Legal Information: Wisconsin

Statutes: Wisconsin

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Statutes: Wisconsin

Updated: 
September 12, 2018

These statutes are current through 2017 Act 367, published April 18, 2018. Please check to make sure there have been no changes since this time. You will find these and additional statutes online at the Wisconsin State Legislature.

Social Services (Ch. 46 to 58)

Updated: 
September 12, 2018

Chapter 46. Social Services

Updated: 
September 12, 2018

46.90. Elder abuse reporting system

Updated: 
September 12, 2018

(1) Definitions. In this section:

(a) “Abuse” means any of the following:

1. Physical abuse.

2. Emotional abuse.

3. Sexual abuse.

4. Treatment without consent.

5. Unreasonable confinement or restraint.

(ag) “Aging unit” has the meaning given under s. 46.82(1)(a).

(aj) “Bodily harm” means physical pain or injury, illness, or any impairment of physical condition.

(an) “Caregiver” means a person who has assumed responsibility for all or a portion of an individual's care voluntarily, by contract, or by agreement, including a person acting or claiming to act as a legal guardian.

(ar) “Case management” means an assessment of need for direct services, development of a direct service plan and coordination and monitoring of the provision of direct services.

(bm) “Direct services” includes temporary shelter, relocation assistance, housing, respite care, emergency funds for food and clothing and legal assistance.

(br) “Elder adult at risk” means any person age 60 or older who has experienced, is currently experiencing, or is at risk of experiencing abuse, neglect, self-neglect, or financial exploitation.

(bt) “Elder-adult-at-risk agency” means the agency designated by the county board of supervisors under sub. (2) to receive, respond to, and investigate reports of abuse, neglect, self-neglect, and financial exploitation under sub. (4).

(cm) “Emotional abuse” means language or behavior that serves no legitimate purpose and is intended to be intimidating, humiliating, threatening, frightening, or otherwise harassing, and that does or reasonably could intimidate, humiliate, threaten, frighten, or otherwise harass the individual to whom the conduct or language is directed.

(ed) “Financial exploitation” means any of the following:

1. Obtaining an individual's money or property by deceiving or enticing the individual, or by forcing, compelling, or coercing the individual to give, sell at less than fair market value, or in other ways convey money or property against his or her will without his or her informed consent.

2. Theft, as prohibited in s. 943.20.

3. The substantial failure or neglect of a fiscal agent to fulfill his or her responsibilities.

4. Unauthorized use of an individual's personal identifying information or documents, as prohibited in s. 943.201.

5. Unauthorized use of an entity's identifying information or documents, as prohibited in s. 943.203.

6. Forgery, as prohibited in s. 943.38.

7. Financial transaction card crimes, as prohibited in s. 943.41.

(eg) “Fiscal agent” includes any of the following:

1. A guardian of the estate appointed under s. 54.10.

2. A conservator appointed under s. 54.76.

3. An agent under a power of attorney under ch. 244.

4. A representative payee under 20 CFR 416.635.

5. A conservatorship under the U.S. department of veterans affairs.

(er) “Investigative agency” means a law enforcement or a city, town, village, county, or state governmental agency or unit with functions relating to protecting health, welfare, safety, or property, including an agency concerned with animal protection, public health, building code enforcement, consumer protection, or insurance or financial institution regulation.

(f) “Neglect” means the failure of a caregiver, as evidenced by an act, omission, or course of conduct, to endeavor to secure or maintain adequate care, services, or supervision for an individual, including food, clothing, shelter, or physical or mental health care, and creating significant risk or danger to the individual's physical or mental health. “Neglect” does not include a decision that is made to not seek medical care for an individual, if that decision is consistent with the individual's previously executed declaration or do-not-resuscitate order under ch. 154, a power of attorney for health care under ch. 155, or as otherwise authorized by law.

(fg) “Physical abuse” means the intentional or reckless infliction of bodily harm.

(g) “Self-neglect” means a significant danger to an individual's physical or mental health because the individual is responsible for his or her own care but fails to obtain adequate care, including food, shelter, clothing, or medical or dental care.

(gd) “Sexual abuse” means a violation of s. 940.225(1), (2), (3), or (3m).

(gf) “State governmental agency” has the meaning given for “agency” in s. 16.417(1)(a).

(gr) “State official” means any law enforcement officer employed by the state or an employee of one of the following:

1. The department of health services.

2. The department of justice.

3. The department of safety and professional services.

4. The board on aging and long-term care.

5. A state governmental agency other than those specified in subds. 1. to 4. with functions relating to protecting health and safety.

(h) “Treatment without consent” means the administration of medication to an individual who has not provided informed consent, or the performance of psychosurgery, electroconvulsive therapy, or experimental research on an individual who has not provided informed consent, with the knowledge that no lawful authority exists for the administration or performance.

(i) “Unreasonable confinement or restraint” includes the intentional and unreasonable confinement of an individual in a locked room, involuntary separation of an individual from his or her living area, use on an individual of physical restraining devices, or the provision of unnecessary or excessive medication to an individual, but does not include the use of these methods or devices in entities regulated by the department if the methods or devices are employed in conformance with state and federal standards governing confinement and restraint.

(2) Elder-adult-at-risk agency designation. Each county board shall designate an agency in the county as the elder-adult-at-risk agency for the purposes of this section.

(3) Elder-adult-at-risk agency duties. (a) Each elder-adult-at-risk agency shall develop a policy for notifying other investigative agencies, including law enforcement officials in appropriate cases, and shall establish an elder abuse reporting system to carry out the purposes of this section. Each elder-adult-at-risk agency shall enter into a memorandum of understanding regarding the operation of the system with the county department under s. 46.215 or 46.22 and with any private or public agency, including a county department under s. 51.42 or 51.437, within the county that is participating in the elder abuse reporting system. The memorandum of understanding shall, at a minimum, identify the agencies that are responsible for the investigation of reports of abuse, financial exploitation, neglect, or self-neglect of elder adults at risk and for the provision of specific direct services.

(b) Each elder-adult-at-risk agency shall receive reports of abuse, financial exploitation, neglect, or self-neglect of elder adults at risk.

(c) Each elder-adult-at-risk agency shall publicize the existence of an elder abuse reporting system in the county and shall provide a publicized telephone number that can be used by persons wishing to report suspected cases of abuse, financial exploitation, neglect, or self-neglect of elder adults at risk. Each elder-adult-at-risk agency shall also provide a telephone number that can be used to make reports after the elder-adult-at-risk agency's regular business hours.

(4) Reporting. (ab) The following persons shall file reports as specified in par. (ad):

1. An employee of any entity that is licensed, certified, or approved by or registered with the department.

3. A health care provider, as defined in s. 155.01(7).

4. A social worker, professional counselor, or marriage and family therapist certified under ch. 457.

(ad) Except as provided in par. (ae), a person specified in par. (ab) who has seen an elder adult at risk in the course of the person's professional duties shall file a report with the county department, the elder-adult-at-risk agency, a state or local law enforcement agency, the department, or the board on aging and long-term care if the elder adult at risk has requested the person to make the report, or if the person has reasonable cause to believe that any of the following situations exist:

1. The elder adult at risk is at imminent risk of serious bodily harm, death, sexual assault, or significant property loss and is unable to make an informed judgment about whether to report the risk.

2. An elder adult at risk other than the subject of the report is at risk of serious bodily harm, death, sexual assault, or significant property loss inflicted by a suspected perpetrator.

(ae) A person specified in par. (ab) to whom any of the following applies is not required to file a report as provided in par. (ad):

1. If the person believes that filing a report would not be in the best interest of the elder adult at risk. If the person so believes, the person shall document the reasons for this belief in the case file that the person maintains on the elder adult at risk.

2. If a health care provider provides treatment by spiritual means through prayer for healing in lieu of medical care in accordance with his or her religious tradition and his or her communications with patients are required by his or her religious denomination to be held confidential.

(ar) Any person, including an attorney or a person working under the supervision of an attorney, may report to the county department, the elder-adult-at-risk agency, a state or local law enforcement agency, the department, or the board on aging and long-term care that he or she believes that abuse, financial exploitation, neglect, or self-neglect of an elder adult at risk has occurred if the person is aware of facts or circumstances that would lead a reasonable person to believe or suspect that abuse, financial exploitation, neglect, or self-neglect of an elder adult at risk has occurred. The person shall indicate the facts and circumstances of the situation as part of the report.

(b)1. a. No person may discharge or otherwise retaliate or discriminate against any person for reporting in good faith under this subsection.

b. No person may discharge or otherwise retaliate or discriminate against any individual on whose behalf another person has reported in good faith under this subsection.

cm. Any discharge of a person or act of retaliation or discrimination that is taken against a person who makes a report under this subsection, within 120 days after the report is made, establishes a rebuttable presumption that the discharge or act is made in response to the report. This presumption may be rebutted by a preponderance of evidence that the discharge or act was not made in response to the report.

2. b. Any employee who is discharged or otherwise discriminated against may file a complaint with the department of workforce development under s. 106.54(5).

c. Any person not described in subd. 2. b. who is retaliated or discriminated against in violation of subd. 1. a. or b. may commence an action in circuit court for damages incurred as a result of the violation.

(c) No person may be held civilly or criminally liable or be found guilty of unprofessional conduct for reporting in good faith under this subsection and within the scope of his or her authority, or for filing a report with an agency not listed in par. (ad) or (ar) if the person had a good faith belief that the report was filed correctly with one of the listed agencies.

(d) If a report under par. (ad) or (ar) is made to a state official, the state official shall refer the report to the appropriate elder-adult-at-risk agency. The requirement under this paragraph does not apply to an employee of the board on aging and long-term care who determines that his or her referral would be in violation of 42 USC 3058g (d).

(e) Any person making a report under this subsection is presumed to have reported in good faith.

(5) Response and investigation. (a)1. Except as otherwise provided, upon receiving a report of alleged abuse, financial exploitation, neglect, or self-neglect of an elder adult at risk, the elder-adult-at-risk agency shall either respond to the report including, if necessary, by conducting an investigation, or refer the report to another agency for investigation. Upon receiving a report of alleged abuse, financial exploitation, neglect, or self-neglect of a client, as defined in s. 50.065(1)(b), of an entity, as defined in s. 50.065(1)(c), if the person suspected of perpetrating the alleged abuse, financial exploitation, or neglect is a caregiver or a nonclient resident of the entity, the elder-adult-at-risk agency shall refer the report within 24 hours after the report is received to the department for investigation. The department shall coordinate its investigatory efforts with other investigative agencies or authorities as appropriate. An elder-adult-at-risk agency's response to or another investigative agency's investigation of a report of alleged abuse, financial exploitation, neglect, or self-neglect that is not referred to the department shall be commenced within 24 hours after a report is received, excluding Saturdays, Sundays and legal holidays.

2. If an agent or employee of an elder-adult-at-risk agency required to respond under this subsection is the subject of a report, or if the elder-adult-at-risk agency or an agency under contract with the county department determines that the relationship between the elder-adult-at-risk agency and the agency under contract with the county department would not allow for an unbiased response, the elder-adult-at-risk agency shall, after taking any action necessary to protect the elder adult at risk, notify the department. Upon receipt of the notice, the department or a county department under s. 46.215, 46.22, 51.42, or 51.437 designated by the department shall conduct an independent investigation. The powers and duties of a county department making an independent investigation are those given to an elder-adult-at-risk agency under pars. (b) to (f) and sub. (6).

(b) The elder-adult-at-risk agency's response or another investigative agency's investigation may include one or more of the following:

1. A visit to the residence of the elder adult at risk.

2. Observation of the elder adult at risk, with or without consent of his or her guardian or agent under an activated power of attorney for health care, if any.

3. An interview with the elder adult at risk, in private to the extent practicable, and with or without the consent of his or her guardian or agent under an activated power of attorney for health care, if any.

4. An interview with the guardian or agent under an activated power of attorney for health care, if any, and with any caregiver of the elder adult at risk.

5. A review of the treatment and patient health care records of the elder adult at risk.

6. A review of any financial records of the elder adult at risk that are maintained by a financial institution, as defined in s. 705.01(3); by an entity, as defined in s. 50.065; by any caregiver of the elder adult at risk; or by a member of the immediate family of the elder adult at risk or caregiver. The records shall be released without informed consent in either of the following circumstances:

a. To an elder-adult-at-risk agency or other investigative agency under this section. The financial record holder may release financial record information by initiating contact with the elder-adult-at-risk agency or other investigative agency without first receiving a request for release of the information from the elder-adult-at-risk agency or other investigative agency.

b. Under a lawful order of a court of record.

(br) The elder-adult-at-risk agency or other investigative agency may transport the elder adult at risk for performance of a medical examination by a physician if any of the following applies:

1. The elder adult at risk or his or her guardian or agent under an activated power of attorney for health care, if any, consents to the examination.

2. The elder adult at risk is incapable of consenting to the examination and one of the following applies:

a. The elder adult at risk has no guardian or agent under an activated power of attorney for health care.

b. The elder adult at risk has a guardian or an agent under an activated power of attorney for health care, but that guardian or agent is the person suspected of abusing, neglecting, or financially exploiting the elder adult at risk.

c. The examination is authorized by order of a court.

(c) The elder-adult-at-risk agency may request a sheriff or police officer to accompany the elder-adult-at-risk agency investigator or worker during visits to the residence of the elder adult at risk or request other assistance as needed. If the request is made, a sheriff or police officer shall accompany the elder-adult-at-risk agency investigator or worker to the residence of the elder adult at risk and shall provide other assistance as requested or necessary.

(d) If a person interferes with the response or investigation under this subsection or interferes with the delivery of protective services under ch. 55 to the elder adult at risk, the elder-adult-at-risk agency investigator or worker may apply for an order under s. 813.123 prohibiting the interference.

(f) If the elder-adult-at-risk agency worker or investigator or other agency investigator has reason to believe that substantial physical harm, irreparable injury, or death may occur to an elder adult at risk, the worker or investigator shall request immediate assistance in either initiating a protective services action under ch. 55 or contact law enforcement or another public agency, as appropriate.

(h) No person may be held civilly or criminally liable or be found guilty of unprofessional conduct for responding to a report or for participating in or conducting an investigation under this subsection, including the taking of photographs or the conducting of a medical examination, if the response or investigation was performed in good faith and within the scope of his or her authority.

(5m) Offer of services and referral of cases. (a) Upon responding to a report, the elder-adult-at-risk agency or the investigative agency shall determine whether the elder adult at risk or any other individual involved in the alleged abuse, financial exploitation, neglect, or self-neglect is in need of services under this chapter or ch. 47, 49, 51, 54, or 55. From the appropriation under s. 20.435(7)(dh), the department shall allocate to selected counties not less than $25,000 in each fiscal year, and within the limits of these funds and of available state and federal funds and of county funds appropriated to match the state and federal funds, the elder-adult-at-risk agency shall provide the necessary direct services to the elder adult at risk or other individual or arrange for the provision of the direct services with other agencies or individuals. Those direct services provided shall be rendered under the least restrictive conditions necessary to achieve their objective.

(b) If the elder-adult-at-risk agency is not the aging unit, the elder-adult-at-risk agency in each county shall consult with and accept advice from the aging unit with respect to the distribution of the funds for direct services that are allocated under par. (a).

(br) If, after responding to a report, the elder-adult-at-risk agency has reason to believe that the elder adult at risk has been the subject of abuse, financial exploitation, neglect, or self-neglect, the elder-adult-at-risk agency may do any of the following:

1. Request immediate assistance in initiating a protective services action under ch. 55 or contact an investigative agency, as appropriate.

2. Take appropriate emergency action, including emergency protective placement under s. 55.135, if the elder-adult-at-risk agency determines that the emergency action is in the best interests of the elder adult at risk and the emergency action is the least restrictive appropriate intervention.

3. Refer the case to law enforcement officials, as specified in sub. (3)(a), for further investigation or to the district attorney, if the elder-adult-at-risk agency has reason to believe that a crime has been committed.

4. Refer the case to the licensing, permitting, registration, or certification authorities of the department or to other regulatory bodies if the residence, facility, or program for the elder adult at risk is or should be licensed, permitted, registered, or certified or is otherwise regulated.

5. Refer the case to the department of safety and professional services if the financial exploitation, neglect, self-neglect, or abuse involves an individual who is required to hold a credential, as defined in s. 440.01(2)(a), under chs. 440 to 460.

6. Bring a petition for a guardianship and protective services or protective placement under ch. 55 or a review of an existing guardianship if necessary to prevent financial exploitation, neglect, self-neglect, or abuse and if the elder adult at risk would otherwise be at risk of serious harm because of an inability to arrange for necessary food, clothing, shelter, or services.

(c) An elder adult at risk may refuse to accept services unless a guardian authorizes the services. The elder-adult-at-risk agency or other provider agency shall notify the elder adult at risk of this right to refuse before providing services.

(6) Records; confidentiality. (ac) In this subsection:

1. “Departmental report form” includes documentation of an elder-adult-at-risk agency's response to or investigation of a report made under sub. (5) and is the information required to be submitted to the department.

2. “Record” includes any document relating to the response, investigation, assessment, and disposition of a report made under this section.

(am) The elder-adult-at-risk agency shall prepare a departmental report form of its response under sub. (5) to a report of suspected abuse, financial exploitation, neglect, or self-neglect. If the elder-adult-at-risk agency refers the report to an investigative agency, the investigative agency shall advise the elder-adult-at-risk agency in writing of its response to the report. The elder-adult-at-risk agency shall maintain records of suspected abuse, financial exploitation, neglect, or self-neglect.

(b) Departmental report forms are confidential and may not be released by the elder-adult-at-risk agency or other investigative agency, except under the following circumstances:

1. To the elder adult at risk, any person named in a departmental report form who is suspected of abusing, neglecting, or financially exploiting an elder adult at risk, and the suspect's attorney. These persons may inspect the departmental report form, except that information identifying the person who initially reported the suspected abuse, financial exploitation, neglect, or self-neglect, or any other person whose safety might be endangered through disclosure, may not be released.

2. To the agency or other entity from which assistance is requested under sub. (5)(f). Information obtained under this subdivision shall remain confidential.

3. To an individual, organization, or agency designated by the department or as required by law for the purposes of management audits or program monitoring and evaluation. Information obtained under this subdivision shall remain confidential and may not be used in any way that discloses the names of or other identifying information about the individuals involved.

4. For purposes of research, if the research project has been approved by the department or the elder-adult-at-risk agency and the researcher has provided assurances that the information will be used only for the purposes for which it was provided to the researcher, the information will not be released to a person not connected with the study under consideration, and the final product of the research will not reveal information that may serve to identify the individuals involved. The information shall remain confidential. In approving the use of information under this subdivision, the department shall impose any additional safeguards needed to prevent unwarranted disclosure of information.

5. Under a lawful order of a court of record.

6. To any agency or individual that provides direct services under sub. (5m), including an attending physician for purposes of diagnosis and treatment, and within the department to coordinate treatment for mental illness, developmental disabilities, alcoholism, or drug abuse of individuals committed to or under the supervision of the department. Information obtained under this subdivision shall remain confidential.

7. To the guardian of the elder adult at risk or the guardian of any person named in a report who is suspected of abusing, neglecting, or financially exploiting an elder adult at risk. These persons may inspect the departmental report form, except that information identifying the person who initially reported the suspected abuse, financial exploitation, neglect, or self-neglect, or any other person whose safety might be endangered through disclosure, may not be released.

8. To law enforcement officials in accordance with the policy developed under sub. (3)(a).

9. To a federal agency, state governmental agency, agency of any other state, or local governmental unit in this state or any other state that has a need for a departmental report form in order to carry out its responsibility to protect elder adults at risk from abuse, financial exploitation, neglect, or self-neglect.

10. To the reporter who made a report in his or her professional capacity, regarding action to be taken to protect or provide services to the alleged victim of abuse, financial exploitation, neglect, or self-neglect.

(bd) If a person requesting a departmental report form is not one of the persons or entities specified in par. (b), the elder-adult-at-risk agency may release information indicating only whether or not a report was received and whether or not statutory responsibility was fulfilled.

(br) Notwithstanding par. (b)1. to 10., an elder-adult-at-risk agency or an investigative agency may not release departmental report forms under this section if any of the following applies:

1. The elder-adult-at-risk agency determines that the release would be contrary to the best interests of the elder adult at risk who is the subject of the departmental report form or of another person residing with the subject of the departmental report form, or the release is likely to cause mental, emotional, or physical harm to the subject of the departmental report form or to any other individual.

2. The district attorney determines that disclosure of the information would jeopardize any ongoing or future criminal investigation or prosecution or would jeopardize a defendant's right to a fair trial.

3. The elder-adult-at-risk agency determines that disclosure would jeopardize ongoing or future civil investigations or proceedings or would jeopardize the fairness of such a legal proceeding.

(bt) Subject to pars. (b), (bd), (br), (bv), and (bw), records under this subsection are confidential and may not be released by the elder-adult-at-risk agency or other investigative agency, except under the following circumstances, upon request:

1. To the elder adult at risk who is the alleged victim named in the record.

2. To the legal guardian, conservator, or other legal representative of the elder adult at risk who is the alleged victim named in the record, if the legal guardian, conservator, or other legal representative of the alleged victim is not the alleged perpetrator of the abuse, financial exploitation, or neglect.

3. To law enforcement officials and agencies in accordance with the policy developed under sub. (3)(a) or with investigations conducted under sub. (5), or a district attorney, for purposes of investigation or prosecution.

4. To the department, under s. 51.03(2), or for death investigations under s. 50.04(2t) or 50.035(5); or to a sheriff, police department, or district attorney for death investigations under s. 51.64(2)(a).

5. To an employee of a county department under s. 51.42 or 51.437 that is providing services either to the elder adult at risk who is the alleged victim named in the record or to the alleged perpetrator of abuse, to determine whether the alleged victim should be transferred to a less restrictive or more appropriate treatment modality or facility.

6. To a court, tribal court, or state governmental agency for a proceeding relating to the licensure or regulation of an individual or entity regulated or licensed by the state governmental agency, that was an alleged perpetrator of abuse, financial exploitation, or neglect.

7. To the department, for management, audit, program monitoring, evaluation, billing, or collection purposes.

8. To the attorney or guardian ad litem for the elder adult at risk who is the alleged victim named in the record, to assist in preparing for any proceeding under ch. 48, 51, 54, 55, 813, 971, or 975 pertaining to the alleged victim.

9. To a coroner, medical examiner, pathologist, or other physician investigating the cause of death of an elder adult at risk that is unexplained or unusual or is associated with unexplained or suspicious circumstances.

10. To staff members of the protection and advocacy agency designated under s. 51.62 and the board on aging and long-term care under s. 16.009.

11. To an agency, including a probation or parole agency, that is legally responsible for the supervision of an alleged perpetrator of abuse, neglect, or financial exploitation of an elder adult at risk.

12. To a grand jury, if it determines that access to specified records is necessary for the conduct of its official business.

13. Under a lawful order of a court of record.

(bv) The identity of a person making a report of alleged abuse, neglect, self-neglect, or financial exploitation shall be deleted from any record prior to its release under par. (bt) or from any departmental report form prior to its release under par. (b). The identity of any reporter may only be released with the written consent of the reporter or under a lawful order of a court of record.

(bw) A person to whom a departmental report form or a record is disclosed under this subsection may not further disclose it, except to the persons and for the purposes specified in this subsection.

(by) A custodian of records or departmental report forms incurs no civil or criminal liability under this subsection and may not be found guilty of unprofessional conduct for the release or nonrelease of records or departmental report forms in accordance with this subsection while acting in good faith and within the scope of his or her authority.

(d) Any person who requests or obtains confidential information under this subsection under false pretenses may be fined not more than $500 or imprisoned not more than one year in the county jail or both.

(e) Any employee who violates this subsection may be subject to discharge or suspension without pay.

(7) Exception. Nothing in this section may be construed to mean that a person is abused, financially exploited, neglected or in need of direct or protective services solely because he or she consistently relies upon treatment by spiritual means through prayer for healing in lieu of medical care in accordance with his or her religious tradition.

(8) Department duties. (a) The department shall develop a plan to assist elder-adult-at-risk agencies in determining appropriate responses to reports of abuse, financial exploitation, neglect, or self-neglect.

(b) The department shall prepare and distribute sample departmental report forms for use by elder-adult-at-risk agencies.

(c) The department shall collect statistical information from each county pertaining to each reported case of abuse, financial exploitation, neglect, or self-neglect. The department may require elder-adult-at-risk agency workers or investigators to submit departmental report forms to the department that summarize the information being reported. These departmental report forms may not name or otherwise identify individuals. The department shall use this information to review the effectiveness of this section, to plan program changes, and to formulate reports.

(d) The department shall develop and disseminate information on elder-adult-at-risk abuse and the elder abuse reporting system under this section. The department shall also develop informational materials to be used by elder-adult-at-risk agencies regarding abuse of elder adults at risk and regarding the elder abuse reporting system. The department shall solicit contributions of labor, materials, and expertise from private sources to assist in developing the informational materials.

(9) Penalties. (a) Any person, including the state or any political subdivision of the state, violating sub. (6) is liable to any person damaged as a result of the violation for such damages as may be proved, together with exemplary damages of not less than $100 nor more than $500 for each violation and the costs and reasonable actual attorney fees that are incurred by the person damaged.

(b) In any action brought under par. (a) in which the court determines that the violator acted in a manner that was knowing and willful, the violator shall be liable for such damages as may be proved together with exemplary damages of not less than $500 nor more than $1,000 for each violation, together with costs and reasonable actual attorney fees as may be incurred. It is not a prerequisite to an action under par. (a) that the plaintiff suffer or be threatened with actual damages.

(c) An individual may bring an action to enjoin any violation of sub. (6) or to compel compliance with sub. (6), and may in the same action seek damages as provided in this subsection. The individual may recover costs and reasonable actual attorney fees incurred in the action, if he or she prevails.

(d) Any person who violates sub. (4)(b)1. may be fined not more than $10,000 or imprisoned for not more than 6 months or both.

(e) Whoever intentionally violates sub. (4)(ad) by failure to report as required may be fined not more than $500 or imprisoned not more than 6 months or both.(1) Definitions. In this section:

(a) “Abuse” means any of the following:

1. Physical abuse.

2. Emotional abuse.

3. Sexual abuse.

4. Treatment without consent.

5. Unreasonable confinement or restraint.

(ag) “Aging unit” has the meaning given under s. 46.82(1)(a).

(aj) “Bodily harm” means physical pain or injury, illness, or any impairment of physical condition.

(an) “Caregiver” means a person who has assumed responsibility for all or a portion of an individual's care voluntarily, by contract, or by agreement, including a person acting or claiming to act as a legal guardian.

(ar) “Case management” means an assessment of need for direct services, development of a direct service plan and coordination and monitoring of the provision of direct services.

(bm) “Direct services” includes temporary shelter, relocation assistance, housing, respite care, emergency funds for food and clothing and legal assistance.

(br) “Elder adult at risk” means any person age 60 or older who has experienced, is currently experiencing, or is at risk of experiencing abuse, neglect, self-neglect, or financial exploitation.

(bt) “Elder-adult-at-risk agency” means the agency designated by the county board of supervisors under sub. (2) to receive, respond to, and investigate reports of abuse, neglect, self-neglect, and financial exploitation under sub. (4).

(cm) “Emotional abuse” means language or behavior that serves no legitimate purpose and is intended to be intimidating, humiliating, threatening, frightening, or otherwise harassing, and that does or reasonably could intimidate, humiliate, threaten, frighten, or otherwise harass the individual to whom the conduct or language is directed.

(ed) “Financial exploitation” means any of the following:

1. Obtaining an individual's money or property by deceiving or enticing the individual, or by forcing, compelling, or coercing the individual to give, sell at less than fair market value, or in other ways convey money or property against his or her will without his or her informed consent.

2. Theft, as prohibited in s. 943.20.

3. The substantial failure or neglect of a fiscal agent to fulfill his or her responsibilities.

4. Unauthorized use of an individual's personal identifying information or documents, as prohibited in s. 943.201.

5. Unauthorized use of an entity's identifying information or documents, as prohibited in s. 943.203.

6. Forgery, as prohibited in s. 943.38.

7. Financial transaction card crimes, as prohibited in s. 943.41.

(eg) “Fiscal agent” includes any of the following:

1. A guardian of the estate appointed under s. 54.10.

2. A conservator appointed under s. 54.76.

3. An agent under a power of attorney under ch. 244.

4. A representative payee under 20 CFR 416.635.

5. A conservatorship under the U.S. department of veterans affairs.

(er) “Investigative agency” means a law enforcement or a city, town, village, county, or state governmental agency or unit with functions relating to protecting health, welfare, safety, or property, including an agency concerned with animal protection, public health, building code enforcement, consumer protection, or insurance or financial institution regulation.

(f) “Neglect” means the failure of a caregiver, as evidenced by an act, omission, or course of conduct, to endeavor to secure or maintain adequate care, services, or supervision for an individual, including food, clothing, shelter, or physical or mental health care, and creating significant risk or danger to the individual's physical or mental health. “Neglect” does not include a decision that is made to not seek medical care for an individual, if that decision is consistent with the individual's previously executed declaration or do-not-resuscitate order under ch. 154, a power of attorney for health care under ch. 155, or as otherwise authorized by law.

(fg) “Physical abuse” means the intentional or reckless infliction of bodily harm.

(g) “Self-neglect” means a significant danger to an individual's physical or mental health because the individual is responsible for his or her own care but fails to obtain adequate care, including food, shelter, clothing, or medical or dental care.

(gd) “Sexual abuse” means a violation of s. 940.225(1), (2), (3), or (3m).

(gf) “State governmental agency” has the meaning given for “agency” in s. 16.417(1)(a).

(gr) “State official” means any law enforcement officer employed by the state or an employee of one of the following:

1. The department of health services.

2. The department of justice.

3. The department of regulation and licensing.

4. The board on aging and long-term care.

5. A state governmental agency other than those specified in subds. 1. to 4. with functions relating to protecting health and safety.

(h) “Treatment without consent” means the administration of medication to an individual who has not provided informed consent, or the performance of psychosurgery, electroconvulsive therapy, or experimental research on an individual who has not provided informed consent, with the knowledge that no lawful authority exists for the administration or performance.

(i) “Unreasonable confinement or restraint” includes the intentional and unreasonable confinement of an individual in a locked room, involuntary separation of an individual from his or her living area, use on an individual of physical restraining devices, or the provision of unnecessary or excessive medication to an individual, but does not include the use of these methods or devices in entities regulated by the department if the methods or devices are employed in conformance with state and federal standards governing confinement and restraint.

(2) Elder-adult-at-risk agency designation. Each county board shall designate an agency in the county as the elder-adult-at-risk agency for the purposes of this section.

(3) Elder-adult-at-risk agency duties. (a) Each elder-adult-at-risk agency shall develop a policy for notifying other investigative agencies, including law enforcement officials in appropriate cases, and shall establish an elder abuse reporting system to carry out the purposes of this section. Each elder-adult-at-risk agency shall enter into a memorandum of understanding regarding the operation of the system with the county department under s. 46.215 or 46.22 and with any private or public agency, including a county department under s. 51.42 or 51.437, within the county that is participating in the elder abuse reporting system. The memorandum of understanding shall, at a minimum, identify the agencies that are responsible for the investigation of reports of abuse, financial exploitation, neglect, or self-neglect of elder adults at risk and for the provision of specific direct services.

(b) Each elder-adult-at-risk agency shall receive reports of abuse, financial exploitation, neglect, or self-neglect of elder adults at risk.

(c) Each elder-adult-at-risk agency shall publicize the existence of an elder abuse reporting system in the county and shall provide a publicized telephone number that can be used by persons wishing to report suspected cases of abuse, financial exploitation, neglect, or self-neglect of elder adults at risk. Each elder-adult-at-risk agency shall also provide a telephone number that can be used to make reports after the elder-adult-at-risk agency's regular business hours.

(4) Reporting. (ab) The following persons shall file reports as specified in par. (ad):

1. An employee of any entity that is licensed, certified, or approved by or registered with the department.

3. A health care provider, as defined in s. 155.01(7).

4. A social worker, professional counselor, or marriage and family therapist certified under ch. 457.

(ad) Except as provided in par. (ae), a person specified in par. (ab) who has seen an elder adult at risk in the course of the person's professional duties shall file a report with the county department, the elder-adult-at-risk agency, a state or local law enforcement agency, the department, or the board on aging and long-term care if the elder adult at risk has requested the person to make the report, or if the person has reasonable cause to believe that any of the following situations exist:

1. The elder adult at risk is at imminent risk of serious bodily harm, death, sexual assault, or significant property loss and is unable to make an informed judgment about whether to report the risk.

