Shared-placement and serial-family parent. If a parent is
a serial-family parent, including a serial-family parent in an
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intact family, and a child support obligation is being
established for that parent's children from a subsequent
family or a subsequent paternity judgment in which both
parents will have periods of placement of at least 25% or 92
days a year, the child support obligations may be determined
as follows:
1. Determine the first child support obligation by either of
the following:
a. The court-ordered amount of the first child support
obligation.
b. If no court-ordered support obligation exists, multiplying
the appropriate percentage under DCF 150.03 (1) by the
parent's monthly income available for child support.
2. Determine the child support obligation for the subsequent
family by adjusting the monthly income available for child
support by subtracting the support for the first legal
obligation under subd. 1. from the parent's monthly income
available for child support under subd. 1.
3. Multiply the appropriate percentage under s. DCF 150.03
(1) for the number of children subject to the new order by the
final adjusted monthly income available for child support
determined under subd. 2. to determine the new child support
obligation.
reasonable distance if they are located within 30 minutes or
30 miles of the child's residence, with a greater distance
allowed in some rural areas.
2. The court may consider a private health insurance plan to
be available at a reasonable cost if the cost of the policy does
not exceed 10% of the insuring parent's monthly income
available for child support and would cover hospitalization
and other medical costs without large out-of-pocket
deductibles or copayments. The 10% standard applies to the
full cost of the health insurance, including the cost of selfonly coverage and the cost to that parent after adding the
child or children.
3. The court may order the non-insuring parent to contribute
to the cost to enroll the children in a private health insurance
plan in an amount that does not exceed 10% of the noninsuring parent's monthly income available for child support.
A contribution to the cost to enroll the children may not
exceed the cost to add the child or children to existing
coverage. If the parent ordered to enroll the children does not
have single coverage, a contribution to the cost to enroll the
child or children may not exceed the difference between the
cost of single coverage and the cost to the insuring parent to
add the child or children.
4. The court may incorporate responsibility for a contribution
to the cost of private health insurance as an upward or
downward adjustment to a payer's child support obligation.
Note: The following example shows how the child support obligation is
determined for a serial-family parent whose additional child support obligation for
a subsequent family and both parents will have periods of placement of at least
25% or 92 days.
Assumption:
Parent A: $2000 monthly income available for child support
Parent A has court ordered placement for 219 days a year or 60%
Parent A has a child from a previous relationship living with him or her
Parent B: $3000 monthly income available for child support
Parent B has court ordered placement for 146 days a year or 40%
Calculation:
Parent A's monthly income available for child support $2000
Parent A's first legal obligation for support to a child
in an intact family = 17% $340
Adjust Parent A's monthly income available for child support $2000
Adjusted monthly income available for support $1660
Determine support for the second legal obligation
DCF 150.05
Note: The cost to enroll a child in a private health insurance plan and a contribution
to the cost are in addition to a parent's responsibility for child support. The court
would order an upward adjustment to a payer's child support order if the payee is
the insuring parent and the payer is contributing to the cost. The court would order
a downward adjustment to the payer's child support obligation if the payer is the
insuring parent, the payee is contributing to the cost, and the payee's contribution
is less than the payer's child support amount.
(c) The court may not order a parent whose income is below
150% of the federal poverty level to enroll a child in a private
health insurance plan or contribute to the cost of a private
health insurance plan unless there is no cost to the parent.
(d) If there is no private health insurance plan available that
meets the requirements of par. (b), the court may order any
of the following:
1. Enrollment in a private health insurance plan as a
deviation under s. 767.511 (1m), Stats.
2. Responsibility for a contribution to the cost of the other
parent's premium for the BadgerCare Plus program under s.
49.471, Stats., unless the parent's income is below 150% of
the federal poverty level. The court may incorporate
responsibility for a contribution to the cost of the premium
as an upward or downward adjustment to a payer's child
support obligation.
3. Enrollment in a private health insurance plan if a plan that
meets the requirements of par. (b) becomes available to the
parent in the future.
(e) If a person other than a parent has enrolled a child in an
accessible private health insurance plan that covers
hospitalization and other medical costs without large out-of-
Medical support.
(1) Responsibility for health expenses. In addition to
ordering child support for a child under this chapter, the court
shall specifically assign responsibility for and direct the
manner of payment for the child's health expenses under s.
767.513, Stats.
(a) In this section, “ private health insurance" does not
include a medical program under subch. IV or V of ch. 49,
Stats.
(b) Except as provided in pars. (d) and (e), the court may
order either or both parents to enroll a child in a private
health insurance plan that is accessible to the child and
available at a reasonable cost, as follows:
1. The court may consider a private health insurance plan to
be accessible to the child if the plan's service providers are
located within a reasonable distance from the child's home.
In general, service providers may be considered within a
20
pocket deductibles or copayments, the court may determine
whether to order a parent to enroll the child in a private health
insurance plan.
(f) The court shall also establish an order for medical
expenses that are not covered by insurance. The court shall
consider each parent's ability to pay these medical expenses.
(g) The court shall consider the impact of the dependency
exemption on the availability of insurance in the marketplace
and the imposition of penalties under applicable federal law.
Child Custody
767.407
Guardian ad litem for minor children.
(1) Appointment.
(a) The court shall appoint a guardian ad litem for a minor
child in any action affecting the family if any of the
following conditions exists:
1. The court has reason for special concern as to the welfare
of a minor child.
2. Except as provided in par. (am), the legal custody or
physical placement of the child is contested.
(am) The court is not required to appoint a guardian ad litem
under par. (a) 2. if all of the following apply:
1. Legal custody or physical placement is contested in an
action to modify legal custody or physical placement under
s. 767.451 or 767.481.
2. The modification sought would not substantially alter the
amount of time that a parent may spend with his or her child.
3. The court determines any of the following:
a. That the appointment of a guardian ad litem will not assist
the court in the determination regarding legal custody or
physical placement because the facts or circumstances of the
case make the likely determination clear.
b. That a party seeks the appointment of a guardian ad litem
solely for a tactical purpose, or for the sole purpose of delay,
and not for a purpose that is in the best interest of the child.
(b) The court may appoint a guardian ad litem for a minor
child in any action affecting the family if the child's legal
custody or physical placement is stipulated to be with any
person or agency other than a parent of the child or, if at the
time of the action, the child is in the legal custody of, or
physically placed with, any person or agency other than the
child's parent by prior order or by stipulation in this or any
other action.
(c) The attorney responsible for support enforcement under
s. 59.53 (6) (a) may request that the court appoint a guardian
ad litem to bring an action or motion on behalf of a minor
who is a nonmarital child whose paternity has not been
acknowledged under s. 767.805 (1) or a substantially similar
law of another state or adjudicated for the purpose of
determining the paternity of the child, and the court shall
appoint a guardian ad litem, if any of the following applies:
1. Aid is provided under s. 48.57 (3m) or (3n), 48.645, 49.19,
or 49.45 on behalf of the child, or benefits are provided to
the child's custodial parent under ss. 49.141 to 49.161, but
the state and its delegate under s. 49.22 (7)are barred by a
statute of limitations from commencing an action under s.
767.80 on behalf of the child.
2. An application for legal services has been filed with the
child support program under s. 49.22 on behalf of the child,
but the state and its delegate under s. 49.22 (7) are barred by
a statute of limitations from commencing an action under s.
767.80 on behalf of the child.
(d) A guardian ad litem appointed under par. (c) shall bring
an action or motion for the determination of the child's
Note: The following example shows how to apply the reasonable cost standard.
Parent A: $4,500 monthly income available for child support 10% = $450
Parent B: $2,500 monthly income available for child support 10% = $250
Parent A's employer-sponsored insurance:
$230/month out-of-pocket cost for self-only coverage
$210/month out-of-pocket cost to add the child or children
$440 total monthly out-of-pocket cost for the policy. ($440 < $450. Therefore, the
total out-of-pocket cost of the policy does not exceed 10% of the insuring parent's
income. This is considered reasonable.)
--Parent A may be ordered to enroll the child or children and contribute up to
$440.00/month for the policy.
--Parent B may be ordered to contribute up to $210/month toward the cost. ($210
= lesser of 10% of Parent B's income or cost to add the children)
--The court may incorporate responsibility for a contribution from Parent B to the
cost of health insurance as a downward deviation to Parent A's child support
obligation.
--The court shall consider the out-of-pocket cost for self-only coverage for Parent
B when determining a reasonable contribution from Parent B to the cost of health
insurance provided by Parent A.
(2) Birth cost judgment.
(a) In this subsection, “birth cost judgment" means an order
establishing the amount of the father's obligation to pay or
contribute to the reasonable expenses of the mother's
pregnancy and the child's birth under s. 767.89 (3) (e), Stats.
Recovery of birth costs is inappropriate in cases where the
alleged father is a member of an intact family that includes
the mother and the subject child at the time paternity or
support is established, and the father's income, if any,
contributes to the support of the child.
(b) The court shall include in a paternity judgment or order
a birth cost judgment amount that does not exceed one-half
of the actual and reasonable cost of the mother's pregnancy
and child's birth and shall order the lowest of the following:
1. An amount that does not exceed the sum of 5% of the
father's current monthly income available for child support
multiplied by 36 months.
2. If the father's monthly income available for child support
is between 75% and 150% of the federal poverty guidelines,
an amount that does not exceed the maximum birth cost
judgment amount provided in the schedule in Appendix D.
3. If the father's monthly income available for child support
is less than 75% of the federal poverty guidelines, a birth cost
judgment at an amount appropriate for the father's total
economic circumstances.
(c) The department shall revise the schedule in Appendix D
every year based on changes in the federal poverty
guidelines. The department shall publish revisions to the
schedule in the Wisconsin Administrative Register.
21
paternity if the guardian ad litem determines that the
determination of the child's paternity is in the child's best
interest.
(e) Nothing in this subsection prohibits the court from
making a temporary order under s. 767.225 that concerns the
child before a guardian ad litem is appointed or before the
guardian ad litem has made a recommendation to the court,
if the court determines that the temporary order is in the best
interest of the child.
(2) Time for appointment. The court shall appoint a
guardian ad litem under sub. (1) (a) 1. or (b) whenever the
court deems it appropriate. The court shall appoint a
guardian ad litem under sub. (1) (a) 2. at the time specified
in s. 767.405 (12) (b), unless upon motion by a party or its
own motion the court determines that earlier appointment is
necessary.
(3) Qualifications. The guardian ad litem shall be an
attorney admitted to practice in this state. No person who is
an interested party in a proceeding, appears as counsel in a
proceeding on behalf of any party or is a relative or
representative of an interested party may be appointed
guardian ad litem in that proceeding.
(4) Responsibilities. The guardian ad litem shall be an
advocate for the best interests of a minor child as to paternity,
legal custody, physical placement, and support. The guardian
ad litem shall function independently, in the same manner as
an attorney for a party to the action, and shall consider, but
shall not be bound by, the wishes of the minor child or the
positions of others as to the best interests of the minor child.
The guardian ad litem shall consider the factors under s.
767.41 (5) (am), subject to s. 767.41 (5) (bm), and custody
studies under s. 767.405 (14). The guardian ad litem shall
investigate whether there is evidence that either parent has
engaged in interspousal battery, as described in s. 940.19 or
940.20 (1m), or domestic abuse, as defined in s. 813.12 (1)
(am), and shall report to the court on the results of the
investigation. The guardian ad litem shall review and
comment to the court on any mediation agreement and
stipulation made under s. 767.405 (12) and on any parenting
plan filed under s. 767.41 (1m). Unless the child otherwise
requests, the guardian ad litem shall communicate to the
court the wishes of the child as to the child's legal custody or
physical placement under s. 767.41 (5) (am) 2. The guardian
ad litem has none of the rights or duties of a general guardian.
(4m) Status hearing.
(a) Subject to par. (b), at any time after 120 days after a
guardian ad litem is appointed under this section, a party may
request that the court schedule a status hearing related to the
actions taken and work performed by the guardian ad litem
in the matter.
(b) A party may, not sooner than 120 days after a status
hearing under this subsection is held, request that the court
schedule another status hearing on the actions taken and
work performed by the guardian ad litem in the matter.
(5) Termination and extension of appointment. The
appointment of a guardian ad litem under sub. (1) terminates
upon the entry of the court's final order or upon the
termination of any appeal in which the guardian ad litem
participates. The guardian ad litem may appeal, may
participate in an appeal or may do neither. If an appeal is
taken by any party and the guardian ad litem chooses not to
participate in that appeal, he or she shall file with the
appellate court a statement of reasons for not participating.
Irrespective of the guardian ad litem's decision not to
participate in an appeal, the appellate court may order the
guardian ad litem to participate in the appeal. At any time,
the guardian ad litem, any party or the person for whom the
appointment is made may request in writing that the court
extend or terminate the appointment or reappointment. The
court may extend that appointment, or reappoint a guardian
ad litem appointed under this section, after the final order or
after the termination of the appeal, but the court shall
specifically state the scope of the responsibilities of the
guardian ad litem during the period of that extension or
reappointment.
(6) Compensation. The guardian ad litem shall be
compensated at a rate that the court determines is reasonable.
The court shall order either or both parties to pay all or any
part of the compensation of the guardian ad litem. In
addition, upon motion by the guardian ad litem, the court
shall order either or both parties to pay the fee for an expert
witness used by the guardian ad litem, if the guardian ad
litem shows that the use of the expert is necessary to assist
the guardian ad litem in performing his or her functions or
duties under this chapter. If both parties are indigent, the
court may direct that the county of venue pay the
compensation and fees. If the court orders a county to pay
the compensation of the guardian ad litem, the amount
ordered may not exceed the compensation paid to private
attorneys under s. 977.08 (4m) (b). The court may order a
separate judgment for the amount of the reimbursement in
favor of the county and against the party or parties
responsible for the reimbursement. The court may enforce its
orders under this subsection by means of its contempt power.
767.41
Custody and physical placement.
(1) General provisions.
(a) Subject to ch. 822, the question of a child's custody may
be determined as an incident of any action affecting the
family or in an independent action for custody. The effect of
any determination of a child's custody is not binding
personally against any parent or guardian unless the parent
or guardian has been made personally subject to the
jurisdiction of the court in the action as provided under ch.
801 or has been notified under s. 822.08, as provided in s.
822.06. Nothing in this chapter may be construed to
foreclose a person other than a parent who has physical
custody of a child from proceeding under ch. 822.
22
(b) In rendering a judgment of annulment, divorce, legal
separation, or paternity, or in rendering a judgment in an
action under s. 767.001 (1) (e), 767.501, or 767.805 (3), the
court shall make such provisions as it deems just and
reasonable concerning the legal custody and physical
placement of any minor child of the parties, as provided in
this section.
(1m) Parenting plan. Unless the court orders otherwise, in
an action for annulment, divorce, or legal separation, an
action to determine paternity, or an action under s. 767.001
(1) (e), 767.501, or 767.805 (3), in which legal custody or
physical placement is contested, a party seeking sole or joint
legal custody or periods of physical placement shall file a
parenting plan with the court if the court waives the
requirement to attend mediation under s. 767.405 (8) (b) or
if the parties attend mediation and the mediator notifies the
court under s. 767.405 (12) (b) that the parties have not
reached an agreement. Unless the court orders otherwise, the
parenting plan shall be filed within 60 days after the court
waives the mediation requirement or the mediator notifies
the court that no agreement has been reached. Except for
cause shown, a party required to file a parenting plan under
this subsection who does not timely file a parenting plan
waives the right to object to the other party's parenting plan.
A parenting plan shall provide information about the
following questions:
(a) What legal custody or physical placement the parent is
seeking.
(b) Where the parent lives currently and where the parent
intends to live during the next 2 years. If there is evidence
that the other parent engaged in interspousal battery, as
described under s. 940.19 or 940.20 (1m), or domestic abuse,
as defined in s. 813.12 (1) (am), with respect to the parent
providing the parenting plan, the parent providing the
parenting plan is not required to disclose the specific address
but only a general description of where he or she currently
lives and intends to live during the next 2 years.
(c) Where the parent works and the hours of employment. If
there is evidence that the other parent engaged in
interspousal battery, as described under s. 940.19 or 940.20
(1m), or domestic abuse, as defined in s. 813.12 (1) (am),
with respect to the parent providing the parenting plan, the
parent providing the parenting plan is not required to disclose
the specific address but only a general description of where
he or she works.
(d) Who will provide any necessary child care when the
parent cannot and who will pay for the child care.
(e) Where the child will go to school.
(f) What doctor or health care facility will provide medical
care for the child.
(g) How the child's medical expenses will be paid.
(h) What the child's religious commitment will be, if any.
(i) Who will make decisions about the child's education,
medical care, choice of child care providers and
extracurricular activities.
(j) How the holidays will be divided.
(k) What the child's summer schedule will be.
(L) Whether and how the child will be able to contact the
other parent when the child has physical placement with the
parent providing the parenting plan, and what electronic
communication, if any, the parent is seeking.
(Lm) Whether equipment for providing electronic
communication is reasonably available to both parents.
(m) How the parent proposes to resolve disagreements
related to matters over which the court orders joint decision
making.
(n) What child support, family support, maintenance or other
income transfer there will be.
(o) If there is evidence that either party engaged in
interspousal battery, as described under s. 940.19 or 940.20
(1m), or domestic abuse, as defined in s. 813.12 (1) (am),
with respect to the other party, how the child will be
transferred between the parties for the exercise of physical
placement to ensure the safety of the child and the parties.
(2) Custody to party; joint or sole.
(a) Subject to pars. (am) to (e), based on the best interest of
the child and after considering the factors under sub. (5)
(am), subject to sub. (5) (bm), the court may give joint legal
custody or sole legal custody of a minor child.
(am) Except as provided in par. (d), the court shall presume
that joint legal custody is in the best interest of the child.
(b) Except as provided in par. (d) and subject to par. (e), the
court may give sole legal custody only if it finds that doing
so is in the child's best interest and that either of the
following applies:
1. Both parties agree to sole legal custody with the same
party.
2. The parties do not agree to sole legal custody with the
same party, but at least one party requests sole legal custody
and the court specifically finds any of the following:
a. One party is not capable of performing parental duties and
responsibilities or does not wish to have an active role in
raising the child.
b. One or more conditions exist at that time that would
substantially interfere with the exercise of joint legal
custody.
c. The parties will not be able to cooperate in the future
decision making required under an award of joint legal
custody. In making this finding the court shall consider,
along with any other pertinent items, any reasons offered by
a party objecting to joint legal custody. Evidence that either
party engaged in abuse, as defined in s. 813.122 (1) (a), of
the child, as defined in s. 813.122 (1) (b), or evidence of
interspousal battery, as described under s. 940.19 or 940.20
(1m), or domestic abuse, as defined in s. 813.12 (1) (am),
23
creates a rebuttable presumption that the parties will not be
able to cooperate in the future decision making required.
(c) Except as provided in par. (d), the court may not give sole
legal custody to a parent who refuses to cooperate with the
other parent if the court finds that the refusal to cooperate is
unreasonable.
(d)
1. Except as provided in subd. 4., if the court finds by a
preponderance of the evidence that a party has engaged in a
pattern or serious incident of interspousal battery, as
described under s. 940.19 or 940.20 (1m), or domestic abuse,
as defined in s. 813.12 (1) (am), pars. (am), (b), and (c) do
not apply and there is a rebuttable presumption that it is
detrimental to the child and contrary to the best interest of
the child to award joint or sole legal custody to that party.
The presumption under this subdivision may be rebutted
only by a preponderance of evidence of all of the following:
a. The party who committed the battery or abuse has
successfully completed treatment for batterers provided
through a certified treatment program or by a certified
treatment provider and is not abusing alcohol or any other
drug.
b. It is in the best interest of the child for the party who
committed the battery or abuse to be awarded joint or sole
legal custody based on a consideration of the factors under
sub. (5) (am).
2. If the court finds under subd. 1. that both parties engaged
in a pattern or serious incident of interspousal battery, as
described under s. 940.19 or 940.20 (1m), or domestic abuse,
as defined in s. 813.12 (1) (am), the party who engaged in
the battery or abuse for purposes of the presumption under
subd. 1. is the party that the court determines was the primary
physical aggressor. Except as provided in subd. 3., in
determining which party was the primary physical aggressor,
the court shall consider all of the following:
a. Prior acts of domestic violence between the parties.
b. The relative severity of the injuries, if any, inflicted upon
a party by the other party in any of the prior acts of domestic
violence under subd. 2. a.
c. The likelihood of future injury to either of the parties
resulting from acts of domestic violence.
d. Whether either of the parties acted in self-defense in any
of the prior acts of domestic violence under subd. 2. a.
e. Whether there is or has been a pattern of coercive and
abusive behavior between the parties.
f. Any other factor that the court considers relevant to the
determination under this subdivision.
3. If the court must determine under subd. 2. which party was
the primary physical aggressor and one, but not both, of the
parties has been convicted of a crime that was an act of
domestic abuse, as defined in s. 813.12 (1) (am), with respect
to the other party, the court shall find the party who was
convicted of the crime to be the primary physical aggressor.
4. The presumption under subd. 1. does not apply if the court
finds that both parties engaged in a pattern or serious incident
of interspousal battery or domestic abuse but the court
determines that neither party was the primary physical
aggressor.
(e)
1. In this paragraph, “ service member" means a member of
the national guard or of a reserve unit of the U.S. armed
forces.
2. If a party is a service member, the court may not consider
as a factor in determining the legal custody of a child whether
the service member has been or may be called to active duty
in the U.S. armed forces and consequently is, or in the future
will be or may be, absent from the service member's home.