2. An elder adult at risk other than the subject of the report is at risk of serious bodily harm, death, sexual assault, or significant property loss inflicted by a suspected perpetrator.

(ae) A person specified in par. (ab) to whom any of the following applies is not required to file a report as provided in par. (ad):

1. If the person believes that filing a report would not be in the best interest of the elder adult at risk. If the person so believes, the person shall document the reasons for this belief in the case file that the person maintains on the elder adult at risk.

2. If a health care provider provides treatment by spiritual means through prayer for healing in lieu of medical care in accordance with his or her religious tradition and his or her communications with patients are required by his or her religious denomination to be held confidential.

(ar) Any person, including an attorney or a person working under the supervision of an attorney, may report to the county department, the elder-adult-at-risk agency, a state or local law enforcement agency, the department, or the board on aging and long-term care that he or she believes that abuse, financial exploitation, neglect, or self-neglect of an elder adult at risk has occurred if the person is aware of facts or circumstances that would lead a reasonable person to believe or suspect that abuse, financial exploitation, neglect, or self-neglect of an elder adult at risk has occurred. The person shall indicate the facts and circumstances of the situation as part of the report.

(b)1. a. No person may discharge or otherwise retaliate or discriminate against any person for reporting in good faith under this subsection.

b. No person may discharge or otherwise retaliate or discriminate against any individual on whose behalf another person has reported in good faith under this subsection.

cm. Any discharge of a person or act of retaliation or discrimination that is taken against a person who makes a report under this subsection, within 120 days after the report is made, establishes a rebuttable presumption that the discharge or act is made in response to the report. This presumption may be rebutted by a preponderance of evidence that the discharge or act was not made in response to the report.

2. b. Any employee who is discharged or otherwise discriminated against may file a complaint with the department of workforce development under s. 106.54(5).

c. Any person not described in subd. 2. b. who is retaliated or discriminated against in violation of subd. 1. a. or b. may commence an action in circuit court for damages incurred as a result of the violation.

(c) No person may be held civilly or criminally liable or be found guilty of unprofessional conduct for reporting in good faith under this subsection and within the scope of his or her authority, or for filing a report with an agency not listed in par. (ad) or (ar) if the person had a good faith belief that the report was filed correctly with one of the listed agencies.

(d) If a report under par. (ad) or (ar) is made to a state official, the state official shall refer the report to the appropriate elder-adult-at-risk agency. The requirement under this paragraph does not apply to an employee of the board on aging and long-term care who determines that his or her referral would be in violation of 42 USC 3058g (d).

(e) Any person making a report under this subsection is presumed to have reported in good faith.

(5) Response and investigation. (a)1. Except as otherwise provided, upon receiving a report of alleged abuse, financial exploitation, neglect, or self-neglect of an elder adult at risk, the elder-adult-at-risk agency shall either respond to the report including, if necessary, by conducting an investigation, or refer the report to another agency for investigation. Upon receiving a report of alleged abuse, financial exploitation, neglect, or self-neglect of a client, as defined in s. 50.065(1)(b), of an entity, as defined in s. 50.065(1)(c), if the person suspected of perpetrating the alleged abuse, financial exploitation, or neglect is a caregiver or a nonclient resident of the entity, the elder-adult-at-risk agency shall refer the report within 24 hours after the report is received to the department for investigation. The department shall coordinate its investigatory efforts with other investigative agencies or authorities as appropriate. An elder-adult-at-risk agency's response to or another investigative agency's investigation of a report of alleged abuse, financial exploitation, neglect, or self-neglect that is not referred to the department shall be commenced within 24 hours after a report is received, excluding Saturdays, Sundays and legal holidays.

2. If an agent or employee of an elder-adult-at-risk agency required to respond under this subsection is the subject of a report, or if the elder-adult-at-risk agency or an agency under contract with the county department determines that the relationship between the elder-adult-at-risk agency and the agency under contract with the county department would not allow for an unbiased response, the elder-adult-at-risk agency shall, after taking any action necessary to protect the elder adult at risk, notify the department. Upon receipt of the notice, the department or a county department under s. 46.215, 46.22, 51.42, or 51.437 designated by the department shall conduct an independent investigation. The powers and duties of a county department making an independent investigation are those given to an elder-adult-at-risk agency under pars. (b) to (f) and sub. (6).

(b) The elder-adult-at-risk agency's response or another investigative agency's investigation may include one or more of the following:

1. A visit to the residence of the elder adult at risk.

2. Observation of the elder adult at risk, with or without consent of his or her guardian or agent under an activated power of attorney for health care, if any.

3. An interview with the elder adult at risk, in private to the extent practicable, and with or without the consent of his or her guardian or agent under an activated power of attorney for health care, if any.

4. An interview with the guardian or agent under an activated power of attorney for health care, if any, and with any caregiver of the elder adult at risk.

5. A review of the treatment and patient health care records of the elder adult at risk.

6. A review of any financial records of the elder adult at risk that are maintained by a financial institution, as defined in s. 705.01(3); by an entity, as defined in s. 50.065; by any caregiver of the elder adult at risk; or by a member of the immediate family of the elder adult at risk or caregiver. The records shall be released without informed consent in either of the following circumstances:

a. To an elder-adult-at-risk agency or other investigative agency under this section. The financial record holder may release financial record information by initiating contact with the elder-adult-at-risk agency or other investigative agency without first receiving a request for release of the information from the elder-adult-at-risk agency or other investigative agency.

b. Under a lawful order of a court of record.

(br) The elder-adult-at-risk agency or other investigative agency may transport the elder adult at risk for performance of a medical examination by a physician if any of the following applies:

1. The elder adult at risk or his or her guardian or agent under an activated power of attorney for health care, if any, consents to the examination.

2. The elder adult at risk is incapable of consenting to the examination and one of the following applies:

a. The elder adult at risk has no guardian or agent under an activated power of attorney for health care.

b. The elder adult at risk has a guardian or an agent under an activated power of attorney for health care, but that guardian or agent is the person suspected of abusing, neglecting, or financially exploiting the elder adult at risk.

c. The examination is authorized by order of a court.

(c) The elder-adult-at-risk agency may request a sheriff or police officer to accompany the elder-adult-at-risk agency investigator or worker during visits to the residence of the elder adult at risk or request other assistance as needed. If the request is made, a sheriff or police officer shall accompany the elder-adult-at-risk agency investigator or worker to the residence of the elder adult at risk and shall provide other assistance as requested or necessary.

(d) If a person interferes with the response or investigation under this subsection or interferes with the delivery of protective services under ch. 55 to the elder adult at risk, the elder-adult-at-risk agency investigator or worker may apply for an order under s. 813.123 prohibiting the interference.

(f) If the elder-adult-at-risk agency worker or investigator or other agency investigator has reason to believe that substantial physical harm, irreparable injury, or death may occur to an elder adult at risk, the worker or investigator shall request immediate assistance in either initiating a protective services action under ch. 55 or contact law enforcement or another public agency, as appropriate.

(h) No person may be held civilly or criminally liable or be found guilty of unprofessional conduct for responding to a report or for participating in or conducting an investigation under this subsection, including the taking of photographs or the conducting of a medical examination, if the response or investigation was performed in good faith and within the scope of his or her authority.

(5m) Offer of services and referral of cases. (a) Upon responding to a report, the elder-adult-at-risk agency or the investigative agency shall determine whether the elder adult at risk or any other individual involved in the alleged abuse, financial exploitation, neglect, or self-neglect is in need of services under this chapter or ch. 47, 49, 51, 54, or 55. From the appropriation under s. 20.435(7)(dh), the department shall allocate to selected counties not less than $25,000 in each fiscal year, and within the limits of these funds and of available state and federal funds and of county funds appropriated to match the state and federal funds, the elder-adult-at-risk agency shall provide the necessary direct services to the elder adult at risk or other individual or arrange for the provision of the direct services with other agencies or individuals. Those direct services provided shall be rendered under the least restrictive conditions necessary to achieve their objective.

(b) If the elder-adult-at-risk agency is not the aging unit, the elder-adult-at-risk agency in each county shall consult with and accept advice from the aging unit with respect to the distribution of the funds for direct services that are allocated under par. (a).

(br) If, after responding to a report, the elder-adult-at-risk agency has reason to believe that the elder adult at risk has been the subject of abuse, financial exploitation, neglect, or self-neglect, the elder-adult-at-risk agency may do any of the following:

1. Request immediate assistance in initiating a protective services action under ch. 55 or contact an investigative agency, as appropriate.

2. Take appropriate emergency action, including emergency protective placement under s. 55.135, if the elder-adult-at-risk agency determines that the emergency action is in the best interests of the elder adult at risk and the emergency action is the least restrictive appropriate intervention.

3. Refer the case to law enforcement officials, as specified in sub. (3)(a), for further investigation or to the district attorney, if the elder-adult-at-risk agency has reason to believe that a crime has been committed.

4. Refer the case to the licensing, permitting, registration, or certification authorities of the department or to other regulatory bodies if the residence, facility, or program for the elder adult at risk is or should be licensed, permitted, registered, or certified or is otherwise regulated.

5. Refer the case to the department of regulation and licensing if the financial exploitation, neglect, self-neglect, or abuse involves an individual who is required to hold a credential, as defined in s. 440.01(2)(a), under chs. 440 to 460.

6. Bring a petition for a guardianship and protective services or protective placement under ch. 55 or a review of an existing guardianship if necessary to prevent financial exploitation, neglect, self-neglect, or abuse and if the elder adult at risk would otherwise be at risk of serious harm because of an inability to arrange for necessary food, clothing, shelter, or services.

(c) An elder adult at risk may refuse to accept services unless a guardian authorizes the services. The elder-adult-at-risk agency or other provider agency shall notify the elder adult at risk of this right to refuse before providing services.

(6) Records; confidentiality. (ac) In this subsection:

1. “Departmental report form” includes documentation of an elder-adult-at-risk agency's response to or investigation of a report made under sub. (5) and is the information required to be submitted to the department.

2. “Record” includes any document relating to the response, investigation, assessment, and disposition of a report made under this section.

(am) The elder-adult-at-risk agency shall prepare a departmental report form of its response under sub. (5) to a report of suspected abuse, financial exploitation, neglect, or self-neglect. If the elder-adult-at-risk agency refers the report to an investigative agency, the investigative agency shall advise the elder-adult-at-risk agency in writing of its response to the report. The elder-adult-at-risk agency shall maintain records of suspected abuse, financial exploitation, neglect, or self-neglect.

(b) Departmental report forms are confidential and may not be released by the elder-adult-at-risk agency or other investigative agency, except under the following circumstances :

1. To the elder adult at risk, any person named in a departmental report form who is suspected of abusing, neglecting, or financially exploiting an elder adult at risk, and the suspect's attorney. These persons may inspect the departmental report form, except that information identifying the person who initially reported the suspected abuse, financial exploitation, neglect, or self-neglect, or any other person whose safety might be endangered through disclosure, may not be released.

2. To the agency or other entity from which assistance is requested under sub. (5)(f). Information obtained under this subdivision shall remain confidential.

3. To an individual, organization, or agency designated by the department or as required by law for the purposes of management audits or program monitoring and evaluation. Information obtained under this subdivision shall remain confidential and may not be used in any way that discloses the names of or other identifying information about the individuals involved.

4. For purposes of research, if the research project has been approved by the department or the elder-adult-at-risk agency and the researcher has provided assurances that the information will be used only for the purposes for which it was provided to the researcher, the information will not be released to a person not connected with the study under consideration, and the final product of the research will not reveal information that may serve to identify the individuals involved. The information shall remain confidential. In approving the use of information under this subdivision, the department shall impose any additional safeguards needed to prevent unwarranted disclosure of information.

5. Under a lawful order of a court of record.

6. To any agency or individual that provides direct services under sub. (5m), including an attending physician for purposes of diagnosis and treatment, and within the department to coordinate treatment for mental illness, developmental disabilities, alcoholism, or drug abuse of individuals committed to or under the supervision of the department. Information obtained under this subdivision shall remain confidential.

7. To the guardian of the elder adult at risk or the guardian of any person named in a report who is suspected of abusing, neglecting, or financially exploiting an elder adult at risk. These persons may inspect the departmental report form, except that information identifying the person who initially reported the suspected abuse, financial exploitation, neglect, or self-neglect, or any other person whose safety might be endangered through disclosure, may not be released.

8. To law enforcement officials in accordance with the policy developed under sub. (3)(a).

9. To a federal agency, state governmental agency, agency of any other state, or local governmental unit in this state or any other state that has a need for a departmental report form in order to carry out its responsibility to protect elder adults at risk from abuse, financial exploitation, neglect, or self-neglect.

10. To the reporter who made a report in his or her professional capacity, regarding action to be taken to protect or provide services to the alleged victim of abuse, financial exploitation, neglect, or self-neglect.

(bd) If a person requesting a departmental report form is not one of the persons or entities specified in par. (b), the elder-adult-at-risk agency may release information indicating only whether or not a report was received and whether or not statutory responsibility was fulfilled.

(br) Notwithstanding par. (b)1. to 10., an elder-adult-at-risk agency or an investigative agency may not release departmental report forms under this section if any of the following applies:

1. The elder-adult-at-risk agency determines that the release would be contrary to the best interests of the elder adult at risk who is the subject of the departmental report form or of another person residing with the subject of the departmental report form, or the release is likely to cause mental, emotional, or physical harm to the subject of the departmental report form or to any other individual.

2. The district attorney determines that disclosure of the information would jeopardize any ongoing or future criminal investigation or prosecuti

Chapter 48. Children's Code

Updated: 
September 12, 2018

Subchapter I. General Provisions

Updated: 
September 12, 2018

48.02. Definitions

Updated: 
September 12, 2018

In this chapter, unless otherwise defined: (1) “Abuse,” other than when used in referring to abuse of alcohol beverages or other drugs, means any of the following: (a) Physical injury inflicted on a child by other than accidental means. (am) When used in referring to an unborn child, serious physical harm inflicted on the unborn child, and the risk of serious physical harm to the child when born, caused by the habitual lack of self-control of the expectant mother of the unborn child in the use of alcohol beverages, controlled substances or controlled substance analogs, exhibited to a severe degree. (b) Sexual intercourse or sexual contact under s. 940.225, 948.02, 948.025, or 948.085. (c) A violation of s. 948.05. (cm) A violation of s. 948.051. (d) Permitting, allowing or encouraging a child to violate s. 944.30(1m). (e) A violation of s. 948.055. (f) A violation of s. 948.10. (g) Manufacturing methamphetamine in violation of s. 961.41(1)(e) under any of the following circumstances: 1. With a child physically present during the manufacture. 2. In a child's home, on the premises of a child's home, or in a motor vehicle located on the premises of a child's home. 3. Under any other circumstances in which a reasonable person should have known that the manufacture would be seen, smelled, or heard by a child. (gm) Emotional damage for which the child's parent, guardian or legal custodian has neglected, refused or been unable for reasons other than poverty to obtain the necessary treatment or to take steps to ameliorate the symptoms. (1d) “Adult” means a person who is 18 years of age or older, except that for purposes of investigating or prosecuting a person who is alleged to have violated any state or federal criminal law or any civil law or municipal ordinance, “adult” means a person who has attained 17 years of age. (1dm) “Age or developmentally appropriate activities” means activities that are generally accepted as suitable for children of a given chronological age or level of maturity or that are determined to be developmentally appropriate for a child based on the cognitive, emotional, physical, and behavioral capacities that are typical for children of a given age or age group or, in the case of a specific child, activities that are suitable for the child based on the cognitive, emotional, physical, and behavioral capacities of that child. (1e) “Alcohol and other drug abuse impairment” means a condition of a person which is exhibited by characteristics of habitual lack of self-control in the use of alcohol beverages, controlled substances or controlled substance analogs to the extent that the person's health is substantially affected or endangered or the person's social or economic functioning is substantially disrupted. (1m) “Alcoholism” has the meaning given in s. 51.01(1m). (1s) “Approved treatment facility” has the meaning given in s. 51.01(2). (2) “Child,” when used without further qualification, means a person who is less than 18 years of age, except that for purposes of investigating or prosecuting a person who is alleged to have violated a state or federal criminal law or any civil law or municipal ordinance, “child” does not include a person who has attained 17 years of age. (2d) “Controlled substance” has the meaning given in s. 961.01(4). (2e) “Controlled substance analog” has the meaning given in s. 961.01(4m). (2f) “Coordinated services plan of care” has the meaning given in s. 46.56(1)(cm). (2g) “County department” means a county department under s. 46.22 or 46.23, unless the context requires otherwise. (2m) “Court,” when used without further qualification, means the court assigned to exercise jurisdiction under this chapter and ch. 938. (3) “Court intake worker” means any person designated to provide intake services under s. 48.067. (3t) “Dental care,” for purposes of providing ordinary medical and dental care, means routine dental care, including diagnostic and preventative services, and treatment including restoring teeth, tooth extractions, and use of nitrous oxide. (4) “Department” means the department of children and families. (5) “Developmentally disabled” means having a developmental disability, as defined in s. 51.01(5). (5g) “Drug dependent” has the meaning given in s. 51.01(8b). (5j) “Emotional damage” means harm to a child's psychological or intellectual functioning. “Emotional damage” shall be evidenced by one or more of the following characteristics exhibited to a severe degree: anxiety; depression; withdrawal; outward aggressive behavior; or a substantial and observable change in behavior, emotional response or cognition that is not within the normal range for the child's age and stage of development. (5m) “Foreign jurisdiction” means a jurisdiction outside of the United States. (6) “Foster home” means any facility that is operated by a person required to be licensed by s. 48.62(1) and that provides care and maintenance for no more than 4 children or, if necessary to enable a sibling group to remain together, for no more than 6 children or, if the department promulgates rules permitting a different number of children, for the number of children permitted under those rules. (7) “Group home” means any facility operated by a person required to be licensed by the department under s. 48.625 for the care and maintenance of 5 to 8 children, as provided in s. 48.625(1). (8) “Guardian” means the person named by the court having the duty and authority of guardianship. (8d) “Indian” means any person who is a member of an Indian tribe or who is an Alaska native and a member of a regional corporation, as defined in 43 USC 1606. (8g) “Indian child” means any unmarried person who is under the age of 18 years and is affiliated with an Indian tribe in any of the following ways: (a) As a member of the Indian tribe. (b) As a person who is eligible for membership in an Indian tribe and is the biological child of a member of an Indian tribe. (8m) “Indian child’s tribe” means one of the following: (a) The Indian tribe in which an Indian child is a member or eligible for membership. (b) In the case of an Indian child who is a member of or eligible for membership in more than one tribe, the Indian tribe with which the Indian child has the more significant contacts. (8p) “Indian custodian” means an Indian person who has legal custody of an Indian child under tribal law or custom or under state law or to whom temporary physical care, custody, and control has been transferred by the parent of the child. (8r) “Indian tribe” means any Indian tribe, band, nation, or other organized group or community of Indians that is recognized as eligible for the services provided to Indians by the U.S. secretary of the interior because of Indian status, including any Alaska native village, as defined in 43 USC 1602 (c). (10) “Judge”, if used without further qualification, means the judge of the court assigned to exercise jurisdiction under this chapter and ch. 938. (10m) “Juvenile correctional facility” has the meaning given in s. 938.02(10p). (10r) “ Juvenile detention facility” means a locked facility approved by the department of corrections under s. 301.36 for the secure, temporary holding in custody of children. (11) “Legal custodian” means a person, other than a parent or guardian, or an agency to whom legal custody of the child has been transferred by a court, but does not include a person who has only physical custody of the child. (12) “Legal custody” means a legal status created by the order of a court, which confers the right and duty to protect, train and discipline the child, and to provide food, shelter, legal services, education and ordinary medical and dental care, subject to the rights, duties and responsibilities of the guardian of the child and subject to any residual parental rights and responsibilities and the provisions of any court order. (12g) “Neglect” means failure, refusal or inability on the part of a caregiver, for reasons other than poverty, to provide necessary care, food, clothing, medical or dental care or shelter so as to seriously endanger the physical health of the child. (12m) “Nonidentifying social history information” means information about a person's birth parent that may aid the person in establishing a sense of identity. “Nonidentifying social history information” may include, but is not limited to, the following information about a birth parent, but does not include any information that would disclose the name, location or identity of a birth parent: (a) Age at the time of the person's birth. (b) Nationality. (c) Race. (d) Education. (e) General physical appearance. (f) Talents, hobbies and special interests. (h) Reason for placing the child for adoption or for the termination of parental rights. (i) Religion. (k) Family history. (m) Personality traits of each parent. (12r) “Out-of-home care provider” means a foster parent, guardian, relative other than a parent, or nonrelative in whose home a child is placed, or the operator of a group home, residential care center for children and youth, or shelter care facility in which a child is placed, under the placement and care responsibility of the department or a county department. “Out-of-home care provider” also includes, in the case of a child placed in a group home, residential care center for children and youth, or shelter care facility, a staff member employed on the site of that home, center, or facility who has been designated by the operator of that home, center, or facility as an out-of-home care provider for purposes of making decisions concerning the child's participation in age or developmentally appropriate activities. (13) “Parent” means a biological parent, a husband who has consented to the artificial insemination of his wife under s. 891.40, or a parent by adoption. If the child is a nonmarital child who is not adopted or whose parents do not subsequently intermarry under s. 767.803, “parent” includes a person acknowledged under s. 767.805 or a substantially similar law of another state or adjudicated to be the biological father. “Parent” does not include any person whose parental rights have been terminated. For purposes of the application of s. 48.028 and the federal Indian Child Welfare Act, 25 USC 1901 to 1963, “parent” means a biological parent, an Indian husband who has consented to the artificial insemination of his wife under s. 891.40, or an Indian person who has lawfully adopted an Indian child, including an adoption under tribal law or custom, and includes, in the case of a nonmarital child who is not adopted or whose parents do not subsequently intermarry under s. 767.803, a person acknowledged under s. 767.805, a substantially similar law of another state, or tribal law or custom to be the biological father or a person adjudicated to be the biological father, but does not include any person whose parental rights have been terminated. (14) “Physical custody” means actual custody of the person in the absence of a court order granting legal custody to the physical custodian. (14g) “Physical injury” includes but is not limited to lacerations, fractured bones, burns, internal injuries, severe or frequent bruising or great bodily harm, as defined in s. 939.22(14). (14r) “Reasonable and prudent parent standard” means a standard for an out-of-home care provider to use in making decisions concerning a child's participation in age or developmentally appropriate extracurricular, enrichment, cultural, and social activities that is characterized by careful and sensible parental decisions that maintain the health, safety, best interests, and cultural, religious, and tribal values of the child while at the same time encouraging the emotional and developmental growth of the child. (15) “Relative” means a parent, stepparent, brother, sister, stepbrother, stepsister, half brother, half sister, brother-in-law, sister-in-law, first cousin, 2nd cousin, nephew, niece, uncle, aunt, stepuncle, stepaunt, or any person of a preceding generation as denoted by the prefix of grand, great, or great-great, whether by blood, marriage, or legal adoption, or the spouse of any person named in this subsection, even if the marriage is terminated by death or divorce. For purposes of the application of s. 48.028 and the federal Indian Child Welfare Act, 25 USC 1901 to 1963, “relative” includes an extended family member, as defined in s. 48.028(2)(am), whether by blood, marriage, or adoption, including adoption under tribal law or custom. For purposes of placement of a child, “relative” also includes a parent of a sibling of the child who has legal custody of that sibling. (15d) “Residential care center for children and youth” means a facility operated by a child welfare agency licensed under s. 48.60 for the care and maintenance of children residing in that facility. (16) “Secretary” means the secretary of children and families. (16m) “Secured residential care center for children and youth” has the meaning given in s. 938.02(15g). (17) “Shelter care facility” means a nonsecure place of temporary care and physical custody for children, including a holdover room, licensed by the department under s. 48.66(1)(a). (17m) “Special treatment or care” means professional services which need to be provided to a child or his or her family to protect the well-being of the child, prevent placement of the child outside the home or meet the special needs of the child. “Special treatment or care” also means professional services which need to be provided to the expectant mother of an unborn child to protect the physical health of the unborn child and of the child when born from the harmful effects resulting from the habitual lack of self-control of the expectant mother in the use of alcohol, controlled substances or controlled substance analogs, exhibited to a severe degree. This term includes, but is not limited to, medical, psychological or psychiatric treatment, alcohol or other drug abuse treatment or other services which the court finds to be necessary and appropriate. (18) “Trial” means a fact-finding hearing to determine jurisdiction. (18j) “Tribal court” means a court that has jurisdiction over Indian child custody proceedings, and that is either a court of Indian offenses or a court established and operated under the code or custom of an Indian tribe, or any other administrative body of an Indian tribe that is vested with authority over Indian child custody proceedings. (18m) “Tribal school” has the meaning given in s. 115.001(15m). (19) “Unborn child” means a human being from the time of fertilization to the time of birth.

Chapter 55. Protective Service System

Updated: 
September 12, 2018

55.01. Definitions

Updated: 
September 12, 2018

In this chapter:

(1) “Abuse” has the meaning given in s. 46.90(1)(a).

(1d) “Activated power of attorney for health care” means a power of attorney for health care that has taken effect in the manner specified in s. 155.05(2).

(1e) “Adult at risk” means any adult who has a physical or mental condition that substantially impairs his or her ability to care for his or her needs and who has experienced, is currently experiencing, or is at risk of experiencing abuse, neglect, self-neglect, or financial exploitation.

(1f) “Adult-at-risk agency” means the agency designated by the county board of supervisors under s. 55.043(1d) to receive, respond to, and investigate reports of abuse, neglect, self-neglect, and financial exploitation under s. 55.043.

(1g) “Agency” means a county department or any public or private board, corporation or association which is concerned with the specific needs and problems of developmentally disabled, mentally ill, alcoholic, drug dependent or aging persons.

(1m) “Bodily harm” has the meaning given in s. 46.90(1)(aj).

(1p) “Caregiver” has the meaning given in s. 46.90(1)(an).

(1r) “County department”, except as otherwise provided, means a county department under s. 46.215, 46.22, 46.23, 51.42 or51.437 designated under s. 55.02.

(1v) “Degenerative brain disorder” means the loss or dysfunction of brain cells to the extent that the individual is substantially impaired in his or her ability to provide adequately for his or her own care or custody or to manage adequately his or her property or financial affairs.

(2) “Developmental disability” means a disability attributable to intellectual disability, cerebral palsy, epilepsy, autism or another neurological condition closely related to an intellectual disability or requiring treatment similar to that required for individuals with an intellectual disability, which has continued or can be expected to continue indefinitely, substantially impairs an individual from adequately providing for his or her own care or custody, and constitutes a substantial handicap to the afflicted individual. The term does not include dementia that is primarily caused by degenerative brain disorder.

(2r) “False representation” includes a promise that is made with the intent not to fulfill the promise.

(2s) “Financial exploitation” has the meaning given in s. 46.90(1)(ed).

(2t) “Great bodily harm” has the meaning given in s. 939.22(14).

(4) “Interested person” means any of the following:

(a) An adult relative or friend of an individual sought to be protected under this chapter.

(b) Any official or representative of a public or private agency, corporation or association concerned with the individual's welfare.

(c) A health care agent, as defined in s. 155.01(4).

(4g) “Intermediate facility” has the meaning given in s. 46.279(1)(b).

(4i) “Investigative agency” has the meaning given in s. 46.90(1)(er).

(4m) “Mental illness” means mental disease to the extent that an afflicted person requires care, treatment or custody for his or her own welfare or the welfare of others or of the community.

(4r) “Neglect” has the meaning given in s. 46.90(1)(f).

(4t) “Nursing facility” has the meaning given in s. 46.279(1)(c).

(5) “Other like incapacities” means those conditions incurred at any age which are the result of accident, organic brain damage, mental or physical disability or continued consumption or absorption of substances, producing a condition which substantially impairs an individual from adequately providing for his or her care or custody.

(6) “Protective placement” means a placement that is made to provide for the care and custody of an individual.

(6m) “Protective placement facility” means a facility to which a court may under s. 55.12 order an individual to be provided protective placement for the primary purpose of residential care and custody.

(6p) “Protective placement unit” means a ward, wing, or other designated part of a protective placement facility.

(6r) “Protective services” includes any of the following:

(a) Outreach.

(b) Identification of individuals in need of services.

(c) Counseling and referral for services.

(d) Coordination of services for individuals.

(e) Tracking and follow-up.

(f) Social services.

(g) Case management.

(h) Legal counseling or referral.

(i) Guardianship referral.

(j) Diagnostic evaluation.

(k) Any services that, when provided to an individual with developmental disabilities, degenerative brain disorder, serious and persistent mental illness, or other like incapacity, keep the individual safe from abuse, financial exploitation, neglect, or self-neglect or prevent the individual from experiencing deterioration or from inflicting harm on himself or herself or another person.

(6s) “Psychotropic medication” means a prescription drug, as defined in s. 450.01(20), that is used to treat or manage a psychiatric symptom or challenging behavior.

(6t) “Residence” means the voluntary concurrence of an individual's physical presence with his or her intent to remain in a place of fixed habitation. Physical presence is prima facie evidence of intent to remain.

(6u) “Self-neglect” has the meaning given in s. 46.90(1)(g).

(6v) “Serious and persistent mental illness” means a mental illness that is severe in degree and persistent in duration, that causes a substantially diminished level of functioning in the primary aspects of daily living and an inability to cope with the ordinary demands of life, that may lead to an inability to maintain stable adjustment and independent functioning without long-term treatment and support, and that may be of lifelong duration. “Serious and persistent mental illness” includes schizophrenia as well as a wide spectrum of psychotic and other severely disabling psychiatric diagnostic categories, but does not include degenerative brain disorder or a primary diagnosis of a developmental disability or of alcohol or drug dependence.

(6vm) “State governmental agency” has the meaning given for “agency” in s. 16.417(1)(a).

(6w) “State official” has the meaning given in s. 46.90(1)(gr).

(6x) “Treatment facility” has the meaning given in s. 51.01(19).

(6y) “Voluntary” means according to an individual's free choice, if competent, or by choice of a guardian, if adjudicated incompetent.

Marriage and Family (Ch. 765 to 770)

Updated: 
September 12, 2018

Chapter 767. Actions Affecting the Family

Updated: 
September 12, 2018

Subchapter I. Definitions, Scope, Jurisdiction, and Recognition of Judgments

Updated: 
September 12, 2018

767.001. Definitions

Updated: 
September 12, 2018

In this chapter:
(1) “Action affecting the family” means any of the following actions:
(a) To affirm marriage.
(b) Annulment.
(c) Divorce.
(d) Legal separation (formerly divorce from bed and board).
(e) Custody.
(f) For child support.
(g) For maintenance payments.
(h) For property division.
(i) To enforce or modify a judgment or order in an action affecting the family granted in this state or elsewhere or an order granted under s. 48.355(4g)(a) or 938.355(4g)(a).
(j) For periodic family support payments.
(k) Concerning periods of physical placement or visitation rights to children, including an action to relocate and reside with a child under s. 767.481.
(L) To determine paternity.
(m) To enforce or revise an order for support 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).
(1b) “Court” includes the circuit court commissioner when the circuit court commissioner has been authorized by law to exercise the authority of the court or has been delegated that authority as authorized by law.
(1d) “Department” means the department of children and families.
(1f) “Divorce” means dissolution of the marriage relationship.
(1g) “Electronic communication” means time during which a parent and his or her child communicate by using communication tools such as the telephone, electronic mail, instant messaging, video conferencing or other wired or wireless technologies via the Internet, or another medium of communication.
(1m) “Genetic test” means a test that examines genetic markers present on blood cells, skin cells, tissue cells, bodily fluid cells or cells of another body material for the purpose of determining the statistical probability of an alleged father's paternity.
(1s) “Joint legal custody” means the condition under which both parties share legal custody and neither party's legal custody rights are superior, except with respect to specified decisions as set forth by the court or the parties in the final judgment or order.
(2) “Legal custody” means:
(a) With respect to any person granted legal custody of a child, other than a county agency or a licensed child welfare agency under par. (b), the right and responsibility to make major decisions concerning the child, except with respect to specified decisions as set forth by the court or the parties in the final judgment or order.
(b) With respect to the department or a county agency specified in s. 48.56(1) or a licensed child welfare agency granted legal custody of a child, the rights and responsibilities specified under s. 48.02(12).
(2m) “Major decisions” includes, but is not limited to, decisions regarding consent to marry, consent to enter military service, consent to obtain a motor vehicle operator's license, authorization for nonemergency health care and choice of school and religion.
(5) “Physical placement” means the condition under which a party has the right to have a child physically placed with that party and has the right and responsibility to make, during that placement, routine daily decisions regarding the child's care, consistent with major decisions made by a person having legal custody.
(6) “Sole legal custody” means the condition under which one party has legal custody.

Subchapter II. Provisions of General Application

767.117. Prohibited acts during pendency of action

(1) Prohibitions. In an action affecting the family, the petitioner upon filing the petition, the joint petitioners upon filing the joint petition and the respondent upon service of the petition are prohibited from doing any of the following: (a) Harassing, intimidating, physically abusing or imposing any restraint on the personal liberty of the other party or a minor child of either of the parties. (b) If the action is one under s. 767.001(1)(a), (b), (c), (d), (h), or (i), encumbering, concealing, damaging, destroying, transferring, or otherwise disposing of property owned by either or both of the parties, without the consent of the other party or an order of the court, except in the usual course of business, in order to secure necessities, or in order to pay reasonable costs and expenses of the action, including attorney fees. (c) Unless the action is one under s. 767.001(1)(g) or (h), without the consent of the other party or an order of the court, relocating and establishing a residence with a minor child of the parties more than 100 miles from the residence of the other party , removing a minor child of the parties from the state for more than 90 consecutive days, or concealing a minor child of the parties from the other party. (2) Duration of prohibitions. The prohibitions under sub. (1) shall apply until the action is dismissed, until a final judgment in the action is entered, or until the court orders otherwise. (3) Violations. (a) Except as provided in par. (b), a party who violates any provision of sub. (1) may be proceeded against under ch. 785 for contempt of court. (b) An act in violation of sub. (1)(c) is not a contempt of court if the court finds that the action was taken to protect a party or a minor child of the parties from physical abuse by the other party and that there was no reasonable opportunity under the circumstances for the party to obtain an order under sub. (2) authorizing the action.

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Subchapter IV. Annulment, Divorce, and Legal Separation

767.301. Residence requirements

No action to affirm marriage or for annulment under s. 767.001(1)(a) or (b) may be brought unless at least one of the parties has been a bona fide resident of the county in which the action is brought for not less than 30 days next preceding the commencement of the action, or unless the marriage has been contracted within this state within one year prior to the commencement of the action. No action for divorce or legal separation under s. 767.001(1)(c) or (d) may be brought unless at least one of the parties has been a bona fide resident of the county in which the action is brought for not less than 30 days next preceding the commencement of the action. No action for divorce under s. 767.001(1)(c) may be brought unless at least one of the parties has been a bona fide resident of this state for not less than 6 months next preceding the commencement of the action.

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767.315. 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 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.

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767.335. Waiting period for final hearing or trial

An action for divorce or legal separation may not be brought to final hearing or trial until the first of the following occurs:

(1) Generally. The expiration of 120 days after service of the summons and petition upon the respondent or the expiration of 120 days after the filing of the joint petition.
(2) Emergency. An order by the court, after consideration of the recommendation of a circuit court commissioner, directing an immediate hearing on the petition for the protection of the health or safety of either of the parties or of any child of the marriage or for other emergency reasons consistent with the policies of this chapter. The court shall, upon granting the order, specify the grounds for the order.
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Subchapter V. Child Custody, Placement, and Visitation

Updated: 
September 12, 2018

767.41. Custody and physical placement

Updated: 
September 12, 2018

(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.
(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), 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 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 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 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 well-being 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.

767.43. Visitation rights of certain persons

Updated: 
September 12, 2018

(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; recommendations. (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.

767.407. Guardian ad litem for minor children

Updated: 
September 12, 2018

(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 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.

767.451. Revision of legal custody and physical placement orders

Updated: 
September 12, 2018

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 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.

(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).

767.471. Enforcement of physical placement orders

Updated: 
September 12, 2018

(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 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

Updated: 
September 12, 2018

(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 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. 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 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 that are originally commenced on or after April 5, 2018.

2. Cases that were 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.

Subchapter VI. Support and Maintenance

Updated: 
September 12, 2018

767.56. Maintenance

Updated: 
September 12, 2018

(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 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.

767.511. Child support

Updated: 
September 12, 2018

(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).
(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.

Actions and Proceedings in Special Cases (Ch. 775 to 788)

Updated: 
September 12, 2018

Chapter 785. Contempt of Court

Updated: 
September 12, 2018

785.04. Sanctions authorized

Updated: 
September 12, 2018

(1) Remedial sanction. A court may impose one or more of the following remedial sanctions:

(a) Payment of a sum of money sufficient to compensate a party for a loss or injury suffered by the party as the result of a contempt of court.

(b) Imprisonment if the contempt of court is of a type included in s. 785.01(1)(b), (bm), (c) or (d). The imprisonment may extend only so long as the person is committing the contempt of court or 6 months, whichever is the shorter period.

(c) A forfeiture not to exceed $2,000 for each day the contempt of court continues.

(d) An order designed to ensure compliance with a prior order of the court.

(e) A sanction other than the sanctions specified in pars. (a) to (d) if it expressly finds that those sanctions would be ineffectual to terminate a continuing contempt of court.

(2) Punitive sanction. (a) Nonsummary procedure. A court, after a finding of contempt of court in a nonsummary procedure under s. 785.03(1)(b), may impose for each separate contempt of court a fine of not more than $5,000 or imprisonment in the county jail for not more than one year or both.

(b) Summary procedure. A court, after a finding of contempt of court in a summary procedure under s. 785.03(2), may impose for each separate contempt of court a fine of not more than $500 or imprisonment in the county jail for not more than 30 days or both.

(3) Past conduct. A punitive sanction may be imposed for past conduct which was a contempt of court even though similar present conduct is a continuing contempt of court.

Civil Procedure (Ch. 799 to 847)

Updated: 
September 12, 2018

Chapter 801. Civil Procedure--Commencement of Action and Venue

801.50. Venue in civil actions or special proceedings

(1) A defect in venue shall not affect the validity of any order or judgment.
(2) Except as otherwise provided by statute, venue in civil actions or special proceedings shall be as follows:
(a) In the county where the claim arose;
(b) In the county where the real or tangible personal property, or some part thereof, which is the subject of the claim, is situated;
(c) In the county where a defendant resides or does substantial business; or
(d) If the provisions under par. (a) to (c) do not apply, then venue shall be in any county designated by the plaintiff.
(3)(a) Except as provided in pars. (b) and (c), all actions in which the sole defendant is the state, any state board or commission, or any state officer, employee, or agent in an official capacity shall be venued in the county designated by the plaintiff unless another venue is specifically authorized by law.
(b) All actions relating to the validity or invalidly of a rule shall be venued as provided in s. 227.40(1).
(c) An action commenced by a prisoner, as defined under s. 801.02(7)(a)2., in which the sole defendant is the state, any state board or commission, or any state officer, employee, or agent in an official capacity shall be venued in Dane County unless another venue is specifically authorized by law.
(3m) Venue in an action under s. 323.60(8) or (9) related to hazardous substance releases shall be in the county as provided under s. 323.60(10).
(4) Venue of an action seeking a remedy available by habeas corpus shall be in the county:
(a) Where the plaintiff was convicted or sentenced if the action seeks relief from a judgment of conviction or sentence under which the plaintiff's liberty is restrained.
(b) Where the liberty of the plaintiff is restrained if the action seeks relief concerning any other matter relating to a restraint on the liberty of the plaintiff.
(4m) Venue of an action to challenge the apportionment of any congressional or state legislative district shall be as provided in s. 751.035. Not more than 5 days after an action to challenge the apportionment of a congressional or state legislative district is filed, the clerk of courts for the county where the action is filed shall notify the clerk of the supreme court of the filing.
(5) Venue of an action for certiorari to review a probation, extended supervision, or parole revocation, a denial by a program review committee under s. 302.113(9g) of a petition for modification of a bifurcated sentence, or a refusal of parole shall be the county in which the relator was last convicted of an offense for which the relator was on probation, extended supervision, or parole or for which the relator is currently incarcerated.
(5c) Venue of an action for certiorari brought by the department of corrections under s. 302.113(9)(d) or 302.114(9)(d) to review a decision to not revoke extended supervision shall be in the county in which the person on extended supervision was convicted of the offense for which he or she is on extended supervision.
(5m) Venue of an action arising from a consumer credit transaction, as defined in s. 421.301(10), shall be in any county specified in s. 421.401(1).
(5p) Venue of an environmental pollution action brought by a person who is not a resident of this state against a commission created under s. 200.23 shall be in the county which contains the 1st class city that is located wholly or partially within the applicable district created under s. 200.23.
(5r) Venue of an action under s. 813.12 growing out of domestic abuse shall be in the county in which the cause of action arose, where the petitioner or the respondent resides or where the petitioner is temporarily living, except that venue may be in any county within a 100-mile radius of the county seat of the county in which the petitioner resides or in any county in which the petitioner is temporarily living if the petitioner is any of the following:
(a) A victim advocate, as defined in s. 905.045(1)(e).
(b) An employee of the county court system.
(c) A legal professional practicing law, as defined in SCR 23.01.
(d) A current or former law enforcement officer, as defined in s. 102.475(8)(c).
(e) The spouse of a person listed in par. (a), (b), (c), or (d).
(f) A person who is currently or has been in a dating relationship, as defined in s. 813.12(1)(ag), with or a person who has a child in common with a person listed in par. (a), (b), (c), or (d).
(g) An immediate family member, as defined in s. 97.605(4)(a)2., of a person listed in par. (a), (b), (c), or (d).
(h) A household member, as defined in s. 813.12(1)(c), of a person listed in par. (a), (b), (c), or (d).
(5s) Venue of an action under s. 813.122 or 813.125 shall be in the county in which the cause of action arose or where the petitioner or the respondent resides, except that venue may be in any county within a 100-mile radius of the county seat of the county in which the petitioner resides or in any county in which the petitioner is temporarily living if the petitioner is any of the following:
(a) A victim advocate, as defined in s. 905.045(1)(e).
(b) An employee of the county court system.
(c) A legal professional practicing law, as defined in SCR 23.01.
(d) A current or former law enforcement officer, as defined in s. 102.475(8)(c).
(e) The spouse of a person listed in par. (a), (b), (c), or (d).
(f) A person who is currently or has been in a dating relationship, as defined in s. 813.12(1)(ag), with or a person who has a child in common with a person listed in par. (a), (b), (c), or (d).
(g) An immediate family member, as defined in s. 97.605(4)(a)2., of a person listed in par. (a), (b), (c), or (d).
(h) A household member, as defined in s. 813.12(1)(c), of a person listed in par. (a), (b), (c), or (d).
(5t) Except as otherwise provided in ss. 801.52 and 971.223(1) and (2), venue in a civil action to impose a forfeiture upon a resident of this state for a violation of chs. 5 to 12, subch. III of ch. 13, or subch. III of ch. 19, or for a violation of any other law arising from or in relation to the official functions of the subject of the investigation or any matter that involves elections, ethics, or lobbying regulation under chs. 5 to 12, subch. III of ch. 13, or subch. III of ch. 19, shall be in circuit court for the county where the defendant resides. For purposes of this subsection, a person other than a natural person resides within a county if the person's principal place of operation is located within that county. This subsection does not affect which prosecutor has responsibility under s. 978.05(2) to prosecute civil actions arising from violations under s. 971.223(1).
(5v) Venue of an action under s. 165.76(6) shall be in any of the following counties:
(a) The county where the respondent resides.
(b) The county in which a court order requiring the respondent to submit a biological specimen to the state crime laboratories for deoxyribonucleic acid analysis was entered.
(c) The county in which any court proceeding was held that resulted in a requirement that the respondent submit a biological specimen to the state crime laboratories for deoxyribonucleic acid analysis.
(6) Venue under this section may be changed under s. 801.52.

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Chapter 813. Injunctions, Ne Exeat and Receivers

Updated: 
September 12, 2018

813.12. Domestic abuse restraining orders and injunctions

Updated: 
September 12, 2018

(1) Definitions. In this section:

(ad) “Caregiver” means an individual who is a provider of in-home or community care to an individual through regular and direct contact.

(ag) “Dating relationship” means a romantic or intimate social relationship between 2 adult individuals but “dating relationship” does not include a casual relationship or an ordinary fraternization between 2 individuals in a business or social context. A court shall determine if a dating relationship existed by considering the length of the relationship, the type of the relationship, and the frequency of the interaction between the adult individuals involved in the relationship.

(am) “Domestic abuse” means any of the following engaged in by an adult family member or adult household member against another adult family member or adult household member, by an adult caregiver against an adult who is under the caregiver's care, by an adult against his or her adult former spouse, by an adult against an adult with whom the individual has or had a dating relationship, or by an adult against an adult with whom the person has a child in common:

1. Intentional infliction of physical pain, physical injury or illness.

2. Intentional impairment of physical condition.

3. A violation of s. 940.225(1), (2) or (3).

4. A violation of s. 940.32.

5. A violation of s. 943.01, involving property that belongs to the individual.

6. A threat to engage in the conduct under subd. 1., 2., 3., 4., or 5.

(b) “Family member” means a spouse, a parent, a child or a person related by blood or adoption to another person.

(c) “Household member” means a person currently or formerly residing in a place of abode with another person.

(ce) “Household pet” means a domestic animal that is not a farm animal, as defined in s. 951.01(3), that is kept, owned, or cared for by the petitioner or by a family member or a household member of the petitioner.

(cg) “Reasonable grounds” means more likely than not that a specific event has occurred or will occur.

(cj) “Regular and direct contact” means face-to-face physical proximity to an individual that is planned, scheduled, expected, or periodic.

(d) “Tribal court” means a court established by any federally recognized Wisconsin Indian tribe or band, except the Menominee Indian tribe of Wisconsin.

(e) “Tribal order or injunction” means a temporary restraining order or injunction issued by a tribal court under a tribal domestic abuse ordinance adopted in conformity with this section.

(2) Commencement of action and response. (a) No action under this section may be commenced by complaint and summons. An action under this section may be commenced only by a petition described under sub. (5)(a). The action commences with service of the petition upon the respondent if a copy of the petition is filed before service or promptly after service. If the judge or a circuit court commissioner extends the time for a hearing under sub. (3)(c) and the petitioner files an affidavit with the court stating that personal service by the sheriff or a private server under s. 801.11(1)(a) or (b) was unsuccessful because the respondent is avoiding service by concealment or otherwise, the judge or circuit court commissioner shall inform the petitioner that he or she may serve the respondent by publication of a summary of the petition as a class 1 notice, under ch. 985, and by mailing or sending a facsimile if the respondent's post-office address or facsimile number is known or can with due diligence be ascertained. The mailing or sending of a facsimile may be omitted if the post-office address or facsimile number cannot be ascertained with due diligence. A summary of the petition published as a class 1 notice shall include the name of the respondent and of the petitioner, notice of the temporary restraining order, and notice of the date, time, and place of the hearing regarding the injunction. The court shall inform the petitioner in writing that, if the petitioner chooses to have the documents in the action served by the sheriff, the petitioner should contact the sheriff to verify the proof of service of the petition.

(b) A petition may be filed in conjunction with an action affecting the family commenced under ch. 767, but commencement of an action affecting the family or any other action is not necessary for the filing of a petition or the issuance of a temporary restraining order or an injunction. A judge or circuit court commissioner may not make findings or issue orders under s. 767.225 or 767.41 while granting relief requested only under this section. Section 813.06 does not apply to an action under this section. The respondent may respond to the petition either in writing before or at the hearing on the issuance of the injunction or orally at that hearing.

(c) When the respondent is served with the petition under this subsection, the person who serves the respondent shall also provide the respondent all of the following information:

1. Notice of the requirements and penalties under s. 941.29 and notice of any similar applicable federal laws and penalties.

2. An explanation of s. 813.1285, including the procedures for surrendering a firearm and the circumstances listed under s. 813.1285 under which a respondent must appear at a hearing to surrender firearms.

3. A firearm possession form developed under s. 813.1285(5)(a), with instructions for completing and returning the form.

(2m) Two-part procedure. Procedure for an action under this section is in 2 parts. First, if the petitioner requests a temporary restraining order the court shall issue or refuse to issue that order. Second, the court shall hold a hearing under sub. (4) on whether to issue an injunction, which is the final relief. If the court issues a temporary restraining order, the order shall set forth the date for the hearing on an injunction. If the court does not issue a temporary restraining order, the date for the hearing shall be set upon motion by either party.

(3) Temporary restraining order. (a) A judge or circuit court commissioner shall issue a temporary restraining order ordering the respondent to refrain from committing acts of domestic abuse against the petitioner, to avoid the petitioner's residence, except as provided in par. (am), or any other location temporarily occupied by the petitioner or both, or to avoid contacting or causing any person other than a party's attorney or a law enforcement officer to contact the petitioner unless the petitioner consents in writing, to refrain from removing, hiding, damaging, harming, or mistreating, or disposing of, a household pet, to allow the petitioner or a family member or household member of the petitioner acting on his or her behalf to retrieve a household pet, or any combination of these remedies requested in the petition, or any other appropriate remedy not inconsistent with the remedies requested in the petition, if all of the following occur:

1. The petitioner submits to the judge or circuit court commissioner a petition alleging the elements set forth under sub. (5)(a).

2. The judge or circuit court commissioner finds reasonable grounds to believe that the respondent has engaged in, or based on prior conduct of the petitioner and the respondent may engage in, domestic abuse of the petitioner.

(aj) In determining whether to issue a temporary restraining order, the judge or circuit court commissioner shall consider the potential danger posed to the petitioner and the pattern of abusive conduct of the respondent but may not base his or her decision solely on the length of time since the last domestic abuse or the length of time since the relationship ended. The judge or circuit court commissioner may grant only the remedies requested or approved by the petitioner. The judge or circuit court commissioner may not dismiss or deny granting a temporary restraining order because of the existence of a pending action or of any other court order that bars contact between the parties, nor due to the necessity of verifying the terms of an existing court order.

(am) If the petitioner and the respondent are not married, the respondent owns the premises where the petitioner resides and the petitioner has no legal interest in the premises, in lieu of ordering the respondent to avoid the petitioner's residence under par. (a) the judge or circuit court commissioner may order the respondent to avoid the premises for a reasonable time until the petitioner relocates and shall order the respondent to avoid the new residence for the duration of the order.

(b) Notice need not be given to the respondent before issuing a temporary restraining order under this subsection. A temporary restraining order may be entered only against the respondent named in the petition.

(c) The temporary restraining order is in effect until a hearing is held on issuance of an injunction under sub. (4), except that the court may extend the temporary restraining order under s. 813.1285. The temporary restraining order is not voided if the respondent is admitted into a dwelling that the order directs him or her to avoid. A judge or circuit court commissioner shall hold a hearing on issuance of an injunction within 14 days after the temporary restraining order is issued, unless the time is extended upon the written consent of the parties, extended under s. 801.58(2m), or extended once for 14 days upon a finding that the respondent has not been served with a copy of the temporary restraining order although the petitioner has exercised due diligence. A judge or court commissioner may not extend the temporary restraining order in lieu of ruling on the issuance of an injunction.

(d) The judge or circuit court commissioner shall advise the petitioner of the right to serve the respondent the petition by published notice if with due diligence the respondent cannot be served as provided under s. 801.11(1)(a) or (b). The clerk of circuit court shall assist the petitioner with the preparation of the notice and filing of the affidavit of printing.

(4) Injunction. (a) A judge or circuit court commissioner may grant an injunction ordering the respondent to refrain from committing acts of domestic abuse against the petitioner, to avoid the petitioner's residence, except as provided in par. (am), or any other location temporarily occupied by the petitioner or both, or to avoid contacting or causing any person other than a party's attorney or a law enforcement officer to contact the petitioner unless the petitioner consents to that contact in writing, to refrain from removing, hiding, damaging, harming, or mistreating, or disposing of, a household pet, to allow the petitioner or a family member or household member of the petitioner acting on his or her behalf to retrieve a household pet, or any combination of these remedies requested in the petition, or any other appropriate remedy not inconsistent with the remedies requested in the petition, if all of the following occur:

1. The petitioner files a petition alleging the elements set forth under sub. (5)(a).

2. The petitioner serves upon the respondent a copy or summary of the petition and notice of the time for hearing on the issuance of the injunction, or the respondent serves upon the petitioner notice of the time for hearing on the issuance of the injunction.

3. After hearing, the judge or circuit court commissioner finds reasonable grounds to believe that the respondent has engaged in, or based upon prior conduct of the petitioner and the respondent may engage in, domestic abuse of the petitioner.

(aj) In determining whether to issue an injunction, the judge or circuit court commissioner shall consider the potential danger posed to the petitioner and the pattern of abusive conduct of the respondent but may not base his or her decision solely on the length of time since the last domestic abuse or the length of time since the relationship ended. The judge or circuit court commissioner may grant only the remedies requested by the petitioner. The judge or circuit court commissioner may not dismiss or deny granting an injunction because of the existence of a pending action or of any other court order that bars contact between the parties, nor due to the necessity of verifying the terms of an existing court order.

(am) If the petitioner and the respondent are not married, the respondent owns the premises where the petitioner resides and the petitioner has no legal interest in the premises, in lieu of ordering the respondent to avoid the petitioner's residence under par. (a) the judge or circuit court commissioner may order the respondent to avoid the premises for a reasonable time until the petitioner relocates and shall order the respondent to avoid the new residence for the duration of the order.

(b) The judge or circuit court commissioner may enter an injunction only against the respondent named in the petition. No injunction may be issued under this subsection under the same case number against the person petitioning for the injunction. The judge or circuit court commissioner may not modify an order restraining the respondent based solely on the request of the respondent.

(c)1. An injunction under this subsection is effective according to its terms, for the period of time that the petitioner requests, but not more than 4 years, except as provided in par. (d). An injunction granted under this subsection is not voided if the petitioner allows or initiates contact with the respondent or by the admittance of the respondent into a dwelling that the injunction directs him or her to avoid.

2. When an injunction expires, the court shall extend the injunction if the petitioner states that an extension is necessary to protect him or her. This extension shall remain in effect until 4 years after the date the court first entered the injunction, except as provided in par. (d).

4. Notice need not be given to the respondent before extending an injunction under subd. 2. The clerk of courts shall notify the respondent after the court extends an injunction under subd. 2.

(d)1. A judge or circuit court commissioner may, upon issuing an injunction or granting an extension of an injunction issued under this subsection, order that the injunction is in effect for not more than 10 years, if the court finds, by a preponderance of the evidence stated on the record, that any of the following is true:

a. There is a substantial risk that the respondent may commit first-degree intentional homicide under s. 940.01, or 2nd-degree intentional homicide under s. 940.05, against the petitioner.

b. There is a substantial risk that the respondent may commit sexual assault under s. 940.225(1), (2), or (3), or under s. 948.02(1) or (2), against the petitioner.

2. This paragraph does not prohibit a petitioner from requesting a new temporary restraining order under sub. (3) or injunction under this subsection before or at the expiration of a previously entered order or injunction.

(4g) Order; telephone services. (a) Unless a condition described in par. (b) exists, a judge or circuit court commissioner who issues an injunction under sub. (4) may, upon request by the petitioner, order a wireless telephone service provider to transfer to the petitioner the right to continue to use a telephone number or numbers indicated by the petitioner and the financial responsibility associated with the number or numbers, as set forth in par. (c). The petitioner may request transfer of each telephone number he or she, or a minor child in his or her custody, uses. The order shall contain all of the following:

1. The name and billing telephone number of the account holder.

2. Each telephone number that will be transferred.

3. A statement that the provider transfers to the petitioner all financial responsibility for and right to the use of any telephone number transferred under this subsection. In this subdivision, “financial responsibility” includes monthly service costs and costs associated with any mobile device associated with the number.

(b) A wireless telephone service provider shall terminate the respondent's use of, and shall transfer to the petitioner use of, the telephone number or numbers indicated in par. (a) unless it notifies the petitioner, within 72 hours after it receives the order, that one of the following applies:

1. The account holder named in the order has terminated the account.

2. A difference in network technology would prevent or impair the functionality of a device on a network if the transfer occurs.

3. The transfer would cause a geographic or other limitation on network or service provision to the petitioner.

4. Another technological or operational issue would prevent or impair the use of the telephone number if the transfer occurs.

(c) The petitioner assumes all financial responsibility for and right to the use of any telephone number transferred under this subsection. In this paragraph, “financial responsibility” includes monthly service costs and costs associated with any mobile device associated with the number.

(d) A wireless telephone service provider may apply to the petitioner its routine and customary requirements for establishing an account or transferring a number, including requiring the petitioner to provide proof of identification, financial information, and customer preferences.

(e) A wireless telephone service provider is immune from civil liability for its actions taken in compliance with a court order issued under this subsection.

(4m) Notice of restriction on firearm possession; surrender of firearms. (a) An injunction issued under sub. (4) shall do all of the following:

1. Inform the respondent named in the petition of the requirements and penalties under s. 941.29 and any similar applicable federal laws and penalties.

2. Except as provided in par. (ag), require in writing the respondent to surrender any firearms that he or she owns or has in his or her possession to the sheriff of the county in which the action under this section was commenced, to the sheriff of the county in which the respondent resides or to another person designated by the respondent and approved by the judge or circuit court commissioner, in accordance with s. 813.1285.

(ag) If the respondent is a peace officer, an injunction issued under sub. (4) may not require the respondent to surrender a firearm that he or she is required, as a condition of employment, to possess whether or not he or she is on duty.

(5) Petition. (a) The petition shall allege facts sufficient to show the following:

1. The name of the petitioner and that the petitioner is the alleged victim.

2. The name of the respondent and that the respondent is an adult.

3. That the respondent engaged in, or based on prior conduct of the petitioner and the respondent may engage in, domestic abuse of the petitioner.

4. If the petitioner knows of any other court proceeding in which the petitioner is a person affected by a court order or judgment that includes provisions regarding contact with the respondent, any of the following that are known by the petitioner:

a. The name or type of the court proceeding.

b. The date of the court proceeding.

c. The types of provisions regarding contact between the petitioner and respondent.

(am) The petition shall request that the respondent be restrained from committing acts of domestic abuse against the petitioner, that the respondent be ordered to avoid the petitioner's residence, or that the respondent be ordered to avoid contacting the petitioner or causing any person other than the respondent's attorney to contact the petitioner unless the petitioner consents to the contact in writing, or any combination of these requests.

(b) The clerk of circuit court shall provide the simplified forms provided under s. 49.165(3)(c) to help a person file a petition.

(c) A judge or circuit court commissioner shall accept any legible petition for a temporary restraining order or injunction.

(d) A petition may be prepared and filed by the person who alleges that he or she has been the subject of domestic abuse or by the guardian of an individual adjudicated incompetent in this state who has been the subject of domestic abuse.

(5g) Stipulation. If the parties enter into a stipulation to convert a petition under this section to a petition for a temporary restraining order or injunction under s. 813.125, the court may not approve that stipulation unless all of the following occur:

(a) Either or both parties submit an oral request on the record for the conversion explaining why the conversion of the petition is requested.

(b) The court addresses the petitioner personally and determines that the petitioner entered into the stipulation voluntarily and with an understanding of the differences between the orders issued under subs. (4) and (4m) and s. 813.125(4) and (4m).

(5m) Confidentiality of victim's address. The petition under sub. (5) and the court order under sub. (3) , (4), or (4g) may not disclose the address of the alleged victim. The petitioner shall provide the clerk of circuit court with the petitioner's address when he or she files a petition under this section. The clerk shall maintain the petitioner's address in a confidential manner.

(6) Enforcement assistance. (a) If an order is issued under this section, upon request by the petitioner the court or circuit court commissioner shall order the sheriff to accompany the petitioner and assist in placing him or her in physical possession of his or her residence.

(ag)1. The clerk of the circuit court shall forward to the sheriff any temporary restraining order, injunction, or other document or notice that must be served on the respondent under this section and the sheriff shall assist the petitioner in executing or serving the temporary restraining order, injunction, or other document or notice on the respondent. The petitioner may, at his or her expense, elect to use a private server to effect service.

2. If the petitioner elects service by the sheriff, the clerk of circuit court shall provide a form supplied by the sheriff to the petitioner that allows the petitioner to provide information about the respondent that may be useful to the sheriff in effecting service. The clerk shall forward the completed form to the sheriff. The clerk shall maintain the form provided under this subdivision in a confidential manner.

(am)1. If an injunction is issued or extended under sub. (4) or if a tribal injunction is filed under s. 813.128(3g), the clerk of the circuit court shall notify the department of justice of the injunction and shall provide the department of justice with information concerning the period during which the injunction is in effect and information necessary to identify the respondent for purposes of responding to a request under s. 165.63 or for purposes of a firearms restrictions record search under s. 175.35(2g)(c) or a background check under s. 175.60(9g)(a).

2. Except as provided in subd. 3., the department of justice may disclose information that it receives under subd. 1. only to respond to a request under s. 165.63 or as part of a firearms restrictions record search under s. 175.35(2g)(c) or a background check unders. 175.60(9g)(a).

3. The department of justice shall disclose any information that it receives under subd. 1. to a law enforcement agency when the information is needed for law enforcement purposes.

(b) Within one business day after an order or injunction is issued, extended, modified or vacated under this section, the clerk of the circuit court shall send a copy of the order or injunction, or of the order extending, modifying or vacating an order or injunction, to the sheriff or to any other local law enforcement agency which is the central repository for orders and injunctions and which has jurisdiction over the petitioner's premises.

(c) No later than 24 hours after receiving the information under par. (b), the sheriff or other appropriate local law enforcement agency under par. (b) shall enter the information concerning an order or injunction issued, extended, modified or vacated under this section into the transaction information for management of enforcement system. The sheriff or other appropriate local law enforcement agency shall also make available to other law enforcement agencies, through a verification system, information on the existence and status of any order or injunction issued under this section. The information need not be maintained after the order or injunction is no longer in effect.

(d) The issuance of an order under s. 813.12(3) or (4) is enforceable despite the existence of any other criminal or civil order restricting or prohibiting contact.

(e) A law enforcement agency and a clerk of circuit court may use electronic transmission to facilitate the exchange of documents under this section. Any person who uses electronic transmission shall ensure that the electronic transmission does not allow unauthorized disclosure of the documents transmitted.

(7) Arrest. (am) A law enforcement officer shall arrest and take a person into custody if all of the following occur:

1. A petitioner under sub. (5) presents the law enforcement officer with a copy of a court order issued under sub. (3) or (4), or the law enforcement officer determines that such an order exists through communication with appropriate authorities.

2. The law enforcement officer has probable cause to believe that the person has violated the court order issued under sub. (3) or (4) by any circuit court in this state.

(c) A respondent who does not appear at a hearing at which the court orders an injunction under sub. (4) but who has been served with a copy of the petition and notice of the time for hearing under sub. (4)(a)2. has constructive knowledge of the existence of the injunction and shall be arrested for violation of the injunction regardless of whether he or she has been served with a copy of the injunction.

(7m) Transcripts. The judge or circuit court commissioner shall record the temporary restraining order or injunction hearing upon the request of the petitioner.

(8) Penalty. (a) Whoever knowingly violates a temporary restraining order or injunction issued under sub. (3) or (4) shall be fined not more than $10,000 or imprisoned for not more than 9 months or both.

(b) The petitioner does not violate the court order under sub. (3) or (4) if he or she admits into his or her residence a person ordered under sub. (3) or (4) to avoid that residence.

(9) Notice of full faith and credit. An order or injunction issued under sub. (3) or (4) shall include a statement that the order or injunction may be accorded full faith and credit in every civil or criminal court of the United States, civil or criminal courts of any other state and Indian tribal courts to the extent that such courts may have personal jurisdiction over nontribal members.

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813.122. Child abuse restraining orders and injunctions

Updated: 
September 12, 2018

(1) Definitions. In this section:

(a) “Abuse” has the meaning given in s. 48.02(1) (a) and (b) to (gm) and, in addition, includes a threat to engage in any conduct under s. 48.02 (1), other than conduct under s. 48.02 (1) (am).

(b) “Child” means any person under 18 years of age.

(c) “Child victim” means the child who is the victim or the alleged victim of abuse.

(d) “Child victim advocate” means any person who counsels child victims, assists child victims in coping with the impact of the crime or otherwise acts in support of child victims.

(e) “Household pet” means a domestic animal that is not a farm animal, as defined in s. 951.01(3), that is kept, owned, or cared for by a child victim or by a family member or a household member of a child victim.