(3) Custody to agency or relative.
(a) If the interest of any child demands it, and if the court
finds that neither parent is able to care for the child
adequately or that neither parent is fit and proper to have the
care and custody of the child, the court may declare the child
to be in need of protection or services and transfer legal
custody of the child to a relative of the child, as defined in s.
48.02 (15), to a county department, as defined under s. 48.02
(2g), to a licensed child welfare agency, or, in a county
having a population of 750,000 or more, the department of
children and families. If the court transfers legal custody of
a child under this subsection, in its order the court shall
notify the parents of any applicable grounds for termination
of parental rights under s. 48.415. If the court transfers legal
custody under this section to an agency, the court shall also
refer the matter to the court intake worker, as defined in s.
48.02 (3), who shall conduct an inquiry under s. 48.24 to
determine whether a petition should be filed under s. 48.13.
(am) If the court transfers legal custody of a child under this
subsection, the order transferring custody shall include a
finding that placement of the child in his or her home would
be contrary to the welfare of the child and a finding that
reasonable efforts have been made to prevent the removal of
the child from the home, while assuring that the health and
safety of the child are the paramount concerns, unless any of
the circumstances specified in s. 48.355 (2d) (b) 1. to 5.
applies. If the legal custodian appointed under par. (a) is a
county department, the court shall order the child into the
placement and care responsibility of the county department
as required under 42 USC 672 (a) (2) and shall assign the
county department primary responsibility for providing
services to the child. The court shall make the findings
specified in this paragraph on a case-by-case basis based on
circumstances specific to the child and shall document or
reference the specific information on which those findings
are based in the court order. A court order that merely
references this paragraph without documenting or
referencing that specific information in the court order or an
amended court order that retroactively corrects an earlier
24
court order that does not comply with this paragraph is not
sufficient to comply with this paragraph.
(b) If the legal custodian appointed under par. (a) is an
agency, the agency shall report to the court on the status of
the child at least once each year until the child reaches 18
years of age, is returned to the custody of a parent or is placed
under the guardianship of an agency. The agency shall file
an annual report no less than 30 days before the anniversary
of the date of the order. An agency may file an additional
report at any time if it determines that more frequent
reporting is appropriate. A report shall summarize the child's
permanency plan and the recommendations of the review
panel under s. 48.38 (5), if any.
(c) The court shall hold a hearing to review the permanency
plan within 30 days after receiving a report under par. (b). At
least 10 days before the date of the hearing, the court shall
provide notice of the time, place, and purpose of the hearing
to the agency that prepared the report; the child; the child's
parents, guardian, and legal custodian; and the child's foster
parent, the operator of the facility in which the child is living,
or the relative with whom the child is living.
(d) Following the hearing, the court shall make all of the
determinations specified under s. 48.38 (5) (c) and, if it
determines that an alternative placement is in the child's best
interest, may amend the order to transfer legal custody of the
child to another relative, other than a parent, or to another
agency specified under par. (a).
(e) The charges for care furnished to a child whose custody
is transferred under this subsection shall be pursuant to the
procedure under s. 48.36 (1) or 938.36 (1) except as provided
in s. 767.57 (3).
(4) Allocation of physical placement.
(a)
1. Except as provided under par. (b), if the court orders sole
or joint legal custody under sub. (2), the court shall allocate
periods of physical placement between the parties in
accordance with this subsection.
2. In determining the allocation of periods of physical
placement, the court shall consider each case on the basis of
the factors in sub. (5) (am), subject to sub. (5) (bm). The
court shall set a placement schedule that allows the child to
have regularly occurring, meaningful periods of physical
placement with each parent and that maximizes the amount
of time the child may spend with each parent, taking into
account geographic separation and accommodations for
different households.
(b) A child is entitled to periods of physical placement with
both parents unless, after a hearing, the court finds that
physical placement with a parent would endanger the child's
physical, mental or emotional health.
(c) No court may deny periods of physical placement for
failure to meet, or grant periods of physical placement for
meeting, any financial obligation to the child or, if the parties
were married, to the former spouse.
(cm) If a court denies periods of physical placement under
this section, the court shall give the parent that was denied
periods of physical placement the warning provided under s.
48.356.
(e) If the court grants periods of physical placement to more
than one parent, the court may grant to either or both parents
a reasonable amount of electronic communication at
reasonable hours during the other parent's periods of physical
placement with the child. Electronic communication with the
child may be used only to supplement a parent's periods of
physical placement with the child. Electronic
communication may not be used as a replacement or as a
substitute for a parent's periods of physical placement with
the child. Granting a parent electronic communication with
the child during the other parent's periods of physical
placement shall be based on whether it is in the child's best
interest and whether equipment for providing electronic
communication is reasonably available to both parents. If the
court grants electronic communication to a parent whose
physical placement with the child is supervised, the court
shall also require that the parent's electronic communication
with the child be supervised.
(5)
Factors in custody and physical placement
determinations.
(am) Subject to pars. (bm) and (c), in determining legal
custody and periods of physical placement, the court shall
consider all facts relevant to the best interest of the child. The
court may not prefer one parent or potential custodian over
the other on the basis of the sex or race of the parent or
potential custodian. Subject to pars. (bm) and (c), the court
shall consider the following factors in making its
determination:
1. The wishes of the child's parent or parents, as shown by
any stipulation between the parties, any proposed parenting
plan or any legal custody or physical placement proposal
submitted to the court at trial.
2. The wishes of the child, which may be communicated by
the child or through the child's guardian ad litem or other
appropriate professional.
3. The interaction and interrelationship of the child with his
or her parent or parents, siblings, and any other person who
may significantly affect the child's best interest.
4. The amount and quality of time that each parent has spent
with the child in the past, any necessary changes to the
parents' custodial roles and any reasonable life-style changes
that a parent proposes to make to be able to spend time with
the child in the future.
5. The child's adjustment to the home, school, religion and
community.
6. The age of the child and the child's developmental and
educational needs at different ages.
7. Whether the mental or physical health of a party, minor
child, or other person living in a proposed custodial
25
household negatively affects the child's intellectual,
physical, or emotional well-being.
8. The need for regularly occurring and meaningful periods
of physical placement to provide predictability and stability
for the child.
9. The availability of public or private child care services.
10. The cooperation and communication between the parties
and whether either party unreasonably refuses to cooperate
or communicate with the other party.
11. Whether each party can support the other party's
relationship with the child, including encouraging and
facilitating frequent and continuing contact with the child, or
whether one party is likely to unreasonably interfere with the
child's continuing relationship with the other party.
12. Whether there is evidence that a party engaged in abuse,
as defined in s. 813.122 (1) (a), of the child, as defined in s.
813.122 (1) (b).
12m. Whether any of the following has a criminal record and
whether there is evidence that any of the following has
engaged in abuse, as defined in s. 813.122 (1) (a), of the child
or any other child or neglected the child or any other child:
a. A person with whom a parent of the child has a dating
relationship, as defined in s. 813.12 (1) (ag).
b. A person who resides, has resided, or will reside regularly
or intermittently in a proposed custodial household.
13. Whether there is evidence of interspousal battery as
described under s. 940.19 or 940.20 (1m) or domestic abuse
as defined in s. 813.12 (1) (am).
14. Whether either party has or had a significant problem
with alcohol or drug abuse.
15. The reports of appropriate professionals if admitted into
evidence.
16. Such other factors as the court may in each individual
case determine to be relevant.
(bm) If the court finds under sub. (2) (d) that a parent has
engaged in a pattern or serious incident of interspousal
battery, as described under s. 940.19 or 940.20 (1m), or
domestic abuse, as defined in s. 813.12 (1) (am), the safety
and well-being of the child and the safety of the parent who
was the victim of the battery or abuse shall be the paramount
concerns in determining legal custody and periods of
physical placement.
(c) If a parent is a service member, as defined in sub. (2) (e)
1., the court may not consider as a factor in determining the
legal custody of a child whether the service member has been
or may be called to active duty in the U.S. armed forces and
consequently is, or in the future will be or may be, absent
from the service member's home.
(6) Final order.
(a) If legal custody or physical placement is contested, the
court shall state in writing why its findings relating to legal
custody or physical placement are in the best interest of the
child.
(am) In making an order of joint legal custody, upon the
request of one parent the court shall specify major decisions
in addition to those specified under s. 767.001 (2m).
(b) Notwithstanding s. 767.001 (1s), in making an order of
joint legal custody, the court may give one party sole power
to make specified decisions, while both parties retain equal
rights and responsibilities for other decisions.
(c) In making an order of joint legal custody and periods of
physical placement, the court may specify one parent as the
primary caretaker of the child and one home as the primary
home of the child, for the purpose of determining eligibility
for aid under s. 49.19 or benefits under ss. 49.141 to 49.161
or for any other purpose the court considers appropriate.
(d) No party awarded joint legal custody may take any action
inconsistent with any applicable physical placement order,
unless the court expressly authorizes that action.
(e) In an order of physical placement, the court shall specify
the right of each party to the physical control of the child in
sufficient detail to enable a party deprived of that control to
implement any law providing relief for interference with
custody or parental rights.
(f) If the court finds under sub. (2) (d) that a party has
engaged in a pattern or serious incident of interspousal
battery, as described under s. 940.19 or 940.20 (1m), or
domestic abuse, as defined in s. 813.12 (1) (am), the court
shall state in writing whether the presumption against
awarding joint or sole legal custody to that party is rebutted
and, if so, what evidence rebutted the presumption, and why
its findings relating to legal custody and physical placement
are in the best interest of the child.
(g) If the court finds under sub. (2) (d) that a party has
engaged in a pattern or serious incident of interspousal
battery, as described under s. 940.19 or 940.20 (1m), or
domestic abuse, as defined in s. 813.12 (1) (am), and the
court awards periods of physical placement to both parties,
the court shall provide for the safety and well-being of the
child and for the safety of the party who was the victim of
the battery or abuse. For that purpose the court, giving
consideration to the availability of services or programs and
to the ability of the party who committed the battery or abuse
to pay for those services or programs, shall impose one or
more of the following, as appropriate:
1. Requiring the exchange of the child to occur in a protected
setting or in the presence of an appropriate 3rd party who
agrees by affidavit or other supporting evidence to assume
the responsibility assigned by the court and to be accountable
to the court for his or her actions with respect to the
responsibility.
2. Requiring the child's periods of physical placement with
the party who committed the battery or abuse to be
supervised by an appropriate 3rd party who agrees by
affidavit or other supporting evidence to assume the
responsibility assigned by the court and to be accountable to
26
the court for his or her actions with respect to the
responsibility.
3. Requiring the party who committed the battery or abuse to
pay the costs of supervised physical placement.
4. Requiring the party who committed the battery or abuse to
attend and complete, to the satisfaction of the court,
treatment for batterers provided through a certified treatment
program or by a certified treatment provider as a condition
of exercising his or her periods of physical placement.
5. If the party who committed the battery or abuse has a
significant problem with alcohol or drug abuse, prohibiting
that party from being under the influence of alcohol or any
controlled substance when the parties exchange the child for
periods of physical placement and from possessing or
consuming alcohol or any controlled substance during his or
her periods of physical placement.
6. Prohibiting the party who committed the battery or abuse
from having overnight physical placement with the child.
7. Requiring the party who committed the battery or abuse to
post a bond for the return and safety of the child.
8. Imposing any condition not specified in subds. 1. to 7. that
the court determines is necessary for the safety and wellbeing of the child or the safety of the party who was the
victim of the battery or abuse.
(h) In making an order of legal custody and periods of
physical placement, the court shall in writing inform the
parents, and any other person granted legal custody of the
child, of all of the following:
1. That each parent must notify the other parent, the child
support agency, and the clerk of court of the address at which
they may be served within 10 business days of moving to that
address. The address may be a street or post office address.
2. That the address provided to the court is the address on
which the other parties may rely for service of any motion
relating to modification of legal custody or physical
placement or to relocating the child's residence.
3. That a parent granted periods of physical placement with
the child must obtain a court order before relocating with the
child 100 miles or more from the other parent if the other
parent also has court-ordered periods of physical placement
with the child.
(7) Access to records.
(a) Except under par. (b) or unless otherwise ordered by the
court, access to a child's medical, dental and school records
is available to a parent regardless of whether the parent has
legal custody of the child.
(b) A parent who has been denied periods of physical
placement with a child under this section is subject to s.
118.125 (2) (m) with respect to that child's school records, s.
51.30 (5) (bm) with respect to the child's court or treatment
records, s. 55.23 with respect to the child's records relating
to protective services, and s. 146.835 with respect to the
child's patient health care records.
(7m) Medical and medical history information.
(a) In making an order of legal custody, the court shall order
a parent who is not granted legal custody of a child to provide
to the court medical and medical history information that is
known to the parent. The court shall send the information to
the physician or other health care provider with primary
responsibility for the treatment and care of the child, as
designated by the parent who is granted legal custody of the
child, and advise the physician or other health care provider
of the identity of the child to whom the information relates.
The information provided shall include all of the following:
1. The known medical history of the parent providing the
information, including specific information about stillbirths
or congenital anomalies in the parent's family, and the
medical histories, if known, of the parents and siblings of the
parent and any sibling of the child who is a child of the
parent, except that medical history information need not be
provided for a sibling of the child if the parent or other person
who is granted legal custody of the child also has legal
custody, including joint legal custody, of that sibling.
2. A report of any medical examination that the parent
providing the information had within one year before the
date of the order.
(am) The physician or other health care provider designated
under par. (a) shall keep the information separate from other
records kept by the physician or other health care provider.
The information shall be assigned an identification number
and maintained under the name of the parent who provided
the information to the court. The patient health care records
of the child that are kept by the physician or other health care
provider shall include a reference to that name and
identification number. If the child's patient health care
records are transferred to another physician or other health
care provider or another health care facility, the records
containing the information provided under par. (a) shall be
transferred along with the child's patient health care records.
Notwithstanding s. 146.819, the information provided under
par. (a) need not be maintained by a physician or other health
care provider after the child reaches age 18.
(b) Notwithstanding ss. 146.81 to 146.835, the information
shall be kept confidential, except only as follows:
1. The physician or other health care provider with custody
of the information, or any other record custodian at the
request of the physician or other health care provider, shall
have access to the information if, in the professional
judgment of the physician or other health care provider, the
information may be relevant to the child's medical condition.
2. The physician or other health care provider may release
only that portion of the information, and only to a person,
that the physician or other health care provider determines is
relevant to the child's medical condition.
(8) Notice in judgment. A judgment which determines the
legal custody or physical placement rights of any person to a
minor child shall include notification of the contents of s.
948.31.
27
767.43
(a) A pretrial hearing shall be held before the court in an
action under sub. (3). At the pretrial hearing the parties may
present and cross-examine witnesses and present other
evidence relevant to the determination of visitation rights. A
record or minutes of the proceeding shall be kept.
(b) On the basis of the information produced at the pretrial
hearing, the court shall evaluate the probability of granting
visitation rights to a grandparent in a trial and shall so advise
the parties. On the basis of the evaluation, the court may
make an appropriate recommendation for settlement to the
parties.
(c) If a party or the guardian ad litem refuses to accept a
recommendation under this subsection, the action shall be set
for trial.
(d) The informal hearing under this subsection may be
terminated and the action set for trial if the court finds it
unlikely that all parties will accept a recommendation under
this subsection.
(4) Paternity determination. If the paternity of the child has
not yet been determined in an action under sub. (3) that is
commenced by a person other than a parent of the child's
mother but the person filing the petition under sub. (3) has,
in conjunction with that petition, filed a petition or motion
under s. 767.80 (1) (k), the court shall make a determination
as to paternity before determining visitation rights under sub.
(3).
(5) Interference with visitation rights. Any person who
interferes with visitation rights granted under sub. (1) or (3)
may be proceeded against for contempt of court under ch.
785, except that a court may impose only the remedial
sanctions specified in s. 785.04 (1) (a) and (c) against that
person.
(6) Modification of order if homicide conviction.
(a) If a person granted visitation rights with a child under this
section is convicted under s. 940.01 of the first-degree
intentional homicide, or under s. 940.05 of the 2nd-degree
intentional homicide, of a parent of the child, and the
conviction has not been reversed, set aside or vacated, the
court shall modify the visitation order by denying visitation
with the child upon petition, motion or order to show cause
by a parent or guardian of the child, or upon the court's own
motion, and upon notice to the person granted visitation
rights.
(b) Paragraph (a) does not apply if the court determines by
clear and convincing evidence that the visitation would be in
the best interests of the child. The court shall consider the
wishes of the child in making that determination.
Visitation rights of certain persons.
(1) Petition, who may file. Except as provided in subs. (1m)
and (2m), upon petition by a grandparent, greatgrandparent,
stepparent or person who has maintained a relationship
similar to a parent-child relationship with the child, the court
may grant reasonable visitation rights to that person if the
parents have notice of the hearing and if the court determines
that visitation is in the best interest of the child.
(1m) Exception; homicide conviction.
(a) Except as provided in par. (b), the court may not grant
visitation rights under sub. (1) to a person who has been
convicted under s. 940.01 of the first-degree intentional
homicide, or under s. 940.05 of the 2nd-degree intentional
homicide, of a parent of the child, and the conviction has not
been reversed, set aside or vacated.
(b) Paragraph (a) does not apply if the court determines by
clear and convincing evidence that the visitation would be in
the best interests of the child. The court shall consider the
wishes of the child in making the determination.
(2) Wishes of the child. Whenever possible, in making a
determination under sub. (1), the court shall consider the
wishes of the child.
(2m) When special grandparent provision applicable.
Subsection (3), rather than sub. (1), applies to a grandparent
requesting visitation rights under this section if sub. (3) (a)
to (c) applies to the child.
(3) Special grandparent visitation provision. The court may
grant reasonable visitation rights, with respect to a child, to
a grandparent of the child if the child's parents have notice
of the hearing and the court determines all of the following:
(a) The child is a nonmarital child whose parents have not
subsequently married each other.
(b) Except as provided in sub. (4), the paternity of the child
has been determined under the laws of this state or another
jurisdiction if the grandparent filing the petition is a parent
of the child's father.
(c) The child has not been adopted.
(d) The grandparent has maintained a relationship with the
child or has attempted to maintain a relationship with the
child but has been prevented from doing so by a parent who
has legal custody of the child.
(e) The grandparent is not likely to act in a manner that is
contrary to decisions that are made by a parent who has legal
custody of the child and that are related to the child's
physical, emotional, educational or spiritual welfare.
(f) The visitation is in the best interest of the child.
(3c) Action in which petition filed; alternatives. A
grandparent requesting visitation under sub. (3) may file a
petition to commence an independent action for visitation
under this chapter or may file a petition for visitation in an
underlying action affecting the family under this chapter that
affects the child.
(3m) Pretrial hearing; recommendation.
767.44 Prohibiting visitation or physical placement if a
parent kills other parent.
(1) When prohibited. Notwithstanding ss. 767.225 (1) (am),
767.41 (1), (4), and (5), 767.805 (4) (a), and 767.89 (3) and
except as provided in sub. (2), in an action under this chapter
that affects a minor child, a court may not grant to the child's
parent visitation or physical placement rights with the child
28
if the parent has been convicted under s. 940.01 of the firstdegree intentional homicide, or under s. 940.05 of the 2nddegree intentional homicide, of the child's other parent, and
the conviction has not been reversed, set aside, or vacated.
(2) When not applicable. Subsection (1) does not apply if
the court determines by clear and convincing evidence that
the visitation or periods of physical placement would be in
the best interests of the child. The court shall consider the
wishes of the child in making the determination.
equal physical placement, a court, upon petition, motion, or
order to show cause by a party, may modify the order if it is
in the best interest of the child.
(b) In any case in which par. (a) does not apply and in which
the parties have substantially equal periods of physical
placement pursuant to a court order, a court, upon petition,
motion, or order to show cause of a party, may modify the
order based on the appropriate standard under sub. (1).
However, under sub. (1) (b) 2., there is a rebuttable
presumption that having substantially equal periods of
physical placement is in the best interest of the child.
(2m) Modification of periods of physical placement for
failure to exercise physical placement. Notwithstanding
subs. (1) and (2), upon petition, motion or order to show
cause by a party, a court may modify an order of physical
placement at any time with respect to periods of physical
placement if it finds that a parent has repeatedly and
unreasonably failed to exercise periods of physical
placement awarded under an order of physical placement
that allocates specific times for the exercise of periods of
physical placement.
(3) Modification of other physical placement orders. Except
as provided under subs. (1) and (2), upon petition, motion or
order to show cause by a party, a court may modify an order
of physical placement which does not substantially alter the
amount of time a parent may spend with his or her child if
the court finds that the modification is in the best interest of
the child.
(3m) Reinstatement of former physical placement
allocation and schedule. If a party is a service member, as
defined in s. 767.41 (2) (e) 1., and the court modifies an order
of physical placement on the basis that the service member
has been or will be called to active duty in the U.S. armed
forces, notwithstanding sub. (1) the court shall require in the
order that the allocation of periods of physical placement
and, if applicable, the physical placement schedule that were
in effect before the modification are reinstated immediately
upon the service member's discharge or release from active
duty.
(4) Denial of physical placement. Upon petition, motion or
order to show cause by a party or on its own motion, a court
may deny a parent's physical placement rights at any time if
it finds that the physical placement rights would endanger
the child's physical, mental or emotional health.
(4m) Denial of physical placement for killing other parent.