(2) Commencement of action and response. (a) No action under this section may be commenced by complaint and summons. An action under this section may be commenced only by a petition described under sub. (6)(a). The action commences with service of the petition upon the respondent if a copy of the petition is filed before service or promptly after service. Notwithstanding s. 803.01(3)(a), the child victim or a parent, stepparent or legal guardian of the child victim may be a petitioner under this section. Section 813.06 does not apply to an action under this section. The respondent may respond to the petition either in writing before or at the hearing on the issuance of the injunction or orally at that hearing. The court shall inform the petitioner in writing that, if the petitioner chooses to have the documents in the action served by the sheriff, the petitioner should contact the sheriff to verify the proof of service of the petition.

(b) When the respondent is served with the petition under this subsection, the person who serves the respondent shall also provide the respondent with all of the following information:

1. Notice of the requirements and penalties under s. 941.29 and notice of any similar applicable federal laws and penalties.

2. An explanation of s. 813.1285, including the procedures for surrendering a firearm and the circumstances listed under s. 813.1285 under which a respondent must appear at a hearing to surrender firearms.

3. A firearm possession form developed under s. 813.1285(5)(a), with instructions for completing and returning the form.

(3) General procedure. (a) Procedure for an action under this section is in 2 parts. First, if the petitioner requests a temporary restraining order, the court or circuit court commissioner shall issue or refuse to issue that order. Second, the court shall hold a hearing under sub. (5) on whether to issue an injunction, which is the final relief. If the court or circuit court commissioner issues a temporary restraining order, the order shall set forth the date for the hearing on an injunction. If the court or circuit court commissioner does not issue a temporary restraining order, the date for the hearing shall be set upon motion by either party.

(b) 1m. Except as provided in subd. 2m., the court or circuit court commissioner, on its or his or her own motion or the motion of any party, may order that a guardian ad litem be appointed for the child victim in accordance with s. 48.235.

2m. The court or circuit court commissioner shall appoint a guardian ad litem if the respondent is a parent of the child.

(bp) All persons, other than the parties, their attorneys, witnesses, child victim advocates, service representatives, as defined in s. 895.45(1)(c), court personnel and any guardian ad litem, shall be excluded from any hearing under this section.

(bq) Any record of an action under this section is confidential and is available only to the parties, their attorneys, any guardian ad litem, court personnel, the child victim, law enforcement, and any applicable court upon appeal, except that a record may be available to any other person as required by law, as necessary to effect service, or upon a court order for good cause shown.

(c) An action under this section may pertain to more than one child victim.

(4) Temporary restraining order. (a) A judge or circuit court commissioner shall issue a temporary restraining order ordering the respondent to avoid the child victim's residence or any premises temporarily occupied by the child victim or both, to avoid contacting or causing any person other than a party's attorney to contact the child victim unless the petitioner consents in writing and the judge or circuit court commissioner agrees that the contact is in the best interests of the child victim, to refrain from removing, hiding, damaging, harming, or mistreating, or disposing of, a household pet, and to allow the petitioner or a family member or household member of the petitioner acting on his or her behalf to retrieve a household pet, if all of the following occur:

1. The petitioner submits to the judge or circuit court commissioner a petition alleging the elements set forth under sub. (6)(a).

2. The judge or circuit court commissioner finds reasonable grounds to believe that the respondent has engaged in, or based on prior conduct of the child victim and the respondent may engage in, abuse of the child victim.

(b) Notice need not be given to the respondent before issuing a temporary restraining order under this subsection. A temporary restraining order may be entered only against the respondent named in the petition.

(c) The temporary restraining order is in effect until a hearing is held on issuance of an injunction under sub. (5), except that the court may extend the temporary restraining order under s. 813.1285. A judge shall hold a hearing on issuance of an injunction within 14 days after the temporary restraining order is issued, unless the time is extended upon the written consent of the parties, extended under s. 801.58(2m), or extended once for 14 days upon a finding that the respondent has not been served with a copy of the temporary restraining order although the petitioner has exercised due diligence. A judge or court commissioner may not extend the temporary restraining order in lieu of ruling on the issuance of an injunction.

(5) Injunction. (a) A judge may grant an injunction ordering the respondent to avoid the child victim's residence or any premises temporarily occupied by the child victim or both, to avoid contacting or causing any person other than a party's attorney to contact the child victim unless the petitioner consents to that contact in writing and the judge agrees that the contact is in the best interests of the child victim, to refrain from removing, hiding, damaging, harming, or mistreating, or disposing of, a household pet, and to allow the petitioner or a family member or household member of the petitioner acting on his or her behalf to retrieve a household pet, if all of the following occur:

1. The petitioner files a petition alleging the elements set forth under sub. (6)(a).

2. The petitioner serves upon the respondent a copy of the petition and notice of the time for hearing on the issuance of the injunction, or the respondent serves upon the petitioner notice of the time for hearing on the issuance of the injunction.

3. After hearing, the judge finds reasonable grounds to believe that the respondent has engaged in, or based upon prior conduct of the child victim and the respondent may engage in, abuse of the child victim.

(b) If the respondent is the parent of the child victim, the judge shall modify the order under par. (a) to provide the parent reasonable visitation rights, unless the judge finds that visitation would endanger the child's physical, mental or emotional health. The judge may provide that any authorized visitation be supervised.

(c) The injunction may be entered only against the respondent named in the petition.

(d)1. An injunction under this subsection is effective according to its terms, but, except as provided in par. (dm), for not more than 2 years or until the child victim attains 18 years of age, whichever occurs first.

2. When an injunction expires, the court shall extend the injunction if the petitioner states that an extension is necessary to protect the child victim. This extension shall remain in effect until 6 months after the date the court first entered the injunction or until the child attains 18 years of age, whichever occurs first, except as provided in par. (dm).

3. If the petitioner states that an extension is necessary to protect the child victim, the court may extend the injunction for not more than 2 years or until the child attains 18 years of age, whichever occurs first, except as provided in par. (dm).

4. Notice need not be given to the respondent before extending an injunction under subd. 2. or 3. The clerk of courts shall notify the respondent after the court extends an injunction under subd. 2. or 3.

(dm)1. A judge may, upon issuing an injunction or granting an extension of an injunction issued under this subsection, order that the injunction is in effect for not more than 5 years, if the court finds, by a preponderance of the evidence stated on the record, that any of the following is true:

a. There is a substantial risk that the respondent may commit first-degree intentional homicide under s. 940.01, or 2nd-degree intentional homicide under s. 940.05, against the child victim.

b. There is a substantial risk that the respondent may commit sexual assault under s. 940.225(1), (2), or (3), or under s. 948.02(1) or (2), against the child victim.

2. This paragraph does not prohibit a petitioner from requesting a new temporary restraining order under sub. (4) or injunction under this subsection before or at the expiration of a previously entered order or injunction.

(e) An injunction under this section may direct the payment of child support using a method of calculation authorized under s. 767.511.

(5c) Order; telephone services. (a) Unless a condition described in par. (b) exists, a judge or circuit court commissioner who issues an injunction under sub. (5) may, upon request by the petitioner, order a wireless telephone service provider to transfer to the petitioner the right to continue to use a telephone number or numbers indicated by the petitioner and the financial responsibility associated with the number or numbers, as set forth in par. (c). The petitioner may request transfer of each telephone number he or she, or a minor child in his or her custody, uses. The order shall contain all of the following:

1. The name and billing telephone number of the account holder.

2. Each telephone number that will be transferred.

3. A statement that the provider transfers to the petitioner all financial responsibility for and right to the use of any telephone number transferred under this subsection. In this subdivision, “financial responsibility” includes monthly service costs and costs associated with any mobile device associated with the number.

(b) A wireless telephone service provider shall terminate the respondent's use of, and shall transfer to the petitioner use of, the telephone number or numbers indicated in par. (a) unless it notifies the petitioner, within 72 hours after it receives the order, that one of the following applies:

1. The account holder named in the order has terminated the account.

2. A difference in network technology would prevent or impair the functionality of a device on a network if the transfer occurs.

3. The transfer would cause a geographic or other limitation on network or service provision to the petitioner.

4. Another technological or operational issue would prevent or impair the use of the telephone number if the transfer occurs.

(c) The petitioner assumes all financial responsibility for and right to the use of any telephone number transferred under this subsection. In this paragraph, “financial responsibility” includes monthly service costs and costs associated with any mobile device associated with the number.

(d) A wireless telephone service provider may apply to the petitioner its routine and customary requirements for establishing an account or transferring a number, including requiring the petitioner to provide proof of identification, financial information, and customer preferences.

(e) A wireless telephone service provider is immune from civil liability for its actions taken in compliance with a court order issued under this subsection.

(5g) Confidentiality of addresses. The petition under sub. (6) and the court order under sub. (4) , (5), or (5c) may not disclose the address of the petitioner or of the alleged child victim. The petitioner shall provide the clerk of circuit court with the address of the petitioner and of the alleged child victim when he or she files a petition under this section. The clerk shall maintain the addresses in a confidential manner.

(5m) Notice of restriction on firearm possession; surrender of firearms. (a) An injunction issued under sub. (5) shall do all of the following:

1. Inform the respondent named in the petition of the requirements and penalties under s. 941.29 and any similar applicable federal laws and penalties.

2. Except as provided in par. (ag), require in writing the respondent to surrender any firearms that he or she owns or has in his or her possession to the sheriff of the county in which the action under this section was commenced, to the sheriff of the county in which the respondent resides or to another person designated by the respondent and approved by the judge or circuit court commissioner, in accordance with s. 813.1285.

(ag) If the respondent is a peace officer, an injunction issued under sub. (5) may not require the respondent to surrender a firearm that he or she is required, as a condition of employment, to possess whether or not he or she is on duty.

(6) Petition. (a) The petition shall allege facts sufficient to show the following:

1. The name of the petitioner and the child victim.

2. The name of the respondent.

3. That the respondent engaged in, or based on prior conduct of the respondent and the child victim may engage in, abuse of the child victim.

4. If the payment of child support is requested, that the payment of child support is reasonable or necessary based on criteria provided under s. 767.511.

5. If the petitioner knows of any other court proceeding in which the petitioner is a person affected by a court order or judgment that includes provisions regarding contact with the respondent, any of the following that are known by the petitioner:

a. The name or type of the court proceeding.

b. The date of the court proceeding.

c. The types of provisions regarding contact between the petitioner and respondent.

(b) Upon request, the clerk of circuit court shall provide, without cost, the simplified forms obtained under s. 48.47(7)(d) to a petitioner.

(7) Contact. Any order under this section directing a person to avoid contact with a child victim prohibits the person from knowingly touching, meeting, communicating or being in visual or audio contact with the child victim, except as provided in any modifications of the order under sub. (5)(b).

(9) Enforcement assistance. (a)1. The clerk of the circuit court shall forward to the sheriff any temporary restraining order, injunction, or other document or notice that must be served on the respondent under this section and the sheriff shall assist the petitioner in executing or serving the temporary restraining order, injunction, or other document or notice on the respondent. The petitioner may, at his or her expense, elect to use a private server to effect service.

2. If the petitioner elects service by the sheriff, the clerk of circuit court shall provide a form supplied by the sheriff to the petitioner that allows the petitioner to provide information about the respondent that may be useful to the sheriff in effecting service. The clerk shall forward the completed form to the sheriff. The clerk shall maintain the form provided under this subdivision in a confidential manner.

(am)1. If an injunction is issued or extended under sub. (5), the clerk of the circuit court shall notify the department of justice of the injunction and shall provide the department of justice with information concerning the period during which the injunction is in effect and information necessary to identify the respondent for purposes of responding to a request under s. 165.63 or for purposes of a firearms restrictions record search under s. 175.35(2g)(c) or a background check under s. 175.60(9g)(a).

2. Except as provided in subd. 3., the department of justice may disclose information that it receives under subd. 1. only to respond to a request under s. 165.63 or as part of a firearms restrictions record search under s. 175.35(2g)(c) or a background check unders. 175.60(9g)(a).

3. The department of justice shall disclose any information that it receives under subd. 1. to a law enforcement agency when the information is needed for law enforcement purposes.

(b) Within one business day after an order or injunction is issued, extended, modified or vacated under this section, the clerk of the circuit court shall send a copy of the order or injunction, or of the order extending, modifying or vacating an order or injunction, to the sheriff or to any other local law enforcement agency which is the central repository for orders and injunctions and which has jurisdiction over the child victim's premises.

(c) The sheriff or other appropriate local law enforcement agency under par. (b) shall enter the information received under par. (b) concerning an order or injunction issued, extended, modified or vacated under this section into the transaction information for management of enforcement system no later than 24 hours after receiving the information and shall make available to other law enforcement agencies, through a verification system, information on the existence and status of any order or injunction issued under this section. The information need not be maintained after the order or injunction is no longer in effect.

(d) A law enforcement agency and a clerk of circuit court may use electronic transmission to facilitate the exchange of documents under this section. Any person who uses electronic transmission shall ensure that the electronic transmission does not allow unauthorized disclosure of the documents transmitted.

(10) Arrest. (am) A law enforcement officer shall arrest and take a person into custody if all of the following occur:

1. A petitioner under sub. (6)(a) presents the law enforcement officer with a copy of an order issued under sub. (4) or (5), or the law enforcement officer determines that such an order exists through communication with appropriate authorities.

2. The law enforcement officer has probable cause to believe that the person has violated the order issued under sub. (4) or (5).

(c) A respondent who does not appear at a hearing at which the court orders an injunction under sub. (5) but who has been served with a copy of the petition and notice of the time for hearing under sub. (5)(a)2. has constructive knowledge of the existence of the injunction and shall be arrested for violation of the injunction regardless of whether he or she has been served with a copy of the injunction.

(11) Penalty. Whoever knowingly violates a temporary restraining order or injunction issued under this section shall be fined not more than $1,000 or imprisoned for not more than 9 months or both.

(12) Notice of full faith and credit. An order or injunction issued under sub. (4) or (5) shall include a statement that the order or injunction may be accorded full faith and credit in every civil or criminal court of the United States, civil or criminal courts of any other state and Indian tribal courts to the extent that such courts may have personal jurisdiction over nontribal members.

813.123. Restraining orders and injunctions for individuals at risk

Updated: 
September 12, 2018

(1) Definitions. In this section:

(a) “Abuse” has the meaning given in s. 46.90(1)(a).

(ae) “Adult at risk” has the meaning given in s. 55.01(1e).

(am) “Adult-at-risk agency” has the meaning given in s. 55.01(1f).

(b) “Bodily harm” has the meaning given in s. 46.90(1)(aj).

(br) “Caregiver” has the meaning given in s. 46.90(1)(an).

(cg) “Elder adult at risk” has the meaning given in s. 46.90(1)(br).

(d) “False representation” includes a promise that is made with the intent not to fulfill the promise.

(dm) “Financial exploitation” has the meaning given in s. 46.90(1)(ed).

(e) “Great bodily harm” has the meaning given in s. 939.22(14).

(eg) “Harassment” has the meaning given in s. 813.125(1)(am).

(ek) “Household pet” means a domestic animal that is not a farm animal, as defined in s. 951.01(3), that is kept, owned, or cared for by an individual at risk or an elder adult at risk or by a family member or a household member of an individual at risk or an elder adult at risk.

(ep) “Individual at risk” means an elder adult at risk or an adult at risk.

(fm) “Mistreatment of an animal” means cruel treatment of any animal owned by or in service to an individual at risk.

(g) “Neglect” has the meaning given in s. 46.90(1)(f).

(gr) “Self-neglect” has the meaning given in s. 46.90(1)(g).

(gs) “Stalking” means engaging in a course of conduct, as defined in s. 940.32(1)(a).

(2) Commencement of action and response. (a) No action under this section may be commenced by complaint and summons. An action under this section may be commenced only by a petition described under sub. (6). The action commences with service of the petition upon the respondent if a copy of the petition is filed before service or promptly after service. The individual at risk, any person acting on behalf of an individual at risk, an elder-adult-at-risk agency, or an adult-at-risk agency may be a petitioner under this section. If the petition is filed by a person other than the individual at risk, the petitioner shall serve a copy of the petition on the individual at risk. Section 813.06 does not apply to an action under this section. The respondent may respond to the petition either in writing before or at the hearing on the issuance of the injunction or orally at that hearing. The court shall inform the petitioner in writing that, if the petitioner chooses to have the documents in the action served by the sheriff, the petitioner should contact the sheriff to verify the proof of service of the petition.

(b) The court may go forward with a petition filed under sub. (6) if the individual at risk has been adjudicated incompetent under ch. 880, 2003 stats., or ch. 54, notwithstanding an objection by an individual at risk who is the subject of the petition, or an objection by the guardian of the individual at risk.

(3) General procedure. (a) Procedure for an action under this section is in 2 parts. First, if the petitioner requests a temporary restraining order, the court or circuit court commissioner shall issue or refuse to issue that order. Second, the court shall hold a hearing under sub. (5) on whether to issue an injunction, which is the final relief. If the court or circuit court commissioner issues a temporary restraining order, the order shall set forth the date for the hearing on an injunction. If the court or circuit court commissioner does not issue a temporary restraining order, the date for the hearing shall be set upon motion by either party.

(b) The court or circuit court commissioner, on its or his or her own motion or the motion of any party, shall order that a guardian ad litem be appointed for the individual at risk, if the petition under sub. (6) was filed by a person other than the individual at risk, and may order that a guardian ad litem be appointed in other instances when justice so requires.

(c) The court or circuit court commissioner, on its or his or her own motion or the motion of any party, may order any of the following:

1. That all persons, other than the individual at risk, the parties, their attorneys, a representative of the adult-at-risk agency or elder-adult-at-risk agency, witnesses, court personnel, and any guardian or any guardian ad litem, be excluded from any hearing under this section.

2. That access to any record of an action under this section be available only to the individual at risk, the parties, their attorneys, any guardian or any guardian ad litem, the adult-at-risk agency or elder-adult-at-risk agency, court personnel, and, upon appeal, any applicable court.

(4) Temporary restraining order. (a) Unless the individual at risk, guardian, or guardian ad litem consents in writing and the judge or circuit court commissioner agrees that the contact is in the best interests of the individual at risk, a judge or circuit court commissioner shall issue a temporary restraining order, as specified in par. (ar), if all of the following occur:

1. The petitioner submits to the judge or circuit court commissioner a petition alleging the elements set forth under sub. (6).

2. The judge or circuit court commissioner finds reasonable grounds to believe any of the following:

a. That the respondent has interfered with or, based on prior conduct of the respondent, may interfere with an investigation of the individual at risk, the delivery of protective services to or a protective placement of the individual at risk under ch. 55, or the delivery of services to an elder adult at risk under s. 46.90(5m); and that the interference complained of, if continued, would make it difficult to determine whether abuse, financial exploitation, neglect, or self-neglect has occurred, is occurring, or may recur.

b. That the respondent engaged in or threatened to engage in the abuse, financial exploitation, neglect, harassment, or stalking of an individual at risk or the mistreatment of an animal.

(ar) A temporary restraining order issued under par. (a) shall order the respondent to do one or more of the following:

1. Avoid interference with an investigation of the elder adult at risk under s. 46.90 or the adult at risk under s. 55.043, the delivery of protective services to or a protective placement of the individual at risk under ch. 55, or the delivery of services to the elder adult at risk under s. 46.90(5m).

2. Cease engaging in or threatening to engage in the abuse, financial exploitation, neglect, harassment, or stalking of an individual at risk or mistreatment of an animal.

2m. Refrain from removing, hiding, damaging, harming, or mistreating, or disposing of, a household pet and allow the individual at risk or a guardian, guardian ad litem, family member, or household member of the individual at risk acting on his or her behalf to retrieve a household pet.

3. Avoid the residence of the individual at risk or any other location temporarily occupied by the individual at risk, or both.

4. Avoid contacting or causing any person other than a party's attorney or a law enforcement officer to contact the individual at risk.

5. Engage in any other appropriate remedy not inconsistent with the remedies requested in the petition.

(b) Notice need not be given to the respondent before issuing a temporary restraining order under this subsection. A temporary restraining order may be entered only against the respondent named in the petition.

(c) The temporary restraining order is in effect until a hearing is held on issuance of an injunction under sub. (5), except that the court may extend the temporary restraining order under s. 813.1285. A judge shall hold a hearing on issuance of an injunction within 14 days after the temporary restraining order is issued, unless the time is extended upon the written consent of the parties, extended under s. 801.58(2m), or extended once for 14 days upon a finding that the respondent has not been served with a copy of the temporary restraining order although the petitioner has exercised due diligence. A judge or court commissioner may not extend the temporary restraining order in lieu of ruling on the issuance of an injunction.

(5) Injunction. (a) Unless the individual at risk, guardian, or guardian ad litem consents in writing to a contact and the judge agrees that the contact is in the best interests of the individual at risk, a judge may grant an injunction ordering the respondent as specified in par. (ar), if all of the following occur:

1. The petitioner files a petition alleging the elements set forth under sub. (6).

2. The petitioner serves upon the respondent a copy of the petition and notice of the time for hearing on the issuance of the injunction, or the respondent serves upon the petitioner notice of the time for hearing on the issuance of the injunction. The notice served under this subdivision shall inform the respondent that, if the judge or circuit court commissioner issues an injunction, the judge or circuit court commissioner may also order the respondent not to possess a firearm while the injunction is in effect. The person who serves the respondent with the notice shall also provide the respondent with all of the following information:

a. Notice of the requirements and penalties under s. 941.29 and notice of any similar applicable federal laws and penalties.

b. An explanation of s. 813.1285, including the procedures for surrendering a firearm and the circumstances listed under s. 813.1285 under which a respondent must appear at a hearing to surrender firearms.

c. A firearm possession form developed under s. 813.1285(5)(a), with instructions for completing and returning the form.

3. After hearing, the judge finds reasonable cause to believe any of the following:

a. That the respondent has interfered with or, based upon prior conduct of the respondent, may interfere with an investigation of the elder adult at risk under s. 46.90 or the adult at risk under s. 55.043 and that the interference complained of, if continued, would make it difficult to determine if abuse, financial exploitation, neglect, harassment, or stalking of an individual at risk or mistreatment of an animal is occurring or may recur.

b. That the respondent has interfered with the delivery of protective services to or a protective placement of the individual at risk under ch. 55 after the offer of protective services or protective placement has been made and the individual at risk or his or her guardian, if any, has consented to receipt of the protective services or protective placement; or that the respondent has interfered with the delivery of services to an elder adult at risk under s. 46.90(5m).

c. That the respondent has engaged in or threatened to engage in the abuse, financial exploitation, neglect, harassment, or stalking of an individual at risk or the mistreatment of an animal.

(ar) An injunction granted under par. (a) shall order the respondent to do one or more of the following:

1. Avoid interference with an investigation of the elder adult at risk under s. 46.90 or the adult at risk under s. 55.043, the delivery of protective services to or a protective placement of the individual at risk under ch. 55, or the delivery of services to the elder adult at risk under s. 46.90(5m).

2. Cease engaging in or threatening to engage in the abuse, financial exploitation, neglect, harassment, or stalking of an individual at risk or the mistreatment of an animal.

2m. Refrain from removing, hiding, damaging, harming, or mistreating, or disposing of, a household pet and allow the individual at risk or a guardian, guardian ad litem, family member, or household member of the individual at risk acting on his or her behalf to retrieve a household pet.

3. Avoid the residence of the individual at risk or any other location temporarily occupied by the individual at risk, or both.

4. Avoid contacting or causing any person other than a party's attorney or a law enforcement officer to contact the individual at risk.

5. Any other appropriate remedy not inconsistent with the remedies requested in the petition.

(b) The injunction may be entered only against the respondent named in the petition.

(c)1. An injunction under this subsection is effective according to its terms, but for not more than 4 years, except as provided in par. (d).

2. When an injunction expires, the court shall extend the injunction if the petitioner states that an extension is necessary to protect the individual at risk. This extension shall remain in effect until 6 months after the date on which the court first entered the injunction, except as provided in par. (d).

3. If the petitioner states that an extension is necessary to protect the individual at risk, the court may extend the injunction for not more than 2 years, except as provided in par. (d).

4. Notice need not be given to the respondent before extending an injunction under subd. 2. or 3. The clerk of courts shall notify the respondent after the court extends an injunction under subd. 2. or 3.

(d)1. A judge may, upon issuing an injunction or granting an extension of an injunction issued under this subsection, order that the injunction is in effect for not more than 10 years, if the court finds, by a preponderance of the evidence stated on the record, that any of the following is true:

a. There is a substantial risk that the respondent may commit first-degree intentional homicide under s. 940.01, or 2nd-degree intentional homicide under s. 940.05, against the person at risk.

b. There is a substantial risk that the respondent may commit sexual assault under s. 940.225(1), (2), or (3), or under s. 948.02(1) or (2), against the person at risk.

2. This paragraph does not prohibit a petitioner from requesting a new temporary restraining order under sub. (4) or injunction under this subsection before or at the expiration of a previously entered order or injunction.

(5c) Order; telephone services. (a) Unless a condition described in par. (b) exists, a judge or circuit court commissioner who issues an injunction under sub. (5) may, upon request by the petitioner, order a wireless telephone service provider to transfer to the petitioner the right to continue to use a telephone number or numbers indicated by the petitioner and the financial responsibility associated with the number or numbers, as set forth in par. (c). The petitioner may request transfer of each telephone number he or she, or a minor child in his or her custody, uses. The order shall contain all of the following:

1. The name and billing telephone number of the account holder.

2. Each telephone number that will be transferred.

3. A statement that the provider transfers to the petitioner all financial responsibility for and right to the use of any telephone number transferred under this subsection. In this subdivision, “financial responsibility” includes monthly service costs and costs associated with any mobile device associated with the number.

(b) A wireless telephone service provider shall terminate the respondent's use of, and shall transfer to the petitioner use of, the telephone number or numbers indicated in par. (a) unless it notifies the petitioner, within 72 hours after it receives the order, that one of the following applies:

1. The account holder named in the order has terminated the account.

2. A difference in network technology would prevent or impair the functionality of a device on a network if the transfer occurs.

3. The transfer would cause a geographic or other limitation on network or service provision to the petitioner.

4. Another technological or operational issue would prevent or impair the use of the telephone number if the transfer occurs.

(c) The petitioner assumes all financial responsibility for and right to the use of any telephone number transferred under this subsection. In this paragraph, “financial responsibility” includes monthly service costs and costs associated with any mobile device associated with the number.

(d) A wireless telephone service provider may apply to the petitioner its routine and customary requirements for establishing an account or transferring a number, including requiring the petitioner to provide proof of identification, financial information, and customer preferences.

(e) A wireless telephone service provider is immune from civil liability for its actions taken in compliance with a court order issued under this subsection.

(5g) Confidentiality of addresses. The petition under sub. (6) and the court order under sub. (4) , (5), or (5c) may not disclose the address of the petitioner or of the individual at risk. The petitioner shall provide the clerk of circuit court with the address of the petitioner and of the individual at risk when he or she files a petition under this section. The clerk shall maintain the addresses in a confidential manner.

(5m) Restriction on firearm possession; surrender of firearms. (a) If a judge or circuit court commissioner issues an injunction under sub. (5) and the judge or circuit court commissioner determines, based on clear and convincing evidence presented at the hearing on the issuance of the injunction, that the respondent may use a firearm to cause physical harm to another or to endanger public safety, the judge or circuit court commissioner may prohibit the respondent from possessing a firearm.

(b) An order prohibiting a respondent from possessing a firearm issued under par. (a) remains in effect until the expiration of the injunction issued under sub. (5).

(c) An order issued under par. (a) that prohibits a respondent from possessing a firearm shall do all of the following:

1. Inform the respondent named in the petition of the requirements and penalties under s. 941.29 and any similar applicable federal laws and penalties.

2. Except as provided in par. (d), require in writing the respondent to surrender any firearms that he or she owns or has in his or her possession to the sheriff of the county in which the action under this section was commenced, to the sheriff of the county in which the respondent resides, or to another person designated by the respondent and approved by the judge or circuit court commissioner, in accordance with s. 813.1285.

(d) If the respondent is a peace officer, an order issued under par. (a) may not require the respondent to surrender a firearm that he or she is required, as a condition of employment, to possess whether or not he or she is on duty.

(6) Petition. The petition shall allege facts sufficient to show the following:

(a) The name of the petitioner and the individual at risk.

(b) The name of the respondent and that the respondent is an adult.

(c) That the respondent interfered with or, based on prior conduct of the respondent, may interfere with an investigation of the elder adult at risk under s. 46.90(5), an investigation of the adult at risk under s. 55.043, the delivery of protective services to or a protective placement of the individual at risk under ch. 55, or the delivery of services to the elder adult at risk under s. 46.90(5m); or that the respondent engaged in, or threatened to engage in, the abuse, financial exploitation, neglect, stalking, or harassment of an individual at risk or mistreatment of an animal.

(d) If the petitioner knows of any other court proceeding in which the petitioner is a person affected by a court order or judgment that includes provisions regarding contact with the respondent, any of the following that are known by the petitioner:

1. The name or type of the court proceeding.

2. The date of the court proceeding.

3. The type of provisions regarding contact between the petitioner and respondent.

(7) Interference order. Any order under sub. (4)(ar)1. or 2. or (5)(ar)1. or 2. also shall prohibit the respondent from intentionally preventing a representative or employee of the county protective services agency from meeting, communicating, or being in visual or audio contact with the adult at risk, except as provided in the order.

(8) Enforcement assistance. (a)1. The clerk of the circuit court shall forward to the sheriff any temporary restraining order, injunction, or other document or notice that must be served on the respondent under this section and the sheriff shall assist the petitioner in executing or serving the temporary restraining order, injunction, or other document or notice on the respondent. The petitioner may, at his or her expense, elect to use a private server to effect service.

2. If the petitioner elects service by the sheriff, the clerk of circuit court shall provide a form supplied by the sheriff to the petitioner that allows the petitioner to provide information about the respondent that may be useful to the sheriff in effecting service. The clerk shall forward the completed form to the sheriff. The clerk shall maintain the form provided under this subdivision in a confidential manner.

(b) Within one business day after an order or injunction is issued, extended, modified or vacated under this section, the clerk of circuit court shall send a copy of the order or injunction, or of the order extending, modifying or vacating an order or injunction, to the sheriff or to any other local law enforcement agency which is the central repository for orders and injunctions and which has jurisdiction over the vulnerable adult's premises.

(c) The sheriff or other appropriate local law enforcement agency under par. (b) shall enter the information received under par. (b) concerning an order or injunction issued, extended, modified or vacated under this section into the transaction information for management of enforcement system no later than 24 hours after receiving the information and shall make available to other law enforcement agencies, through a verification system, information on the existence and status of any order or injunction issued under this section. The information need not be maintained after the order or injunction is no longer in effect.

(d) A law enforcement agency and a clerk of circuit court may use electronic transmission to facilitate the exchange of documents under this section. Any person who uses electronic transmission shall ensure that the electronic transmission does not allow unauthorized disclosure of the documents transmitted.

(8m) Notice to department of justice. (a) If an order prohibiting a respondent from possessing a firearm is issued under sub. (5m), the clerk of the circuit court shall notify the department of justice of the existence of the order prohibiting a respondent from possessing a firearm and shall provide the department of justice with information concerning the period during which the order is in effect and information necessary to identify the respondent for purposes of responding to a request under s. 165.63 or for purposes of a firearms restrictions record search under s. 175.35(2g)(c) or a background check under s. 175.60(9g)(a).

(b) Except as provided in par. (c), the department of justice may disclose information that it receives under par. (a) only to respond to a request under s. 165.63 or as part of a firearms restrictions record search under s. 175.35(2g)(c) or a background check under s. 175.60(9g)(a).

(c) The department of justice shall disclose any information that it receives under par. (a) to a law enforcement agency when the information is needed for law enforcement purposes.

(9) Arrest. (am) A law enforcement officer shall arrest and take a person into custody if all of the following occur:

1. A petitioner presents the law enforcement officer with a copy of an order issued under sub. (4) or an injunction issued under sub. (5), or the law enforcement officer determines that such an order exists through communication with appropriate authorities.

2. The law enforcement officer has probable cause to believe that the person has violated the order issued under sub. (4) or the injunction issued under sub. (5).

(c) A respondent who does not appear at a hearing at which the court orders an injunction under sub. (5) but who has been served with a copy of the petition and notice of the time for hearing under sub. (5)(a)2. that includes the information required under sub. (5)(a)2. a., b., and c. has constructive knowledge of the existence of the injunction and may be arrested for violation of the injunction regardless of whether he or she has been served with a copy of the injunction.

(10) Penalty. Whoever intentionally violates a temporary restraining order or injunction issued under this section shall be fined not more than $1,000 or imprisoned for not more than 9 months or both.

(12) Notice of full faith and credit. An order or injunction issued under sub. (4) or (5) shall include a statement that the order or injunction may be accorded full faith and credit in every civil or criminal court of the United States, civil or criminal courts of any other state and Indian tribal courts to the extent that such courts may have personal jurisdiction over nontribal members.

813.125. Harassment restraining orders and injunctions

Updated: 
September 12, 2018

(1) Definitions. (am) In this section, “harassment” means any of the following:

1. Striking, shoving, kicking or otherwise subjecting another person to physical contact; engaging in an act that would constitute abuse under s. 48.02(1), sexual assault under s. 940.225, or stalking under s. 940.32; or attempting or threatening to do the same.

2. Engaging in a course of conduct or repeatedly committing acts which harass or intimidate another person and which serve no legitimate purpose.

(bm) In subs. (3) and (4), “household pet” means a domestic animal that is not a farm animal, as defined in s. 951.01(3), that is kept, owned, or cared for by the petitioner or by a family member or a household member of the petitioner.

(2) Commencement of action. (a) An action under this section may be commenced by filing a petition described under sub. (5)(a). No action under this section may be commenced by service of summons. The action commences with service of the petition upon the respondent if a copy of the petition is filed before service or promptly after service. If the judge or a circuit court commissioner extends the time for a hearing under sub. (3)(c) and the petitioner files an affidavit with the court stating that personal service by the sheriff or a private server under s. 801.11(1)(a) or (b) was unsuccessful because the respondent is avoiding service by concealment or otherwise, the judge or circuit court commissioner shall inform the petitioner that he or she may serve the respondent by publication of a summary of the petition as a class 1 notice, under ch. 985, and by mailing or sending a facsimile if the respondent's post-office address or facsimile number is known or can with due diligence be ascertained. The mailing or sending of a facsimile may be omitted if the post-office address or facsimile number cannot be ascertained with due diligence. A summary of the petition published as a class 1 notice shall include the name of the respondent and of the petitioner, notice of the temporary restraining order, and notice of the date, time, and place of the hearing regarding the injunction. The court shall inform the petitioner in writing that, if the petitioner chooses to have the documents in the action served by the sheriff, the petitioner should contact the sheriff to verify the proof of service of the petition. Section 813.06 does not apply to an action under this section.

(b) Notwithstanding s. 803.01(3)(a), a child, as defined in s. 813.122(1)(b), or a parent, stepparent, or legal guardian of a child may be a petitioner under this section.

(2g) Appointment of guardian ad litem. The court or circuit court commissioner, on its or his or her own motion, or on the motion of any party, may appoint a guardian ad litem for a child who is a party under this section when justice so requires.

(2m) Two-part procedure. If the fee under s. 814.61(1) for filing a petition under this section is waived under s. 814.61(1)(e), the procedure for an action under this section is in 2 parts. First, if the petitioner requests a temporary restraining order the court shall issue or refuse to issue that order. Second, the court shall hold a hearing under sub. (4) on whether to issue an injunction, which is the final relief. If the court issues a temporary restraining order, the order shall set forth the date for the hearing on an injunction. If the court does not issue a temporary restraining order, the date for the hearing shall be set upon motion by either party.

(3) Temporary restraining order. (a) A judge or circuit court commissioner may issue a temporary restraining order ordering the respondent to avoid contacting or causing any person other than a party's attorney or a law enforcement officer to contact the petitioner without the petitioner's written consent; to cease or avoid the harassment of another person; to avoid the petitioner's residence, except as provided in par. (am), or any premises temporarily occupied by the petitioner or both; to refrain from removing, hiding, damaging, harming, or mistreating, or disposing of, a household pet; to allow the petitioner or a family member or household member of the petitioner acting on his or her behalf to retrieve a household pet; or any combination of these remedies requested in the petition, if all of the following occur:

1. The petitioner files a petition alleging the elements set forth under sub. (5)(a).

2. The judge or circuit court commissioner finds reasonable grounds to believe that the respondent has engaged in harassment with intent to harass or intimidate the petitioner.

(am) If the petitioner and the respondent are not married, and the respondent owns the premises where the petitioner resides, and the petitioner has no legal interest in the premises, in lieu of ordering the respondent to avoid the petitioner's residence under par. (a) the judge or circuit court commissioner may order the respondent to avoid the premises for a reasonable time until the petitioner relocates and shall order the respondent to avoid the new residence for the duration of the order.

(b) Notice need not be given to the respondent before issuing a temporary restraining order under this subsection. A temporary restraining order may be entered only against the respondent named in the petition.

(c) The temporary restraining order is in effect until a hearing is held on issuance of an injunction under sub. (4), except that the court may extend the temporary restraining order under s. 813.1285. A judge or circuit court commissioner shall hold a hearing on issuance of an injunction within 14 days after the temporary restraining order is issued, unless the time is extended upon the written consent of the parties, extended under s. 801.58(2m), or extended once for 14 days upon a finding that the respondent has not been served with a copy of the temporary restraining order although the petitioner has exercised due diligence. A judge or court commissioner may not extend the temporary restraining order in lieu of ruling on the issuance of an injunction.

(d) The judge or circuit court commissioner shall advise the petitioner of the right to serve the respondent the petition by published notice if with due diligence the respondent cannot be served as provided under s. 801.11(1)(a) or (b). The clerk of circuit court shall assist the petitioner with the preparation of the notice and filing of the affidavit of printing.

(e) The judge or circuit court commissioner may not dismiss or deny granting a temporary restraining order because of the existence of a pending action or of any other court order that bars contact between the parties, nor due to the necessity of verifying the terms of an existing court order.

(4) Injunction. (a) A judge or circuit court commissioner may grant an injunction ordering the respondent to avoid contacting or causing any person other than a party's attorney or a law enforcement officer to contact the petitioner without the petitioner's written consent; to cease or avoid the harassment of another person; to avoid the petitioner's residence, except as provided in par.(am), or any premises temporarily occupied by the petitioner or both; to refrain from removing, hiding, damaging, harming, or mistreating, or disposing of, a household pet; to allow the petitioner or a family member or household member of the petitioner acting on his or her behalf to retrieve a household pet; or any combination of these remedies requested in the petition, if all of the following occur:

1. The petitioner has filed a petition alleging the elements set forth under sub. (5)(a).

2. The petitioner serves upon the respondent a copy of a restraining order obtained under sub. (3) and notice of the time for the hearing on the issuance of the injunction under sub. (3)(c). The restraining order or notice of hearing served under this subdivision shall inform the respondent that, if the judge or circuit court commissioner issues an injunction, the judge or circuit court commissioner may also order the respondent not to possess a firearm while the injunction is in effect. The person who serves the respondent with the order or notice shall also provide the respondent with all of the following information:

a. Notice of the requirements and penalties under s. 941.29 and notice of any similar applicable federal laws and penalties.

b. An explanation of s. 813.1285, including the procedures for surrendering a firearm and the circumstances listed under s. 813.1285 under which a respondent must appear at a hearing to surrender firearms.

c. A firearm possession form developed under s. 813.1285(5)(a), with instructions for completing and returning the form.

3. After hearing, the judge or circuit court commissioner finds reasonable grounds to believe that the respondent has engaged in harassment with intent to harass or intimidate the petitioner.

(aj) The judge or circuit court commissioner may not dismiss or deny granting an injunction because of the existence of a pending action or of any other court order that bars contact between the parties, nor due to the necessity of verifying the terms of an existing court order.

(am) If the petitioner and the respondent are not married, and the respondent owns the premises where the petitioner resides, and the petitioner has no legal interest in the premises, in lieu of ordering the respondent to avoid the petitioner's residence under par. (a) the judge or circuit court commissioner may order the respondent to avoid the premises for a reasonable time until the petitioner relocates and shall order the respondent to avoid the new residence for the duration of the order.

(b) The injunction may be entered only against the respondent named in the petition.

(c) An injunction under this subsection is effective according to its terms, but for not more than 4 years, except as provided in par. (d).

(d)1. A judge or circuit court commissioner may, upon issuing an injunction or granting an extension of an injunction issued under this subsection, order that the injunction is in effect for not more than 10 years, if the court finds, by a preponderance of the evidence stated on the record, that any of the following is true:

a. There is a substantial risk that the respondent may commit first-degree intentional homicide under s. 940.01, or 2nd-degree intentional homicide under s. 940.05, against the petitioner.

b. There is a substantial risk that the respondent may commit sexual assault under s. 940.225(1), (2), or (3), or under s. 948.02(1)or (2), against the petitioner.

2. This paragraph does not prohibit a petitioner from requesting a new temporary restraining order under sub. (3) or injunction under this subsection before or at the expiration of a previously entered order or injunction.

(4g) Order; telephone services. (a) Unless a condition described in par. (b) exists, a judge or circuit court commissioner who issues an injunction under sub. (4) may, upon request by the petitioner, order a wireless telephone service provider to transfer to the petitioner the right to continue to use a telephone number or numbers indicated by the petitioner and the financial responsibility associated with the number or numbers, as set forth in par. (c). The petitioner may request transfer of each telephone number he or she, or a minor child in his or her custody, uses. The order shall contain all of the following:

1. The name and billing telephone number of the account holder.

2. Each telephone number that will be transferred.

3. A statement that the provider transfers to the petitioner all financial responsibility for and right to the use of any telephone number transferred under this subsection. In this subdivision, “financial responsibility” includes monthly service costs and costs associated with any mobile device associated with the number.

(b) A wireless telephone service provider shall terminate the respondent's use of, and shall transfer to the petitioner use of, the telephone number or numbers indicated in par. (a) unless it notifies the petitioner, within 72 hours after it receives the order, that one of the following applies:

1. The account holder named in the order has terminated the account.

2. A difference in network technology would prevent or impair the functionality of a device on a network if the transfer occurs.

3. The transfer would cause a geographic or other limitation on network or service provision to the petitioner.

4. Another technological or operational issue would prevent or impair the use of the telephone number if the transfer occurs.

(c) The petitioner assumes all financial responsibility for and right to the use of any telephone number transferred under this subsection. In this paragraph, “financial responsibility” includes monthly service costs and costs associated with any mobile device associated with the number.

(d) A wireless telephone service provider may apply to the petitioner its routine and customary requirements for establishing an account or transferring a number, including requiring the petitioner to provide proof of identification, financial information, and customer preferences.

(e) A wireless telephone service provider is immune from civil liability for its actions taken in compliance with a court order issued under this subsection.

(4m) Restriction on firearm possession; surrender of firearms. (a) If a judge or circuit court commissioner issues an injunction under sub. (4) and the judge or circuit court commissioner determines, based on clear and convincing evidence presented at the hearing on the issuance of the injunction, that the respondent may use a firearm to cause physical harm to another or to endanger public safety, the judge or circuit court commissioner may prohibit the respondent from possessing a firearm.

(b) An order prohibiting a respondent from possessing a firearm issued under par. (a) remains in effect until the expiration of the injunction issued under sub. (4).

(c) An order issued under par. (a) that prohibits a respondent from possessing a firearm shall do all of the following:

1. Inform the respondent named in the petition of the requirements and penalties under s. 941.29 and any similar applicable federal laws and penalties.

2. Except as provided in par. (cg), require in writing the respondent to surrender any firearms that he or she owns or has in his or her possession to the sheriff of the county in which the action under this section was commenced, to the sheriff of the county in which the respondent resides or to another person designated by the respondent and approved by the judge or circuit court commissioner, in accordance with s. 813.1285.

(cg) If the respondent is a peace officer, an order issued under par. (a) may not require the respondent to surrender a firearm that he or she is required, as a condition of employment, to possess whether or not he or she is on duty.

(5) Petition. (a) The petition shall allege facts sufficient to show the following:

1. The name of the person who is the alleged victim.

2. The name of the respondent.

3. That the respondent has engaged in harassment with intent to harass or intimidate the petitioner.

4. If the petitioner knows of any other court proceeding in which the petitioner is a person affected by a court order or judgment that includes provisions regarding contact with the respondent, any of the following that are known by the petitioner:

a. The name or type of the court proceeding.

b. The date of the court proceeding.

c. The type of provisions regarding contact between the petitioner and respondent.

(am) The petition shall inform the respondent that, if the judge or circuit court commissioner issues an injunction, the judge or circuit court commissioner may also order the respondent not to possess a firearm while the injunction is in effect.

(b) The clerk of circuit court shall provide simplified forms.

(5g) Enforcement assistance. (a) Within one business day after an order or injunction is issued, extended, modified or vacated under this section, the clerk of the circuit court shall send a copy of the order or injunction, or of the order extending, modifying or vacating an order or injunction, to the sheriff or to any local law enforcement agency which is the central repository for orders and injunctions and which has jurisdiction over the petitioner's premises.

(b) The sheriff or other appropriate local law enforcement agency under par. (a) shall enter the information received under par. (a) concerning an order or injunction issued, extended, modified or vacated under this section into the transaction information for management of enforcement system no later than 24 hours after receiving the information and shall make available to other law enforcement agencies, through a verification system, information on the existence and status of any order or injunction issued under this section. The information need not be maintained after the order or injunction is no longer in effect.

(c) If an order is issued under this section, upon request by the petitioner the court or circuit court commissioner shall order the sheriff to accompany the petitioner and assist in placing him or her in physical possession of his or her residence.

(cm)1. The clerk of the circuit court shall forward to the sheriff any temporary restraining order, injunction, or other document or notice that must be served on the respondent under this section and the sheriff shall assist the petitioner in executing or serving the temporary restraining order, injunction, or other document or notice on the respondent. The petitioner may, at his or her expense, elect to use a private server to effect service.

2. If the petitioner elects service by the sheriff, the clerk of circuit court shall provide a form supplied by the sheriff to the petitioner that allows the petitioner to provide information about the respondent that may be useful to the sheriff in effecting service. The clerk shall forward the completed form to the sheriff. The clerk shall maintain the form provided under this subdivision in a confidential manner. If a service fee is required by the sheriff under s. 814.70(1), the petitioner shall pay the fee directly to the sheriff.

(d) The issuance of an order or injunction under sub. (3) or (4) is enforceable despite the existence of any other criminal or civil order restricting or prohibiting contact.

(e) A law enforcement agency and a clerk of circuit court may use electronic transmission to facilitate the exchange of documents under this section. Any person who uses electronic transmission shall ensure that the electronic transmission does not allow unauthorized disclosure of the documents transmitted.

(5m) Confidentiality of victim's address. The petition under sub. (5) and the court order under sub. (3) , (4), or (4g) may not disclose the address of the alleged victim. The petitioner shall provide the clerk of circuit court with the petitioner's address when he or she files a petition under this section. The clerk shall maintain the petitioner's address in a confidential manner.

(5r) Notice to department of justice. (a) If an order prohibiting a respondent from possessing a firearm is issued under sub. (4m), the clerk of the circuit court shall notify the department of justice of the existence of the order prohibiting a respondent from possessing a firearm and shall provide the department of justice with information concerning the period during which the order is in effect and information necessary to identify the respondent for purposes of responding to a request under s. 165.63 or forpurposes of a firearms restrictions record search under s. 175.35(2g)(c) or a background check under s. 175.60(9g)(a).

(b) Except as provided in par. (c), the department of justice may disclose information that it receives under par. (a) only to respond to a request under s. 165.63 or as part of a firearms restrictions record search under s. 175.35(2g)(c) or a background check under s. 175.60(9g)(a).

(c) The department of justice shall disclose any information that it receives under par. (a) to a law enforcement agency when the information is needed for law enforcement purposes.

(6) Arrest. (am) A law enforcement officer shall arrest and take a person into custody if all of the following occur:

1. A person named in a petition under sub. (5) presents the law enforcement officer with a copy of a court order issued under sub. (3) or (4), or the law enforcement officer determines that such an order exists through communication with appropriate authorities.

2. The law enforcement officer has probable cause to believe that the person has violated the court order issued under sub. (3) or (4).

(c) A respondent who does not appear at a hearing at which the court orders an injunction under sub. (4) but who has been served with a copy of the petition and notice of the time for hearing under sub. (4)(a)2. that includes the information required under sub. (4)(a)2. a., b., and c. has constructive knowledge of the existence of the injunction and shall be arrested for violation of the injunction regardless of whether he or she has been served with a copy of the injunction.

(7) Penalty. Whoever violates a temporary restraining order or injunction issued under this section shall be fined not more than $10,000 or imprisoned not more than 9 months or both.

(8) Notice of full faith and credit. An order or injunction issued under sub. (3) or (4) shall include a statement that the order or injunction may be accorded full faith and credit in every civil or criminal court of the United States, civil or criminal courts of any other state and Indian tribal courts to the extent that such courts may have personal jurisdiction over nontribal members.

813.128. Uniform interstate enforcement of domestic violence protection orders act

Updated: 
September 12, 2018

(1g) Definitions. In this section:

(a) “Bodily harm” has the meaning given in s. 939.22(4).

(b) "Foreign mutual protection order" means a foreign protection order that includes provisions in favor of both the individual seeking enforcement of the order and the respondent.

(c) “Foreign protection order” means a protection order issued by a tribunal other than a tribunal of this state.

(d) “Protected individual” means an individual protected by a protection order.

(e) “ Protection order” means any temporary or permanent injunction or order issued by a tribunal to prevent an individual from engaging in abuse, bodily harm, communication, contact, harassment, physical proximity, threatening acts or violence to another person, other than support or custody orders. This term includes an injunction or order issued under the antistalking laws of the issuing state.

(f) “Respondent” means the individual against whom enforcement of a protection order is sought.

(g) “Tribunal” means a court, agency, or other entity of a state of the United States, the District of Columbia, Puerto Rico, the United States Virgin Islands, an American Indian tribe or band, or any territory or insular possession subject to the jurisdiction of the United States, authorized by law to issue or modify a protection order.

(2g) Status of a foreign protection order. (a) A foreign protection order shall be accorded full faith and credit by the tribunals in this state and shall be enforced as if the order were an order of a tribunal of this state if the order meets all of the following conditions:

1. The foreign protection order was obtained after providing the respondent a reasonable notice and opportunity to be heard sufficient to protect his or her right to due process. If the foreign protection order is an ex parte injunction or order, the respondent shall have been given notice and an opportunity to be heard within a reasonable time after the order was issued sufficient to protect his or her right to due process.

2. The tribunal that issued the order had jurisdiction over the parties and over the subject matter.

3. The order identifies the protected individual and the respondent.

4. The order is currently in effect.

(b) A foreign protection order or modification of the foreign protection order that meets the requirements under this section has the same effect as an order issued under s. 813.12, 813.122, 813.123 or 813.125, except that the foreign protection order or modification shall be enforced according to its own terms.

(c) A foreign protection order issued against the person who filed a written pleading with a tribunal for a protection order is not entitled to full faith and credit under this subsection if any of the following occurred:

1. No written pleading was filed seeking the foreign protection order against the person who filed a written pleading with a tribunal for a protection order.

2. A cross or counter petition was filed but the tribunal did not make a specific finding that each party was entitled to a foreign protection order.

(3g) Filing and enforcementof a foreign protection order. (a)1. A copy of any foreign protection order, or of a modification of a foreign protection order that is on file with the circuit court, that is authenticated in accordance with an act of congress, an Indian tribal legislative body or the statutes of another state may be filed in the office of the clerk of circuit court of any county of this state. The clerk may not charge a fee for the filing of a foreign protection order. The clerk shall treat any foreign protection order or modification so filed in the same manner as a judgment of the circuit court.

2. Within one business day after a foreign protection order or a modification of a foreign protection order is filed under this subsection, the clerk of circuit court shall send a copy of the foreign protection order or modification of the order to the sheriff in that circuit or to the local law enforcement agency that is the central repository for orders and injunctions in that circuit.

3. The sheriff or law enforcement agency that receives a copy of a foreign protection order or of a modification of an order from the clerk under subd. 2. shall enter the information received concerning the order or modification of an order into the transaction information for management of enforcement system no later than 24 hours after receiving the information. The sheriff or law enforcement agency shall make available to other law enforcement agencies, through a verification system, information on the existence and status of any order or modification of an order filed under this subsection. The information need not be maintained after the order or modification is no longer in effect.

(b) A law enforcement officer shall arrest and take the subject of a foreign protection order into custody if all of the following occur:

1. A person protected under a foreign protection order presents the law enforcement officer with a copy of a foreign protection order issued against the subject, or the law enforcement officer determines that a valid foreign protection order exists against the subject through communication with appropriate authorities. If a law enforcement officer examines a copy of a foreign protection order, the order, with any modification, is presumed to be valid if the order or modification appears to be valid on its face and circumstances suggest that the order and any modification are in effect.

2. The law enforcement officer has probable cause to believe that the person has violated the terms of the foreign protection order or modification of the order.

3. For the purposes of this paragraph, the protection order may be inscribed on a tangible medium or may have been stored in an electronic or other medium if it is retrievable in perceivable form. Presentation of a certified copy of a protection order is not required for enforcement.

(c) If a foreign protection order is not presented, a law enforcement officer of this state may consider other information in determining whether there is probable cause to believe that a valid foreign protection order exists.

(d) If a law enforcement officer of this state determines that an otherwise valid foreign protection order cannot be enforced because the respondent has not been notified or served with the order, the officer shall inform the respondent of the order, make a reasonable effort to serve the order upon the respondent, and allow the respondent a reasonable opportunity to comply with the order before enforcing the order.

(e) A tribunal of this state shall enforce the provisions of a valid foreign protection order that govern custody, physical placement, and visitation, if the order was issued in accordance with the jurisdictional requirements governing the issuance of custody, physical placement, and visitation orders in the issuing state.

(f) A foreign protection order that is valid on its face is prima facie evidence of its validity.

(g) Absence of any of the criteria for validity of a foreign protection order is an affirmative defense in an action seeking enforcement of the order.

(h) A tribunal of this state may enforce provisions of a foreign mutual protection order that favor a respondent only if the respondent filed a written pleading seeking a protection order from the tribunal of the issuing state and the tribunal of the issuing state made specific findings in favor of the respondent.

(i) A tribunal of this state may not a enforce a foreign protection order issued by a tribunal of a state that does not recognize the standing of a protected individual to seek enforcement of the order.

(4) Penalty. A person who knowingly violates a condition of a foreign protection order or modification of a foreign protection order that is entitled to full faith and credit under this section shall be fined not more than $1,000 or imprisoned for not more than 9 months or both. If a foreign protection order and any modification of that order that is entitled to full faith and credit under this section remains current and in effect at the time that a court convicts a person for a violation of that order or modification of that order, but that order or modification has not been filed under this section, the court shall direct the clerk of circuit court to file the order and any modification of the order.

(5) Immunity. A law enforcement officer, law enforcement agency, prosecuting attorney, state, local, or Indian tribe or band governmental official, or clerk of circuit court is immune from civil and criminal liability for his or her acts or omissions arising out of a decision related to the filing of a foreign protection order or modification or to the detention or arrest of an alleged violator of a foreign protection order or modification if the act or omission is done in a good faith effort to comply with this section and s. 806.247, 2013 stats.

(6) Other remedies. A protected individual who pursues remedies under this section is not precluded from pursuing other legal or equitable remedies against the respondent.

(7) Applicability. This section applies to all of the following:

(a) A request made on or after April 13, 2016, for enforcement of a foreign protection order for a violation of the order, regardless of when the order was issued or when the violation occurred.

(b) A continuing action for enforcement of a foreign protection order, regardless of when the order was issued or when the action was commenced.

813.1283. Uniform Recognition and Enforcement of Canadian Domestic Violence Protection Orders Act

(1) Short title. This section may be cited as the Uniform Recognition and Enforcement of Canadian Domestic Violence Protection Orders Act.
(2) Definitions. In this section:
(a) “Canadian domestic violence protection order” means a judgment or part of a judgment or order issued in a civil proceeding by a court of Canada under law of the issuing jurisdiction which relates to domestic violence and prohibits a respondent from doing any of the following:
1. Being in physical proximity to a protected individual or following a protected individual.
2. Directly or indirectly contacting or communicating with a protected individual or other individual described in the order.
3. Being within a certain distance of a specified place or location associated with a protected individual.
4. Molesting, annoying, harassing, or engaging in threatening conduct directed at a protected individual.
(b) “Domestic protection order” means an injunction or other order issued by a tribunal which relates to domestic or family violence laws to prevent an individual from engaging in violent or threatening acts against, harassment of, direct or indirect contact or communication with, or being in physical proximity to another individual.
(c) “Issuing court” means the court that issues a Canadian domestic violence protection order.
(d) “Law enforcement officer” means an individual authorized by law of this state other than this section to enforce a domestic protection order.
(e) “Person” means an individual, estate, business or nonprofit entity, public corporation, government or governmental subdivision, agency, or instrumentality, or other legal entity.
(f) “Protected individual” means an individual protected by a Canadian domestic violence protection order.
(g) “Record” means information that is inscribed on a tangible medium or that is stored in an electronic or other medium and is retrievable in perceivable form.
(h) “Respondent” means an individual against whom a Canadian domestic violence protection order is issued.
(i) “State” means a state of the United States, the District of Columbia, Puerto Rico, the U.S. Virgin Islands, a federally recognized American Indian tribe or band, or any territory or insular possession subject to the jurisdiction of the United States.
(j) “Tribunal” means a court, agency, or other entity authorized by law of this state other than this section to establish, enforce, or modify a domestic protection order.
(3) Enforcement by a law enforcement officer. (a) If a law enforcement officer determines under par. (b) or (c) that there is probable cause to believe a valid Canadian domestic violence protection order exists and the order has been violated, the officer shall enforce the terms of the Canadian domestic violence protection order as if the terms were in an order of a tribunal. Presentation to a law enforcement officer of a certified copy of a Canadian domestic violence protection order is not required for enforcement.
(b) Presentation to a law enforcement officer of a record of a Canadian domestic violence protection order that identifies both a protected individual and a respondent and on its face is in effect constitutes probable cause to believe that a valid order exists.
(c) If a record of a Canadian domestic violence protection order is not presented as provided in par. (b), a law enforcement officer may consider other information in determining whether there is probable cause to believe that a valid Canadian domestic violence protection order exists.
(d) If a law enforcement officer determines that an otherwise valid Canadian domestic violence protection order cannot be enforced because the respondent has not been notified of or served with the order, the officer shall notify the protected individual that the officer will make reasonable efforts to contact the respondent, consistent with the safety of the protected individual. After notice to the protected individual and consistent with the safety of the individual, the officer shall make a reasonable effort to inform the respondent of the order, notify the respondent of the terms of the order, provide a record of the order, if available, to the respondent, and allow the respondent a reasonable opportunity to comply with the order before the officer enforces the order.
(e) If a law enforcement officer determines that an individual is a protected individual, the officer shall inform the individual of available local victim services.
(4) Enforcement by a tribunal. (a) A tribunal may issue an order enforcing or refusing to enforce a Canadian domestic violence protection order on application by any of the following:
1. A person authorized by law of this state other than this section to seek enforcement of a domestic protection order.
2. A respondent.
(b) In a proceeding under par. (a), the tribunal shall follow the procedures of this state for enforcement of a domestic protection order under s. 813.12, 813.122, 813.123, or 813.125. An order entered under this subsection is limited to the enforcement of the terms of the Canadian domestic violence protection order as described in sub. (2)(a).
(c) A Canadian domestic violence protection order is enforceable under this subsection if all of the following are true:
1. The order identifies a protected individual and a respondent.
2. The order is valid and in effect.
3. The issuing court had jurisdiction over the parties and the subject matter under law applicable in the issuing court.
4. The order was issued after any of the following:
a. The respondent was given reasonable notice and had an opportunity to be heard before the court issued the order.
b. In the case of an ex parte order, the respondent was given a reasonable notice and had or will have an opportunity to be heard within a reasonable time after the order was issued, in a manner consistent with the right of the respondent to due process.
(d) A Canadian domestic violence protection order valid on its face is prima facie evidence of its enforceability under this subsection.
(e) A claim that a Canadian domestic violence protection order does not comply with par. (c) is an affirmative defense in a proceeding seeking enforcement of the order. If the tribunal determines that the order is not enforceable, the tribunal shall issue an order that the Canadian domestic violence protection order is not enforceable under this subsection and sub. (3) and may not be registered under sub. (5).
(f) This subsection applies to enforcement of a provision of a Canadian domestic violence protection order against a party to the order in which each party is a protected individual and respondent only if the party seeking enforcement of the order filed a pleading requesting the order from the issuing court and the court made specific findings that entitled the party to the enforcement sought.
(5) Filing. (a) A certified copy of any Canadian domestic violence protection order, or of a modification of a Canadian domestic violence protection order that is on file with the circuit court may be filed in the office of the clerk of circuit court of any county of this state. The clerk may not charge a fee for the filing of a Canadian domestic violence protection order. The clerk shall treat any Canadian domestic violence protection order or modification so filed in the same manner as a judgment of the circuit court. Filing of a Canadian domestic violence protection order under the laws of this state is not required for its enforcement under this section.
(b) Within one business day after a Canadian domestic violence protection order or a modification of a foreign protection order is filed under this subsection, the clerk of circuit court shall send a copy of the Canadian domestic violence protection order or modification of the order to the sheriff in that circuit or to the local law enforcement agency that is the central repository for orders and injunctions in that circuit.
(c) The sheriff or law enforcement agency that receives a copy of a Canadian domestic violence protection order or of a modification of an order from the clerk under par. (b) shall enter the information received concerning the order or modification of an order into the transaction information for management of enforcement system no later than 24 hours after receiving the information. The sheriff or law enforcement agency shall make available to other law enforcement agencies, through a verification system, information on the existence and status of any order or modification of an order filed under this subsection. The information need not be maintained after the order or modification is no longer in effect.
(6) Immunity. A state, state agency, local governmental agency, law enforcement officer, prosecuting attorney, clerk of court, and state or local governmental official acting in an official capacity are immune from civil and criminal liability for an act or omission arising out of the filing or enforcement of a Canadian domestic violence protection order or the detention or arrest of an alleged violator of a Canadian domestic violence protection order if the act or omission was a good faith effort to comply with this section.
(7) Other remedies. An individual who seeks a remedy under this section may seek other legal or equitable remedies.
(8) Uniformity of application and construction. In applying and construing this section, consideration must be given to the need to promote uniformity of the law with respect to its subject matter among states that enact it.
(9) Relation to Electronic Signatures in Global and National Commerce Act. This section modifies, limits, and supersedes the Electronic Signatures in Global and National Commerce Act, 15 USC 7001 to 7031, but does not modify, limit, or supersede section 101(c) of that act, 15 USC 7001(c), or authorize electronic delivery of any of the notices described in section 103(b) of that act, 15 USC 7003(b).
(10) Applicability. This section applies to a Canadian domestic violence protection order issued before, on, or after March 30, 2018, and to a continuing action for enforcement of a Canadian domestic violence protection order commenced before, on, or after March 30, 2018. A request for enforcement of a Canadian domestic violence protection order made on or after March 30, 2018, for a violation of the order occurring before, on, or after March 30, 2018, is governed by this section.
(11m) Penalty. A person who knowingly violates a condition of a Canadian domestic violence protection order or modification of a Canadian domestic violence protection order that is enforceable under this section shall be fined not more than $10,000 or imprisoned for not more than 9 months or both. If a Canadian domestic violence protection order and any modification of that order that is enforceable under this section remains current and in effect at the time that a court convicts a person for a violation of that order or modification of that order, but that order or modification has not been filed under this section, the court shall direct the clerk of circuit court to file the order and any modification of the order.

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813.1285. Notice and process for firearm surrender

Updated: 
September 12, 2018

(1) Definitions. In this section:

(a) “Firearm possession form” means the form developed under sub. (5)(a).

(am) “Injunction” means an injunction issued under s. 813.12(4) or 813.122(5); an injunction issued under s. 813.123if the court has required the individual to surrender his or her firearms under s. 813.123(5m); or an injunction issued under s. 813.125 if the court has required the individual to surrender his or her firearms under s. 813.125(4m). “Injunction” includes an injunction that has been stayed under this section.

(b) “Petitioner” means an individual who is applying for, or for whom a court has granted, an injunction.

(c) “Petition for the return of firearms” means a petition developed under sub. (5)(b).

(d) “Respondent” means the individual who is the subject of an injunction.

(e) “Surrender and extend order” means an order under sub. (1g).

(1g) Surrender and extend order. If the court issues a surrender and extend order, the court shall do all of the following:

(a) Order the respondent to surrender, within a period that is no longer than 48 hours, any firearm that he or she owns or possesses to the sheriff or, in the court's discretion, to another person.