(a) Notwithstanding subs. (1) to (4), upon petition, motion or
order to show cause by a party or on its own motion, a court
shall modify a physical placement order by denying a parent
physical placement with a child if the parent has been
convicted under s. 940.01 of the first-degree intentional
homicide, or under s. 940.05 of the 2nd-degree intentional
homicide, of the child's other parent, and the conviction has
not been reversed, set aside or vacated.
767.451
Revision of legal custody and physical
placement orders.
Except for matters under s. 767.461 or 767.481, the
following provisions are applicable to modifications of legal
custody and physical placement orders:
(1) Substantial modifications.
(a) Within 2 years after final judgment. Except as provided
under sub. (2), a court may not modify any of the following
orders before 2 years after the final judgment determining
legal custody or physical placement is entered under s.
767.41, unless a party seeking the modification, upon
petition, motion, or order to show cause, shows by
substantial evidence that the modification is necessary
because the current custodial conditions are physically or
emotionally harmful to the best interest of the child:
1. An order of legal custody.
2. An order of physical placement if the modification would
substantially alter the time a parent may spend with his or
her child.
(b) After 2-year period.
1. Except as provided under par. (a) and sub. (2), upon
petition, motion or order to show cause by a party, a court
may modify an order of legal custody or an order of physical
placement where the modification would substantially alter
the time a parent may spend with his or her child if the court
finds all of the following:
a. The modification is in the best interest of the child.
b. There has been a substantial change of circumstances
since the entry of the last order affecting legal custody or the
last order substantially affecting physical placement.
2. With respect to subd. 1., there is a rebuttable presumption
that:
a. Continuing the current allocation of decision making
under a legal custody order is in the best interest of the child.
b. Continuing the child's physical placement with the parent
with whom the child resides for the greater period of time is
in the best interest of the child.
3. A change in the economic circumstances or marital status
of either party is not sufficient to meet the standards for
modification under subd. 1.
(2) Modification of substantially equal physical placement
orders. Notwithstanding sub. (1):
(a) If the parties have substantially equal periods of physical
placement pursuant to a court order and circumstances make
it impractical for the parties to continue to have substantially
29
(b) Paragraph (a) does not apply if the court determines by
clear and convincing evidence that physical placement with
the parent would be in the best interests of the child. The
court shall consider the wishes of the child in making the
determination.
(5) Reasons for modification. If either party opposes
modification or termination of a legal custody or physical
placement order under this section the court shall state, in
writing, its reasons for the modification or termination.
(5m) Factors to consider.
(a) Subject to pars. (b) and (c), in all actions to modify legal
custody or physical placement orders, the court shall
consider the factors under s. 767.41 (5) (am), subject to s.
767.41 (5) (bm), and shall make its determination in a
manner consistent with s. 767.41.
(b) In determining the best interest of the child under this
section, in addition to the factor under s. 767.41 (5) (am)
12m., the court shall consider whether a stepparent of the
child has a criminal record and whether there is evidence that
a stepparent of the child has engaged in abuse, as defined in
s. 813.122 (1) (a), of the child or any other child or neglected
the child or any other child.
(c) In an action to modify a legal custody order, if a party is
a service member, as defined in s. 767.41 (2) (e) 1., the court
may not consider as a factor in making a determination
whether the service member has been or may be called to
active duty in the U.S. armed forces and consequently is, or
in the future will be or may be, absent from the service
member's home.
(6) Notice. No court may enter an order for modification
under this section until notice of the petition, motion or order
to show cause requesting modification has been given to the
child's parents, if they can be found, and to any relative or
agency having custody of the child.
(6m) Parenting plan. In any action to modify a legal custody
or physical placement order under sub. (1), the court may
require the party seeking the modification to file with the
court a parenting plan under s. 767.41 (1m)before any
hearing is held.
(7) Transfer to department. The court may order custody
transferred to the department only if the department agrees
to accept custody. If the court orders custody transferred to
the department, the order transferring custody shall include
the findings and order specified in s. 767.41 (3) (am).
(8) Petition, motion, or order to show cause. A petition,
motion, or order to show cause under this section shall
include notification of the availability of information under
s. 767.105 (2).
767.461
of physical placement or legal custody unless the court finds
that the modification is not in the best interest of the child.
Acceptance of a stipulation is not mandatory. The trial court is not
prohibited from examining the best interests of the child.
767.471
Enforcement of physical placement orders.
(1) Definitions. In this section:
(a) “Moving party" means the parent filing a motion under
this section, regardless of whether that parent was the
petitioner in the action in which periods of physical
placement were awarded under s. 767.41.
(b) “Responding party" means the parent upon whom a
motion under this section is served, regardless of whether
that parent was the respondent in the action in which periods
of physical placement were awarded under s. 767.41.
(2) Who may file. A parent who has been awarded periods
of physical placement under s. 767.41 may file a motion
under sub. (3) if any of the following applies:
(a) The parent has had one or more periods of physical
placement denied by the other parent.
(b) The parent has had one or more periods of physical
placement substantially interfered with by the other parent.
(c) The parent has incurred a financial loss or expenses as a
result of the other parent's intentional failure to exercise one
or more periods of physical placement under an order
allocating specific times for the exercise of periods of
physical placement.
(3) Motion.
(a) The motion shall allege facts sufficient to show the
following:
1. The name of the moving party and that the moving party
has been awarded periods of physical placement.
2. The name of the responding party.
3. That one or more of the criteria in sub. (2) apply.
(b) The motion shall request the imposition of a remedy or
any combination of remedies under sub. (5) (b) and (c). This
paragraph does not prohibit a court from imposing a remedy
under sub. (5) (b) or (c) if the remedy was not requested in
the motion.
(c) A court shall accept any legible motion for an order under
this section.
(d) The motion shall be filed under the principal action under
which the periods of physical placement were awarded.
(e) A motion under this section is a motion for remedial
sanction for purposes of s. 785.03 (1) (a).
(4) Service on responding party; response. Upon the filing
of a motion under sub. (3), the moving party shall serve a
copy of the motion upon the responding party by personal
service in the same manner as a summons is served under s.
801.11. The responding party may respond to the motion
either in writing before or at the hearing under sub. (5) (a) or
orally at that hearing.
(5) Hearing; remedies.
(a) The court shall hold a hearing on the motion no later than
30 days after the motion has been served, unless the time is
Revisions agreed to by stipulation.
If after an initial order is entered under s. 767.41 the parties
agree to a modification in an order of physical placement or
legal custody and file a stipulation with the court that
specifies the agreed upon modification, the court shall
incorporate the terms of the stipulation into a revised order
30
extended by mutual agreement of the parties or upon the
motion of a guardian ad litem and the approval of the court.
The court may, on its own motion or the motion of any party,
order that a guardian ad litem be appointed for the child prior
to the hearing.
(b) If at the conclusion of the hearing the court finds that the
responding party has intentionally and unreasonably denied
the moving party one or more periods of physical placement
or that the responding party has intentionally and
unreasonably interfered with one or more of the moving
party's periods of physical placement, the court:
1. Shall do all of the following:
a. Issue an order granting additional periods of physical
placement to replace those denied or interfered with.
b. Award the moving party a reasonable amount for the cost
of maintaining an action under this section and for attorney
fees.
2. May do one or more of the following:
a. If the underlying order or judgment relating to periods of
physical placement does not provide for specific times for
the exercise of periods of physical placement, issue an order
specifying the times for the exercise of periods of physical
placement.
b. Find the responding party in contempt of court under ch.
785.
c. Grant an injunction ordering the responding party to
strictly comply with the judgment or order relating to the
award of physical placement. In determining whether to
issue an injunction, the court shall consider whether
alternative remedies requested by the moving party would be
as effective in obtaining compliance with the order or
judgment relating to physical placement.
(c) If at the conclusion of the hearing the court finds that the
moving party has incurred a financial loss or expenses as a
result of the responding party's failure, intentionally and
unreasonably and without adequate notice to the moving
party, to exercise one or more periods of physical placement
under an order allocating specific times for the exercise of
periods of physical placement, the court may issue an order
requiring the responding party to pay to the moving party a
sum of money sufficient to compensate the moving party for
the financial loss or expenses.
(d) Except as provided in par. (b) 1. a. and 2. a., the court
may not modify an order of legal custody or physical
placement in an action under this section.
(e) An injunction issued under par. (b) 2. c. is effective
according to its terms for the period of time that the moving
party requests, but not more than 2 years.
(6) Enforcement assistance.
(a) If an injunction is issued under sub. (5) (b) 2. c., upon
request by the moving party the court shall order the sheriff
to assist the moving party in executing or serving the
injunction.
(b) Within 24 hours after a request by the moving party, the
clerk of the circuit court shall send a copy of an injunction
issued under sub. (5) (b) 2. c. to the sheriff or to any other
local law enforcement agency that is the central repository
for orders and that has jurisdiction over the responding
party's residence. If the responding party does not reside in
this state, the clerk shall send a copy of the injunction to the
sheriff of the county in which the circuit court is located.
(c) The sheriff or other appropriate local law enforcement
agency under par. (b) shall make available to other law
enforcement agencies, through a verification system,
information on the existence and status of any injunction
issued under sub. (5) (b) 2. c. The information need not be
maintained after the injunction is no longer in effect.
(8) Penalty. Whoever intentionally violates an injunction
issued under sub. (5) (b) 2. c. is guilty of a Class I felony.
767.481
Relocating a child's residence.
(1) Motion; filing and serving.
(a) Except as provided in par. (d), if the court grants any
periods of physical placement with a child to both parents
and one parent intends to relocate and reside with the child
100 miles or more from the other parent, the parent who
intends to relocate and reside with the child shall file a
motion with the court seeking permission for the child's
relocation.
(b) The motion under par. (a) shall include all of the
following:
1. A relocation plan including:
a. The date of the proposed relocation.
b. The municipality and state of the proposed new residence.
c. The reason for the relocation.
d. If applicable, a proposed new placement schedule,
including placement during the school year, summers, and
holidays.
e. The proposed responsibility and allocation of costs for
each parent for transportation of the child between the parties
under any proposed new placement schedule.
2. If applicable, a request for a change in legal custody.
3. Notice to the other parent that, if he or she objects to the
relocation, he or she must file and serve, no later than 5 days
before the initial hearing, an objection to the relocation and
any alternate proposal, including a modification of physical
placement or legal custody.
4. An attached “Objection to Relocation" form, furnished by
the court, for use by the other parent if he or she objects to
the relocation.
(c) The parent filing the motion shall serve a copy of the
motion by mail on the other parent at his or her most recent
address on file with the court. If the parent filing the motion
has actual knowledge that the other parent has a different
address from the one on file, the motion shall be served by
mail at both addresses.
(d) The requirement to file a motion under par. (a) does not
apply if the child's parents already live more than 100 miles
31
apart when a parent proposes to relocate and reside with the
child. If the parents already live more than 100 miles apart,
the parent who intends to relocate with the child shall serve
written notice of his or her intent to relocate on the other
parent at least 60 days before relocation. Such written notice
shall include the date on which the parent intends to relocate
and the parent's new address.
(2) Initial hearing.
(a) Upon the filing of a motion under sub. (1) (a), the court
shall schedule an initial hearing to be held within 30 days
after the motion is filed and shall provide notice to the
parents of the date of the initial hearing. The child may not
be relocated pending the initial hearing.
(b) If the court finds at the initial hearing that the parent not
filing the motion was properly served and does not appear at
the hearing, or appears at the hearing but does not object to
the proposed relocation plan, the court shall approve the
proposed relocation plan submitted by the parent filing the
motion unless the court finds that the proposed relocation
plan is not in the best interest of the child.
(c) If the parent not filing the motion appears at the initial
hearing and objects to the relocation plan, the court shall do
all of the following:
1. Require the parent who objects to respond by stating in
writing within 5 business days, if he or she has not already
done so, the basis for the objection and his or her proposals
for a new placement schedule and transportation
responsibilities and costs under sub. (1) (b) 4. and 5. [sub. (1)
(b) 1. d. and e.] in the event that the court grants the parent
filing the motion permission to relocate with the child. The
parent who objects shall file the response with the court and
serve a copy of the response by mail on the other parent at
his or her most recent address on file with the court. If the
parent filing the response has actual knowledge that the other
parent has a different address from the one on file, the
response shall be served by mail to both addresses.
2. Refer the parties to mediation, unless the court finds that
attending mediation would cause undue hardship or
endanger the health or safety of a party as provided in s.
767.405 (8) (b).
3. Except as provided in s. 767.407 (1) (am), appoint a
guardian ad litem for the child. The court shall provide in the
order for appointment, however, that if a mediator is ordered
under subd. 2. the guardian ad litem is not required to
commence investigation on behalf of the child unless the
mediator notifies the court that the parties are unable to reach
an agreement on the issue.
4. Set the matter for a further hearing to be held within 60
days.
(3) Relocation pending final hearing.
(a) At the initial hearing, or at any time after the initial
hearing but before the final hearing, the court may issue a
temporary order under s. 767.225 (1) (bm) to allow the
parent proposing the relocation to relocate with the child if
the court finds that the relocation is in the child's immediate
best interest. The court shall inform the parties, however, that
approval of the relocation is subject to revision at the final
hearing.
(b) If a court commissioner makes a determination, order, or
ruling regarding relocation pending the final hearing under
par. (a), either party may seek a review by hearing de novo
under s. 757.69 (8). The motion requesting the de novo
hearing must be filed with the court within 10 days after the
court commissioner orally issues the determination, order, or
ruling. The judge shall hold the de novo hearing within 30
days after the motion requesting the de novo hearing is filed,
unless the court finds good cause for an extension.
(4) Standards for deciding relocation motions. At the final
hearing, the court shall decide the matter as follows:
(a) If the proposed relocation only minimally changes or
affects the current placement schedule or does not affect or
change the current placement schedule, the court shall
approve the proposed relocation, set a new placement
schedule if appropriate, and allocate the costs of and
responsibility for transportation of the child between the
parties under the new placement schedule.
(b) In cases other than that specified in par. (a), the court
shall, in determining whether to approve the proposed
relocation and a new placement schedule, use the following
factors:
1. The factors under s. 767.41 (5).
2. A presumption that the court should approve the plan of
the parent proposing the relocation if the court determines
that the objecting parent has not significantly exercised
court-ordered physical placement.
3. A presumption that the court should approve the relocation
plan if the court determines that the parent's relocation is
related to abuse, as defined in s. 813.122 (1) (a), of the child,
as defined in s. 813.122 (1) (b); a pattern or serious incident
of interspousal battery, as described under s. 940.19 or
940.20 (1m); or a pattern or serious incident of domestic
abuse, as defined in s. 813.12 (1) (am).
(c) If the objecting parent files a responsive motion that seeks
a substantial change in physical placement or a change in
legal custody, the court shall, in deciding the motion of the
objecting parent, use the following factors:
1. The factors under s. 767.41 (5).
2. A presumption against transferring legal custody or the
residence of the child to a parent who the court determines
has significantly failed to exercise court-ordered physical
placement.
3. A presumption that the court should approve the plan of
the parent proposing the relocation if the court determines
that the parent's relocation is related to abuse, as defined in
s. 813.122 (1) (a), of the child, as defined in s. 813.122 (1)
(b); a pattern or serious incident of interspousal battery, as
described under s. 940.19 or 940.20 (1m); or a pattern or
32
serious incident of domestic abuse, as defined in s. 813.12
(1) (am).
(d) The court shall decide all contested relocation motions
and all related motions for modification of legal custody or
physical placement in the best interest of the child. The
movant bears the burden of proof in a contested relocation
motion or a related motion for modification of legal custody
or physical placement except in cases involving a
presumption under par. (b) 2. or 3. or (c) 2. or 3. In cases
involving a presumption under par. (b) 2.or 3. or (c) 2. or 3.,
the parent objecting to the relocation shall have the burden
of proof in demonstrating the proposed relocation is not in
the child's best interest.
(e) If the objecting parent files a responsive motion that seeks
a substantial change in physical placement or a change in
legal custody, and the parent proposing the relocation
withdraws or otherwise fails to pursue his or her relocation
motion or the court does not allow the relocation, the court
shall proceed on the objecting parent's responsive motion
under s. 767.451.
(5) Stipulations. At any time after a motion is filed under
sub. (1), if the parties agree that one parent may relocate
more than 100 miles away from the other parent, the parties
may file a stipulation with the court that specifies that neither
parent has any objection to the planned relocation and that
sets out any agreed upon modification to legal custody or
periods of physical placement, including responsibility and
costs for transportation of the child between the parties under
a proposed new placement schedule. The court shall
incorporate the terms of the stipulation into an order for the
relocation or a revised order of legal custody or physical
placement, as appropriate, unless the court finds that the
modification is not in the best interest of the child.
(6) Other notice required for removals. Except as otherwise
provided in an order or judgment allocating periods of
physical placement with a child, a person who has legal
custody of and periods of physical placement with the child
shall notify any other person who has periods of physical
placement with the child before removing the child from the
child's residence for a period of more than 14 consecutive
days.
(7) Applicability.
(a) The requirements and procedures under this section apply
to relocations with or removals of a child in any of the
following cases: (1) Cases originally commenced on or after
April 5, 2018 or (2) Cases originally commenced before
April 5, 2018, but in which a legal custody or physical
placement order is modified on or after April 5, 2018.
(b) Except as provided in par. (a) 2., the requirements and
procedures under s. 767.481, 2015 stats., apply to moves
with or removals of a child in cases that were originally
commenced before April 5, 2018.
Jurisdiction
767.01
Jurisdiction.
(1) Generally. The circuit courts have jurisdiction of all
actions affecting the family and have authority to do all acts
and things necessary and proper in those actions and to carry
their orders and judgments into execution as prescribed in
this chapter. Except as provided in subs. (2) and (2m),
jurisdiction may be exercised as provided under ch. 801.
(2) Paternity and child support. In an action to establish
paternity or to establish or enforce a child support obligation,
in regard to a child who is the subject of the action, a person
is subject to the jurisdiction of the courts of this state as
provided in s. 769.201 (1m) or 801.05.
(2m) Child custody. All proceedings relating to the custody
of children shall comply with the requirements of ch. 822.
822.21
Initial child custody jurisdiction.
(1) Except as provided in s. 822.24, a court of this state has
jurisdiction to make an initial determination only if any of
the following applies:
(a) This state is the home state of the child on the date of the
commencement of the proceeding, or was the home state of
the child within 6 months before the commencement of the
proceeding and the child is absent from this state but a parent
or person acting as a parent continues to live in this state.
(b) A court of another state does not have jurisdiction under
par. (a), or a court of the home state of the child has declined
to exercise jurisdiction on the ground that this state is the
more appropriate forum under s. 822.27 or 822.28, and all of
the following apply:
1. The child and the child's parents, or the child and at least
one parent or a person acting as a parent, have a significant
connection with this state other than mere physical presence.
2. Substantial evidence is available in this state concerning
the child's care, protection, training, and personal
relationships.
(c) All courts having jurisdiction under par. (a) or (b) have
declined to exercise jurisdiction on the ground that a court of
this state is the more appropriate forum to determine the
custody of the child under s. 822.27 or 822.28.
(d) No court of any other state would have jurisdiction under
the criteria specified in par. (a), (b), or (c).
(2) Subsection (1) is the exclusive jurisdictional basis for
making a child custody determination by a court of this state.
(3) Physical presence of, or personal jurisdiction over, a
party or a child is not necessary or sufficient to make a child
custody determination.
822.22
Exclusive, continuing jurisdiction.
(1) Except as provided in s. 822.24, a court of this state that
has made a child custody determination consistent with s.
822.21 or 822.23 has exclusive, continuing jurisdiction over
the determination until any of the following occurs:
(a) A court of this state determines that neither the child, nor
the child and one parent, nor the child and a person acting as
33
a parent have a significant connection with this state and that
substantial evidence is no longer available in this state
concerning the child's care, protection, training, and personal
relationships.
(b) A court of this state or a court of another state determines
that the child, the child's parents, and all persons acting as
parents do not presently reside in this state.
(2) A court of this state that has made a child custody
determination and that does not have exclusive, continuing
jurisdiction under this section may modify that
determination only if it has jurisdiction to make an initial
determination under s. 822.21.
822.23
(4) A court of this state that has been asked to make a child
custody determination under this section, upon being
informed that a child custody proceeding has been
commenced in, or that a child custody determination has
been made by, a court of a state having jurisdiction under ss.
822.21 to 822.23, shall immediately communicate with the
other court. A court of this state that is exercising jurisdiction
under ss. 822.21 to 822.23, upon being informed that a child
custody proceeding has been commenced in, or that a child
custody determination has been made by, a court of another
state under a statute similar to this section, shall immediately
communicate with the court of that state to resolve the
emergency, protect the safety of the parties and the child, and
determine a period for the duration of the temporary order.
Jurisdiction to modify determination.
Except as provided in s. 822.24, a court of this state may not
modify a child custody determination made by a court of
another state unless a court of this state has jurisdiction to
make an initial determination under s. 822.21 (1) (a) or (b)
and one of the following applies:
(1) The court of the other state determines that it no longer
has exclusive, continuing jurisdiction under s. 822.22 or that
a court of this state would be a more convenient forum under
s. 822.27.
(2) A court of this state or a court of the other state
determines that the child, the child's parents, and all persons
acting as parents do not presently reside in the other state.
822.24
822.25
Notice; opportunity to be heard; joinder.
(1) Before a child custody determination is made under this
chapter, notice and an opportunity to be heard in accordance
with the standards of s. 822.08 shall be given to all persons
entitled to notice under the law of this state as in child
custody proceedings between residents of this state, any
parent whose parental rights have not been previously
terminated, and any person having physical custody of the
child.
(2) This chapter does not govern the enforceability of a child
custody determination made without notice or an
opportunity to be heard.
(3) The obligation to join a party and the right to intervene
as a party in a child custody proceeding under this chapter
are governed by the law of this state as in child custody
proceedings between residents of this state.
Temporary emergency jurisdiction.
(1) State court has temporary emergency jurisdiction if the
child is present in this state and the child has been abandoned
or it is necessary in an emergency to protect the child because
the child, or a sibling or parent of the child, is subjected to or
threatened with mistreatment or abuse.
(2) If there is no previous child custody determination that
is entitled to be enforced under this chapter and a child
custody proceeding has not been commenced in a court of a
state having jurisdiction under ss. 822.21 to 822.23, a child
custody determination made under this section remains in
effect until an order is obtained from a court of a state having
jurisdiction under ss. 822.21 to 822.23. If a child custody
proceeding has not been or is not commenced in a court of a
state having jurisdiction under ss. 822.21 to 822.23, a child
custody determination made under this section becomes a
final determination, if it so provides and this state becomes
the home state of the child.
(3) If a previous child custody determination is entitled to
be enforced under this chapter, or a child custody proceeding
has been commenced in a court of a state having jurisdiction
under ss. 822.21 to 822.23, any order issued by a court of this
state under this section shall specify in the order a period that
the court considers adequate to allow the person seeking an
order to obtain an order from the state having jurisdiction
under ss. 822.21 to 822.23. The order issued in this state
remains in effect until an order is obtained from the other
state within the period specified or until the period expires.
822.26
Simultaneous proceedings.
(1) Except as provided in s. 822.24, a court of this state may
not exercise its jurisdiction under this subchapter if, at the
time of the commencement of the proceeding, a proceeding
concerning the custody of the child has been commenced in
a court of another state having jurisdiction substantially in
conformity with this chapter, unless the proceeding has been
terminated or is stayed by the court of the other state because
a court of this state is a more convenient forum under s.
822.27.
(2) Except as provided in s. 822.24, a court of this state,
before hearing a child custody proceeding, shall examine the
court documents and other information supplied by the
parties under s. 822.29. If the court determines that a child
custody proceeding has been commenced in a court in
another state having jurisdiction substantially in accordance
with this chapter, the court of this state shall stay its
proceeding and communicate with the court of the other
state. If the court of the state having jurisdiction substantially
in accordance with this chapter does not determine that the
court of this state is a more appropriate forum, the court of
this state shall dismiss the proceeding.
(3) In a proceeding to modify a child custody determination,
a court of this state shall determine whether a proceeding to
34
enforce the determination has been commenced in another
state. If a proceeding to enforce a child custody
determination has been commenced in another state, the
court may do any of the following:
(a) Stay the proceeding for modification pending the entry of
an order of a court of the other state enforcing, staying,
denying, or dismissing the proceeding for enforcement.
(b) Enjoin the parties from continuing with the proceeding
for enforcement.
(c) Proceed with the modification under conditions it
considers appropriate.
822.27
822.28
Jurisdiction declined by reason of conduct.
(1) Except as provided in s. 822.24, if a court of this state
has jurisdiction under this chapter because a person seeking
to invoke its jurisdiction has engaged in unjustifiable
conduct, the court shall decline to exercise its jurisdiction
unless any of the following occurs:
(a) The parents and all persons acting as parents have
acquiesced in the exercise of jurisdiction.
(b) A court of the state otherwise having jurisdiction under
ss. 822.21 to 822.23 determines that this state is a more
appropriate forum under s. 822.27.
(c) No court of any other state would have jurisdiction under
the criteria specified in ss. 822.21 to 822.23.
(2) If a court of this state declines to exercise its jurisdiction
under sub. (1), it may fashion an appropriate remedy to
ensure the safety of the child and prevent a repetition of the
unjustifiable conduct, including staying the proceeding until
a child custody proceeding is commenced in a court having
jurisdiction under ss. 822.21 to 822.23.
(3) If a court dismisses a petition or stays a proceeding
because it declines to exercise its jurisdiction under sub. (1),
it shall assess against the party seeking to invoke its
jurisdiction necessary and reasonable expenses including
costs, communication expenses, attorney fees, investigative
fees, expenses for witnesses, travel expenses, and expenses
for child care during the course of the proceedings, unless
the party from whom fees are sought establishes that the
assessment would be clearly inappropriate. The court may
not assess fees, costs, or expenses against this state unless
authorized by law other than this chapter.
Inconvenient forum.
(1) A court of this state that has jurisdiction under this
chapter to make a child custody determination may decline
to exercise its jurisdiction at any time if it determines that it
is an inconvenient forum under the circumstances and that a
court of another state is a more appropriate forum. The issue
of inconvenient forum may be raised upon the motion of a
party, the court's own motion, or the request of another court.
(2) Before determining whether it is an inconvenient forum,
a court of this state shall consider whether it is appropriate
for a court of another state to exercise jurisdiction. For this
purpose, the court shall allow the parties to submit
information and shall consider all relevant factors, including
all of the following:
(a) Whether domestic violence has occurred and is likely to
continue in the future and which state could best protect the
parties and the child.
(b) The length of time that the child has resided outside this
state.
(c) The distance between the court in this state and the court
in the state that would assume jurisdiction.
(d) The relative financial circumstances of the parties.
(e) Any agreement of the parties as to which state should
assume jurisdiction.
(f) The nature and location of the evidence required to
resolve the pending litigation, including testimony of the
child.
(g) The ability of the court of each state to decide the issue
expeditiously and the procedures necessary to present the
evidence.
(h) The familiarity of the court of each state with the facts
and issues in the pending litigation.
(3) If a court of this state determines that it is an
inconvenient forum and that a court of another state is a more
appropriate forum, the court shall stay the proceedings upon
condition that a child custody proceeding be promptly
commenced in another designated state and may impose any
other condition that the court considers just and proper.
(4) A court of this state may decline to exercise its
jurisdiction under this chapter if a child custody
determination is incidental to an action for divorce or another
proceeding while still retaining jurisdiction over the divorce
or other proceeding.
822.29
Information to be submitted to court.
(1) In a child custody proceeding, each party, in its first
pleading or in an attached affidavit, shall give information,
if reasonably ascertainable, under oath as to the child's
present address or whereabouts, the places where the child
has lived during the last 5 years, and the names and present
addresses of the persons with whom the child has lived
during that period. The pleading or affidavit shall state
whether the party:
(a) Has participated, as a party or witness or in any other
capacity, in any other proceeding concerning the custody of
or physical placement or visitation with the child and, if so,
shall identify the court, the case number, and the date of the
child custody determination, if any.
(b) Knows of any proceeding that could affect the current
proceeding, including proceedings for enforcement and
proceedings relating to domestic violence, protective orders,
termination of parental rights, and adoptions and, if so, shall
identify the court, the case number, and the nature of the
proceeding.
(c) Knows the names and addresses of any person not a party
to the proceeding who has physical custody of the child or
claims rights of legal custody or physical custody of, or
35
visitation with, the child and, if so, the names and addresses
of those persons.
(2) If the information required by sub. (1) is not furnished,
the court, upon motion of a party or its own motion, may stay
the proceeding until the information is furnished.
(3) If the declaration as to any of the items described in sub.
(1) (a) to (c) is in the affirmative, the declarant shall give
additional information under oath as required by the court.
The court may examine the parties under oath as to details of
the information furnished and other matters pertinent to the
court's jurisdiction and the disposition of the case.
(4) Each party has a continuing duty to inform the court of
any proceeding in this or any other state that could affect the
current proceeding.
(5) If a party alleges in an affidavit or a pleading under oath
that the health, safety, or liberty of a party or child would be
jeopardized by disclosure of identifying information, the
information shall be sealed and may not be disclosed to the
other party or the public unless the court orders the
disclosure to be made after a hearing in which the court takes
into consideration the health, safety, or liberty of the party or
child and determines that the disclosure is in the interest of
justice.
822.295
(b) The individual submits to the jurisdiction of this state by
consent, by entering a general appearance or by filing a
responsive document having the effect of waiving any
contest to personal jurisdiction.
(c) The individual resided with the child in this state.
(d) The individual resided in this state and provided prenatal
expenses or support for the child.
(e) The child resides in this state as a result of the acts or
directives of the individual.
(f) The individual engaged in sexual intercourse in this state
and the child may have been conceived by that act of
intercourse.
(g) The individual asserted parentage of a child in a
declaration of paternal interest filed with the department of
children and families under s. 48.025 or in a statement
acknowledging paternity filed with the state registrar under
s. 69.15 (3) (b) 1. or 3.
(h) There is any other basis consistent with the constitutions
of this state and the United States for the exercise of personal
jurisdiction.
(2m) The bases of personal jurisdiction set forth in sub.
(1m) or in any other law of this state may not be used to
acquire personal jurisdiction for a tribunal of this state to
modify a child support order of another state unless the
requirements of s. 769.611 are met or, in the case of a foreign
support order, unless the requirements of s. 769.615 are met.
Appearance of parties and child.
(1) In a child custody proceeding in this state, the court may
order a party to the proceeding who is in this state to appear
before the court in person with or without the child. The
court may order any person who is in this state and who has
physical custody or control of the child to appear in person
with the child.
(2) If a party to a child custody proceeding whose presence
is desired by the court is outside this state, the court may
order that a notice given under s. 822.08 include a statement
directing the party to appear in person with or without the
child and informing the party that failure to appear may
result in a decision adverse to the party.
(3) The court may enter any orders necessary to ensure the
safety of the child and of any person ordered to appear under
this section.
(4) If a party to a child custody proceeding who is outside
this state is directed to appear under sub. (2) or desires to
appear personally before the court with or without the child,
the court may require another party to pay reasonable and
necessary travel and other expenses of the party so appearing
and of the child.
769.201
769.202
Duration of personal jurisdiction.
Personal jurisdiction acquired by a tribunal of this state in a
proceeding under this chapter or other law of this state
relating to a support order continues as long as a tribunal of
this state has continuing, exclusive jurisdiction to modify its
order or continuing jurisdiction to enforce its order as
provided by ss. 769.205, 769.206, and 769.211.
769.203 Initiating and responding tribunal of this state.
Under this chapter, a tribunal of this state may serve as an
initiating tribunal to forward proceedings to a tribunal of
another state and as a responding tribunal for proceedings
initiated in another state or a foreign country.
769.204
Simultaneous proceedings.
(1) A tribunal of this state may exercise jurisdiction to
establish a support order if the petition or comparable
pleading is filed after a petition or comparable pleading is
filed in another state or a foreign country only if all of the
following apply:
(a) The petition or comparable pleading in this state is filed
before the expiration of the time allowed in the other state or
the foreign country for filing a responsive pleading
challenging the exercise of jurisdiction by the other state or
the foreign country.
(b) The contesting party timely challenges the exercise of
jurisdiction in the other state or the foreign country.
(c) If relevant, this state is the home state of the child.
(2) A tribunal of this state may not exercise jurisdiction to
establish a support order if the petition or comparable
Bases for jurisdiction over nonresident.
(1m) In a proceeding to establish or enforce a support order
or to determine parentage of a child, a tribunal of this state
may exercise personal jurisdiction over a nonresident
individual, or the individual's guardian or conservator, if any
of the following applies:
(a) The individual is personally served with a summons or
other notice within this state.
36
pleading is filed before a petition or comparable pleading is
filed in another state or a foreign country if all of the
following apply:
(a) The petition or comparable pleading in the other state or
foreign country is filed before the expiration of the time
allowed in this state for filing a responsive pleading
challenging the exercise of jurisdiction by this state.
(b) The contesting party timely challenges the exercise of
jurisdiction in this state.
(c) If relevant, the other state or foreign country is the home
state of the child.
initiating tribunal to request a tribunal of another state to
enforce any of the following:
(a) The order, if the order is the controlling order and has not
been modified by a tribunal of another state that assumed
jurisdiction pursuant to the Uniform Interstate Family
Support Act.
(b) A money judgment for arrears of support and interest on
the order that accrued before a determination that an order of
a tribunal of another state is the controlling order.
(2) A tribunal of this state having continuing jurisdiction
over a support order may act as a responding tribunal to
enforce the order.
769.205 Continuing, exclusive jurisdiction to modify
child support order.
769.207 Determination of controlling child support
order.
(1) A tribunal of this state that has issued a child support
order consistent with the law of this state has and shall
exercise continuing, exclusive jurisdiction to modify its child
support order if the order is the controlling order and any of
the following applies:
(a) At the time of the filing of a request for modification this
state is the residence of the obligor, the individual obligee,
or the child for whose benefit the support order is issued.
(b) Even if this state is not the residence of the obligor, the
individual obligee, or the child for whose benefit the support
order is issued, the parties consent in a record or in open
court that the tribunal of this state may continue to exercise
jurisdiction to modify its order.
(2) A tribunal of this state that has issued a child support
order consistent with the law of this state may not exercise
continuing, exclusive jurisdiction to modify the order if any
of the following applies:
(a) All of the parties who are individuals file consent in a
record with the tribunal of this state that a tribunal of another
state that has jurisdiction over at least one of the parties who
is an individual or that is located in the state of residence of
the child may modify the order and assume continuing,
exclusive jurisdiction.
(b) Its order is not the controlling order.
(3) If a tribunal of another state has issued a child support
order pursuant to the Uniform Interstate Family Support Act
or a law substantially similar to that act that modifies a child
support order of a tribunal of this state, tribunals of this state
shall recognize the continuing, exclusive jurisdiction of the
tribunal of the other state.
(4) A tribunal of this state that lacks continuing, exclusive
jurisdiction to modify a child support order may serve as an
initiating tribunal to request a tribunal of another state to
modify a support order issued in that state.
(5) A temporary support order issued ex parte or pending
resolution of a jurisdictional conflict does not create
continuing, exclusive jurisdiction in the issuing tribunal.
(1c) If a proceeding is brought under this chapter and only
one tribunal has issued a child support order, the child
support order of that tribunal is controlling and must be
recognized.
(1m) If a proceeding is brought under this chapter, and 2 or
more child support orders have been issued by tribunals of
this state, another state, or a foreign country with regard to
the same obligor and child, a tribunal of this state having
personal jurisdiction over both the obligor and individual
obligee shall apply the following rules and by order shall
determine which child support order controls and must be
recognized:
(a) If only one of the tribunals would have continuing,
exclusive jurisdiction under this chapter, the child support
order of that tribunal controls.
(b) If more than one of the tribunals would have continuing,
exclusive jurisdiction under this chapter, a child support
order issued by a tribunal in the current home state of the
child controls, or, if a child support order has not been issued
in the current home state of the child, the child support order
most recently issued controls.
(c) If none of the tribunals would have continuing, exclusive
jurisdiction under this chapter, the tribunal of this state shall
issue a child support order, which controls.
(1r) If 2 or more child support orders have been issued for
the same obligor and same child, upon the request of a party
who is an individual or that is a support enforcement agency,
a tribunal of this state having personal jurisdiction over both
the obligor and the obligee who is an individual shall
determine which child support order controls under sub.
(1m). The request may be filed with a registration for
enforcement or registration for modification under subch.
VI, or may be filed as a separate proceeding.
(1t) A request to determine which is the controlling child
support order must be accompanied by a copy of every child
support order issued for the obligor and child that is in effect
and the applicable record of payments. The requesting party
shall give each party whose rights may be affected by a
determination of which child support order controls notice of
the request for that determination.
769.206
Continuing jurisdiction to enforce child
support order.
(1) A tribunal of this state that has issued a child support
order consistent with the law of this state may serve as an
37
(2) The tribunal that issued the order that is controlling
under sub. (1c), (1m), or (1r) has continuing jurisdiction to
the extent provided in s. 769.205 or 769.206.
(3) A tribunal of this state that determines by order which
child support order is controlling under sub. (1m) (a) or (b)
or (1r), or that issues a new child support order that is
controlling under sub. (1m) (c), shall state in that order all of
the following:
(a) The basis upon which the tribunal made its
determination.
(b) The amount of prospective support, if any.
(c) The total amount of consolidated arrears and accrued
interest, if any, under all of the orders after all payments
made are credited as provided by s. 769.209.
(4) Within 30 days after the issuance of an order
determining which child support order is controlling, the
party that obtained the order shall file a certified copy of the
order with each tribunal that had issued or registered an
earlier child support order. Failure of the party obtaining the
order to file a certified copy of the order as required by this
subsection subjects the party to appropriate sanctions by a
tribunal in which the issue of failure to file arises, but that
failure has no effect on the validity or enforceability of the
controlling child support order.
(5) An order that has been determined to be the controlling
child support order, or a judgment for consolidated arrears of
support and interest, if any, made under this section, must be
recognized in proceedings under this chapter.
769.211 Continuing, exclusive jurisdiction to modify
spousal support order.
(1) A tribunal of this state issuing a spousal support order
consistent with the law of this state has continuing, exclusive
jurisdiction to modify the spousal support order throughout
the existence of the support obligation.
(2) A tribunal of this state may not modify a spousal support
order issued by a tribunal of another state or a foreign
country having continuing, exclusive jurisdiction over that
order under the law of that state or foreign country.
(3) A tribunal of this state that has continuing, exclusive
jurisdiction over a spousal support order may serve as any of
the following:
(a) An initiating tribunal to request a tribunal of another state
to enforce the spousal support order issued in this state.
(b) A responding tribunal to enforce or modify its own
spousal support order.
Professional Responsibility
SCR 20:1.2 Scope of representation and allocation of
authority between lawyer and client.
(a) Subject to pars. (c) and (d), a lawyer shall abide by a client's
decisions concerning the objectives of representation and, as
required by SCR 20:1.4, shall consult with the client as to the
means by which they are to be pursued. A lawyer may take such
action on behalf of the client as is impliedly authorized to carry
out the representation. A lawyer shall abide by a client's decision
whether to settle a matter. In a criminal case or any proceeding
that could result in deprivation of liberty, the lawyer shall abide by
the client's decision, after consultation with the lawyer, as to a plea
to be entered, whether to waive jury trial and whether the client
will testify.
(b) A lawyer's representation of a client, including representation
by appointment, does not constitute an endorsement of the client's
political, economic, social or moral views or activities.
(c) A lawyer may limit the scope of the representation if the
limitation is reasonable under the circumstances and the client
gives informed consent. The client’s informed consent must be in
writing except as set forth in sub. (1).
(1) The client’s informed consent need not be given in writing if:
a. the representation of the client consists solely of telephone
consultation;
b. the representation is provided by a lawyer employed by or
participating in a program sponsored by a nonprofit organization,
a bar association, an accredited law school, or a court and the
lawyer’s representation consists solely of providing information
and advice or the preparation of court-approved legal forms;
c. the court appoints the lawyer for a limited purpose that is set
forth in the appointment order;
d. the representation is provided by the state public defender
pursuant to Ch. 977, stats., including representation provided by a
private attorney pursuant to an appointment by the state public
defender; or
769.208 Child support orders for 2 or more obligees.
In responding to registrations or petitions for enforcement of
2 or more child support orders in effect at the same time with
regard to the same obligor and different individual obligees,
at least one of which was issued by a tribunal of another state
or a foreign country, a tribunal of this state shall enforce
those orders in the same manner as if the orders had been
issued by a tribunal of this state.
769.209
Credit for payments.
A tribunal of this state shall credit amounts collected for a
particular period pursuant to any child support order against
the amounts owed for the same period under any other child
support order for support of the same child issued by a
tribunal of this state, another state, or a foreign country.
769.210 Application of act to nonresident subject to
personal jurisdiction.
A tribunal of this state exercising personal jurisdiction over
a nonresident in a proceeding under this chapter, under other
law of this state relating to a support order, or recognizing a
foreign support order may receive evidence from outside this
state pursuant to s. 769.316, communicate with a tribunal
outside this state pursuant to s. 769.317, and obtain discovery
through a tribunal outside this state pursuant to s. 769.318.
In all other respects, subchs. III to VI do not apply, and the
tribunal shall apply the procedural and substantive law of this
state.
38
e. the representation is provided to an existing client pursuant to
an existing lawyer-client relationship.
(2) If the client gives informed consent in writing signed by the
client, there shall be a presumption that:
a. the representation is limited to the lawyer and the services
described in the writing, and
b. the lawyer does not represent the client generally or in matters
other than those identified in the writing.
(cm) A lawyer may prepare pleadings, briefs, and other documents
to be filed with the court so long as such filings clearly indicate
thereon that “This document was prepared with the assistance of a
lawyer.” A lawyer shall advise the client to whom the lawyer
provides assistance in preparing pleadings, briefs, or other
documents for filing with the court that the pleading, brief, or other
document must contain a statement that it was prepared with the
assistance of a lawyer.
(d) A lawyer shall not counsel a client to engage, or assist a client,
in conduct that the lawyer knows is criminal or fraudulent, but a
lawyer may discuss the legal consequences of any proposed course
of conduct with a client and may counsel or assist a client to make
a good faith effort to determine the validity, scope, meaning or
application of the law.
(e) When a lawyer has been retained by an insurer to represent an
insured pursuant to the terms of an agreement or policy requiring
the insurer to retain counsel on the client's behalf, the
representation may be limited to matters related to the defense of
claims made against the insured. In such cases, the lawyer shall,
within a reasonable time after being retained, inform the client in
writing of the terms and scope of the representation the lawyer has
been retained by the insurer to provide.
factors to be considered in determining the reasonableness of a fee
include the following:
(1) the time and labor required, the novelty and difficulty of the
questions involved, and the skill requisite to perform the legal
service properly;
(2) the likelihood, if apparent to the client, that the acceptance of
the particular employment will preclude other employment by the
lawyer;
(3) the fee customarily charged in the locality for similar legal
services;
(4) the amount involved and the results obtained;
(5) the time limitations imposed by the client or by the
circumstances;
(6) the nature and length of the professional relationship with the
client;
(7) the experience, reputation, and ability of the lawyer or lawyers
performing the services; and
(8) whether the fee is fixed or contingent.