(b) Order that the respondent may possess or transport a firearm only for the purpose of complying with par. (a).

(c) If the court stays an injunction, order the respondent subject to a temporary restraining order during the stay of the injunction and extend the temporary restraining order for a period of 48 hours for the purpose of firearm surrender.

(d) Inform the respondent when the injunction will take effect and the penalty for possessing a firearm while the injunction is in effect.

(e) Instruct the respondent how to surrender any firearm.

(f) If appropriate, order the respondent to attend a hearing to surrender firearms.

(1m) Temporary restraining orders. If the court is required to extend a temporary restraining order under this section, and a temporary restraining order was not previously granted, the court shall, on its own motion, reconsider and grant the temporary restraining order.

(2) Firearm possession determination. (a) If the respondent is present at the injunction hearing, the court shall stay the injunction for a period not to exceed 48 hours and shall extend the temporary restraining order for 48 hours for the purpose of firearm surrender. The respondent shall provide the court a completed firearm possession form. The court shall verify the information on the firearm possession form and shall make an inquiry on the record as to the contents of the firearm possession form.

(b) If the respondent is not present at the injunction hearing, the court shall provide the petitioner with an opportunity to inform the court orally or in writing whether he or she believes that the respondent possesses a firearm. If the petitioner informs the court that the respondent possesses a firearm, the court shall request the petitioner to inform the court orally or in writing how many firearms he or she believes the respondent possesses, the make and model of any firearm he or she believes the respondent possesses, and the location of any firearm he or she believes the respondent possesses.

(c)1. If the firearm possession form submitted to the court under par. (a) or (b) indicates the respondent does not possess a firearm, and the court, after an inquiry, is satisfied that the respondent does not possess a firearm, the court shall file the firearm possession form, lift the stay of the injunction, and dismiss the temporary restraining order extended under par. (a).

2. If, under par. (a), the firearm possession form submitted to the court indicates the respondent possesses a firearm, and the respondent has not surrendered his or her firearm as described under sub. (3)(a), the court shall continue to stay the injunction as provided under par. (a) for a period not to exceed 48 hours, issue a surrender and extend order, and schedule a hearing to surrender firearms to occur within one week of the injunction hearing.

3. If, under par. (b), the petitioner indicates that the respondent possesses a firearm or if the court is not satisfied under subd. 1. that the respondent does not possess a firearm, the court shall schedule a hearing to surrender firearms to occur within one week of the injunction hearing. The court shall do one of the following:

a. Continue the stay under par. (a) of the injunction and issue a surrender and extend order.

b. Lift the stay of the injunction.

4. The court may schedule a hearing to surrender firearms for any reason relevant to the surrender of firearms.

(3) Surrender of firearms. (a) Unless the court has noted another reason that is relevant to the surrender of firearms that would require the hearing to surrender firearms to occur, the court shall dismiss the hearing to surrender firearms scheduled under sub. (2)(c)2. or 3. if the respondent surrenders his or her firearm in one of the following manners:

1. The respondent surrenders his or her firearm to another person and all of the following apply:

a. The respondent and the person to whom the respondent is surrendering his or her firearm appear at the injunction hearing.

b. At the injunction hearing, the person testifies under oath that the person has received the firearms listed on the respondent's firearm possession form.

c. At the injunction hearing, the court determines that the person is not prohibited from possessing a firearm.

d. The court informs the person to whom the firearm is surrendered of the requirements and penalties under s. 941.2905.

e. The court, after considering all relevant factors and any input from the petitioner, approves the surrender of the firearm.

f. The court does not use the process under subd. 3.

2. The respondent surrenders his or her firearm to a sheriff no later than 48 hours after the injunction hearing ordering the respondent to surrender his or her firearm and provides a copy of the receipt to the clerk of courts as provided in sub. (6)(b).

3. The respondent surrenders his or her firearm to a sheriff as provided under subd. 2., and a person who appeared at the injunction hearing takes possession of the firearm from the sheriff, if all of the following apply:

a. Subdivision 1. d. and e. apply.

b. The sheriff determines that the person is not prohibited from possessing a firearm.

(b) If the court approves the surrender under par. (a)1., and if the court has issued a surrender and extend order and has stayed the injunction, the court shall lift the stay and dismiss the temporary restraining order.

(4) Hearing to surrender firearms. (a) Unless the court dismisses the hearing to surrender firearms, a respondent for whom a hearing to surrender firearms has been scheduled must attend the hearing. If the respondent fails to attend the hearing to surrender firearms, the court shall issue an arrest warrant for the respondent.

(b) At the hearing to surrender firearms, the court shall stay the injunction for a period not to exceed 48 hours, shall extend the temporary restraining order for 48 hours, shall ensure that the respondent has completed a firearm possession form and verify the information provided on the firearm possession form if the information was not already verified under sub. (2)(a), shall make an inquiry on the record as to the contents of the firearm possession form, and shall do one of the following:

1. If the respondent wants to surrender his or her firearms to a person who is not the sheriff and who appears at the hearing to surrender firearms, and if the court, after considering all relevant factors and input from the petitioner, approves the surrender and informs the person to whom the firearms are surrendered of the requirements and penalties under s. 941.2905, order the respondent to surrender his or her firearms in one of the following ways:

a. To the person, after the person testifies under oath that he or she has received the firearms listed on the respondent's firearm possession form and after the court determines that the person is not prohibited from possessing a firearm.

b. To the sheriff, who shall transfer the firearms to the person after determining that the person is not prohibited from possessing a firearm.

1m. If the respondent claims to have surrendered his or her firearms to the sheriff in accordance with sub. (6), verify that the respondent has surrendered all such firearms, lift the stay of the injunction, and dismiss the temporary restraining order.

2. Order the respondent to surrender any firearm that the court finds the respondent owns or possesses to a sheriff in accordance with sub. (6). If the respondent has not provided to the court, within 48 hours of the hearing to surrender firearms, a receipt as specified in sub. (6)(b) that shows surrender of all of the firearms that were subject to the order, the court shall presume the respondent is violating the order and the injunction and may do any of the following:

a. Notify the sheriff of the violation for investigation and appropriate action.

b. Schedule another hearing to surrender firearms.

c. Issue a warrant to the sheriff ordering that the respondent be brought before the court to show cause why the respondent should not be held in contempt.

3. a. If, under subd. 1. b. or 2., the court orders the respondent to surrender his or her firearms to the sheriff, the court shall issue a surrender and extend order.

b. If, under subd. 1. a., the court orders the respondent to surrender his or her firearms to a person who is not the sheriff, the court shall lift any stay of the injunction and dismiss the temporary restraining order.

4. If the firearm possession form indicates that the respondent does not possess a firearm, and the court, after an inquiry, is satisfied that the respondent does not possess a firearm, the court shall file the firearm possession form, lift any stay of the injunction, and dismiss the temporary restraining order.

(5) Firearm possession form and petition for the return of firearms. (a) The director of state courts shall develop a firearm possession form. Any false information provided on the form by the respondent may be subject to a penalty of false swearing under s. 946.32. The director of state courts shall ensure that the firearm possession form does all of the following:

1. Requires the respondent to list his or her name and address.

2. Includes space for the respondent's signature and date signed.

3. Requires the respondent to indicate whether he or she owns or possesses any firearm or has owned or possessed any firearm in the 6 months immediately preceding the issuance of the injunction, and, if the answer is yes, to list the quantity and the make and model of each firearm and to note whether the firearm was sold or surrendered and whether he or she has a receipt for the firearm sale or surrender.

4. Gives notice of the penalty for false swearing under s. 946.32.

(b) The director of state courts shall develop a petition for the return of firearms in substantially the following form:

STATE OF WISCONSIN

IN CIRCUIT COURT FOR .... COUNTY

Petition to Return Firearm(s)

In re the Return of Firearms to (name of person required to surrender firearms in an injunction action)

Requesting person's information: date of birth, sex, race, height, weight, hair color, eye color, address, and phone number.

Under oath I state that:

1. The court issued an injunction against me on (date of injunction). The injunction was issued based on a:

Domestic Abuse petition.

Child Abuse petition.

Harassment petition.

Adult-at-risk petition.

2. The court ordered me to surrender any firearms I owned or had in my possession to:

the sheriff of this county.

the sheriff of the county in which I resided, which is (name of county).

to the following person (whether directly or indirectly through a sheriff):

name:

address:

3. I surrendered the following firearms as provided in item 2 and have attached a receipt from the sheriff or from the 3rd person (if the person did not provide a receipt, attach a description of the firearm(s)):

4. The injunction has (been vacated)(expired and has not been extended).

5. I (have)(have not) been convicted of a misdemeanor crime of domestic violence.

6. I (have)(have not) been convicted of a felony.

7. I am not prohibited from possessing a firearm under any state or federal law or by the order of any federal court or state court, other than an order from which a judge or family court commissioner is competent to grant relief.

I request that the court enter an order directing that the person named under item 2 return to me those firearms that were surrendered under the order of the court.

Subscribed and sworn to before me on (date)

(Signature of person requesting return of firearms)

(Signature of notary public, state of Wisconsin)

My commission expires on (date)

Dated this .... day of ...., .... (year)

Distribution:

1. Court--original 2. Petitioner in injunction action 3. Person to whom firearm(s) were surrendered

(5m) Notification to local law enforcement. (a) Within one business day after the court issues an order, extends or modifies a temporary restraining order, or stays or lifts a stay on an injunction under this section, the clerk of the circuit court shall send a copy of the order, the extension or modification, or the stay or lift to the sheriff or to any other local law enforcement agency that is the repository for such actions and that has jurisdiction over the premises of the petitioner.

(b) No later than 24 hours after receiving the information under par. (a), the sheriff or other local law enforcement agency under par. (a) shall enter the information concerning the order issued, the extension or modification, or the stay or lift of the injunction under par. (a) into the transaction information for management of enforcement system. The sheriff or other local law enforcement agency shall also make available to other law enforcement agencies, through a verification system, the information received and entered under this paragraph. The information need not be maintained after the order or injunction is no longer in effect.

(6) Surrender of firearm to sheriff. (a) When a respondent surrenders a firearm under sub. (3)(a)2. or (4)(b)2. to a sheriff, the sheriff who is receiving the firearm shall prepare a receipt for each firearm surrendered to him or her. The receipt shall include the date on which the firearm was surrendered and the manufacturer, model, and serial number of the firearm surrendered to the sheriff and shall be signed by the respondent and by the sheriff to whom the firearm is surrendered.

(b) The sheriff shall keep the original of a receipt prepared under par. (a) and shall provide 2 copies of the receipt to the respondent. The respondent shall provide one copy of the receipt to the clerk of courts within 48 hours of the order to surrender firearms. When the firearm covered by the receipt is returned to the respondent under sub. (7), the sheriff shall surrender to the respondent the original receipt and all of his or her copies of the receipt.

(c) A receipt prepared under par. (a) is conclusive proof that the respondent owns the firearm for purposes of returning the firearm covered by the receipt to the respondent under sub. (7).

(d) The sheriff may not enter any information contained on a receipt prepared under par. (a) into any computerized or direct electronic data transfer system in order to store the information or, except as provided in par. (b), disseminate or provide access to the information.

(e)1. A sheriff may store a firearm surrendered to him or her under sub. (3)(a)2. or (4)(b)2. in a warehouse that is operated by a public warehouse keeper licensed under ch. 99. If a sheriff stores a firearm at a warehouse under this subdivision, the respondent shall pay the costs charged by the warehouse for storing that firearm.

2. If an injunction expires and is not extended, or an injunction is vacated, a sheriff may charge the respondent for any costs incurred 30 days after the injunction expires for storage of the firearm surrendered to the sheriff due to that injunction. A sheriff may dispose of a firearm surrendered to the sheriff due to that injunction 12 months after the injunction expires or is vacated and, if the sheriff disposes of the firearm, the sheriff may charge the respondent for the costs of disposal.

(7) Return of firearm. (a) A firearm surrendered under this section may not be returned to the respondent until the respondent completes a petition for the return of firearms and a judge or circuit court commissioner determines all of the following:

1. That the injunction has been vacated or has expired and not been extended.

2. That the person is not prohibited from possessing a firearm under any state or federal law or by the order of any federal court or state court, other than an order from which the judge or circuit court commissioner is competent to grant relief. The court or commissioner shall use the information provided under s. 165.63 to aid in making the determination under this subdivision.

(b) If a respondent surrenders a firearm under this section that is owned by a person other than the respondent, the person who owns the firearm may apply for its return to the circuit court for the county in which the person to whom the firearm was surrendered is located. The court shall order such notice as it considers adequate to be given to all persons who have or may have an interest in the firearm and shall hold a hearing to hear all claims to its true ownership. If the right to possession is proved to the court's satisfaction, it shall order the firearm returned. If the court returns a firearm under this paragraph, the court shall inform the person to whom the firearm is returned of the requirements and penalties under s. 941.2905.

(8) Penalties. A respondent who violates an order described under sub. (1g)(a) or (b) is subject to a fine of not more than $10,000 or imprisonment for not more than 9 months or both in addition to any other penalty to which he or she is subject.

Chapter 814. Court Costs, Fees, and Surcharges

Updated: 
September 12, 2018

Subchapter II. Court Fees

Updated: 
September 12, 2018

814.61 Civil actions; fees of the clerk of court.

Updated: 
September 12, 2018

In a civil action, the clerk of court shall collect the fees provided in this section. Unless a specific exemption is provided, a governmental unit, as defined in s. 108.02(17), shall pay fees under this section. The clerk shall collect the following fees:

(1) Commencement of actions. (a) Except as provided under pars. (c), (d), and (e), at the commencement of all civil actions and special proceedings not specified in ss. 814.62 to 814.66, $75. Of the fees received by the clerk under this paragraph, the county treasurer shall pay $45 to the secretary of administration for deposit in the general fund and shall retain the balance for the use of the county. The secretary of administration shall credit $15 of the $45 to the appropriation under s. 20.680(2)(j).

(b) Except as provided in pars. (c), (d) and (e), in addition to the fee under par. (a), at the commencement of an action affecting the family as defined in s. 767.001(1), a fee of $20 to be deposited by the county treasurer in a separate account to be used by the county exclusively for the purposes specified in s. 767.405.

(c) Paragraphs (a) and (b) do not apply to any of the following:

1. An action to determine paternity brought by the state or its delegate under s. 767.80(1)(g) or (h) or commenced on behalf of the child by an attorney appointed under s. 767.407(1)(c).

2. An action under ch. 769.

3. A forfeiture proceeding under ss. 961.55 to 961.56 or 973.075 to 973.077.

4. An action to terminate parental rights under subch. VIII of ch. 48.

5. An action for adoption under subch. XIX of ch. 48.

6. An action to commit a person under ch. 51, 55, or 980.

7. An action under s. 165.76(6) to compel provision of a biological specimen for deoxyribonucleic acid analysis.

(d) No fee charged under this subsection in any action commenced under s. 813.12, 813.122, or 813.123 may be collected from a petitioner under s. 813.12, 813.122, or 813.123. The fee charged under this subsection for petitions filed and granted under s. 813.12, 813.122, or 813.123 shall be collected from the respondent under s. 813.12, 813.122, or 813.123 if he or she is convicted of violating a temporary restraining order or injunction issued under s. 813.12(3) or (4), 813.122(4) or (5), or 813.123(4) or (5).

(e) No fee charged under this subsection in any action commenced under s. 813.125 may be collected from a petitioner under s. 813.125 if the petition alleges conduct that is the same as or similar to conduct that is prohibited by s. 940.32 or that is listed in s. 813.12(1)(am)1. to 6. If no fee is collected under this paragraph, the fee charged under this subsection for petitions filed and granted under s. 813.125 shall be collected from the respondent under s. 813.125 if he or she is convicted of violating a temporary restraining order or injunction issued under s. 813.125(3) or (4).

(2) Change of venue. (a) Except as provided in par. (b), on a change of venue at commencement in the court to which the action is transferred, a fee equal to the fee paid by the plaintiff to commence the action. The transferring court, in its order for change of venue, shall make a finding as to which party's actions necessitated the change of venue and shall order that party to pay the fee, which shall not be taxed as a cost in the action.

(b) If the court orders a change of venue under s. 801.52, no fee may be charged.

(3) Third-party complaint. When any defendant files a 3rd-party complaint, the defendant shall pay a fee of $45. The defendant shall pay only one such $45 fee in an action. Of the fees received by the clerk under this subsection, the county treasurer shall pay $25 to the secretary of administration for deposit in the general fund and shall retain the balance for the use of the county. The secretary of administration shall credit $5 of the $25 to the appropriation under s. 20.680(2)(j).

(4) Jury fee. For a jury in all civil actions, except a garnishment action under ch. 812, a nonrefundable fee of $6 per juror demanded to hear the case to be paid by the party demanding a jury within the time permitted to demand a jury trial. If the jury fee is not paid, no jury may be called in the action, and the action may be tried to the court without a jury.

(5) Judgments, writs, executions, liens, warrants, awards, certificates. The clerk shall collect a fee of $5 for the following:

(a) Issuing executions, certificates, commissions to take depositions, transcripts from the judgment and lien docket, and any writs not commencing an action or special proceeding.

(b) Filing and entering judgments, transcripts of judgments, liens, warrants and awards, including filing and entering assignments or satisfactions of judgments, liens or warrants and withdrawals, satisfactions and voidances of tax warrants under s. 71.91(5)(g).

(6) Foreign judgments. On filing a foreign judgment under s. 806.24, $15.

(7) Revision of judgment or order in action affecting the family. (a) Except as provided in par. (b), upon the filing of any petition under s. 767.59(1c)(a) or any motion, by either party, for the revision of a judgment or order in an action affecting the family, $30. No fee may be collected under this paragraph for any petition or motion by either party for the revision of a judgment or order involving child support, family support, or maintenance if both parties have stipulated to the revision of the judgment or order. Of the fees received by the clerk under this paragraph, the county treasurer shall pay 50% to the secretary of administration for deposit in the general fund and shall retain the balance for the use of the county.

(b) Upon the filing of any petition, motion, or order to show cause by either party under s. 767.451 or 767.481, $50. No fee may be collected under this paragraph for filing a petition, motion, or order to show cause for the revision of a judgment or order for legal custody of physical placement if both parties have stipulated to the revision of the judgment or order. Of the fees received by the clerk under this paragraph, the county treasurer shall pay 25% to the secretary of administration for deposit in the general fund, retain 25% for the use of the county, and deposit 50% in a separate account to be used by the county exclusively for the purposes specified in s. 767.405.

(c) Paragraphs (a) and (b) do not apply to a petition or motion filed by the state or its delegate in connection with an action to determine paternity under s. 767.80(1)(g), to a petition or motion filed by an attorney appointed under s. 767.407(1)(c) in connection with an action to determine paternity when the circumstances specified in s. 767.407(1)(c)1. or 2. apply or to a petition or motion filed in an action under ch. 769.

(8) Appeal from municipal court or administrative decision. (am) On appeal from municipal court or on review of any administrative decision, including an appeal from a commission's award in a condemnation action under ch. 32:

1. If the appeal or review is by certiorari or on the record, $40.

2. If a new trial is authorized and requested, $55.

(c) Of the fees received by the clerk under par. (am)1., the county treasurer shall pay $22.50 to the secretary of administration for deposit in the general fund and shall retain the balance for the use of the county. The secretary of administration shall credit $5 of the $22.50 to the appropriation under s. 20.680(2)(j).

(d) Of the fees received by the clerk under par. (am)2., the county treasurer shall pay $30 to the secretary of administration for deposit in the general fund and shall retain the balance for the use of the county. The state treasurer shall credit $5 of the $30 to the appropriation under s. 20.680(2)(j).

(9) Transmitting documents. For certifying and transmitting documents upon appeal, writ of error, change of venue, for enforcing real estate judgments in other counties, or for enforcing judgments in other states, $15 plus postage.

(10) Copies. (a) Except as provided in par. (b), for copies, certified or otherwise, of any document for which a specific fee is not established by this section, or for comparison and attestation of copies not provided by the clerk, $1.25 per page.

(b) For copies of any court document requested by the state public defender, other than a transcript, a fee equal to the actual, necessary and direct costs of copying.

(11) Searches. For searching files or records to locate any one action when the person requesting the search does not furnish the case number of the action, or to ascertain the existence or nonexistence of any instrument or record in the custody of the clerk of circuit court, $5.

(12) Receiving and disbursing money. (a) Trust funds and small estates. 1. For receiving a trust fund, or handling or depositing money under s. 757.25 or 807.10(3), at the time the money is deposited with the clerk, a fee of $10 or 0.5 percent of the amount deposited, whichever is greater. In addition, a fee of $10 shall be charged upon each withdrawal of any or all of the money deposited with the clerk.

2. If the clerk is required by court order or by law to deposit any of the funds in subd. 1 in an account in a bank, savings bank, savings and loan association or other suitable financial institution, the type of account shall be in the clerk's discretion unless the court specifies a particular type of account in its order. In depositing the funds into any account, the clerk shall act as a conservator, not as a trustee, and shall not be held liable or responsible for obtaining any specific rate of interest on the deposit.

(c) Deposits in contempt proceedings. For receiving and disbursing deposits made under s. 818.12 in contempt proceedings under ch. 785, $10 per deposit. The $10 fee shall be deducted from the deposit, unless the entire deposit is ordered returned to the defendant, before applying the deposit to the satisfaction of a judgment under s. 818.14.

(13) Support or maintenance petition. For the cost of court services, whenever a person not receiving benefits under s. 49.148 or 49.155 or aid under s. 49.19, 49.46, 49.465, 49.468 , 49.47, or 49.471 files a petition requesting child support, maintenance or family support payments, $10 in addition to any other fee required under this section. This subsection does not apply to a petition filed by the state or its delegate.

(14) Petition for occupational license. On filing a petition for an occupational license under s. 343.10(4), $40.

<<For credits, see Historical Note field.>>

COMMENTS--1989 ACT 191, § 1

Section 814.61(12)(c) allows the clerk of court to deduct a $10 fee for receiving and disbursing a deposit made in lieu of bail in a contempt proceeding, unless the entire deposit is ordered returned to the defendant. Several counties permit such deposits in contempt proceedings under s. 799.26(2). This procedure imposes a burden on the court system which is not supported by any existing fee.

814.70 Fees of sheriffs

Updated: 
September 12, 2018

The sheriff shall collect the fees under this section. The fees are set as follows, unless a higher fee is established under s. 814.705:

(1) Service of process. For each service or attempted service of a summons or any other process for commencement of an action, a writ, an order of injunction, a subpoena, or any other order, $12 for each defendant or person. If there is more than one defendant or person to be served at a given address, $6 for each additional defendant or person. No fee charged under this subsection in any action commenced under s. 813.12, 813.122, or 813.123 may be collected from a petitioner under s. 813.12, 813.122, or 813.123. The fee charged under this subsection in any action commenced under s. 813.12, 813.122, 813.123, or 813.125 shall be collected from the respondent under s. 813.12, 813.122, or 813.123 if he or she is convicted of violating a temporary restraining order or injunction issued under s. 813.12(3) or (4), 813.122(4) or (5), 813.123(4) or (5), or 813.125(3) or (4). No fee charged under this subsection in any action commenced under s. 813.125 may be collected from a petitioner under s. 813.125 if the petition alleges conduct that is the same as or similar to conduct that is prohibited by s. 940.32 or that is listed in s. 813.12(1)(am)1. to 6. If no fee is collected under this subsection from a petitioner under s. 813.125, the fee charged under this subsection in any action commenced under s. 813.125 shall be collected from the respondent under s. 813.125 if he or she is convicted of violating a temporary restraining order or injunction issued under s. 813.125(3) or (4).

(2) Execution on judgment. For serving an execution on a judgment demanding payment thereof or other writ not provided for, $12.

(3) For travel in serving any summons, writ or other process, except criminal warrants, and except that a fee under this subsection in any action commenced under s. 813.12, 813.122, or 813.123 may not be collected from a petitioner but shall be collected from the respondent if he or she is convicted of violating a temporary restraining order or injunction issued under s. 813.12(3) or (4), 813.122(4) or (5), 813. 123(4) or (5), or 813.125(3) or (4), and except that a fee under this subsection in any action commenced under s. 813.125 may not be collected from a petitioner if the petition alleges conduct that is the same as or similar to conduct that is prohibited by s. 940.32 or that is listed in s. 813.12(1)(am)1. to 6. but shall be collected from the respondent if he or she is convicted of violating a temporary restraining order or injunction issued under s. 813.125(3) or (4):

(a) In counties having a population of less than 500,000, 25 cents for each mile actually and necessarily traveled.

(b) In counties having a population of 500,000 or more, $4 for each party to be served in each action. Only one charge may be imposed if there is more than one person to be served at a given address.

(4) Travel; criminal process. For travel in serving any criminal process:

(a) In counties having a population of less than 500,000, 25 cents per mile.

(b) In counties having a population of 500,000 or more, $4 for each person served within the county from which process issued, or 25 cents per mile if served outside the county.

(c) The actual and necessary disbursements for board and conveyance of the prisoner.

(5) Collection of money. For collecting and paying over all sums upon any execution, writ or process for the collection of money, 10% on the first $300; 5% on the next $300 or any part thereof; and 3% on any excess over $600; but the whole fee may not exceed $60.

(6) Copies. (a) Except as provided in par. (b), making a copy of any bond, undertaking, summons, writ, complaint or other paper served or taken, when required by law or demanded by a party, and if not furnished by a party to the action or attorney, $1 per page.

(b) Making a copy of any bond, undertaking, summons, writ, complaint or other paper served or taken, when requested by the state public defender, a fee equal to the actual, necessary and direct costs of copying.

(7) Advertising personal property. Advertising goods and chattels for sale upon execution, writ or process, $1.50. If there is more than one execution, writ or process in the hands of the sheriff against the same defendants, there shall be only one advertising fee charged in the whole, which shall be on the execution having priority.

(8) Seizure of property; evictions. For serving any writ or other process with the aid of the county, $8; and $10 per hour for each deputy assigned to inventory the property when seizing property on attachment, replevin, execution or evicting on a writ of restitution or writ of assistance, plus all necessary expenses incurred thereby.

(9) Sales of real estate. (a) A fee of $50, of which $25 shall be prepaid and nonrefundable, for all necessary activities of the sheriff in connection with the sale of real estate by the sheriff or other officers, under any judgment or order of court, and making all the necessary papers and notices, including but not limited to:

1. Drawing an advertisement of real estate.

2. Issuing every certificate of sale of real estate.

3. Drawing, executing and acknowledging a deed pursuant to a sale of real estate.

4. Posting notices of sheriff's sale.

5. Recording a certificate of sale with the register of deeds.

(b) For travel in making the sale, to be computed from the courthouse, 20 cents per mile going and returning.

(10) Personal property; possession and storage. All necessary expenses incurred in taking possession of any goods or chattels and preserving the same as shall be just and reasonable in the opinion of the court.

(11) Printing advertisements. All fees allowed by law and paid to any printer for any advertisement required to be published by the sheriff.

(12) Notices of sale. For the posting of notices of sale of personal property or posting any other notice and making a return thereon, $4 for the first posting and $2 for each additional posting.

Miscellaneous Actions, Proceedings and Procedure (Ch. 895 to 900)

Updated: 
September 12, 2018

Chapter 895. Damages, Liability, and Miscellaneous Provisions Regarding Actions in Courts

Updated: 
September 12, 2018

Subchapter I. Damages, Recovery, and Miscellaneous Provisions Regarding Actions in Courts

Updated: 
September 12, 2018

895.45 Service representatives for adult abusive conduct complainants

Updated: 
September 12, 2018

(1) Definitions. In this section:

(a) “Abusive conduct” means domestic abuse, as defined under s. 49.165(1)(a), 813.12(1)(am), or 968.075(1)(a), harassment, as defined under s. 813.125(1), sexual exploitation by a therapist under s. 940.22, sexual assault under s. 940.225, child abuse, as defined under s. 813.122(1)(a), or child abuse under ss. 948.02 to 948.11.

(b) “Complainant” means an adult who alleges that he or she was the subject of abusive conduct or who alleges that a crime has been committed against him or her.

(c) “Service representative” means an individual member of an organization or victim assistance program who provides counseling or support services to complainants or petitioners and charges no fee for services provided to a complainant under sub. (2) or to a petitioner under s. 813.122.

(2) Right to be present. A complainant has the right to select a service representative to attend, with the complainant, hearings, depositions and court proceedings, whether criminal or civil, and all interviews and meetings related to those hearings, depositions and court proceedings, if abusive conduct is alleged to have occurred against the complainant or if a crime is alleged to have been committed against the complainant and if the abusive conduct or the crime is a factor under s. 767.41 or is a factor in the complainant's ability to represent his or her interest at the hearing, deposition or court proceeding. The complainant shall notify the court orally, or in writing, of that selection. A service representative selected by a complainant has the right to be present at every hearing, deposition and court proceeding and all interviews and meetings related to those hearings, depositions and court proceedings that the complainant is required or authorized to attend. The service representative selected by the complainant has the right to sit adjacent to the complainant and confer orally and in writing with the complainant in a reasonable manner during every hearing, deposition or court proceeding and related interviews and meetings, except when the complainant is testifying or is represented by private counsel. The service representative may not sit at counsel table during a jury trial. The service representative may address the court if permitted to do so by the court.

(3) Failure to exercise right not grounds for appeal. The failure of a complainant to exercise a right under this section is not a ground for an appeal of a judgment of conviction or for any court to reverse or modify a judgment of conviction.

Evidence (Ch. 901 to 937)

Updated: 
September 12, 2018

Chapter 905. Evidence -- Privileges

Updated: 
September 12, 2018

905.045 Domestic violence or sexual assault advocate-victim privilege

Updated: 
September 12, 2018

(1) Definitions. In this section:

(a) “Abusive conduct” means abuse, as defined in s. 813.122(1)(a), of a child, as defined in s. 813.122(1)(b), interspousal battery, as described under s. 940.19 or 940.20(1m), domestic abuse, as defined in s. 813.12(1)(am), sexual exploitation by a therapist under s. 940.22, sexual assault under s. 940.225, human trafficking involving a commercial sex act under s. 940.302, or child sexual abuse under s. 948.02, 948.025, or 948.05 to 948.11.

(c) A communication or information is “confidential” if not intended to be disclosed to 3rd persons other than persons present to further the interest of the person receiving counseling, assistance, or support services, persons reasonably necessary for the transmission of the communication or information, and persons who are participating in providing counseling, assistance, or support services under the direction of a victim advocate, including family members of the person receiving counseling, assistance, or support services and members of any group of individuals with whom the person receives counseling, assistance, or support services.

(d) “Victim” means an individual who has been the subject of abusive conduct or who alleges that he or she has been the subject of abusive conduct. It is immaterial that the abusive conduct has not been reported to any government agency.

(e) “Victim advocate” means an individual who is an employee of or a volunteer for an organization the purpose of which is to provide counseling, assistance, or support services free of charge to a victim.

(2) General rule of privilege. A victim has a privilege to refuse to disclose and to prevent any other person from disclosing confidential communications made or information obtained or disseminated among the victim, a victimadvocate who is acting in the scope of his or her duties as a victim advocate, and persons who are participating in providing counseling, assistance, or support services under the direction of a victim advocate, if the communication was made or the information was obtained or disseminated for the purpose of providing counseling, assistance, or support services to the victim.

(3) Who may claim the privilege. The privilege may be claimed by the victim, by the victim's guardian or conservator, or by the victim's personal representative if the victim is deceased. The victim advocate may claim the privilege on behalf of the victim. The victim advocate's authority to do so is presumed in the absence of evidence to the contrary.

(4) Exceptions. Subsection (2) does not apply to any report concerning child abuse that a victim advocate is required to make under s. 48.981 or concerning a threat of violence in or targeted at a school that a victim advocate is required to make under s. 175.32.

(5) Relationship to s. 905.04. If a communication or information that is privileged under sub. (2) is also a communication or information that is privileged under s. 905.04(2), the provisions of s. 905.04 supersede this section with respect to that communication or information.

Crimes (Ch. 938 to 951)

Updated: 
September 12, 2018

Chapter 939. Crimes - General Provisions

Updated: 
September 12, 2018

Subchapter I. Preliminary Provisions

Updated: 
September 12, 2018

939.22 Words and phrases defined

Updated: 
September 12, 2018

In chs. 939 to 948 and 951, the following words and phrases have the designated meanings unless the context of a specific section manifestly requires a different construction or the word or phrase is defined in s. 948.01 for purposes of ch. 948:

(2) “Airgun” means a weapon which expels a missile by the expansion of compressed air or other gas.

(3) “Alcohol concentration” has the meaning given in s. 340.01(1v).

(4) “Bodily harm” means physical pain or injury, illness, or any impairment of physical condition.

(5) “Commission warden” means a conservation warden employed by the Great Lakes Indian Fish and Wildlife Commission.

(6) “Crime” has the meaning designated in s. 939.12.

(9) “Criminal gang” means an ongoing organization, association or group of 3 or more persons, whether formal or informal, that has as one of its primary activities the commission of one or more of the criminal acts, or acts that would be criminal if the actor were an adult, specified in s. 939.22(21)(a) to (s); that has a common name or a common identifying sign or symbol; and whose members individually or collectively engage in or have engaged in a pattern of criminal gang activity.

(9g) “Criminal gang member” means any person who participates in criminal gang activity, as defined in s. 941.38(1)(b), with a criminal gang.

(9r) “Criminal intent” has the meaning designated in s. 939.23.

(10) “Dangerous weapon” means any firearm, whether loaded or unloaded; any device designed as a weapon and capable of producing death or great bodily harm; any ligature or other instrumentality used on the throat, neck, nose, or mouth of another person to impede, partially or completely, breathing or circulation of blood; any electric weapon, as defined in s. 941.295(1c)(a); or any other device or instrumentality which, in the manner it is used or intended to be used, is calculated or likely to produce death or great bodily harm.

(11) “Drug” has the meaning specified in s. 450.01(10).

(12) “Felony” has the meaning designated in s. 939.60.

(14) “Great bodily harm” means bodily injury which creates a substantial risk of death, or which causes serious permanent disfigurement, or which causes a permanent or protracted loss or impairment of the function of any bodily member or organ or other serious bodily injury.

(15) “Hazardous inhalant” means a substance that is ingested, inhaled, or otherwise introduced into the human body in a manner that does not comply with any cautionary labeling that is required for the substance under s. 100.37 or under federal law, or in a manner that is not intended by the manufacturer of the substance, and that is intended to induce intoxication or elation, to stupefy the central nervous system, or to change the human audio, visual, or mental processes.

(16) “Human being” when used in the homicide sections means one who has been born alive.

(18) “Intentionally” has the meaning designated in s. 939.23.

(19) “Intimate parts” means the breast, buttock, anus, groin, scrotum, penis, vagina or pubic mound of a human being.

(20) “Misdemeanor” has the meaning designated in s. 939.60.

(20d) “Offense against an elderly or vulnerable person” means a violation of s. 940.285(2)(a) that caused death, great bodily harm, or bodily harm to the victim or s. 940.295(3)(b) that caused death, great bodily harm, or bodily harm to the victim.

(20m) “Offense related to ethical government” means a violation of s. 13.69(6m), 19.58(1)(b), or 946.12.

(21) “Pattern of criminal gang activity” means the commission of, attempt to commit or solicitation to commit 2 or more of the following crimes, or acts that would be crimes if the actor were an adult, at least one of those acts or crimes occurs after December 25, 1993, the last of those acts or crimes occurred within 3 years after a prior act or crime, and the acts or crimes are committed, attempted or solicited on separate occasions or by 2 or more persons:

(a) Manufacture, distribution or delivery of a controlled substance or controlled substance analog, as prohibited in s. 961.41(1).

(b) First-degree intentional homicide, as prohibited in s. 940.01.

(c) Second-degree intentional homicide, as prohibited in s. 940.05.

(d) Battery, as prohibited in s. 940.19 or 940.195.

(e) Battery, special circumstances, as prohibited in s. 940.20.

(em) Battery or threat to witness, as prohibited in s. 940.201.

(f) Mayhem, as prohibited in s. 940.21.

(g) Sexual assault, as prohibited in s. 940.225.

(h) False imprisonment, as prohibited in s. 940.30.

(i) Taking hostages, as prohibited in s. 940.305.

(j) Kidnapping, as prohibited in s. 940.31.

(k) Intimidation of witnesses, as prohibited in s. 940.42 or 940.43.

(L) Intimidation of victims, as prohibited in s. 940.44 or 940.45.

(m) Criminal damage to property, as prohibited in s. 943.01.

(mg) Criminal damage to or threat to criminally damage the property of a witness, as prohibited in s. 943.011 or 943.017 (2m).

(n) Arson of buildings or damage by explosives, as prohibited in s. 943.02.

(o) Burglary, as prohibited in s. 943.10.

(p) Theft, as prohibited in s. 943.20.

(q) Taking, driving or operating a vehicle, or removing a part or component of a vehicle, without the owner's consent, as prohibited in s. 943.23.

(r) Robbery, as prohibited in s. 943.32.

(s) Sexual assault of a child, as prohibited in s. 948.02.

(t) Repeated acts of sexual assault of the same child, as prohibited in s. 948.025.

(u) Sexual assault of a child placed in substitute care under s. 948.085.

(22) “Peace officer” means any person vested by law with a duty to maintain public order or to make arrests for crime, whether that duty extends to all crimes or is limited to specific crimes. “Peace officer” includes a commission warden and a university police officer, as defined in s. 175.42(1)(b).

(23) “Petechia” means a minute colored spot that appears on the skin, eye, eyelid, or mucous membrane of a person as a result of localized hemorrhage or rupture to a blood vessel or capillary.

(24) “Place of prostitution” means any place where a person habitually engages, in public or in private, in nonmarital acts of sexual intercourse, sexual gratification involving the sex organ of one person and the mouth or anus of another, masturbation or sexual contact for anything of value.

(28) “Property of another” means property in which a person other than the actor has a legal interest which the actor has no right to defeat or impair, even though the actor may also have a legal interest in the property.

(30) “Public officer”; “public employee”. A “public officer” is any person appointed or elected according to law to discharge a public duty for the state or one of its subordinate governmental units. A “public employee” is any person, not an officer, who performs any official function on behalf of the state or one of its subordinate governmental units and who is paid from the public treasury of the state or subordinate governmental unit.

(32) “Reasonably believes” means that the actor believes that a certain fact situation exists and such belief under the circumstances is reasonable even though erroneous.

(33) “Restricted controlled substance” means any of the following:

(a) A controlled substance included in schedule I under ch. 961 other than a tetrahydrocannabinol.

(b) A controlled substance analog, as defined in s. 961.01(4m), of a controlled substance described in par. (a).

(c) Cocaine or any of its metabolites.

(d) Methamphetamine.

(e) Delta-9-tetrahydrocannabinol.

(34) “Sexual contact” means any of the following if done for the purpose of sexual humiliation, degradation, arousal, or gratification:

(a) The intentional touching by the defendant or, upon the defendant's instruction, by a third person of the clothed or unclothed intimate parts of another person with any part of the body, clothed or unclothed, or with any object or device.

(b) The intentional touching by the defendant or, upon the defendant's instruction, by a third person of any part of the body, clothed or unclothed, of another person with the intimate parts of the body, clothed or unclothed.

(c) The intentional penile ejaculation of ejaculate or the intentional emission of urine or feces by the defendant or, upon the defendant's instruction, by a third person upon any part of the body, clothed or unclothed, of another person.

(d) Intentionally causing another person to ejaculate or emit urine or feces on any part of the actor's body, whether clothed or unclothed.

(36) “Sexual intercourse” requires only vulvar penetration and does not require emission.

(37) “State-certified commission warden” means a commission warden who meets the requirements of s. 165.85(4)(a) 1., 2., and 7. and has agreed to accept the duties of a law enforcement officer under the laws of this state.

(38) “Substantial bodily harm” means bodily injury that causes a laceration that requires stitches, staples, or a tissue adhesive; any fracture of a bone; a broken nose; a burn; a petechia; a temporary loss of consciousness, sight or hearing; a concussion; or a loss or fracture of a tooth.

(40) “Transfer” means any transaction involving a change in possession of any property, or a change of right, title, or interest to or in any property.

(42) “Under the influence of an intoxicant” means that the actor's ability to operate a vehicle or handle a firearm or airgun is materially impaired because of his or her consumption of an alcohol beverage, hazardous inhalant, of a controlled substance or controlled substance analog under ch. 961, of any combination of an alcohol beverage, hazardous inhalant, controlled substance and controlled substance analog, or of any other drug, or of an alcohol beverage and any other drug.

(44) “Vehicle” means any self-propelled device for moving persons or property or pulling implements from one place to another, whether such device is operated on land, rails, water, or in the air. “Vehicle” does not include a personal delivery device, as defined in s. 340.01(43fg).

(46) “With intent” has the meaning designated in s. 939.23.

(48) “Without consent” means no consent in fact or that consent is given for one of the following reasons:

(a) Because the actor put the victim in fear by the use or threat of imminent use of physical violence on the victim, or on a person in the victim's presence, or on a member of the victim's immediate family; or

(b) Because the actor purports to be acting under legal authority; or

(c) Because the victim does not understand the nature of the thing to which the victim consents, either by reason of ignorance or mistake of fact or of law other than criminal law or by reason of youth or defective mental condition, whether permanent or temporary.

Subchapter IV. Penalties

Updated: 
September 12, 2018

939.60. Felony and misdemeanor defined

Updated: 
September 12, 2018

A crime punishable by imprisonment in the Wisconsin state prisons is a felony. Every other crime is a misdemeanor.

Subchapter VI. Rights of the Accused

Updated: 
September 12, 2018

939.74. Time limitations on prosecutions

Updated: 
September 12, 2018

(1) Except as provided in subs. (2) and (2d) and s. 946.88(1), prosecution for a felony must be commenced within 6 years and prosecution for a misdemeanor or for adultery within 3 years after the commission thereof. Within the meaning of this section, a prosecution has commenced when a warrant or summons is issued, an indictment is found, or an information is filed.

(2) Notwithstanding that the time limitation under sub. (1) has expired:

(a)1. A prosecution under s. 940.01, 940.02, 940.03, 940.05, 940.225(1), 948.02(1), or 948.025(1)(a), (b), (c), or (d) may be commenced at any time.

2. A prosecution for an attempt to commit a violation of s. 940.01, 940.05, 940.225(1), or 948.02(1) may be commenced at any time.

(am) A prosecution under s. 940.06 may be commenced within 15 years after the commission of the violation.

(ar) A prosecution for a violation of s. 940.225(2) or (3) may be commenced within 10 years after the commission of the violation.

(b) A prosecution for theft against one who obtained possession of the property lawfully and subsequently misappropriated it may be commenced within one year after discovery of the loss by the aggrieved party, but in no case shall this provision extend the time limitation in sub. (1) by more than 5 years.

(c) A prosecution for violation of s. 948.02(2), 948.025(1)(e), 948.03(2)(a) or (5)(a)1., 2., or 3., 948.05, 948.051, 948.06, 948.07(1), (2), (3), or (4), 948.075, 948.08, 948.081, 948.085, or 948.095 shall be commenced before the victim reaches the age of 45 years or be barred, except as provided in sub. (2d).

(cm) A prosecution for violation of s. 948.03(2)(b) or (c), (3), (4), or (5)(a)4. or 5., 948.04 or 948.07(5) or (6) shall be commenced before the victim reaches the age of 26 years or be barred, except as provided in sub. (2d).

(2d)(a) In this subsection, “deoxyribonucleic acid profile” means an individual's patterned chemical structure of genetic information identified by analyzing biological material that contains the individual's deoxyribonucleic acid.

(am) For purposes of this subsection, crimes are related if they are committed against the same victim, are proximate in time, and are committed with the same intent, purpose, or opportunity so as to be part of the same course of conduct.

(c) If, before the applicable time limitation under sub. (1) or (2)(am), (ar), (c), or (cm) for commencing prosecution of a felony under ch. 940 or 948, other than a felony specified in sub. (2)(a), expires, the state collects biological material that is evidence of the identity of the person who committed the felony, identifies a deoxyribonucleic acid profile from the biological material, and compares the deoxyribonucleic acid profile to deoxyribonucleic acid profiles of known persons, the state may commence prosecution of the person who is the source of the biological material for the felony or a crime that is related to the felony or both within 12 months after comparison of the deoxyribonucleic acid profile relating to the felony results in a probable identification of the person or within the applicable time under sub. (1) or (2), whichever is latest.

(e) If, within 6 years after commission of a felony specified under sub. (2)(a), the state collects biological material that is evidence of the identity of the person who committed the felony, identifies a deoxyribonucleic acid profile from the biological material, and compares the deoxyribonucleic acid profile to deoxyribonucleic acid profiles of known persons, the state may commence prosecution of the person who is the source of the biological material for a crime that is related to the felony within 12 months after comparison of the deoxyribonucleic acid profile relating to the felony results in a probable identification of the person or within the applicable time under sub. (1) or (2), whichever is latest.

(3) In computing the time limited by this section, the time during which the actor was not publicly a resident within this state or during which a prosecution against the actor for the same act was pending shall not be included. A prosecution is pending when a warrant or a summons has been issued, an indictment has been found, or an information has been filed.

(4) In computing the time limited by this section, the time during which an alleged victim under s. 940.22(2) is unable to seek the issuance of a complaint under s. 968.02 due to the effects of the sexual contact or due to any threats, instructions or statements from the therapist shall not be included.

Chapter 940. Crimes Against Life And Bodily Security

Updated: 
September 12, 2018

Subchapter I. Life

Updated: 
September 12, 2018

940.01. First-degree intentional homicide

Updated: 
September 12, 2018

(1) Offenses. (a) Except as provided in sub. (2), whoever causes the death of another human being with intent to kill that person or another is guilty of a Class A felony.

(b) Except as provided in sub. (2), whoever causes the death of an unborn child with intent to kill that unborn child, kill the woman who is pregnant with that unborn child or kill another is guilty of a Class A felony.

(2) Mitigating circumstances. The following are affirmative defenses to prosecution under this section which mitigate the offense to 2nd-degree intentional homicide under s. 940.05:

(a) Adequate provocation. Death was caused under the influence of adequate provocation as defined in s. 939.44.

(b) Unnecessary defensive force. Death was caused because the actor believed he or she or another was in imminent danger of death or great bodily harm and that the force used was necessary to defend the endangered person, if either belief was unreasonable.

(c) Prevention of felony. Death was caused because the actor believed that the force used was necessary in the exercise of the privilege to prevent or terminate the commission of a felony, if that belief was unreasonable.

(d) Coercion; necessity. Death was caused in the exercise of a privilege under s. 939.45(1).

(3) Burden of proof. When the existence of an affirmative defense under sub. (2) has been placed in issue by the trial evidence, the state must prove beyond a reasonable doubt that the facts constituting the defense did not exist in order to sustain a finding of guilt under sub. (1).

940.05. Second-degree intentional homicide

Updated: 
September 12, 2018

(1) Whoever causes the death of another human being with intent to kill that person or another is guilty of a Class B felony if:

(a) In prosecutions under s. 940.01, the state fails to prove beyond a reasonable doubt that the mitigating circumstances specified in s. 940.01(2) did not exist as required by s. 940.01(3); or

(b) The state concedes that it is unable to prove beyond a reasonable doubt that the mitigating circumstances specified in s. 940.01(2) did not exist. By charging under this section, the state so concedes.

(2) In prosecutions under sub. (1), it is sufficient to allege and prove that the defendant caused the death of another human being with intent to kill that person or another.

(2g) Whoever causes the death of an unborn child with intent to kill that unborn child, kill the woman who is pregnant with that unborn child or kill another is guilty of a Class B felony if:

(a) In prosecutions under s. 940.01, the state fails to prove beyond a reasonable doubt that the mitigating circumstances specified in s. 940.01 (2) did not exist as required by s. 940.01 (3); or

(b) The state concedes that it is unable to prove beyond a reasonable doubt that the mitigating circumstances specified in s. 940.01 (2) did not exist. By charging under this section, the state so concedes.

(2h) In prosecutions under sub. (2g), it is sufficient to allege and prove that the defendant caused the death of an unborn child with intent to kill that unborn child, kill the woman who is pregnant with that unborn child or kill another.

(3) The mitigating circumstances specified in s. 940.01(2) are not defenses to prosecution for this offense.

Subchapter II. Bodily Security

Updated: 
September 12, 2018

940.19. Battery; substantial battery; aggravated battery

Updated: 
September 12, 2018

(1) Whoever causes bodily harm to another by an act done with intent to cause bodily harm to that person or another without the consent of the person so harmed is guilty of a Class A misdemeanor.

(2) Whoever causes substantial bodily harm to another by an act done with intent to cause bodily harm to that person or another is guilty of a Class I felony.

(4) Whoever causes great bodily harm to another by an act done with intent to cause bodily harm to that person or another is guilty of a Class H felony.

(5) Whoever causes great bodily harm to another by an act done with intent to cause great bodily harm to that person or another is guilty of a Class E felony.

(6) Whoever intentionally causes bodily harm to another by conduct that creates a substantial risk of great bodily harm is guilty of a Class H felony. A rebuttable presumption of conduct creating a substantial risk of great bodily harm arises:

(a) If the person harmed is 62 years of age or older; or

(b) If the person harmed has a physical disability, whether congenital or acquired by accident, injury or disease, that is discernible by an ordinary person viewing the physically disabled person, or that is actually known by the actor.

940.285. Abuse of individuals at risk

Updated: 
September 12, 2018

(1) Definitions. In this section:

(ag) “Abuse” means any of the following:

1. Physical abuse, as defined in s. 46.90(1)(fg).

2. Emotional abuse, as defined in s. 46.90(1)(cm).

3. Sexual abuse, as defined in s. 46.90(1)(gd).

4. Treatment without consent, as defined in s. 46.90(1)(h).

5. Unreasonable confinement or restraint, as defined in s. 46.90(1)(i).

6. Deprivation of a basic need for food, shelter, clothing, or personal or health care, including deprivation resulting from the failure to provide or arrange for a basic need by a person who has assumed responsibility for meeting the need voluntarily or by contract, agreement, or court order.

(am) “Adult at risk” has the meaning given in s. 55.01(1e).

(dc) “Elder adult at risk” has the meaning given in s. 46.90(1)(br).

(dg) “Individual at risk” means an elder adult at risk or an adult at risk.

(dm) “Recklessly” means conduct that creates a situation of unreasonable risk of harm and demonstrates a conscious disregard for the safety of the vulnerable adult.

(1m) Exception. Nothing in this section may be construed to mean that an individual at risk is abused solely because he or she consistently relies upon treatment by spiritual means through prayer for healing, in lieu of medical care, in accordance with his or her religious tradition.

(2) Abuse; penalties. (a) Any person, other than a person in charge of or employed in a facility under s. 940.29 or in a facility or program under s. 940.295(2), who does any of the following may be penalized under par. (b):

1. Intentionally subjects an individual at risk to abuse.

2. Recklessly subjects an individual at risk to abuse.

3. Negligently subjects an individual at risk to abuse.

(b)1g. Any person violating par. (a)1. or 2. under circumstances that cause death is guilty of a Class C felony. Any person violating par. (a)3. under circumstances that cause death is guilty of a Class D felony.

1m. Any person violating par. (a) under circumstances that cause great bodily harm is guilty of a Class F felony.

1r. Any person violating par. (a)1. under circumstances that are likely to cause great bodily harm is guilty of a Class G felony. Any person violating par. (a)2. or 3. under circumstances that are likely to cause great bodily harm is guilty of a Class I felony.

2. Any person violating par. (a)1. under circumstances that cause bodily harm is guilty of a Class H felony. Any person violating par. (a)1. under circumstances that are likely to cause bodily harm is guilty of a Class I felony.

4. Any person violating par. (a)2. or 3. under circumstances that cause or are likely to cause bodily harm is guilty of a Class A misdemeanor.

5. Any person violating par. (a)1., 2. or 3. under circumstances not causing and not likely to cause bodily harm is guilty of a Class B misdemeanor.

940.225 Sexual assault

Updated: 
September 12, 2018

(1) First degree sexual assault. Whoever does any of the following is guilty of a Class B felony:

(a) Has sexual contact or sexual intercourse with another person without consent of that person and causes pregnancy or great bodily harm to that person.

(b) Has sexual contact or sexual intercourse with another person without consent of that person by use or threat of use of a dangerous weapon or any article used or fashioned in a manner to lead the victim reasonably to believe it to be a dangerous weapon.

(c) Is aided or abetted by one or more other persons and has sexual contact or sexual intercourse with another person without consent of that person by use or threat of force or violence.

(2) Second degree sexual assault. Whoever does any of the following is guilty of a Class C felony:

(a) Has sexual contact or sexual intercourse with another person without consent of that person by use or threat of force or violence.

(b) Has sexual contact or sexual intercourse with another person without consent of that person and causes injury, illness, disease or impairment of a sexual or reproductive organ, or mental anguish requiring psychiatric care for the victim.

(c) Has sexual contact or sexual intercourse with a person who suffers from a mental illness or deficiency which renders that person temporarily or permanently incapable of appraising the person's conduct, and the defendant knows of such condition.

(cm) Has sexual contact or sexual intercourse with a person who is under the influence of an intoxicant to a degree which renders that person incapable of giving consent if the defendant has actual knowledge that the person is incapable of giving consent and the defendant has the purpose to have sexual contact or sexual intercourse with the person while the person is incapable of giving consent.

(d) Has sexual contact or sexual intercourse with a person who the defendant knows is unconscious.

(f) Is aided or abetted by one or more other persons and has sexual contact or sexual intercourse with another person without the consent of that person.

(g) Is an employee of a facility or program under s. 940.295(2)(b), (c), (h) or (k) and has sexual contact or sexual intercourse with a person who is a patient or resident of the facility or program.

(h) Has sexual contact or sexual intercourse with an individual who is confined in a correctional institution if the actor is a correctional staff member. This paragraph does not apply if the individual with whom the actor has sexual contact or sexual intercourse is subject to prosecution for the sexual contact or sexual intercourse under this section.

(i) Has sexual contact or sexual intercourse with an individual who is on probation, parole, or extended supervision if the actor is a probation, parole, or extended supervision agent who supervises the individual, either directly or through a subordinate, in his or her capacity as a probation, parole, or extended supervision agent or who has influenced or has attempted to influence another probation, parole, or extended supervision agent's supervision of the individual. This paragraph does not apply if the individual with whom the actor has sexual contact or sexual intercourse is subject to prosecution for the sexual contact or sexual intercourse under this section.

(j) Is a licensee, employee, or nonclient resident of an entity, as defined in s. 48.685(1)(b) or 50.065(1)(c), and has sexual contact or sexual intercourse with a client of the entity.

(3) Third degree sexual assault. (a) Whoever has sexual intercourse with a person without the consent of that person is guilty of a Class G felony.

(b) Whoever has sexual contact in the manner described in sub. (5)(b)2. or 3. with a person without the consent of that person is guilty of a Class G felony.

(3m) Fourth degree sexual assault. Except as provided in sub. (3), whoever has sexual contact with a person without the consent of that person is guilty of a Class A misdemeanor.

(4) Consent. “Consent”, as used in this section, means words or overt actions by a person who is competent to give informed consent indicating a freely given agreement to have sexual intercourse or sexual contact. Consent is not an issue in alleged violations of sub. (2)(c), (cm), (d), (g), (h), and (i). The following persons are presumed incapable of consent but the presumption may be rebutted by competent evidence, subject to the provisions of s. 972.11(2):

(b) A person suffering from a mental illness or defect which impairs capacity to appraise personal conduct.

(c) A person who is unconscious or for any other reason is physically unable to communicate unwillingness to an act.

(5) Definitions. In this section:

(abm) “Client” means an individual who receives direct care or treatment services from an entity.

(acm) “Correctional institution” means a jail or correctional facility, as defined in s. 961.01(12m), a juvenile correctional facility, as defined in s. 938.02(10p), or a juvenile detention facility, as defined in s. 938.02(10r).

(ad) “Correctional staff member” means an individual who works at a correctional institution, including a volunteer.

(ag) “Inpatient facility” has the meaning designated in s. 51.01(10).

(ai) “Intoxicant” means any alcohol beverage, hazardous inhalant, controlled substance, controlled substance analog, or other drug, or any combination thereof.

(ak) “Nonclient resident” means an individual who resides, or is expected to reside, at an entity, who is not a client of the entity, and who has, or is expected to have, regular, direct contact with the clients of the entity.

(am) “Patient” means any person who does any of the following:

1. Receives care or treatment from a facility or program under s. 940.295(2)(b), (c), (h) or (k), from an employee of a facility or program or from a person providing services under contract with a facility or program.

2. Arrives at a facility or program under s. 940.295(2)(b), (c), (h) or (k) for the purpose of receiving care or treatment from a facility or program under s. 940.295(2)(b), (c), (h) or (k), from an employee of a facility or program under s. 940.295(2)(b), (c), (h) or (k), or from a person providing services under contract with a facility or program under s. 940.295(2)(b), (c), (h) or (k).

(ar) “Resident” means any person who resides in a facility under s. 940.295(2)(b), (c), (h) or (k).

(b) “Sexual contact” means any of the following:

1. Any of the following types of intentional touching, whether direct or through clothing, if that intentional touching is either for the purpose of sexually degrading; or for the purpose of sexually humiliating the complainant or sexually arousing or gratifying the defendant or if the touching contains the elements of actual or attempted battery under s. 940.19(1):

a. Intentional touching by the defendant or, upon the defendant's instruction, by another person, by the use of any body part or object, of the complainant's intimate parts.

b. Intentional touching by the complainant, by the use of any body part or object, of the defendant's intimate parts or, if done upon the defendant's instructions, the intimate parts of another person.

2. Intentional penile ejaculation of ejaculate or intentional emission of urine or feces by the defendant or, upon the defendant's instruction, by another person upon any part of the body clothed or unclothed of the complainant if that ejaculation or emission is either for the purpose of sexually degrading or sexually humiliating the complainant or for the purpose of sexually arousing or gratifying the defendant.

3. For the purpose of sexually degrading or humiliating the complainant or sexually arousing or gratifying the defendant, intentionally causing the complainant to ejaculate or emit urine or feces on any part of the defendant's body, whether clothed or unclothed.

(c) “Sexual intercourse” includes the meaning assigned under s. 939.22(36) as well as cunnilingus, fellatio or anal intercourse between persons or any other intrusion, however slight, of any part of a person's body or of any object into the genital or anal opening either by the defendant or upon the defendant's instruction. The emission of semen is not required.

(d) “State treatment facility” has the meaning designated in s. 51.01(15).

(6) Marriage not a bar to prosecution. A defendant shall not be presumed to be incapable of violating this section because of marriage to the complainant.

(7) Death of victim. This section applies whether a victim is dead or alive at the time of the sexual contact or sexual intercourse.

940.32 Stalking

Updated: 
September 12, 2018

(1) In this section:

(a) “Course of conduct” means a series of 2 or more acts carried out over time, however short or long, that show a continuity of purpose, including any of the following:

1. Maintaining a visual or physical proximity to the victim.

2. Approaching or confronting the victim.

3. Appearing at the victim's workplace or contacting the victim's employer or coworkers.

4. Appearing at the victim's home or contacting the victim's neighbors.

5. Entering property owned, leased, or occupied by the victim.

6. Contacting the victim by telephone or causing the victim's telephone or any other person's telephone to ring repeatedly or continuously, regardless of whether a conversation ensues.

6m. Photographing, videotaping, audiotaping, or, through any other electronic means, monitoring or recording the activities of the victim. This subdivision applies regardless of where the act occurs.

7. Sending material by any means to the victim or, for the purpose of obtaining information about, disseminating information about, or communicating with the victim, to a member of the victim's family or household or an employer, coworker, or friend of the victim.

8. Placing an object on or delivering an object to property owned, leased, or occupied by the victim.

9. Delivering an object to a member of the victim's family or household or an employer, coworker, or friend of the victim or placing an object on, or delivering an object to, property owned, leased, or occupied by such a person with the intent that the object be delivered to the victim.

10. Causing a person to engage in any of the acts described in subds. 1. to 9.

(am) “Domestic abuse” has the meaning given in s. 813.12(1)(am).

(ap) “Domestic abuse offense” means an act of domestic abuse that constitutes a crime.

(c) “Labor dispute” includes any controversy concerning terms, tenure or conditions of employment, or concerning the association or representation of persons in negotiating, fixing, maintaining, changing or seeking to arrange terms or conditions of employment, regardless of whether the disputants stand in the proximate relation of employer and employee.

(cb) “Member of a family” means a spouse, parent, child, sibling, or any other person who is related by blood or adoption to another.

(cd) “Member of a household” means a person who regularly resides in the household of another or who within the previous 6 months regularly resided in the household of another.

(cg) “Personally identifiable information” has the meaning given in s. 19.62(5).

(cr) “Record” has the meaning given in s. 19.32(2).

(d) “Suffer serious emotional distress” means to feel terrified, intimidated, threatened, harassed, or tormented.

(2) Whoever meets all of the following criteria is guilty of a Class I felony:

(a) The actor intentionally engages in a course of conduct directed at a specific person that would cause a reasonable person under the same circumstances to suffer serious emotional distress or to fear bodily injury to or the death of himself or herself or a member of his or her family or household.

(b) The actor knows or should know that at least one of the acts that constitute the course of conduct will cause the specific person to suffer serious emotional distress or place the specific person in reasonable fear of bodily injury to or the death of himself or herself or a member of his or her family or household.

(c) The actor's acts cause the specific person to suffer serious emotional distress or induce fear in the specific person of bodily injury to or the death of himself or herself or a member of his or her family or household.

(2e) Whoever meets all of the following criteria is guilty of a Class I felony:

(a) After having been convicted of sexual assault under s. 940.225, 948.02, 948.025, or 948.085 or a domestic abuse offense, the actor engages in any of the acts listed in sub. (1)(a)1. to 10., if the act is directed at the victim of the sexual assault or the domestic abuse offense.

(b) The actor knows or should know that the act will cause the specific person to suffer serious emotional distress or place the specific person in reasonable fear of bodily injury to or the death of himself or herself or a member of his or her family or household.

(c) The actor's act causes the specific person to suffer serious emotional distress or induces fear in the specific person of bodily injury to or the death of himself or herself or a member of his or her family or household.

(2m) Whoever violates sub. (2) is guilty of a Class H felony if any of the following applies:

(a) The actor has a previous conviction for a violent crime, as defined in s. 939.632(1)(e)1., or a previous conviction under this section or s. 947.013(1r), (1t), (1v), or (1x).

(b) The actor has a previous conviction for a crime, the victim of that crime is the victim of the present violation of sub. (2), and the present violation occurs within 7 years after the prior conviction.

(c) The actor intentionally gains access or causes another person to gain access to a record in electronic format that contains personally identifiable information regarding the victim in order to facilitate the violation.

(d) The person violates s. 968.31(1) or 968.34(1) in order to facilitate the violation.

(e) The victim is under the age of 18 years at the time of the violation.

(3) Whoever violates sub. (2) is guilty of a Class F felony if any of the following applies:

(a) The act results in bodily harm to the victim.

(b) The actor has a previous conviction for a violent crime, as defined in s. 939.632(1)(e)1., or a previous conviction under this section or s. 947.013(1r), (1t), (1v) or (1x), the victim of that crime is the victim of the present violation of sub. (2), and the present violation occurs within 7 years after the prior conviction.

(c) The actor uses a dangerous weapon in carrying out any of the acts listed in sub. (1)(a)1. to 9.

(3m) A prosecutor need not show that a victim received or will receive treatment from a mental health professional in order to prove that the victim suffered serious emotional distress under sub. (2)(c) or (2e)(c).

(4)(a) This section does not apply to conduct that is or acts that are protected by the person's right to freedom of speech or to peaceably assemble with others under the state and U.S. constitutions, including, but not limited to, any of the following:

1. Giving publicity to and obtaining or communicating information regarding any subject, whether by advertising, speaking or patrolling any public street or any place where any person or persons may lawfully be.

2. Assembling peaceably.

3. Peaceful picketing or patrolling.

(b) Paragraph (a) does not limit the activities that may be considered to serve a legitimate purpose under this section.

(5) This section does not apply to conduct arising out of or in connection with a labor dispute.

(6) The provisions of this statute are severable. If any provision of this statute is invalid or if any application thereof is invalid, such invalidity shall not affect other provisions or applications which can be given effect without the invalid provision or application.