(b)(1) The scope of the representation and the basis or rate of the
fee and expenses for which the client will be responsible shall be
communicated to the client in writing, before or within a
reasonable time after commencing the representation, except when
the lawyer will charge a regularly represented client on the same
basis or rate as in the past. If it is reasonably foreseeable that the
total cost of representation to the client, including attorney's fees,
will be $1000 or less, the communication may be oral or in writing.
Any changes in the basis or rate of the fee or expenses shall also
be communicated in writing to the client.
(2) If the total cost of representation to the client, including
attorney's fees, is more than $1000, the purpose and effect of any
retainer or advance fee that is paid to the lawyer shall be
communicated in writing.
(3) A lawyer shall promptly respond to a client's request for
information concerning fees and expenses.
(c) A fee may be contingent on the outcome of the matter for which
the service is rendered, except in a matter in which a contingent
fee is prohibited by par. (d) or other law. A contingent fee
agreement shall be in a writing signed by the client, and shall state
the method by which the fee is to be determined, including the
percentage or percentages that shall accrue to the lawyer in the
event of settlement, trial or appeal; litigation and other expenses
to be deducted from the recovery; and whether such expenses are
to be deducted before or after the contingent fee is calculated. The
agreement must clearly notify the client of any expenses for which
the client will be liable whether or not the client is the prevailing
party. Upon conclusion of a contingent fee matter, the lawyer shall
provide the client with a written statement stating the outcome of
the matter and if there is a recovery, showing the remittance to the
client and the method of its determination.
(d) A lawyer shall not enter into an arrangement for, charge, or
collect a contingent fee:
(1) in any action affecting the family, including but not limited to
divorce, legal separation, annulment, determination of paternity,
setting of support and maintenance, setting of custody and
SCR 20:1.3 Diligence
A lawyer shall act with reasonable diligence and promptness in
representing a client.
SCR 20:1.4 Communication
(a) A lawyer shall:
(1) Promptly inform the client of any decision or circumstance
with respect to which the client's informed consent, as defined in
SCR 20:1.0(f), is required by these rules;
(2) reasonably consult with the client about the means by which
the client's objectives are to be accomplished;
(3) keep the client reasonably informed about the status of the
matter;
(4) promptly comply with reasonable requests by the client for
information; and
(5) consult with the client about any relevant limitation on the
lawyer's conduct when the lawyer knows that the client expects
assistance not permitted by the Rules of Professional Conduct or
other law.
(b) A lawyer shall explain a matter to the extent reasonably
necessary to permit the client to make informed decisions
regarding the representation.
SCR 20:1.5 Fees
(a) A lawyer shall not make an agreement for, charge, or collect
an unreasonable fee or an unreasonable amount for expenses. The
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physical placement, property division, partition of marital
property, termination of parental rights and adoption, provided
that nothing herein shall prohibit a contingent fee for the collection
of past due amounts of support or maintenance or property
division.
(2) for representing a defendant in a criminal case or any
proceeding that could result in deprivation of liberty.
(e) A division of a fee between lawyers who are not in the same
firm may be made only if the total fee is reasonable and:
(1) the division is based on the services performed by each lawyer,
and the client is advised of and does not object to the participation
of all the lawyers involved and is informed if the fee will increase
as a result of their involvement; or
(2) the lawyers formerly practiced together and the payment to one
lawyer is pursuant to a separation or retirement agreement
between them; or
(3) pursuant to the referral of a matter between the lawyers, each
lawyer assumes the same ethical responsibility for the
representation as if the lawyers were partners in the same firm, the
client is informed of the terms of the referral arrangement,
including the share each lawyer will receive and whether the
overall fee will increase, and the client consents in a writing signed
by the client.
(f) Except as provided in SCR 20:1.5(g), unearned fees and funds
advanced by a client or 3rd party for payment of fees shall be held
in trust until earned by the lawyer, and withdrawn pursuant to SCR
20:1.5(h). Funds advanced by a client or 3rd party for payment of
costs shall be held in trust until the costs are incurred.
(5) to comply with other law or a court order; or
(6) to detect and resolve conflicts of interest, but only if the
revealed information would not compromise the attorney-client
privilege or otherwise prejudice the client.
(d) A lawyer shall make reasonable efforts to prevent the
inadvertent or unauthorized disclosure of, or unauthorized access
to, information relating to the representation of a client.
SCR 20:1.6 Confidentiality
SCR 20:1.8 Conflict of interest: prohibited transactions
(a) Lawyer shall not reveal information relating to representation
of a client unless client gives informed consent, except for
disclosures that are impliedly authorized in order to carry out the
representation, and except as stated in pars. (b) and (c).
(b) A lawyer shall reveal information relating to the representation
of a client to the extent the lawyer reasonably believes necessary
to prevent the client from committing a criminal or fraudulent act
that the lawyer reasonably believes is likely to result in death or
substantial bodily harm or in substantial injury to the financial
interest or property of another.
(c) A lawyer may reveal information relating to the representation
of a client to the extent the lawyer reasonably believes necessary:
(1) to prevent reasonably likely death or substantial bodily harm;
(2) to prevent, mitigate or rectify substantial injury to the financial
interests or property of another that is reasonably certain to result
or has resulted from the client's commission of a crime or fraud in
furtherance of which the client has used the lawyer's services;
(3) to secure legal advice about the lawyer's conduct under these
rules;
(4) to establish a claim or defense on behalf of the lawyer in a
controversy between the lawyer and the client, to establish a
defense to a criminal charge or civil claim against the lawyer based
upon conduct in which the client was involved, or to respond to
allegations in any proceeding concerning the lawyer's
representation of the client;
(a) A lawyer shall not enter into a business transaction with a
client or knowingly acquire an ownership, possessory, security or
other pecuniary interest adverse to a client unless:
(1) the transaction and terms on which the lawyer acquires the
interest are fair and reasonable to the client and are fully disclosed
and transmitted in writing in a manner that can be reasonably
understood by the client;
(2) the client is advised in writing of the desirability of seeking
and is given a reasonable opportunity to seek the advice of
independent legal counsel on the transaction; and
(3) the client gives informed consent, in a writing signed by the
client, to the essential terms of the transaction and the lawyer's role
in the transaction, including whether the lawyer is representing the
client in the transaction.
(b) A lawyer shall not use information relating to representation of
a client to the disadvantage of the client unless the client gives
informed consent, except as permitted or required by these rules.
(c) A lawyer shall not solicit any substantial gift from a client,
including a testamentary gift, nor prepare an instrument giving the
lawyer or a person related to the lawyer any substantial gift from
a client, including a testamentary gift, except where (1) the client
is related to the donee, (2) the donee is a natural object of the
bounty of the client, (3) there is no reasonable ground to anticipate
a contest, or a claim of undue influence or for the public to lose
confidence in the integrity of the bar, and (4) the amount of the
SCR 20:1.7 Conflicts of interest current clients
(a) Except as provided in par. (b), a lawyer shall not represent a
client if the representation involves a concurrent conflict of
interest. A concurrent conflict of interest exists if:
(1) the representation of one client will be directly adverse to
another client; or
(2) there is a significant risk that the representation of one or more
clients will be materially limited by the lawyer's responsibilities to
another client, a former client or a third person or by a personal
interest of the lawyer.
(b) Notwithstanding the existence of a concurrent conflict of
interest under par. (a), a lawyer may represent a client if:
(1) the lawyer reasonably believes that the lawyer will be able to
provide competent and diligent representation to each affected
client;
(2) the representation is not prohibited by law;
(3) the representation does not involve the assertion of a claim by
one client against another client represented by the lawyer in the
same litigation or other proceeding before a tribunal; and
(4) each affected client gives informed consent, confirmed in a
writing signed by the client.
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gift or bequest is reasonable and natural under the circumstances.
For purposes of this paragraph, related persons include a spouse,
child, grandchild, parent, grandparent or other relative or
individual with whom the lawyer or the client maintains a close,
familial relationship.
(d) Prior to the conclusion of representation of a client, a lawyer
shall not make or negotiate an agreement giving the lawyer literary
or media rights to a portrayal or account based in substantial part
on information relating to the representation.
(e) A lawyer shall not provide financial assistance to a client in
connection with pending or contemplated litigation, except that:
(1) a lawyer may advance court costs and expenses of litigation,
the repayment of which may be contingent on the outcome of the
matter; and
(2) a lawyer representing an indigent client may pay court costs
and expenses of litigation on behalf of the client.
(f) A lawyer shall not accept compensation for representing a
client from one other than the client unless:
(1) the client gives informed consent or the attorney is appointed
at government expense; provided that no further consent or
consultation need be given if the client has given consent pursuant
to the terms of an agreement or policy requiring an organization
or insurer to retain counsel on the client's behalf;
(2) there is no interference with the lawyer's independence of
professional judgment or with the client-lawyer relationship; and
(3) information relating to representation of a client is protected as
required by SCR 20:1.6.
(g) A lawyer who represents two or more clients shall not
participate in making an aggregate settlement of the claims of or
against the clients, or in a criminal case an aggregated agreement
as to guilty or nolo contendere pleas, unless each client gives
informed consent, in a writing signed by the client. The lawyer's
disclosure shall include the existence and nature of all the claims
or pleas involved and of the participation of each person in the
settlement.
(h) A lawyer shall not:
(1) make an agreement prospectively limiting the lawyer's liability
to a client for malpractice unless the client is independently
represented in making the agreement; or
(2) settle a claim or potential claim for such liability with an
unrepresented client or former client unless that person is advised
in writing of the desirability of seeking and is given a reasonable
opportunity to seek the advice of independent legal counsel in
connection therewith; or
(3) make an agreement limiting the client's right to report the
lawyer's conduct to disciplinary authorities.
(i) A lawyer shall not acquire a proprietary interest in the cause of
action or subject matter of litigation the lawyer is conducting for a
client, except that the lawyer may:
(1) acquire a lien authorized by law to secure the lawyer's fee or
expenses; and
(2) contract with a client for a reasonable contingent fee in a civil
case.
(j) A lawyer shall not have sexual relations with a current client
unless a consensual sexual relationship existed between them
when the client-lawyer relationship commenced.
(1) In this paragraph, "sexual relations" means sexual intercourse
or any other intentional touching of the intimate parts of a person
or causing the person to touch the intimate parts of the lawyer.
(2) When the client is an organization, a lawyer for the
organization (whether inside counsel or outside counsel) shall not
have sexual relations with a constituent of the organization who
supervises, directs or regularly consults with that lawyer
concerning the organization's legal matters.
(k) While lawyers are associated in a firm, a prohibition in the
foregoing pars. (a) through (i) that applies to any one of them shall
apply to all of them.
SCR 20:1.9 Duties to former clients
(a) A lawyer who has formerly represented a client in a matter
shall not thereafter represent another person in the same or a
substantially related matter in which that person's interests are
materially adverse to the interests of the former client unless the
former client gives informed consent, confirmed in a writing
signed by the client.
(b) A lawyer shall not knowingly represent a person in the same
or a substantially related matter in which a firm with which the
lawyer formerly was associated had previously represented a
client:
(1) whose interests are materially adverse to that person; and
(2) about whom the lawyer had acquired information protected by
sub. (c) and SCR 20:1.6 that is material to the matter; unless the
former client gives informed consent, confirmed in a writing
signed by the client.
(c) A lawyer who has formerly represented a client in a matter or
whose present or former firm has formerly represented a client in
a matter shall not thereafter:
(1) use information relating to the representation to the
disadvantage of the former client except as these rules would
permit or require with respect to a client, or when the information
has become generally known; or
(2) reveal information relating to the representation except as these
rules would permit or require with respect to a client.
SCR 20:1.12 Former judge, arbitrator, mediator or
other. 3rd-party neutral
(a) Except as stated in par. (d), a lawyer shall not represent anyone
in connection with a matter in which the lawyer participated
personally and substantially as a judge or other adjudicative
officer or law clerk to such a person or as an arbitrator, mediator
or other 3rdparty neutral.
(b) A lawyer shall not negotiate for employment with any person
who is involved as a party or as lawyer for a party in a matter in
which the lawyer is participating personally and substantially as a
judge or other adjudicative officer or as an arbitrator, mediator or
other 3rd party neutral. A lawyer serving as a law clerk to a judge
or other adjudicative officer may negotiate for employment with a
party or lawyer involved in a matter in which the clerk is
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participating personally and substantially, but only after the
lawyer has notified the judge or other adjudicative officer.
(c) If a lawyer is disqualified by par. (a), no lawyer in a firm with
which that lawyer is associated may knowingly undertake or
continue representation in the matter unless:
(1) the disqualified lawyer is timely screened from any
participation in the matter and is apportioned no part of the fee
therefrom; and
(2) written notice is promptly given to the parties and any
appropriate tribunal to enable them to ascertain compliance with
the provisions of this rule.
(d) An arbitrator selected as a partisan of a party in a multimember
arbitration panel is not prohibited from subsequently representing
that party in the matter, provided that all parties to the proceeding
give informed consent, confirmed in writing.
fee or expense that has not been earned or incurred. The lawyer
may retain papers relating to the client to the extent permitted by
other law.
SCR 20:1.18 Duties to prospective client
(a) A person who consults with a lawyer about the possibility of
forming a client-lawyer relationship with respect to a matter is a
prospective client.
(b) Even when no client-lawyer relationship ensues, a lawyer who
has learned information from a prospective client shall not use or
reveal that information learned in the consultation, except as SCR
20:1.9 would permit with respect to information of a former client.
(c) A lawyer subject to par. (b) shall not represent a client with
interests materially adverse to those of a prospective client in the
same or a substantially related matter if the lawyer received
information from the prospective client that could be significantly
harmful to that person in the matter, except as provided in par. (d).
If a lawyer is disqualified from representation under this
paragraph, no lawyer in a firm with which that lawyer is associated
may knowingly undertake or continue representation in such a
matter, except as provided in par. (d).
(d) When the lawyer has received disqualifying information as
defined in par. (c), representation is permissible if:
(1) both the affected client and the prospective client have given
informed consent, confirmed in writing, or
(2) the lawyer who received the information took reasonable
measures to avoid exposure to more disqualifying information
than was reasonably necessary to determine whether to represent
the prospective client; and
(i) the disqualified lawyer is timely screened from any
participation in the matter and is apportioned no part of the fee
therefrom; and
(ii) written notice is promptly given to the prospective client.
SCR 20:1.16 Declining or terminating representation
(a) Except as stated in par. (c), a lawyer shall not represent a client
or, where representation has commenced, shall withdraw from the
representation of a client if:
(1) the representation will result in violation of the Rules of
Professional Conduct or other law;
(2) the lawyer's physical or mental condition materially impairs
the lawyer's ability to represent the client; or
(3) the lawyer is discharged.
(b) Except as stated in par. (c), a lawyer may withdraw from
representing a client if:
(1) withdrawal can be accomplished without material adverse
effect on the interests of the client;
(2) the client persists in a course of action involving the lawyer's
services that the lawyer reasonably believes is criminal or
fraudulent;
(3) the client has used the lawyer's services to perpetrate a crime
or fraud;
(4) the client insists upon taking action that the lawyer considers
repugnant or with which the lawyer has a fundamental
disagreement;
(5) the client fails substantially to fulfill an obligation to the lawyer
regarding the lawyer's services and has been given reasonable
warning that the lawyer will withdraw unless the obligation is
fulfilled;
(6) the representation will result in an unreasonable financial
burden on the lawyer or has been rendered unreasonably difficult
by the client; or
(7) other good cause for withdrawal exists.
(c) A lawyer must comply with applicable law requiring notice to
or permission of a tribunal when terminating a representation.
When ordered to do so by a tribunal, a lawyer shall continue
representation notwithstanding good cause for terminating the
representation.
(d) Upon termination of representation, a lawyer shall take steps
to the extent reasonably practicable to protect a client's interests,
such as giving reasonable notice to the client, allowing time for
employment of other counsel, surrendering papers and property to
which the client is entitled and refunding any advance payment of
SCR 20:2.1 Advisor
In representing a client, a lawyer shall exercise independent
professional judgment and render candid advice. In rendering
advice, a lawyer may refer not only to law but to other
considerations such as moral, economic, social, and political
factors that may be relevant to the client's situation.
SCR 20:3.3 Candor toward the tribunal
(a) A lawyer shall not knowingly:
(1) make a false statement of fact or law to a tribunal or fail to
correct a false statement of material fact or law previously made
to the tribunal by the lawyer;
(2) fail to disclose to the tribunal legal authority in the controlling
jurisdiction known to the lawyer to be directly adverse to the
position of the client and not disclosed by opposing counsel; or
(3) offer evidence that the lawyer knows to be false. If a lawyer,
the lawyer's client, or a witness called by the lawyer, has offered
material evidence and the lawyer comes to know of its falsity, the
lawyer shall take reasonable remedial measures, including, if
necessary, disclosure to the tribunal. A lawyer may refuse to offer
evidence, other than the testimony of a defendant in a criminal
matter that the lawyer reasonably believes is false.
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(b) A lawyer who represents a client in an adjudicative proceeding
and who knows that a person intends to engage, is engaging, or
has engaged in criminal or fraudulent conduct related to the
proceeding shall take reasonable remedial measures, including, if
necessary, disclosure to the tribunal.
(c) Duties stated in par. (a) & (b) apply even if compliance requires
disclosure of information otherwise protected by SCR 20:1.6.
(d) In an ex parte proceeding, a lawyer shall inform the tribunal of
all material facts known to the lawyer that will enable the tribunal
to make an informed decision, whether or not the facts are adverse.
(b) An otherwise unrepresented party to whom limited scope
representation is being provided or has been provided in
accordance with SCR 20:1.2(c) is considered to be unrepresented
for purposes of this rule unless the lawyer providing limited scope
representation notifies the opposing lawyer otherwise.
SCR 20:4.3 Dealing with unrepresented person
(a) In dealing on behalf of a client with a person who is not
represented by counsel, a lawyer shall inform such person of the
lawyer's role in the matter. When the lawyer knows or reasonably
should know that the unrepresented person misunderstands the
lawyer's role in the matter, the lawyer shall make reasonable
efforts to correct the misunderstanding. The lawyer shall not give
legal advice to an unrepresented person, other than the advice to
secure counsel, if the lawyer knows or reasonably should know
that the interests of such a person are or have a reasonable
possibility of being in conflict with the interests of the client.
(b) An otherwise unrepresented party to whom limited scope
representation is being provided or has been provided in
accordance with SCR 20.1.2(c) is considered to be unrepresented
for purposes of this rule unless the lawyer providing limited scope
representation notifies the opposing lawyer otherwise.
SCR 20:3.4 Fairness to opposing party and counsel
A lawyer shall not:
(a) unlawfully obstruct another party's access to evidence or
unlawfully alter, destroy or conceal a document or other material
having potential evidentiary value. A lawyer shall not counsel or
assist another person to do any such act;
(b) falsify evidence, counsel or assist a witness to testify falsely,
or offer an inducement to a witness that is prohibited by law;
(c) knowingly disobey an obligation under the rules of a tribunal,
except for an open refusal based on an assertion that no valid
obligation exists;
(d) in pretrial procedure, make a frivolous discovery request or fail
to make reasonably diligent effort to comply with a legally proper
discovery request by an opposing party;
(e) in trial, allude to any matter that the lawyer does not reasonably
believe is relevant or that will not be supported by admissible
evidence, assert personal knowledge of facts in issue except when
testifying as a witness, or state a personal opinion as to the justness
of a cause, the credibility of a witness, the culpability of a civil
litigant or the guilt or innocence of an accused; or
(f) request a person other than a client to refrain from voluntarily
giving relevant information to another party unless:
(1) the person is a relative or an employee or other agent of a
client; and
(2) the lawyer reasonably believes that the person's interests will
not be adversely affected by refraining from giving such
information.
SCR 20:4.4 Respect for rights of 3rd persons
(a) In representing a client, a lawyer shall not use means that have
no substantial purpose other than to embarrass, delay, or burden a
3rd person, or use methods of obtaining evidence that violate the
legal rights of such a person.
(b) A lawyer who receives a document or electronically stored
information relating to the representation of the lawyer's client and
knows or reasonably should know that the document or
electronically stored information was inadvertently sent shall
promptly notify the sender.
(c) A lawyer who receives a document or electronically stored
information relating to the representation of the lawyer's client and
knows or reasonably should know that the document or
electronically stored information contains information protected
by the lawyer-client privilege or the work product rule and has
been disclosed to the lawyer inadvertently shall:
(1) immediately terminate review or use of the document or
electronically stored information;
(2) promptly notify the person or the person's lawyer if
communication with the person is prohibited by SCR 20:4.2 of the
inadvertent disclosure; and
(3) abide by that person's or lawyer's instructions with respect to
disposition of the document or electronically stored information
until obtaining a definitive ruling on the proper disposition from a
court with appropriate jurisdiction.
SCR 20:4.1 Truthfulness in statements to others
(a) In the course of representing a client a lawyer shall not
knowingly:
(1) make a false statement of a material fact or law to a 3rd person;
or (2) fail to disclose a material fact to a 3rd person when
disclosure is necessary to avoid assisting a criminal or fraudulent
act by a client, unless disclosure is prohibited by SCR 20:1.6.
(b) Notwithstanding par. (a), SCR 20:5.3(c)(1), and SCR 20:8.4, a
lawyer may advise or supervise others with respect to lawful
investigative activities.
SCR 20:4.5 Guardians ad litem
SCR 20:4.2 Communication with person represented by
counsel
A lawyer appointed to act as a guardian ad litem or as an attorney
for the best interests of an individual represents, and shall act in,
the individual's best interests, even if doing so is contrary to the
individual's wishes. A lawyer so appointed shall comply with the
Rules of Professional Conduct that are consistent with the lawyer's
role in representing the best interests of the individual rather than
the individual personally.
(a) In representing a client, a lawyer shall not communicate about
the subject of the representation with a person the lawyer knows
to be represented by another lawyer in the matter, unless the
lawyer has the consent of the other lawyer or is authorized to do
so by law or a court order.
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2. On request of the parent, unless good cause to the contrary
is shown, admit testimony on the record by telephone or live
audiovisual means as prescribed in s. 807.13 (2).
(c) A person who may be, but who has not been adjudicated
as, the father of a nonmarital child may consent to the
termination of any parental rights that he may have as
provided in par. (a) or (b) or by signing a written, notarized
statement which recites that he has been informed of and
understands the effect of an order to terminate parental rights
and that he voluntarily disclaims any rights that he may have
to the child, including the right to notice of proceedings
under this subchapter.
(d) If the proceeding to terminate parental rights is held prior
to an adoption proceeding in which the petitioner is the
child's stepparent, or in which the child's birth parent is a
resident of a foreign jurisdiction, the child's birth parent may
consent to the termination of any parental rights that he or
she may have as provided in par. (a) or (b) or by filing with
the court an affidavit witnessed by 2 persons stating that he
or she has been informed of and understands the effect of an
order to terminate parental rights and that he or she
voluntarily disclaims all rights to the child, including the
right to notice of proceedings under this subchapter.
(e) In the case of an Indian child, the consent is given as
provided in s. 48.028 (5) (b).
(3) If in any proceeding to terminate parental rights
voluntarily a guardian ad litem has reason to doubt the
capacity of a parent to give informed and voluntary consent
to the termination, he or she shall so inform the court. The
court shall then inquire into the capacity of that parent in any
appropriate way and shall make a finding as to whether or
not the parent is capable of giving informed and voluntary
consent to the termination. If the court finds that the parent
is incapable of knowingly and voluntarily consenting to the
termination of parental rights, it shall dismiss the
proceedings without prejudice. That dismissal shall not
preclude an involuntary termination of the parent's rights
under s. 48.415.
Legal Parenthood
48.40
Definitions.
In this subchapter:
(1) Except as otherwise provided, “agency" means the
department, a county department or a licensed child welfare
agency.
(1m) “Kinship care relative" means a person receiving
payments under s. 48.57 (3m) (am) for providing care and
maintenance for a child.
(1r) “Parent" has the meaning given in s. 48.02 (13), except
that for purposes of filing a petition seeking the involuntary
termination of parental rights under s. 48.415 to a nonmarital
child who is not adopted or whose parents do not
subsequently intermarry under s. 767.803 and whose
paternity has not been established, of finding grounds under
s. 48.415 for the involuntary termination of parental rights to
such a child, and of terminating the parental rights to such a
child on a ground specified in s. 48.415, “parent" includes a
person who may be the parent of such a child.
(2) “Termination of parental rights" means that, pursuant to
a court order, all rights, powers, privileges, immunities,
duties and obligations existing between parent and child are
permanently severed.
48.41 Voluntary termination of parental rights.
(1) The court may terminate the parental rights of a parent
after the parent has given his or her consent as specified in
this section. When such voluntary consent is given as
provided in this section, the judge may proceed immediately
to a disposition of the matter after considering the standard
and factors specified in s. 48.426.
(2) The court may accept a voluntary consent to termination
of parental rights only as follows:
(a) The parent appears personally at the hearing and gives
his or her consent to the termination of his or her parental
rights. The judge may accept the consent only after the judge
has explained the effect of termination of parental rights and
has questioned the parent, or has permitted an attorney who
represents any of the parties to question the parent, and is
satisfied that the consent is informed and voluntary.
(b) If the court finds that it would be difficult or impossible
for the parent to appear in person at the hearing, the court
may do any of the following:
1. Accept the written consent of the parent given before an
embassy or consul official, a military judge, or a judge of any
court of record in another county or state or a foreign
jurisdiction. This written consent shall be accompanied by
the signed findings of the embassy or consul official or judge
who accepted the parent's consent. These findings shall
recite that the embassy or consul official or judge or an
attorney who represents any of the parties questioned the
parent and found that the consent was informed and
voluntary before the embassy or consul official or judge
accepted the consent of the parent.
48.415 Grounds for involuntary termination of parental
rights.
At the fact-finding hearing the court or jury shall determine
whether grounds exist for the termination of parental rights.
If the child is an Indian child, the court or jury shall also
determine at the fact-finding hearing whether continued
custody of the Indian child by the Indian child's parent or
Indian custodian is likely to result in serious emotional or
physical damage to the Indian child under s. 48.028 (4) (e)
1. and whether active efforts under s. 48.028 (4) (e) 2. have
been made to prevent the breakup of the Indian child's family
and whether those efforts have proved unsuccessful, unless
partial summary judgment on the grounds for termination of
parental rights is granted, in which case the court shall make
those determinations at the dispositional hearing. Grounds
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for termination of parental rights shall be one of the
following:
(1) Abandonment.
(a) Abandonment, which, subject to par. (c), shall be
established by proving any of the following:
1. That the child has been left without provision for the
child's care or support, the petitioner has investigated the
circumstances surrounding the matter and for 60 days the
petitioner has been unable to find either parent.
1m. That the child has been left by the parent without
provision for the child's care or support in a place or manner
that exposes the child to substantial risk of great bodily harm,
as defined in s. 939.22 (14), or death.
1r. That a court of competent jurisdiction has found under s.
48.13 (2) or under a law of any other state or a federal law
that is comparable to s. 48.13 (2) that the child was
abandoned when the child was under one year of age or has
found that the parent abandoned the child when the child was
under one year of age in violation of s. 948.20 or in violation
of the law of any other state or federal law, if that violation
would be a violation of s. 948.20 if committed in this state.
2. That the child has been placed, or continued in a
placement, outside the parent's home by a court order
containing the notice required by s. 48.356 (2) or 938.356 (2)
and the parent has failed to visit or communicate with the
child for a period of 3 months or longer.
3. The child has been left by the parent with any person, the
parent knows or could discover the whereabouts of the child
and the parent has failed to visit or communicate with the
child for a period of 6 months or longer.
(b) Incidental contact between parent and child shall not
preclude the court from finding that the parent has failed to
visit or communicate with the child under par. (a) 2. or 3.
The time periods under par. (a) 2. or 3. shall not include any
periods during which the parent has been prohibited by
judicial order from visiting or communicating with the child.
(c) Abandonment is not established under par. (a) 2. or 3. if
the parent proves all of the following by a preponderance of
the evidence:
1. That the parent had good cause for having failed to visit
with the child throughout the time period specified in par. (a)
2. or 3., whichever is applicable.
2. That the parent had good cause for having failed to
communicate with the child throughout the time period
specified in par. (a) 2. or 3., whichever is applicable.
3. If the parent proves good cause under subd. 2., including
good cause based on evidence that the child's age or
condition would have rendered any communication with the
child meaningless, that one of the following occurred:
a. The parent communicated about the child with the person
or persons who had physical custody of the child during the
time period specified in par. (a) 2. or 3., whichever is
applicable, or, if par. (a) 2. is applicable, with the agency
responsible for the care of the child during the time period
specified in par. (a) 2.
b. The parent had good cause for having failed to
communicate about the child with the person or persons who
had physical custody of the child or the agency responsible
for the care of the child throughout the time period specified
in par. (a) 2. or 3., whichever is applicable.
(1m) Relinquishment. Relinquishment, which shall be
established by proving that a court of competent jurisdiction
has found under s. 48.13 (2m) that the parent has
relinquished custody of the child under s. 48.195 (1) when
the child was 72 hours old or younger.
(2) Continuing need of protection or services. Continuing
need of protection or services, which shall be established by
proving any of the following:
(a)
1. That the child has been adjudged to be a child or an unborn
child in need of protection or services and placed, or
continued in a placement, outside his or her home pursuant
to one or more court orders under s. 48.345, 48.347, 48.357,
48.363, 48.365, 938.345, 938.357, 938.363 or 938.365
containing the notice required by s. 48.356 (2) or 938.356
(2).
2.
a. In this subdivision, “ reasonable effort" means an earnest
and conscientious effort to take good faith steps to provide
the services ordered by the court which takes into
consideration the characteristics of the parent or child or of
the expectant mother or child, the level of cooperation of the
parent or expectant mother and other relevant circumstances
of the case.
b. That the agency responsible for the care of the child and
the family or of the unborn child and expectant mother has
made a reasonable effort to provide the services ordered by
the court.
3. That the child has been placed outside the home for a
cumulative total period of 6 months or longer pursuant to an
order listed under subd. 1., not including time spent outside
the home as an unborn child; that the parent has failed to
meet the conditions established for the safe return of the
child to the home; and, if the child has been placed outside
the home for less than 15 of the most recent 22 months, that
there is a substantial likelihood that the parent will not meet
these conditions as of the date on which the child will have
been placed outside the home for 15 of the most recent 22
months, not including any period during which the child was
a runaway from the out-of-home placement or was residing
in a trial reunification home.
(am)
1. That on 3 or more occasions the child has been adjudicated
to be in need of protection or services under s. 48.13 (3),
(3m), (10) or (10m) and, in connection with each of those
adjudications, has been placed outside his or her home
45
pursuant to a court order under s. 48.345 containing the
notice required by s. 48.356 (2).
2. That the conditions that led to the child's placement
outside his or her home under each order specified in subd.
1. were caused by the parent.
(3) Continuing parental disability. Continuing parental
disability, which shall be established by proving that:
(a) The parent is presently, and for a cumulative total period
of at least 2 years within the 5 years immediately prior to the
filing of the petition has been, an inpatient at one or more
hospitals as defined in s. 50.33 (2) (a), (b) or (c), licensed
treatment facilities as defined in s. 51.01 (2) or state
treatment facilities as defined in s. 51.01 (15) on account of
mental illness as defined in s. 51.01 (13) (a) or (b),
developmental disability as defined in s. 55.01 (2), or other
like incapacities, as defined in s. 55.01 (5);
(b) The condition of the parent is likely to continue
indefinitely; and
(c) The child is not being provided with adequate care by a
relative who has legal custody of the child, or by a parent or
a guardian.
(4) Continuing denial of periods of physical placement or
visitation. Continuing denial of periods of physical
placement or visitation, which shall be established by
proving all of the following:
(a) That the parent has been denied periods of physical
placement by court order in an action affecting the family or
has been denied visitation under an order under s. 48.345,
48.363, 48.365, 938.345, 938.363 or 938.365containing the
notice required by s. 48.356 (2) or 938.356 (2).
(b) That at least one year has elapsed since the order denying
periods of physical placement or visitation was issued and
the court has not subsequently modified its order so as to
permit periods of physical placement or visitation.
(5) Child abuse. Child abuse, which shall be established by
proving that the parent has exhibited a pattern of physically
or sexually abusive behavior which is a substantial threat to
the health of the child who is the subject of the petition and
proving either of the following:
(a) That the parent has caused death or injury to a child or
children resulting in a felony conviction.
(b) That a child has previously been removed from the
parent's home pursuant to a court order under s. 48.345 after
an adjudication that the child is in need of protection or
services under s. 48.13 (3) or (3m).
(6) Failure to assume parental responsibility.
(a) Failure to assume parental responsibility, which shall be
established by proving that the parent or the person or
persons who may be the parent of the child have not had a
substantial parental relationship with the child.
(b) In this subsection, “ substantial parental relationship"
means the acceptance and exercise of significant
responsibility for the daily supervision, education, protection
and care of the child. In evaluating whether the person has
had a substantial parental relationship with the child, the
court may consider such factors, including, but not limited
to, whether the person has expressed concern for or interest
in the support, care or well-being of the child, whether the
person has neglected or refused to provide care or support
for the child and whether, with respect to a person who is or
may be the father of the child, the person has expressed
concern for or interest in the support, care or well-being of
the mother during her pregnancy.
(7) Incestuous parenthood. Incestuous parenthood, which
shall be established by proving that the person whose
parental rights are sought to be terminated is also related,
either by blood or adoption, to the child's other parent in a
degree of kinship closer than 2nd cousin.
(8) Homicide or solicitation to commit homicide of parent.
Homicide or solicitation to commit homicide of a parent,
which shall be established by proving that a parent of the
child has been a victim of first-degree intentional homicide
in violation of s. 940.01, first-degree reckless homicide in
violation of s. 940.02 or 2nd-degree intentional homicide in
violation of s. 940.05 or a crime under federal law or the law
of any other state that is comparable to any of those crimes,
or has been the intended victim of a solicitation to commit
first-degree intentional homicide in violation of s. 939.30 or
a crime under federal law or the law of any other state that is
comparable to that crime, and that the person whose parental
rights are sought to be terminated has been convicted of that
intentional or reckless homicide, solicitation or crime under
federal law or the law of any other state as evidenced by a
final judgment of conviction.
(9) Parenthood as a result of sexual assault.
(a) Parenthood as a result of sexual assault, which shall be
established by proving that the child was conceived as a
result of a sexual assault in violation of s. 940.225 (1), (2) or
(3), 948.02 (1) or (2), 948.025, or 948.085. Conception as a
result of sexual assault as specified in this paragraph may be
proved by a final judgment of conviction or other evidence
produced at a fact-finding hearing under s. 48.424 indicating
that the person who may be the father of the child committed,
during a possible time of conception, a sexual assault as
specified in this paragraph against the mother of the child.
(b) If the conviction or other evidence specified in par. (a)
indicates that the child was conceived as a result of a sexual
assault in violation of s. 948.02 (1) or (2) or 948.085, the
mother of the child may be heard on her desire for the
termination of the father's parental rights.
(9m) Commission of a felony against a child.
(a) Commission of a serious felony against one of the
person's children, which shall be established by proving that
a child of the person whose parental rights are sought to be
terminated was the victim of a serious felony and that the
person whose parental rights are sought to be terminated has
been convicted of that serious felony as evidenced by a final
judgment of conviction.
46
(am) Commission of a violation of s. 948.051 involving any
child or a violation of the law of any other state or federal
law, if that violation would be a violation of s. 948.051
involving any child if committed in this state.
(b) In this subsection, “ serious felony" means any of the
following:
1. The commission of, the aiding or abetting of, or the
solicitation, conspiracy or attempt to commit, a violation of
s. 940.01, 940.02, 940.03 or 940.05 or a violation of the law
of any other state or federal law, if that violation would be a
violation of s. 940.01, 940.02, 940.03 or 940.05 if committed
in this state.
2.
a. The commission of a violation of s. 940.19 (3), 1999 stats.,
a violation of s. 940.19 (2), (4) or (5), 940.225 (1) or (2),
948.02 (1) or (2), 948.025, 948.03 (2) (a), (3) (a), or (5) (a)
1., 2., or 3., 948.05, 948.051, 948.06, 948.08, or 948.081, or
a violation of s. 940.302 (2) if s. 940.302 (2) (a) 1. b. applies.
b. A violation of the law of any other state or federal law, if
that violation would be a violation listed under subd. 2. a. if
committed in this state.
3. The commission of a violation of s. 948.21 or a violation
of the law of any other state or federal law, if that violation
would be a violation of s. 948.21 if committed in this state,
that resulted in the death of the victim.
(10) Prior involuntary termination of parental rights to
another child. Prior involuntary termination of parental
rights to another child, which shall be established by proving
all of the following:
(a) That the child who is the subject of the petition has been
adjudged to be in need of protection or services under s.
48.13 (2), (3) or (10); or that the child who is the subject of
the petition was born after the filing of a petition under this
subsection whose subject is a sibling of the child.
(b) That, within 3 years prior to the date the court adjudged
the child to be in need of protection or services as specified
in par. (a) or, in the case of a child born after the filing of a
petition as specified in par. (a), within 3 years prior to the
date of birth of the child, a court has ordered the termination
of parental rights with respect to another child of the person
whose parental rights are sought to be terminated on one or
more of the grounds specified in this section.
(a) The child has been placed outside of his or her home, as
described in s. 48.365 (1) or 938.365 (1), in a foster home,
group home, nonsecured residential care center for children
and youth, or shelter care facility for 15 of the most recent
22 months, not including any period during which the child
was a runaway from the out-of-home placement or was
residing in a trial reunification home. If the circumstances
specified in this paragraph apply, the petition shall be filed
or joined in by the last day of the 15th month, as described
in this paragraph, for which the child was placed outside of
his or her home.
(b) A court of competent jurisdiction has found under s.
48.13 (2) or under a law of any other state or a federal law
that is comparable to s. 48.13 (2) that the child was
abandoned when he or she was under one year of age or has
found that the parent abandoned the child when the child was
under one year of age in violation of s. 948.20 or in violation
of the law of any other state or federal law, if that violation
would be a violation of s. 948.20if committed in this state. If
the circumstances specified in this paragraph apply, the
petition shall be filed or joined in within 60 days after the
date on which the court of competent jurisdiction found that
the child was abandoned as described in this paragraph.
(c) A court of competent jurisdiction has found that the
parent has committed, has aided or abetted the commission
of, or has solicited, conspired, or attempted to commit, a
violation of s. 940.01, 940.02, 940.03, or 940.05 or a
violation of the law of any other state or federal law, if that
violation would be a violation of s. 940.01, 940.02, 940.03,
or 940.05 if committed in this state, and that the victim of
that violation is a child of the parent. If the circumstances
specified in this paragraph apply, the petition shall be filed
or joined in within 60 days after the date on which the court
assigned to exercise jurisdiction under this chapter
determines, based on a finding that a circumstance specified
in this paragraph applies, that reasonable efforts to make it
possible for the child to return safely to his or her home are
not required.
(d) A court of competent jurisdiction has found that the
parent has committed a violation of s. 940.19 (3), 1999 stats.,
a violation of s. 940.19 (2), (4), or (5), 940.225 (1) or (2),
948.02 (1) or (2), 948.025, 948.03 (2) (a), (3) (a), or (5) (a)
1., 2., or 3., 948.051, or 948.085, a violation of s. 940.302 (2)
if s. 940.302 (2) (a) 1. b. applies, or a violation of the law of
any other state or federal law, if that violation would be a
violation listed under this paragraph if committed in this
state, and that the violation resulted in great bodily harm, as
defined in s. 939.22 (14), or in substantial bodily harm, as
defined in s. 939.22 (38), to the child or another child of the
parent. If the circumstances specified in this paragraph
apply, the petition shall be filed or joined in within 60 days
after the date on which the court assigned to exercise
jurisdiction under this chapter determines, based on a finding
that a circumstance specified in this paragraph applies, that
48.417 Petition for termination of parental rights;
when required.
(1) Filing or joining in petition; when required. Subject to
sub. (2), an agency or the district attorney, corporation
counsel or other appropriate official designated under s.
48.09 shall file a petition under s. 48.42 (1) to terminate the
parental rights of a parent or the parents of a child, or, if a
petition under s. 48.42 (1) to terminate those parental rights
has already been filed, the agency, district attorney,
corporation counsel or other appropriate official shall join in
the petition, if any of the following circumstances apply:
47
reasonable efforts to make it possible for the child to return
safely to his or her home are not required.
(2) Filing or joining in petition; when not required.
Notwithstanding that any of the circumstances specified in
sub. (1) (a), (b), (c) or (d) may apply, an agency or the district
attorney, corporation counsel or other appropriate official
designated under s. 48.09 need not file a petition under s.
48.42 (1) to terminate the parental rights of a parent or the
parents of a child, or, if a petition under s. 48.42 (1) to
terminate those parental rights has already been filed, the
agency, district attorney, corporation counsel or other
appropriate official need not join in the petition, if any of the
following circumstances apply:
(a) The child is being cared for by a fit and willing relative
of the child.
(b) The child's permanency plan indicates and provides
documentation that termination of parental rights to the child
is not in the best interests of the child.
(c) The agency primarily responsible for providing services
to the family under a court order, if required under s. 48.355
(2) (b) 6. to make reasonable efforts to make it possible for
the child to return safely to his or her home, has not provided
to the family of the child, consistent with the time period in
the child's permanency plan, the services necessary for the
safe return of the child to his or her home.
(cm) In the case of an Indian child, the agency primarily
responsible for providing services to the Indian child and the
family under a court order, if required under s. 48.355 (2) (b)
6v. to make active efforts under s. 48.028 (4) (d) 2. to prevent
the breakup of the Indian child's family, has not provided to
the Indian child's family, consistent with the child's
permanency plan, the services necessary to prevent the
breakup of the Indian child's family.
(d) Grounds for an involuntary termination of parental rights
under s. 48.415 do not exist.
(3) Concurrent adoption efforts required. If a petition is filed
or joined in as required under sub. (1), the agency primarily
responsible for providing services to the child under a court
order shall, during the pendency of the proceeding on the
petition, work with the agency identified in the report under
s. 48.425 (1) (f) that would be responsible for accomplishing
the adoption of the child in processing and approving a
qualified family for the adoption of the child.
(4) Notice to department. If a petition is filed or joined in as
required under sub. (1), the person who filed or joined in the
petition shall notify the department of that filing or joinder.
48.42
(a) The name, birth date or anticipated birth date, and address
of the child and whether the child has been adopted.
(b) The names and addresses of the child's parent or parents,
guardian and legal custodian.
(bm) The information required under s. 822.29 (1).
(c) One of the following:
1. A statement that consent will be given to termination of
parental rights as provided in s. 48.41.
2. A statement of the grounds for involuntary termination of
parental rights under s. 48.415 and a statement of the facts
and circumstances which the petitioner alleges establish
these grounds.
(d) A statement of whether the child may be subject to the
federal Indian Child Welfare Act, 25 USC 1901 to 1963, and,
if the child may be subject to that act, the names of the child's
Indian custodian, if any, and tribe, if known.
(e) If the petition is seeking the involuntary termination of
parental rights to an Indian child, reliable and credible
information showing that continued custody of the Indian
child by the Indian child's parent or Indian custodian is likely
to result in serious emotional or physical damage to the
Indian child under s. 48.028 (4) (e) 1. and reliable and
credible information showing that active efforts under s.
48.028 (4) (e) 2. have been made to prevent the breakup of
the Indian child's family and that those efforts have proved
unsuccessful.
(1g) Affidavit.
(a) Except as provided in par. (c), if the petition is filed by a
person or agency other than the district attorney, corporation
counsel, or other appropriate official under s. 48.09; if the
petition seeks to terminate the parental rights of a person who
may be the father of a nonmarital child who is under one year
of age at the time the petition is filed, who is not adopted or
whose parents do not subsequently intermarry under s.
767.803, and whose paternity has not been established; and
if the mother of the child has voluntarily consented to or
seeks to voluntarily consent to the termination of her parental
rights to the child, the petitioner may file with the petition an
affidavit signed by the mother that includes all of the
following:
1. A statement that the mother has voluntarily consented to
or seeks to voluntarily consent to the termination of her
parental rights to the child.
2. A statement acknowledging that the mother has been
asked to identify the father of the child.
3. A statement that the mother knows and is identifying the
father or that she does not know the identity of the father.
4. A statement identifying any man who has lived in a
familial relationship with the child and who may be the
father of the child.
5. If the mother states that she knows and is identifying the
father under subd. 3. or 4., the father's name, age, and lastknown mailing address, and the last-known mailing address
of the father's employer.
Procedure.
(1) Petition. A proceeding for the termination of parental
rights shall be initiated by petition which may be filed by the
child's parent, an agency or a person authorized to file a
petition under s. 48.25 or 48.835. The petition shall be
entitled “In the interest of .......... (child's name), a person
under the age of 18" and shall set forth with specificity:
48
6. If the mother states that she does not know the identity of
the father, an explanation of why she is unable to identify
him and a physical description of the father.
7. A statement that the mother has been informed and
understands that if she misidentifies the father, she is
permanently barred from attacking the termination of the
father's or her parental rights on the basis that the father was
not correctly identified.
8. A statement that the mother understands that she may be
prosecuted under s. 946.32 (2) for false swearing if she
makes a false statement that she does not believe is true in
the affidavit under this paragraph.
9. A statement that the mother has reviewed and understands
the affidavit, the name of the person who explained the
affidavit and the consequences of signing the affidavit to her,
and a statement that the mother is signing the affidavit
voluntarily.
(b) The petitioner shall notify any man identified in the
affidavit under par. (a) as an alleged father of his right to file
a declaration of paternal interest under s. 48.025 before the
birth of the child, within 14 days after the birth of the child,
or within 21 days after the date on which the notice is mailed,
whichever is later; of the birth date or anticipated birth date
of the child; and of the consequences of filing or not filing a
declaration of paternal interest. The petitioner shall include
with the notice a copy of the form required to file a
declaration of paternal interest under s. 48.025. The notice
shall be sent by certified mail to the last-known address of
the alleged father.
(c) If an affidavit under par. (a) is not filed with the petition,
notice shall be given to an alleged father under sub. (2).
(1m) Visitation or contact rights.
(a) If the petition filed under sub. (1) includes a statement of
the grounds for involuntary termination of parental rights
under sub. (1) (c) 2., the petitioner may, at the time the
petition under sub. (1) is filed, also petition the court for a
temporary order and an injunction prohibiting the person
whose parental rights are sought to be terminated from
visiting or contacting the child who is the subject of the
petition under sub. (1). Any petition under this paragraph
shall allege facts sufficient to show that prohibiting visitation
or contact would be in the best interests of the child.
(b) Subject to par. (e), the court may issue the temporary
order ex parte or may refuse to issue the temporary order and
hold a hearing on whether to issue an injunction. The
temporary order is in effect until a hearing is held on the
issuance of an injunction. The court shall hold a hearing on
the issuance of an injunction on or before the date of the
hearing on the petition to terminate parental rights under s.
48.422 (1).
(c) Notwithstanding any other order under s. 48.355 (3), the
court, subject to par. (e), may grant an injunction prohibiting
the respondent from visiting or contacting the child if the
court determines that the prohibition would be in the best
interests of the child. An injunction under this subsection is
effective according to its terms but may not remain in effect
beyond the date the court dismisses the petition for
termination of parental rights under s. 48.427 (2) or issues an
order terminating parental rights under s. 48.427 (3).
(d) A temporary order under par. (b) or an injunction under
par. (c) suspends the portion of any order under s. 48.345,
48.363, 48.365, 938.345, 938.363 or 938.365 setting rules of
parental visitation until the termination of the temporary
order under par. (b) or injunction under par. (c).
(e)
1. Except as provided in subd. 2., the court shall issue a
temporary order and injunction prohibiting a parent of a child
from visitation or contact with the child if the parent has been
convicted under s. 940.01 of the first-degree intentional
homicide, or under s. 940.05 of the 2nd-degree intentional
homicide, of the child's other parent, and the conviction has
not been reversed, set aside or vacated.
2. Subdivision 1. does not apply if the court determines by
clear and convincing evidence that the visitation or contact
would be in the best interests of the child. The court shall
consider the wishes of the child in making that
determination.
(2) Who must be summoned. Except as provided in sub.
(2m), the petitioner shall cause the summons and petition to
be served upon the following persons:
(a) The parent or parents of the child, unless the child's
parent has waived the right to notice under s. 48.41 (2) (d).
(b) Except as provided in par. (bm), if the child is a
nonmarital child who is not adopted or whose parents do not
subsequently intermarry under s. 767.803 and whose
paternity has not been established:
1. A person who has filed an unrevoked declaration of
paternal interest under s. 48.025 before the birth of the child
or within 14 days after the birth of the child.
2. A person or persons alleged to the court to be the father of
the child or who may, based upon the statements of the
mother or other information presented to the court, be the
father of the child unless that person has waived the right to
notice under s. 48.41 (2) (c).
3. A person who has lived in a familial relationship with the
child and who may be the father of the child.
(bm) If the child is a nonmarital child who is under one year
of age at the time the petition is filed and who is not adopted
or whose parents do not subsequently intermarry under s.
767.803 and whose paternity has not been established and if
an affidavit under sub. (1g) (a) is filed with the petition:
1. A person who has filed an unrevoked declaration of
paternal interest under s. 48.025 before the birth of the child,
within 14 days after the birth of the child, or within 21 days
after a notice under sub. (1g) (b) is mailed, whichever is later.
2. A person who has lived in a familial relationship with the
child and who may be the father of the child.
49
(c) The guardian, guardian ad litem, legal custodian, and
Indian custodian of the child.
(d) Any other person to whom notice is required to be given
by ch. 822, excluding foster parents who shall be provided
notice as required under sub. (2g).
(e) To the child if the child is 12 years of age or older.
(2g) Notice required.
(a) In addition to causing the summons and petition to be
served as required under sub. (2), the petitioner shall also
notify any foster parent or other physical custodian described
in s. 48.62 (2) of the child of all hearings on the petition. The
first notice to any foster parent or other physical custodian
described in s. 48.62 (2) shall be written, shall have a copy
of the petition attached to it, shall state the nature, location,
date, and time of the initial hearing and shall be mailed to the
last-known address of the foster parent or other physical
custodian described in s. 48.62 (2). Thereafter, notice of
hearings may be given by telephone at least 72 hours before
the time of the hearing. The person giving telephone notice
shall place in the case file a signed statement of the time
notice was given and the person to whom he or she spoke.
(ag) In the case of an involuntary termination of parental
rights to a child whom the petitioner knows or has reason to
know is an Indian child, the petitioner shall cause the
summons and petition to be served on the Indian child's
parent and Indian custodian in the manner specified in s.
48.028 (4) (a). In like manner, the petitioner shall also notify
the Indian child's tribe of all hearings on the petition. The
first notice to an Indian child's tribe shall be written, shall
have a copy of the petition attached to it, and shall state the
nature, location, date, and time of the initial hearing. No
hearing may be held on the petition until at least 10 days after
receipt of notice of the hearing by the Indian child's parent,
Indian custodian, and tribe or, if the identity or location of
the Indian child's parent, Indian custodian, or tribe cannot be
determined, until at least 15 days after receipt of the notice
by the U.S. secretary of the interior. On request of the Indian
child's parent, Indian custodian, or tribe, the court shall grant
a continuance of up to 20 additional days to enable the
requester to prepare for the hearing.
(am) The court shall give a foster parent or other physical
custodian described in s. 48.62 (2) who is notified of a
hearing under par. (a) a right to be heard at the hearing by
permitting the foster parent or other physical custodian to
make a written or oral statement during the hearing, or to
submit a written statement prior to the hearing, relevant to
the issues to be determined at the hearing. A foster parent or
other physical custodian described in s. 48.62 (2) who
receives a notice of a hearing under par. (a) and a right to be
heard under this paragraph does not become a party to the
proceeding on which the hearing is held solely on the basis
of receiving that notice and right to be heard.
(b) Failure to give notice under par. (a) to a foster parent or
other physical custodian described in s. 48.62 (2) does not
deprive the court of jurisdiction in the proceeding. If a foster
parent or other physical custodian described in s. 48.62 (2) is
not given notice of a hearing under par. (a), that person may
request a rehearing on the matter at any time prior to the entry
of an order under s. 48.427 (2) or (3). If the request is made,
the court shall order a rehearing.
(2m) Notice not required.
(a) Parent as a result of sexual assault. Except as provided
in this paragraph, notice is not required to be given to a
person who may be the father of a child conceived as a result
of a sexual assault in violation of s. 940.225 (1), (2) or (3),
948.02 (1) or (2), 948.025, or 948.085 if a physician attests
to his or her belief that a sexual assault as specified in this
paragraph has occurred or if the person who may be the
father of the child has been convicted of sexual assault as
specified in this paragraph for conduct which may have led
to the child's conception. A person who under this paragraph
is not given notice does not have standing to appear and
contest a petition for the termination of his parental rights,
present evidence relevant to the issue of disposition, or make
alternative dispositional recommendations. This paragraph
does not apply to a person who may be the father of a child
conceived as a result of a sexual assault in violation of s.
948.02 (1) or (2) if that person was under 18 years of age at
the time of the sexual assault.
(b) Parent of nonmarital child. A person who may be the
father of a nonmarital child who is not adopted or whose
parents do not subsequently intermarry under s. 767.803 and
whose paternity has not been established, by virtue of the fact
that he has engaged in sexual intercourse with the mother of
the child, is considered to be on notice that a pregnancy and
a termination of parental rights proceeding concerning the
child may occur, and has the duty to protect his own rights
and interests. He is therefore entitled to actual notice of such
a proceeding only as provided in sub. (2) (b) or (bm). A
person who is not entitled to notice under sub. (2) (b) or
(bm)does not have standing to appear and contest a petition
for the termination of his parental rights, present evidence
relevant to the issue of disposition, or make alternative
dispositional recommendations.
(3) Contents of summons. The summons shall:
(a) Contain the name and birth date or anticipated birth date
of the child, and the nature, location, date and time of the
initial hearing.
(b) Advise the party, if applicable, of his or her right to legal
counsel, regardless of ability to pay under s. 48.23 and ch.
977.
(c) Advise the parties of the possible result of the hearing and
the consequences of failure to appear or respond.
(d) Advise the parties that if the court terminates parental
rights, a notice of intent to pursue relief from the judgment
must be filed in the trial court within 30 days after the
judgment is entered for the right to pursue such relief to be
preserved.
50
(4) Manner of serving summons and petition.
(a) Personal service. Except as provided in this paragraph,
par. (b), and sub. (2g) (ag), a copy of the summons and
petition shall be served personally upon the parties specified
in sub. (2), if known, at least 7 days before the date of the
hearing. Service of summons is not required if the party
submits to the jurisdiction of the court. Service upon parties
who are not natural persons and upon persons under a
disability shall be as prescribed in s. 801.11.
(b) Constructive notice.
1. If with reasonable diligence a party specified in sub. (2)
cannot be served under par. (a), service shall be made by
publication of the notice under subd. 4.
1m. If the child's custody was relinquished under s. 48.195,
service to the parents of the child may be made by
publication of the notice under subd. 4.
2. If the child is a nonmarital child who is not adopted or
whose parents do not subsequently intermarry under s.
767.803 and paternity has not been acknowledged under s.
767.805 or a substantially similar law of another state or
adjudicated, the court may, as provided in s. 48.422 (6) (b),
order publication of a notice under subd. 4.
3. At the time the petition is filed, the petitioner may move
the court for an order waiving the requirement of
constructive notice to a person who, although his identity is
unknown, may be the father of a nonmarital child.
4. A notice published under this subsection shall be
published as a class 1 notice under ch. 985. In determining
which newspaper is likely to give notice as required under s.
985.02 (1), the petitioner or court shall consider the residence
of the party, if known, or the residence of the relatives of the
party, if known, or the last-known location of the party. If
the party's post-office address is known or can, with due
diligence, be ascertained, a copy of the summons and petition
shall be mailed to the party upon or immediately prior to the
first publication. The mailing may be omitted if the petitioner
shows that the post-office address cannot be obtained with
due diligence. Except as provided in subd. 5., the notice shall
include the date, place and circuit court branch for the
hearing, the court file number, the name, address and
telephone number of the petitioner's attorney and
information the court determines to be necessary to give
effective notice to the party or parties. Such information shall
include the following, if known:
a. The name of the party or parties to whom notice is being
given;
b. A description of the party or parties;
c. The former address of the party or parties;
d. The approximate date and place of conception of the child;
and
e. The date and place of birth of the child.
5. The notice shall not include the name of the mother unless
the mother consents. The notice shall not include the name
of the child unless the court finds that inclusion of the child's
name is essential to give effective notice to the father.
(c) The notice under par. (a) or (b) shall also inform the
parties:
1. That the parental rights of a parent or alleged parent who
fails to appear may be terminated;
2. Of the party's right to have an attorney present and that if
a person desires to contest termination of parental rights and
believes that he or she cannot afford an attorney, the person
may ask the state public defender to represent him or her;
and
3. That if the court terminates parental rights, a notice of
intent to pursue relief from the judgment must be filed in the
trial court within 30 days after judgment is entered for the
right to pursue such relief to be preserved.
(5) Penalty. Any person who knowingly and willfully makes
or causes to be made any false statement or representation of
a material fact in the course of a proceeding under this
section with an intent to deceive or mislead the court for the
purpose of preventing a person who is entitled to receive
notice of a proceeding under this section from receiving
notice may be fined not more than $10,000 or imprisoned for
not more than 9 months, or both. It is not a violation of this
subsection for a person to refuse to make a statement or
representation of material fact in the course of a proceeding
under this section for the purpose of preventing a person who
is entitled to receive notice of a proceeding under this section
from receiving notice if, at the time of the refusal, the person
stated that he or she feared that making such a statement or
representation would place the person or another person at
risk of domestic abuse, as defined in s. 813.12 (1) (am), or
abuse, as defined in s. 813.122 (1) (a), and if the person
proves that he or she refused to make such a statement or
representation because of a recent overt act, attempt, or threat
that caused him or her reasonably to believe that refusing to
make such a statement or representation was the only means
of preventing domestic abuse, as defined in s. 813.12 (1)
(am), or abuse, as defined in s. 813.122 (1) (a), to himself or
herself or to another.
48.422
Hearing on the petition.
(1) Except as provided in s. 48.42 (2g) (ag), the hearing on
the petition to terminate parental rights shall be held within
30 days after the petition is filed. At the hearing on the
petition to terminate parental rights the court shall determine
whether any party wishes to contest the petition and inform
the parties of their rights under sub. (4) and s. 48.423.
(2) Except as provided in s. 48.42 (2g) (ag), if the petition is
contested the court shall set a date for a fact-finding hearing
to be held within 45 days after the hearing on the petition,
unless all of the necessary parties agree to commence with
the hearing on the merits immediately.
(3) If the petition is not contested the court shall hear
testimony in support of the allegations in the petition,
including testimony as required in sub. (7).
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(4) Any party who is necessary to the proceeding or whose
rights may be affected by an order terminating parental rights
shall be granted a jury trial upon request if the request is
made before the end of the initial hearing on the petition.
(5) Any nonpetitioning party, including the child, shall be
granted a continuance of the hearing for the purpose of
consulting with an attorney on the request for a jury trial or
concerning a request for the substitution of a judge.
(6)
(a) In the case of a nonmarital child who is not adopted or
whose parents do not subsequently intermarry under s.
767.803 and for whom paternity has not been established, or
for whom a declaration of paternal interest has not been filed
under s. 48.025 within 14 days after the date of birth of the
child or, if s. 48.42 (1g) (b) applies, within 21 days after the
date on which the notice under s. 48.42 (1g) (b) is mailed,
the court shall hear testimony concerning the paternity of the
child. Based on the testimony, the court shall determine
whether all interested parties who are known have been
notified under s. 48.42 (2) and (2g) (ag). If not, the court shall
adjourn the hearing and order appropriate notice to be given.
(b) If the court determines that an unknown person may be
the father of the child and notice to that person has not been
waived under s. 48.42 (4) (b) 3., the court shall determine
whether constructive notice will substantially increase the
likelihood of notice to that person. If the court does
determine that it would substantially increase the likelihood
of notice and the petitioner has not already caused the notice
to be published or the court determines that the publication
used was not sufficient, the court shall adjourn the hearing
for a period not to exceed 30 days and shall order
constructive notice under s. 48.42 (4) (b). If the court
determines that constructive notice will not substantially
increase the likelihood of notice to that person, the court shall
order that the hearing proceed.
(c) If paternity is adjudicated under this subchapter and
parental rights are not terminated, the court may make and
enforce such orders for the suitable care, custody and support
of the child as a court having jurisdiction over actions
affecting the family may make under ch. 767. If there is a
finding by the court that the child is in need of protection or
services, the court may make dispositional orders under s.
48.345.
(7) Before accepting an admission of the alleged facts in a
petition, the court shall:
(a) Address the parties present and determine that the
admission is made voluntarily with understanding of the
nature of the acts alleged in the petition and the potential
dispositions.
(b) Establish whether any promises or threats were made to
elicit an admission and alert all unrepresented parties to the
possibility that a lawyer may discover defenses or mitigating
circumstances which would not be apparent to them.
(bm) Establish whether a proposed adoptive parent of the
child has been identified. If a proposed adoptive parent of the
child has been identified and the proposed adoptive parent is
not a relative of the child, the court shall order the petitioner
to submit a report to the court containing the information
specified in s. 48.913 (7). The court shall review the report
to determine whether any payments or agreement to make
payments set forth in the report are coercive to the birth
parent of the child or to an alleged to presumed father of the
child or are impermissible under s. 48.913 (4). Making any
payment to or on behalf of the birth parent of the child, an
alleged or presumed father of the child or the child
conditional in any part upon transfer or surrender of the child
or the termination of parental rights or the finalization of the
adoption creates a rebuttable presumption of coercion. Upon
a finding of coercion, the court shall dismiss the petition or
amend the agreement to delete any coercive conditions, if the
parties agree to the amendment. Upon a finding that
payments which are impermissible under s. 48.913 (4) have
been made, the court may dismiss the petition and may refer
the matter to the district attorney for prosecution under s.
948.24 (1). This paragraph does not apply if the petition was
filed with a petition for adoptive placement under s. 48.837
(2).
(br) Establish whether any person has coerced a birth parent
or any alleged or presumed father of the child in violation of
s. 48.63 (3) (b) 5. Upon a finding of coercion, the court shall
dismiss the petition.
(c) Make such inquiries as satisfactorily establish that there
is a factual basis for the admission.
(8) If the petition for termination of parental rights is filed
by an agency enumerated in s. 48.069 (1) or (2), the court
shall order the agency to file a report with the court as
provided in s. 48.425 (1), except that, if the child is an Indian
child, the court may order the agency or request the tribal
child welfare department of the Indian child's tribe to file that
report.
(9)
(a) If a petition for termination of the rights of a birth parent,
as defined under s. 48.432 (1) (am), is filed by a person other
than an agency enumerated under s. 48.069 (1) or (2) or if
the court waives the report required under s. 48.425, the court
shall order any parent whose rights may be terminated to file
with the court the information specified under s. 48.425 (1)
(am).
(b) If a birth parent does not comply with par. (a), the court
shall order any health care provider, as defined under s.
146.81 (1) (a) to (p), known to have provided care to the birth
parent or parents to provide the court with any health care
records of the birth parent or parents that are relevant to the
child's medical condition or genetic history. A court order for
the release of alcohol or drug abuse treatment records subject
to 21 USC 1175 or 42 USC 4582 shall comply with 42 CFR
2.
52
48.423
Indian child. The court shall decide what disposition is in the
best interest of the child.
(4) If grounds for the termination of parental rights are
found by the court or jury, the court shall find the parent
unfit. A finding of unfitness shall not preclude a dismissal of
a petition under s. 48.427 (2). Except as provided in s. 48.23
(2) (b) 3., the court shall then proceed immediately to hear
evidence and motions related to the dispositions enumerated
in s. 48.427. Except as provided in s. 48.42 (2g) (ag), the
court may delay making the disposition and set a date for a
dispositional hearing no later than 45 days after the factfinding hearing if any of the following apply:
(a) All parties to the proceeding agree.
(b) The court has not yet received a report to the court on the
history of the child as provided in s. 48.425 and the court
now orders an agency enumerated in s. 48.069 (1) or (2) to
file that report with the court, or, in the case of an Indian
child, now orders that agency or requests the tribal child
welfare department of the Indian child's tribe to file such a
report, before the court makes the disposition on the petition.
(5) If the court delays making a permanent disposition under
sub. (4), it may transfer temporary custody of the child to an
agency for placement of the child until the dispositional
hearing. Placement of an Indian child under this subsection
shall comply with the order of placement preference under s.
48.028 (7) (b) or, if applicable, s. 48.028 (7) (c), unless the
agency finds good cause, as described in s. 48.028 (7) (e), for
departing from that order.
Rights of persons alleging paternity.
(1) Rights to paternity determination. If a person appears at
the hearing and claims that he is the father of the child, the
court shall set a date for a hearing on the issue of paternity
or, if all parties agree, the court may immediately commence
hearing testimony concerning the issue of paternity. The
court shall inform the person claiming to be the father of the
child of any right to counsel under s. 48.23. The person
claiming to be the father of the child must prove paternity by
clear and convincing evidence. A person who establishes his
paternity of the child under this section may further
participate in the termination of parental rights proceeding
only if the person meets the conditions specified in sub. (2)
or meets a condition specified in s. 48.42 (2) (b) or (bm).
(2) Rights of out-of-state fathers. A person who may be the
father of a nonmarital child who is not adopted or whose
parents do not subsequently intermarry under s. 767.803 and
whose paternity has not been established may contest the
petition, present evidence relevant to the issue of disposition,
and make alternative dispositional recommendations if the
person appears at the hearing, establishes paternity under
sub. (1), and proves all of the following by a preponderance
of the evidence:
(a) That the person resides and has resided in another state
where the mother of the child resided or was located at the
time of or after the conception of the child.
(b) That the mother left that state without notifying or
informing that person that she could be located in this state.
(c) That the person attempted to locate the mother through
every reasonable means, but did not know or have reason to
know that the mother was residing or located in this state.
(d) That the person has complied with the requirements of
the state where the mother previously resided or was located
to protect and preserve his paternal interests in matters
affecting the child.
48.424
48.425
Court report by an agency.
(1) If the court orders an agency enumerated under s.
48.069 (1) or (2) to file a report under s. 48.422 (8) or 48.424
(4) (b) or requests the tribal child welfare department of an
Indian child's tribe to file such a report, the agency or tribal
child welfare department, if that department consents, shall
file a report with the court which shall include:
(a) The social history of the child.
(am) A medical record of the child on a form provided by
the department which shall include:
1. The medical and genetic history of the birth parents and
any medical and genetic information furnished by the birth
parents about the child's grandparents, aunts, uncles, brothers
and sisters.
2. A report of any medical examination which either birth
parent had within one year before the date of the petition.
3. A report describing the child's prenatal care and medical
condition at birth.
4. The medical and genetic history of the child and any other
relevant medical and genetic information.
(b) A statement of the facts supporting the need for
termination.
(c) If the child has been previously adjudicated to be in need
of protection and services, a statement of the steps the agency
or person responsible for provision of services has taken to
remedy the conditions responsible for court intervention and
Fact-finding hearing.
(1) The purpose of the fact-finding hearing is to determine
in cases in which the petition was contested at the hearing on
the petition under s. 48.422 all of the following:
(a) Whether grounds exist for the termination of parental
rights.
(b) Whether the allegations specified in s. 48.42 (1) (e) have
been proved in cases involving the involuntary termination
of parental rights to an Indian child.
(2) The fact-finding hearing shall be conducted according to
the procedure specified in s. 48.31 except as follows:
(a) The court may exclude the child from the hearing.
(b) The hearing shall be closed to the public.
(3) If the facts are determined by a jury, the jury may only
decide whether any grounds for the termination of parental
rights have been proved and whether the allegations
specified in s. 48.42 (1) (e) have been proved in cases
involving the involuntary termination of parental rights to an
53
the parent's response to and cooperation with these services.
If the child has been removed from the home, the report shall
also include a statement of the reasons why the child cannot
be returned safely to the family and the steps the person or
agency has taken to effect this return. If a permanency plan
has previously been prepared for the child, the report shall
also include specific information showing that the agency
primarily responsible for providing services to the child has
made reasonable efforts to achieve the goal of the child's
permanency plan, including, if appropriate, through an outof-state placement.
(cm) If the petition is seeking the involuntary termination of
parental rights to an Indian child, specific information
showing that continued custody of the child by the parent or
Indian custodian is likely to result in serious emotional or
physical damage to the child under s. 48.028 (4) (e) 1. and,
if the Indian child has previously been adjudged to be in need
of protection or services, specific information showing that
active efforts under s. 48.028 (4) (e) 2. have been made to
prevent the breakup of the Indian child's family and that
those efforts have proved unsuccessful.
(d) A statement of other appropriate services, if any, which
might allow the child to return safely to the home of the
parent.
(e) A statement applying the standards and factors
enumerated in s. 48.426 (2) and (3) to the case before the
court.
(f) If the report recommends that the parental rights of both
of the child's parents or the child's only living or known
parent are to be terminated, the report shall contain a
statement of the likelihood that the child will be adopted.
This statement shall be prepared by an agency designated in
s. 48.427 (3m) (a) 1. to 4. or (am) and include a presentation
of the factors that might prevent adoption, those that would
facilitate adoption, and the agency that would be responsible
for accomplishing the adoption.
(g) If an agency designated under s. 48.427 (3m) (a) 1. to 4.
or (am) determines that it is unlikely that the child will be
adopted, or if adoption would not be in the best interests of
the child, the report shall include a plan for placing the child
in a permanent family setting. The plan shall include a
recommendation as to the agency to be named guardian of
the child, a recommendation that the person appointed as the
guardian of the child under s. 48.977 (2) continue to be the
guardian of the child, or a recommendation that a guardian
be appointed for the child under s. 48.977 (2).
(1m) The agency required under sub. (1) to file the report
shall prepare the medical record within 60 days after the date
of the petition for the termination of parental rights.
(2) The court may waive the report required under this
section if consent is given under s. 48.41, but shall order the
birth parent or parents to provide the department with the
information specified under sub. (1) (am).
(3) The court may order a report as specified under this
section to be prepared by an agency in those cases where the
petition is filed by someone other than an agency.
48.426
Standard and factors.
(1) Court considerations. In making a decision about the
appropriate disposition under s. 48.427, the court shall
consider the standard and factors enumerated in this section
and any report submitted by an agency under s. 48.425.
(2) Standard. The best interests of the child shall be the
prevailing factor considered by the court in determining the
disposition of all proceedings under this subchapter.
(3) Factors. In considering the best interests of the child
under this section the court shall consider but not be limited
to the following:
(a) The likelihood of the child's adoption after termination.
(b) The age and health of the child, both at the time of the
disposition and, if applicable, at the time the child was
removed from the home.
(c) Whether the child has substantial relationships with the
parent or other family members, and whether it would be
harmful to the child to sever these relationships.
(d) The wishes of the child.
(e) The duration of the separation of the parent from the
child.
(f) Whether the child will be able to enter into a more stable
and permanent family relationship as a result of the
termination, taking into account the conditions of the child's
current placement, the likelihood of future placements and
the results of prior placements.
48.427
Dispositions.
(1) Any party may present evidence relevant to the issue of
disposition, including expert testimony, and may make
alternative dispositional recommendations to the court. After
receiving any evidence related to the disposition, the court
shall enter one of the dispositions specified under subs. (2)
to (3p) within 10 days.
(1m) In addition to any evidence presented under sub. (1),
the court shall give the foster parent or other physical
custodian described in s. 48.62 (2) of the child a right to be
heard at the dispositional hearing by permitting the foster
parent or other physical custodian to make a written or oral
statement during the dispositional hearing, or to submit a
written statement prior to disposition, relevant to the issue of
disposition. A foster parent or other physical custodian
described in s. 48.62 (2) who receives notice of a hearing
under s. 48.42 (2g) (a) and a right to be heard under this
subsection does not become a party to the proceeding on
which the hearing is held solely on the basis of receiving that
notice and right to be heard.
(2) The court may dismiss the petition if it finds that the
evidence does not warrant the termination of parental rights.
(3) The court may enter an order terminating the parental
rights of one or both parents.
54
(3m) If the rights of both parents or of the only living parent
are terminated under sub. (3) and if a guardian has not been
appointed under s. 48.977, the court shall do one of the
following:
(a) Transfer guardianship and custody of the child pending
adoptive placement to:
1. A county department authorized to accept guardianship
under s. 48.57 (1) (e).
3. A child welfare agency licensed under s. 48.61 (5) to
accept guardianship.
4. The department.
5. A relative with whom the child resides, if the relative has
filed a petition to adopt the child or if the relative is a kinship
care relative or is receiving payments under s. 48.62 (4) for
providing care and maintenance for the child.
6. An individual who has been appointed guardian of the
child by a court of a foreign jurisdiction.
(am) Transfer guardianship and custody of the child to a
county department authorized to accept guardianship under
s. 48.57 (1) (hm) for placement of the child for adoption by
the child's foster parent, if the county department has agreed
to accept guardianship and custody of the child and the foster
parent has agreed to adopt the child.
(b) Transfer guardianship of the child to one of the agencies
specified under par. (a) 1. to 4. and custody of the child to an
individual in whose home the child has resided for at least 12
consecutive months immediately prior to the termination of
parental rights or to a relative.
(c) Appoint a guardian under s. 48.977 and transfer
guardianship and custody of the child to the guardian.
(3p) If the rights of both parents or of the only living parent
are terminated under sub. (3) and if a guardian has been
appointed under s. 48.977, the court may enter one of the
orders specified in sub. (3m) (a) or (b). If the court enters an
order under this subsection, the court shall terminate the
guardianship under s. 48.977.
(5) In placing an Indian child in a preadoptive placement
following a transfer of guardianship and custody under sub.
(3m) or (3p), the court or an agency specified in sub. (3m)
(a) 1. to 4. or (am) shall comply with the order of placement
preference under s. 48.028 (7) (b) or, if applicable, s. 48.028
(7) (c), unless the court or agency finds good cause, as
described in s. 48.028 (7) (e), for departing from that order.
(6) If an order is entered under sub. (3), the court shall:
(a) Inform each birth parent, as defined under s. 48.432 (1)
(am), whose rights have been terminated of the provisions of
ss. 48.432, 48.433 and 48.434.
(b) Forward to the department:
1. The name and date of birth of the child whose birth
parent's rights have been terminated.
2. The names and current addresses of the child's birth
parents, guardian and legal custodian.
3. The medical and genetic information obtained under s.
48.422 (9) or 48.425 (1) (am) or (2).
4. If the court knows or has reason to know that the child is
an Indian child, information relating to the child's
membership or eligibility for membership in an Indian tribe.
(7)
(a) If an order is entered under sub. (3), the court may orally
inform the parent or parents who appear in court of the
ground for termination of parental rights specified in s.
48.415 (10).
(b) In addition to the notice permitted under par. (a), any
written order under sub. (3) may notify the parent or parents
of the information specified in par. (a).
48.43
Court orders; contents and effect; review.
(1) The court shall enter a judgment setting forth its
findings and disposition in accordance with s. 48.426 in an
order implementing the disposition chosen. If the court
dismisses the petition under s. 48.427 (2), the order shall
contain the reasons for dismissal. If the disposition is for the
termination of parental rights under s. 48.427 (3), the order
shall contain all of the following:
(a) The identity of any agency or individual that has received
guardianship of the child or will receive guardianship or
custody of the child upon termination and the identity of the
agency which will be responsible for securing the adoption
of the child or establishing the child in a permanent family
setting.
(am) If the department or a county department receives
guardianship or custody of the child under par. (a), an order
ordering the child into the placement and care responsibility
of the department or county department as required under 42
USC 672 (a) (2) and assigning the department or county
department primary responsibility for providing services to
the child.
(b) If the child will be in need of continued care and
treatment after termination, the agencies and persons
responsible.
(c) If an agency receives custody of the child under par. (a),
the child's permanency plan prepared under s. 48.38 by the
agency. If a permanency plan has not been prepared at the
time the order is entered, or if the court enters an order that
is not consistent with the permanency plan, the agency shall
prepare a permanency plan that is consistent with the order
or revise the permanency plan to conform to the order and
shall file the plan with the court within 60 days from the date
of the order.
(cm) If a permanency plan has previously been prepared for
the child, a finding as to whether the agency primarily
responsible for providing services to the child has made
reasonable efforts to achieve the permanency goal of the
child's permanency plan, including, if appropriate, through
an out-of-state placement. The court shall make the findings
specified in this paragraph on a case-by-case basis based on
circumstances specific to the child and shall document or
reference the specific information on which those findings
are based in the order. An order that merely references this
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paragraph without documenting or referencing that specific
information in the order or an amended order that
retroactively corrects an earlier order that does not comply
with this paragraph is not sufficient to comply with this
paragraph.
(d) A finding that the termination of parental rights is in the
best interests of the child.
(2) An order terminating parental rights permanently severs
all legal rights and duties between the parent whose parental
rights are terminated and the child and between the child and
all persons whose relationship to the child is derived through
that parent, except as follows:
(a) The relationship between the child and his or her siblings
is not severed until that relationship is extinguished by an
order of adoption as provided in s. 48.92 (2).
(b) A relative whose relationship to the child is derived
through the parent whose parental rights are terminated is
considered to be a relative of the child for purposes of
placement of, and permanency planning for, the child until
that relationship is extinguished by an order of adoption as
provided in s. 48.92 (2).
(3) If only one parent consents under s. 48.41 or if the
grounds specified in s. 48.415 are found to exist as to only
one parent, the rights of only that parent may be terminated
without affecting the rights of the other parent.
(4) A certified copy of the order terminating parental rights
shall be furnished by the court to the agency given
guardianship for placement for adoption of the child or to the
person appointed as the guardian of the child under s. 48.977
(2). The court shall, upon request, furnish a certified copy of
the child's birth certificate and a transcript of the testimony
in the termination of parental rights hearing to the same
person or agency.
(5)
(a) If the custodian specified in sub. (1) (a) is an agency, the
agency shall report to the court on the status of the child at
least once each year until the child is adopted or reaches 18
years of age, whichever is sooner. The agency shall file an
annual report no less than 30 days before the anniversary of
the date of the order. An agency may file an additional report
at any time if it determines that more frequent reporting is
appropriate. A report shall summarize the child's
permanency plan and the recommendations of the review
panel under s. 48.38 (5), if any, and shall describe any
progress that has been made in finding a permanent
placement for the child.
(b)
1. The court shall hold a hearing to review the permanency
plan within 30 days after receiving a report under par. (a). At
least 10 days before the date of the hearing, the court shall
provide notice of the time, place, and purpose of the hearing
to the agency that prepared the report, the child's guardian,
the child, and the child's foster parent, the operator of the
facility in which the child is living, or the relative with whom
the child is living.
2. If the child's permanency plan includes a statement under
s. 48.38 (4) (i) indicating that the child's age and
developmental level are sufficient for the court to consult
with the child regarding the child's permanency plan or if,
notwithstanding a decision under s. 48.38 (4) (i) that it would
not be appropriate for the court to consult with the child, the
court determines that consultation with the child would be in
the best interests of the child, the court shall consult with the
child, in an age-appropriate and developmentally appropriate
manner, regarding the child's permanency plan and any other
matters the court finds appropriate. If none of those
circumstances apply, the court may permit the child's
caseworker, the child's counsel, or, subject to s. 48.235 (3)
(a), the child's guardian ad litem to make a written or oral
statement during the hearing, or to submit a written statement
prior to the hearing, expressing the child's wishes, goals, and
concerns regarding the permanency plan and those matters.
If the court permits such a written or oral statement to be
made or submitted, the court may nonetheless require the
child's presence at the hearing.
2m. If the permanency goal of the child's permanency plan
is placement of the child in a planned permanent living
arrangement described in ss. 48.38 (4) (fg) 5., the agency that
prepared the report shall present to the court specific
information showing that intensive and ongoing efforts were
made by the agency, including searching social media, to
return the child to the child's home or to place the child for
adoption, with a guardian, or with a fit and willing relative
and that those efforts have proved unsuccessful and specific
information showing the steps taken by the agency, including
consultation with the child, to ascertain whether the child has
regular, ongoing opportunities to engage in age or
developmentally appropriate activities and to ensure that the
child's caregiver is applying the reasonable and prudent
parent standard to decisions concerning the child's
participation in those activities. In addition, at the hearing the
court shall consult with the child about the permanency
outcome desired by the child.
3. The court shall give a foster parent, operator of a facility,
or relative who is notified of a hearing under subd. 1. a right
to be heard at the hearing by permitting the foster parent,
operator, or relative to make a written or oral statement
during the hearing, or to submit a written statement prior to
the hearing, relevant to the issues to be determined at the
hearing. The foster parent, operator of a facility, or relative
does not become a party to the proceeding on which the
hearing is held solely on the basis of receiving that notice
and right to be heard.
(bm) If the order under sub. (1) involuntarily terminated
parental rights to an Indian child, the court shall also provide
notice of the hearing under par. (b) to the Indian child's tribe
in the manner specified in s. 48.028 (4) (a). No hearing may
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be held under par. (b) until at least 10 days after receipt of
notice of the hearing by the Indian child's tribe or, if the
identity or location of the Indian child's tribe cannot be
determined, until at least 15 days after receipt of notice of the
hearing by the U.S. secretary of the interior. On request of
the Indian child's tribe, the court shall grant a continuance of
up to 20 additional days to enable the tribe to prepare for the
hearing.
(c) Following the hearing, the court shall make all of the
determinations specified under s. 48.38 (5) (c), except the
determinations relating to the child's parents. The court may
amend the order under sub. (1) to transfer the child's
guardianship and custody to any agency specified under s.
48.427 (3m) (a) 1. to 4. or (am) that consents to the transfer,
if the court determines that the transfer is in the child's best
interest. If an Indian child's guardianship and custody are
transferred under this paragraph, the agency consenting to
the transfer shall comply with the order of placement
preference under s. 48.028 (7) (b) or, if applicable, s. 48.028
(7) (c) in placing the child, unless the agency finds good
cause, as described in s. 48.028 (7) (e), for departing from
that order. If an order is amended, the agency that prepared
the permanency plan shall revise the plan to conform to the
order and shall file a copy of the revised plan with the court.
Each plan filed under this paragraph shall be made a part of
the court order.
(5m) Either the court or the agency that prepared the
permanency plan shall furnish a copy of the original plan and
each revised plan to the child, if he or she is 12 years of age
or over, to the child's guardian, to the child's foster parent,
the operator of the facility in which the child is living, or the
relative with whom the child is living, and, if the order under
sub. (1) involuntarily terminated parental rights to an Indian
child, to the Indian child's tribe.
(6)
(a) Judgments under this subchapter terminating parental
rights are final and are appealable under s. 808.03 (1)
according to the procedure specified in s. 809.107 and are
subject to a petition for rehearing or a motion for relief only
as provided in s. 48.46 (1m) and (2) and, in the case of an
Indian child, s. 48.028 (5) (c) and (6). The attorney
representing a person during a proceeding under this
subchapter shall continue representation of that person by
filing a notice of intent to appeal under s. 809.107 (2), unless
the attorney has been previously discharged during the
proceeding by the person or by the trial court.
(b) The mother of a child who completes an affidavit under
s. 48.42 (1g) may not collaterally attack a judgment
terminating parental rights on the basis that the father of the
child was not correctly identified.
(c) Except as provided in s. 48.028 (5) (c) and (6), in no event
may any person, for any reason, collaterally attack a
judgment terminating parental rights more than one year
after the date on which the period for filing an appeal from
the judgment has expired, or more than one year after the
date on which all appeals from the judgment, if any were
filed, have been decided, whichever is later.
(6m) If a person whose parental rights are terminated is
present in court when the court grants the order terminating
those rights, the court shall provide written notification to the
person of the time periods for appeal of the judgment. The
person shall sign the written notification, indicating that he
or she has been notified of the time periods for filing an
appeal under ss. 808.04 (7m) and 809.107. The person's
counsel shall file a copy of the signed, written notification
with the court on the date on which the judgment is granted.
(7)
(a) If the agency specified under sub. (1) (a) is the
department, the department shall seek a permanent adoptive
placement for the child or seek to enter into a subsidized
guardianship agreement under s. 48.623 (2) with a proposed
guardian of the child and petition the court for the
appointment of that individual as the guardian of the child
under s. 48.977 (2).
(b) If a permanent adoptive or subsidized guardianship
placement is not in progress 2 years after entry of the order,
the department may petition the court to transfer legal
custody of the child to a county department, except that the
department may not petition the court to transfer to a county
department legal custody of a child who was initially taken
into custody under s. 48.195 (1). The court shall transfer the
child's legal custody to the county department specified in
the petition. The department shall remain the child's
guardian.
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