Chapter 941. Crimes Against Public Health and Safety

Updated: 
September 12, 2018

Subchapter III. Weapons

Updated: 
September 12, 2018

941.29. Possession of a firearm

Updated: 
September 12, 2018

(1g) In this section:

(a) “Violent felony” means any felony under s. 943.23(1m), 1999 stats., or s. 943.23(1r), 1999 stats., this section, or s. 940.01, 940.02, 940.03, 940.05, 940.06, 940.08, 940.09, 940.10, 940.19, 940.195, 940.20, 940.201, 940.203, 940.21, 940.225, 940.23, 940.235, 940.285(2), 940.29, 940.295(3), 940.30, 940.302, 940.305, 940.31, 940.43(1) to (3), 940.45(1) to (3), 941.20, 941.26, 941.28, 941.2905, 941.292, 941.30, 941.327(2)(b)3. or 4., 943.02, 943.04, 943.06, 943.10(2), 943.23(1g), 943.32, 943.87, 946.43, 948.02(1) or (2), 948.025, 948.03, 948.04, 948.05, 948.051, 948.06, 948.07, 948.08, 948.085, or 948.30.

(b) “Violent misdemeanor” means a violation of s. 813.12, 813.122, 813.125, 940.19(1), 940.195, 940.42, 940.44, 941.20(1), 941.26, 941.38(3), 941.39, 947.013, 948.55, 951.02, 951.08, 951.09, or 951.095 or a violation to which a penalty specified in s. 939.63(1) is applied.

(1m) A person who possesses a firearm is guilty of a Class G felony if any of the following applies:

(a) The person has been convicted of a felony in this state.

(b) The person has been convicted of a crime elsewhere that would be a felony if committed in this state.

(bm) The person has been adjudicated delinquent for an act committed on or after April 21, 1994, that if committed by an adult in this state would be a felony.

(c) The person has been found not guilty of a felony in this state by reason of mental disease or defect.

(d) The person has been found not guilty of or not responsible for a crime elsewhere that would be a felony in this state by reason of insanity or mental disease, defect or illness.

(e) The person has been committed for treatment under s. 51.20(13)(a) and is subject to an order not to possess a firearm under s. 51.20(13)(cv) 1., 2007 stats.

(em) The person is subject to an order not to possess a firearm under s. 51.20(13)(cv)1., 51.45(13)(i)1., 54.10(3)(f)1., or 55.12(10)(a).

(f) The person is subject to an injunction issued under s. 813.12 or 813.122 or under a tribal injunction, as defined in s. 813.12(1)(e), issued by a court established by any federally recognized Wisconsin Indian tribe or band, except the Menominee Indian tribe of Wisconsin, that includes notice to the respondent that he or she is subject to the requirements and penalties under this section and that has been filed under s.813.128(3g).

(g) The person is subject to an order not to possess a firearm under s. 813.123(5m) or 813.125(4m).

(3) Any firearm involved in an offense under this section is subject to s. 968.20(3).

(4m)(a) If a person commits a violation of sub. (1m), the court shall impose a bifurcated sentence under s. 973.01 and the confinement portion of the bifurcated sentence imposed on the person shall be not less than 3 years if all of the following are true:

1. The person is subject to this section because he or she was convicted of, adjudicated delinquent for, or found not guilty of by reason of mental disease or defect, committing, soliciting, conspiring, or attempting to commit a violent felony.

2. Any of the following applies:

a. The person committed the current offense within 5 years after completing his or her sentence, including any parole or extended supervision, or after completing a period of probation imposed for a prior felony or violent misdemeanor.

b. The person committed the current offense while on probation, parole, extended supervision, or conditional release for the commission of a prior felony or violent misdemeanor.

c. The person committed the current offense within 5 years after being discharged from commitment under ch. 971 for the commission of a prior felony or violent misdemeanor.

(b) This subsection does not apply to sentences imposed after July 1, 2020.

(5) This section does not apply to any person specified in sub. (1m) who:

(a) Has received a pardon with respect to the crime or felony specified in sub. (1m) or (4m) and has been expressly authorized to possess a firearm under 18 USC app. 1203; or

(b) Has obtained relief from disabilities under 18 USC 925(c).

(6) The prohibition against firearm possession under this section does not apply to any correctional officer employed before May 1, 1982, who is required to possess a firearm as a condition of employment. This exemption applies if the officer is eligible to possess a firearm under any federal law and applies while the officer is acting in an official capacity.

(7) This section does not apply to any person who has been found not guilty or not responsible by reason of insanity or mental disease, defect or illness if a court subsequently determines both of the following:

(a) The person is no longer insane or no longer has a mental disease, defect or illness.

(b) The person is not likely to act in a manner dangerous to public safety.

(8) This section does not apply to any person specified in sub. (1m)(bm) if a court subsequently determines that the person is not likely to act in a manner dangerous to public safety. In any action or proceeding regarding this determination, the person has the burden of proving by a preponderance of the evidence that he or she is not likely to act in a manner dangerous to public safety.

(9)(a) This section does not apply to a person specified in sub. (1m)(e) if the prohibition under s. 51.20(13)(cv)1., 2007 stats., has been canceled under s. 51.20(13)(cv)2. or (16)(gm), 2007 stats., or under s. 51.20(13)(cv)1m. c.

(b) This section does not apply to a person specified in sub. (1m)(em) if the order under s. 51.20(13)(cv)1. is canceled under s. 51.20(13)(cv)1m. c., if the order under s. 51.45(13)(i)1. is canceled under s. 51.45(13)(i)2. c., if the order under s. 54.10(3)(f)1. is canceled under s. 54.10(3)(f)2. c., or if the order under s. 55.12(10)(a) is canceled under s. 55.12(10)(b)3.

(10) The prohibition against firearm possession under this section does not apply to a person specified in sub. (1m)(f) if the person satisfies any of the following:

(a) The person is a peace officer and the person possesses a firearm while in the line of duty or, if required to do so as a condition of employment, while off duty. Notwithstanding s. 939.22(22), for purposes of this paragraph, peace officer does not include a commission warden who is not a state-certified commission warden.

(b) The person is a member of the U.S. armed forces or national guard and the person possesses a firearm while in the line of duty.

Chapter 942. Crimes Against Reputation, Privacy and Civil Liberties

Updated: 
September 12, 2018

942.08 Invasion of privacy

Updated: 
September 12, 2018

(1) In this section:

(a) “Nude or partially nude person” means any human being who has less than fully and opaquely covered genitals, pubic area or buttocks, any female human being who has less than a fully opaque covering over any portion of a breast below the top of the nipple, or any male human being with covered genitals in a discernibly turgid state.

(b) “Private place” means a place where a person may reasonably expect to be safe from being observed without his or her knowledge and consent.

(c) “Surveillance device” means any device, instrument, apparatus, implement, mechanism or contrivance used, designed to be used or primarily intended to be used to observe the activities of a person. “Surveillance device” includes a peephole.

(2) Whoever does any of the following is guilty of a Class A misdemeanor:

(a) Knowingly installs a surveillance device in any private place, or uses a surveillance device that has been installed in a private place, with the intent to observe any nude or partially nude person without the consent of the person observed.

(b) For the purpose of sexual arousal or gratification and without the consent of each person who is present in the private place, looks into a private place that is, or is part of, a public accommodation, as defined in s. 134.48(1)(b), and in which a person may reasonably be expected to be nude or partially nude.

(c) For the purpose of sexual arousal or gratification, looks into a private place that is, or is part of, a public accommodation, as defined in s. 134.48(1)(b), and in which a person may reasonably be expected to be nude or partially nude but in which no person is present.

(d) Enters another person's private property without that person's consent or enters an enclosed or unenclosed common area of a multiunit dwelling or condominium and looks into any individual's dwelling unit if all of the following apply:

1. The actor looks into the dwelling unit for the purpose of sexual arousal or gratification and with the intent to intrude upon or interfere with an individual's privacy.

2. The actor looks into a part of the dwelling unit in which an individual is present.

3. The individual has a reasonable expectation of privacy in that part of the dwelling unit.

4. The individual does not consent to the actor looking into that part of the dwelling.

(3) Whoever knowingly installs or uses any device, instrument, mechanism, or contrivance to intentionally view, broadcast, or record under the outer clothing of an individual that individual's genitals, pubic area, breast, or buttocks, including genitals, pubic area, breasts, or buttocks that are covered by undergarments, or to intentionally view, broadcast, or record a body part of an individual that is not otherwise visible, without that individual's consent, is guilty of a Class I felony.

942.09 Representations depicting nudity

Updated: 
September 12, 2018

(1) In this section:

(a) “Captures a representation” means takes a photograph, makes a motion picture, videotape, recording, or other visual or audiorepresentation, or records or stores in any medium data that represents a visual image.

(ae) “Consent” means words or overt actions by a person who is competent to give informed consent indicating a freely given agreement to the act. A person who has not attained the age of 18 is incapable of consent. The following persons are presumed incapable of consent but the presumption may be rebutted by competent evidence, subject to the provisions of s. 972.11(2):

1. A person suffering from a mental illness or defect that impairs capacity to appraise personal conduct.

2. A person who is unconscious or for any other reason is physically unable to communicate unwillingness to an act.

(ag) “Intimate representation” means any of the following:

1. A representation of a nude or partially nude person.

2. A representation of clothed, covered, or partially clothed or covered genitalia or buttock that is not otherwise visible to the public.

3. A representation of a person urinating, defecating, or using a feminine hygiene product.

4. A representation of person engaged in sexual intercourse or sexual contact, as defined in s. 940.225(5)(b) or (c).

(am) “Nude or partially nude person” has the meaning given in s. 942.08(1)(a).

(b) “Nudity” has the meaning given in s. 948.11(1)(d).

(bg) “Post or publish” includes posting or publishing on a website on the Internet, if the website may be viewed by the general public.

(bn) “Private representation” means a representation depicting a nude or partially nude person or depicting a person engaging in sexually explicit conduct that is intended by the person depicted in the representation to be captured, viewed, or possessed only by the person who, with the consent of the person depicted, captured the representation or to whom the person depicted directly and intentionally gave possession of the representation.

(c) “Representation” means a photograph, exposed film, motion picture, videotape, recording, other visual or audio representation, or data that represents a visual image or audio recording.

(d) “Sexually explicit conduct” has the meaning given in s. 948.01(7).

(2)(am) Except as provided in par. (dr), whoever does any of the following is guilty of a Class I felony:

1. Captures an intimate representation without the consent of the person depicted under circumstances in which he or she has a reasonable expectation of privacy, if the person knows or has reason to know that the person who is depicted does not consent to the capture of the intimate representation.

2. Makes a reproduction of an intimate representation that the person knows or has reason to know was captured in violation of subd. 1. and that depicts an intimate representation captured in violation of subd. 1., if the person depicted in the reproduction did not consent to the making of the reproduction.

3. Possesses, distributes, or exhibits an intimate representation that was captured in violation of subd. 1. or a reproduction made in violation of subd. 2., if the person knows or has reason to know that the intimate representation was captured in violation of subd. 1. or the reproduction was made in violation of subd. 2., and if the person who is depicted in the intimate representation or reproduction did not consent to the possession, distribution, or exhibition.

(bm) 1m. Notwithstanding par. (am), if the person depicted in an intimate representation or reproduction is a child, a parent, guardian, or legal custodian of the child may do any of the following:

a. Capture and possess the representation or make and possess the reproduction depicting the child.

b. Distribute or exhibit a representation captured or possessed under subd. 1m.a., or distribute or exhibit a reproduction made or possessed under subd. 1m.a.

2m. Subdivision 1m. does not apply to a parent, guardian, or legal custodian of a child who captures, possesses, makes, distributes, or exhibits a representation depicting the child in violation of s. 948.05 or 948.12 or for the purpose of sexual arousal, gratification, humiliation, degradation, or monetary or commercial gain.

(cm) Paragraph (am) does not apply to a person who receives a representation or reproduction depicting a child from a parent, guardian, or legal custodian of the child under par. (bm) 1m. b., if the possession, exhibition, or distribution is not for the purpose of sexual arousal, gratification, humiliation, degradation, or monetary or commercial gain.

(dm) This subsection does not apply to a provider of an interactive computer service, as defined in 47 USC 230(f)(2), or to an information service or telecommunications service, as defined in 47 USC 153, if the intimate representation or reproduction is provided to the interactive computer service, information service, or telecommunications service by a 3rd party, or to a person who posts or publishes a private representation that is newsworthy or of public importance.

(dr) Except as provided in par. (bm), a person who commits a violation specified under par. (am) is guilty of a Class H felony if the person depicted in violation of par. (am) had not, at the time of the violation, attained the age of 18 years.

(3m)(a) Except as provided in par. (am), whoever does any of the following is guilty of a Class A misdemeanor:

1. Posts, publishes, or causes to be posted or published, a private representation if the actor knows that the person depicted does not consent to the posting or publication of the private representation.

2. Posts, publishes, or causes to be posted or published, a depiction of a person that he or she knows is a private representation, without the consent of the person depicted.

(am) A person who commits a violation specified under par. (a) is guilty of a Class I felony if the person depicted or represented in the violation of par. (a) had not, at the time of the violation, attained the age of 18 years.

(b) This subsection does not apply to any of the following:

1. The parent, guardian, or legal custodian of the person depicted if the private representation does not violate s. 948.05 or 948.12 and the posting or publication is not for the purpose of sexual arousal, gratification, humiliation, degradation, or monetary or commercial gain.

2. A law enforcement officer or agent acting in his or her official capacity in connection with the investigation or prosecution of a crime.

3. A person who posts or publishes a private representation that is newsworthy or of public importance.

4. A provider of an interactive computer service, as defined in 47 USC 230(f)(2), or to an information service or telecommunications service, as defined in 47 USC 153, if the private representation is provided to the interactive computer service, information service, or telecommunications service by a 3rd party.

(4)(a) Except as provided in par. (b) or (c), whoever solicits an intimate or private representation from a person who the actor believes or has reason to believe has not attained the age of 18 years is guilty of a Class I felony.

(b) If the person who solicits the intimate or private representation has attained the age of 18 years but has not attained the age of 21 years and if the child solicited is not more than 3 years younger than the person who solicits the intimate or private representation, he or she is guilty of a Class A misdemeanor.

(c) Paragraph (a) does not apply if the person who solicits the intimate or private representation has not attained the age of 18 years.

(5)(a) Except as provided in par. (am), whoever, while present in a locker room, intentionally captures a representation of a nude or partially nude person while the person is nude or partially nude in the locker room is guilty of a Class A misdemeanor. This paragraph does not apply if the person consents to the capture of the representation and one of the following applies:

1. The person is, or the actor reasonably believes that the person is, 18 years of age or over when the person gives his or her consent.

2. The person's parent, guardian, or legal custodian consents to the capture of the representation.

(am) A person who commits a violation specified under par. (a) is guilty of a Class I felony if the person represented in violation of par. (a) had not, at the time of the violation, attained the age of 18 years.

(b)1. Except as provided in par. (bn), whoever intentionally does any of the following is guilty of a Class I felony:

a. Captures a representation of a nude or partially nude person while the actor is present in, and the person is nude or partially nude in, the locker room and exhibits or distributes the representation to another.

b. Transmits or broadcasts an image of a nude or partially nude person from a locker room while the person is nude or partially nude in the locker room.

2. This paragraph does not apply if the person consents to the exhibition or distribution of the representation or the transmission or broadcast of the image and one of the following applies:

a. The person is, or the actor reasonably believes that the person is, 18 years of age or over when the person gives his or her consent.

b. The person's parent, guardian, or legal custodian consents to the exhibition, distribution, transmission, or broadcast.

(bn) A person who commits a violation specified under par. (b) is guilty of a Class H felony if the person represented in violation of par. (a) had not, at the time of the violation, attained the age of 18 years.

Chapter 943. Crimes Against Property

Updated: 
September 12, 2018

Subchapter I. Damage

Updated: 
September 12, 2018

943.01 Damage to property

Updated: 
September 12, 2018

(1) Whoever intentionally causes damage to any physical property of another without the person's consent is guilty of a Class A misdemeanor.

(2) Any person violating sub. (1) under any of the following circumstances is guilty of a Class I felony:

(a)1. In this paragraph, “highway” means any public way or thoroughfare, including bridges thereon, any roadways commonly used for vehicular traffic, whether public or private, any railroad, including street and interurban railways, and any navigable waterway or airport.

2. The property damaged is a vehicle or highway and the damage is of a kind which is likely to cause injury to a person or further property damage.

(b) The property damaged belongs to a public utility or common carrier and the damage is of a kind which is likely to impair the services of the public utility or common carrier.

(c) The property damaged belongs to a person who is or was a grand or petit juror and the damage was caused by reason of any verdict or indictment assented to by the owner.

(d) If the total property damaged in violation of sub. (1) is reduced in value by more than $2,500. For the purposes of this paragraph, property is reduced in value by the amount which it would cost either to repair or replace it, whichever is less.

(e) The property damaged is on state-owned land and is listed on the registry under sub. (5).

(f)1. In this paragraph, “rock art site” means an archaeological site that contains paintings, carvings or other deliberate modifications of an immobile rock surface, such as a cave, overhang, boulder or bluff face, to produce symbols, stories, messages, designs or pictures. “Rock art site” includes artifacts and other cultural items, modified soils, bone and other objects of archaeological interest that are located adjacent to the paintings, carvings or other deliberate rock surface modifications.

2. The property damaged is a rock art site, any portion of a rock art site or any object that is part of a rock art site, if the rock art site is listed on the national register of historic places in Wisconsin, as defined in s. 44.31(5), or the state register of historic places under s. 44.36.

(2d)(a) In this subsection, “plant research and development” means research regarding plants or development of plants, if the research or development is undertaken in conjunction or coordination with the state, a federal or local government agency, a university, or a private research facility.

(b) Any person violating sub. (1) under all of the following circumstances is guilty of a Class I felony:

1. The property damaged is a plant, material taken, extracted, or harvested from a plant, or a seed or other plant material that is being used or that will be used to grow or develop a plant.

2. The plant referred to in subd. 1. is or was being grown as feed for animals being used or to be used for commercial purposes, for other commercial purposes, or in conjunction with plant research and development.

(2g) Any person violating sub. (1) under all of the following circumstances is guilty of a Class I felony:

(a) The property damaged is a machine operated by the insertion of coins, currency, debit cards or credit cards.

(b) The person acted with the intent to commit a theft from the machine.

(c) The total property damaged in violation of sub. (1) is reduced in value by more than $500 but not more than $2,500. For purposes of this paragraph, property is reduced in value by the amount that it would cost to repair or replace it, whichever is less, plus other monetary losses associated with the damage.

(2k) (a) In this subsection, “energy provider” means any of the following:

1. A public utility under s. 196.01(5)(a) that is engaged in any of the following:

a. The production, transmission, delivery, or furnishing of heat, power, or light.

b. The transmission or delivery of natural gas.

2. A transmission company under s. 196.485(1)(ge).

3. A cooperative association organized under ch. 185 for the purpose of producing or furnishing heat, light, or power for its members.

4. A wholesale merchant plant under s. 196.491(1)(w), except that “wholesale merchant plant” includes an electric generating facility or an improvement to an electric generating facility that is subject to a leased generation contract, as defined in s. 196.52(9)(a)3.

5. A decommissioned nuclear power plant.

(b) Any person violating sub. (1) under all of the following circumstances is guilty of a Class H felony:

1. The property damaged is owned, leased, or operated by an energy provider.

2. The actor intended to or did cause substantial interruption or impairment of any service or good provided by the energy provider.

(2m) Whoever causes damage to any physical property of another under all of the following circumstances is subject to a Class B forfeiture:

(a) The person does not consent to the damage of his or her property.

(b) The property damaged is on state-owned land and is listed on the registry under sub. (5).

(3) If more than one item of property is damaged under a single intent and design, the damage to all the property may be prosecuted as a single forfeiture offense or crime.

(4) In any case of unlawful damage involving more than one act of unlawful damage but prosecuted as a single forfeiture offense or crime, it is sufficient to allege generally that unlawful damage to property was committed between certain dates. At the trial, evidence may be given of any such unlawful damage that was committed on or between the dates alleged.

(5) The department of natural resources shall maintain a registry of prominent features in the landscape of state-owned land. To be included on the registry, a feature must have significant value to the people of this state.

Subchapter III. Misappropriation

Updated: 
September 12, 2018

943.201 Unauthorized use of an individual’s personal identifying information or documents

Updated: 
September 12, 2018

(1) In this section:(a) “Personal identification document” means any of the following:

1. A document containing personal identifying information.

2. An individual’s card or plate, if it can be used, alone or in conjunction with another access device, to obtain money, goods, services, or any other thing of value or benefit, or if it can be used to initiate a transfer of funds.

3. Any other device that is unique to, assigned to, or belongs to an individual and that is intended to be used to access services, funds, or benefits of any kind to which the individual is entitled.

(b) “Personal identifying information” means any of the following information:

1. An individual’s name.

2. An individual’s address.

3. An individual’s telephone number.

4. The unique identifying driver number assigned to the individual by the department of transportation under s. 343.17 (3) (a) 4.

5. An individual’s social security number.

6. An individual’s employer or place of employment.

7. An identification number assigned to an individual by his or her employer.

8. The maiden name of an individual’s mother.

9. The identifying number of a depository account, as defined in s. 815.18 (2) (e), of an individual.

10. An individual’s taxpayer identification number.

11. An individual’s deoxyribonucleic acid profile, as defined in s. 939.74 (2d) (a).

12. Any of the following, if it can be used, alone or in conjunction with any access device, to obtain money, goods, services, or any other thing of value or benefit, or if it can be used to initiate a transfer of funds:

a. An individual’s code or account number.

b. An individual’s electronic serial number, mobile identification number, personal identification number, or other telecommunications service, equipment, or instrument identifier.

c. Any other means of account access.

13. An individual’s unique biometric data, including fingerprint, voice print, retina or iris image, or any other unique physical representation.

14. Any other information or data that is unique to, assigned to, or belongs to an individual and that is intended to be used to access services, funds, or benefits of any kind to which the individual is entitled.

15. Any other information that can be associated with a particular individual through one or more identifiers or other information or circumstances.

(2) Whoever, for any of the following purposes, intentionally uses, attempts to use, or possesses with intent to use any personal identifying information or personal identification document of an individual, including a deceased individual, without the authorization or consent of the individual and by representing that he or she is the individual, that he or she is acting with the authorization or consent of the individual, or that the information or document belongs to him or her is guilty of a Class H felony:

(a) To obtain credit, money, goods, services, employment, or any other thing of value or benefit.

(b) To avoid civil or criminal process or penalty.

(c) To harm the reputation, property, person, or estate of the individual.

(3) It is an affirmative defense to a prosecution under this section that the defendant was authorized by law to engage in the conduct that is the subject of the prosecution. A defendant who raises this affirmative defense has the burden of proving the defense by a preponderance of the evidence.

(4) If an individual reports to a law enforcement agency for the jurisdiction which is the individual’s residence that personal identifying information or a personal identifying document belonging to the individual reasonably appears to be in the possession of another in violation of this section or that another has used or has attempted to use it in violation of this section, the agency shall prepare a report on the alleged violation. If the law enforcement agency concludes that it appears not to have jurisdiction to investigate the violation, it shall inform the individual which law enforcement agency may have jurisdiction. A copy of a report prepared under this subsection shall be furnished upon request to the individual who made the request, subject to payment of any reasonable fee for the copy.

Chapter 947. Crimes Against Public Peace, Order and Other Interests

Updated: 
September 12, 2018

947.012. Unlawful use of telephone

Updated: 
September 12, 2018

(1) Whoever does any of the following is guilty of a Class B misdemeanor:

(a) With intent to frighten, intimidate, threaten, abuse or harass, makes a telephone call and threatens to inflict injury or physical harm to any person or the property of any person.

(b) With intent to frighten, intimidate, threaten or abuse, telephones another and uses any obscene, lewd or profane language or suggests any lewd or lascivious act.

(c) Makes a telephone call, whether or not conversation ensues, without disclosing his or her identity and with intent to abuse or threaten any person at the called number.

(2) Whoever does any of the following is subject to a Class B forfeiture:

(a) With intent to harass or offend, telephones another and uses any obscene, lewd or profane language or suggests any lewd or lascivious act.

(b) Makes or causes the telephone of another repeatedly to ring, with intent to harass any person at the called number.

(c) Makes repeated telephone calls, whether or not conversation ensues, with intent solely to harass any person at the called number.

(d) Makes a telephone call, whether or not conversation ensues, without disclosing his or her identity and with intent to harass any person at the called number.

(e) Knowingly permits any telephone under his or her control to be used for any purpose prohibited by this section.

947.0125. Unlawful use of computerized communication systems

Updated: 
September 12, 2018

(1) In this section, “message” means any transfer of signs, signals, writing, images, sounds, data or intelligence of any nature, or any transfer of a computer program, as defined in s. 943.70(1)(c).

(2) Whoever does any of the following is guilty of a Class B misdemeanor:

(a) With intent to frighten, intimidate, threaten, abuse or harass another person, sends a message to the person on an electronic mail or other computerized communication system and in that message threatens to inflict injury or physical harm to any person or the property of any person.

(b) With intent to frighten, intimidate, threaten, abuse or harass another person, sends a message on an electronic mail or other computerized communication system with the reasonable expectation that the person will receive the message and in that message threatens to inflict injury or physical harm to any person or the property of any person.

(c) With intent to frighten, intimidate, threaten or abuse another person, sends a message to the person on an electronic mail or other computerized communication system and in that message uses any obscene, lewd or profane language or suggests any lewd or lascivious act.

(d) With intent to frighten, intimidate, threaten or abuse another person, sends a message on an electronic mail or other computerized communication system with the reasonable expectation that the person will receive the message and in that message uses any obscene, lewd or profane language or suggests any lewd or lascivious act.

(e) With intent to frighten, intimidate, threaten or abuse another person, sends a message to the person on an electronic mail or other computerized communication system while intentionally preventing or attempting to prevent the disclosure of his or her own identity.

(f) While intentionally preventing or attempting to prevent the disclosure of his or her identity and with intent to frighten, intimidate, threaten or abuse another person, sends a message on an electronic mail or other computerized communication system with the reasonable expectation that the person will receive the message.

(3) Whoever does any of the following is subject to a Class B forfeiture:

(a) With intent to harass, annoy or offend another person, sends a message to the person on an electronic mail or other computerized communication system and in that message uses any obscene, lewd or profane language or suggests any lewd or lascivious act.

(b) With intent to harass, annoy or offend another person, sends a message on an electronic mail or other computerized communication system with the reasonable expectation that the person will receive the message and in that message uses any obscene, lewd or profane language or suggests any lewd or lascivious act.

(c) With intent solely to harass another person, sends repeated messages to the person on an electronic mail or other computerized communication system.

(d) With intent solely to harass another person, sends repeated messages on an electronic mail or other computerized communication system with the reasonable expectation that the person will receive the messages.

(e) With intent to harass or annoy another person, sends a message to the person on an electronic mail or other computerized communication system while intentionally preventing or attempting to prevent the disclosure of his or her own identity.

(f) While intentionally preventing or attempting to prevent the disclosure of his or her identity and with intent to harass or annoy another person, sends a message on an electronic mail or other computerized communication system with the reasonable expectation that the person will receive the message.

(g) Knowingly permits or directs another person to send a message prohibited by this section from any computer terminal or other device that is used to send messages on an electronic mail or other computerized communication system and that is under his or her control.

947.013. Harassment

Updated: 
September 12, 2018

(1) In this section:

(a) “Course of conduct” means a pattern of conduct composed of a series of acts over a period of time, however short, evidencing a continuity of purpose.

(b) “Credible threat” means a threat made with the intent and apparent ability to carry out the threat.

(c) “Personally identifiable information” has the meaning given in s. 19.62(5).

(d) “Record” has the meaning given in s. 19.32(2).

(1m) Whoever, with intent to harass or intimidate another person, does any of the following is subject to a Class B forfeiture:

(a) Strikes, shoves, kicks or otherwise subjects the person to physical contact or attempts or threatens to do the same.

(b) Engages in a course of conduct or repeatedly commits acts which harass or intimidate the person and which serve no legitimate purpose.

(1r) Whoever violates sub. (1m) under all of the following circumstances is guilty of a Class A misdemeanor:

(a) The act is accompanied by a credible threat that places the victim in reasonable fear of death or great bodily harm.

(b) The act occurs while the actor is subject to an order or injunction under s. 813.12, 813.122 or 813.125 that prohibits or limits his or her contact with the victim.

(1t) Whoever violates sub. (1r) is guilty of a Class I felony if the person has a prior conviction under this subsection or sub. (1r), (1v), or (1x) or s. 940.32(2), (2e), (2m), or (3) involving the same victim and the present violation occurs within 7 years of the prior conviction.

(1v) Whoever violates sub. (1r) is guilty of a Class H felony if he or she intentionally gains access to a record in electronic format that contains personally identifiable information regarding the victim in order to facilitate the violation under sub. (1r).

(1x) Whoever violates sub. (1r) under all of the following circumstances is guilty of a Class H felony:

(a) The person has a prior conviction under sub. (1r), (1t) or (1v) or this subsection or s. 940.32(2), (2e), (2m), or (3).

(b) The person intentionally gains access to a record in order to facilitate the current violation under sub. (1r).

(2) This section does not prohibit any person from participating in lawful conduct in labor disputes under s. 103.53.

Chapter 948. Crimes Against Children

Updated: 
September 12, 2018

948.02. Sexual assault of a child

Updated: 
September 12, 2018

(1) First degree sexual assault. (am) Whoever has sexual contact or sexual intercourse with a person who has not attained the age of 13 years and causes great bodily harm to the person is guilty of a Class A felony.

(b) Whoever has sexual intercourse with a person who has not attained the age of 12 years is guilty of a Class B felony.

(c) Whoever has sexual intercourse with a person who has not attained the age of 16 years by use or threat of force or violence is guilty of a Class B felony.

(d) Whoever has sexual contact with a person who has not attained the age of 16 years by use or threat of force or violence is guilty of a Class B felony if the actor is at least 18 years of age when the sexual contact occurs.

(e) Whoever has sexual contact or sexual intercourse with a person who has not attained the age of 13 years is guilty of a Class B felony.

(2) Second degree sexual assault. Whoever has sexual contact or sexual intercourse with a person who has not attained the age of 16 years is guilty of a Class C felony. This subsection does not apply if s. 948.093 applies.

(3) Failure to act. A person responsible for the welfare of a child who has not attained the age of 16 years is guilty of a Class F felony if that person has knowledge that another person intends to have, is having or has had sexual intercourse or sexual contact with the child, is physically and emotionally capable of taking action which will prevent the intercourse or contact from taking place or being repeated, fails to take that action and the failure to act exposes the child to an unreasonable risk that intercourse or contact may occur between the child and the other person or facilitates the intercourse or contact that does occur between the child and the other person.

(4) Marriage not a bar to prosecution. A defendant shall not be presumed to be incapable of violating this section because of marriage to the complainant.

(5) Death of victim. This section applies whether a victim is dead or alive at the time of the sexual contact or sexual intercourse.

948.31. Interference with custody by parent or others

Updated: 
September 12, 2018

(1)(a) In this subsection, “legal custodian of a child” means:

1. A parent or other person having legal custody of the child under an order or judgment in an action for divorce, legal separation, annulment, child custody, paternity, guardianship or habeas corpus.

2. The department of children and families or the department of corrections or any person, county department under s. 46.215, 46.22, or 46.23, or licensed child welfare agency, if custody or supervision of the child has been transferred under ch. 48 or 938 to that department, person, or agency.

(b) Except as provided under chs. 48 and 938, whoever intentionally causes a child to leave, takes a child away or withholds a child for more than 12 hours beyond the court-approved period of physical placement or visitation period from a legal custodian with intent to deprive the custodian of his or her custody rights without the consent of the custodian is guilty of a Class F felony. This paragraph is not applicable if the court has entered an order authorizing the person to so take or withhold the child. The fact that joint legal custody has been awarded to both parents by a court does not preclude a court from finding that one parent has committed a violation of this paragraph.

(2) Whoever causes a child to leave, takes a child away or withholds a child for more than 12 hours from the child's parents or, in the case of a nonmarital child whose parents do not subsequently intermarry under s. 767.803, from the child's mother or, if he has been granted legal custody, the child's father, without the consent of the parents, the mother or the father with legal custody, is guilty of a Class I felony. This subsection is not applicable if legal custody has been granted by court order to the person taking or withholding the child.

(3) Any parent, or any person acting pursuant to directions from the parent, who does any of the following is guilty of a Class F felony:

(a) Intentionally conceals a child from the child's other parent.

(b) After being served with process in an action affecting the family but prior to the issuance of a temporary or final order determining child custody rights, takes the child or causes the child to leave with intent to deprive the other parent of physical custody as defined in s. 822.02(14).

(c) After issuance of a temporary or final order specifying joint legal custody rights and periods of physical placement, takes a child from or causes a child to leave the other parent in violation of the order or withholds a child for more than 12 hours beyond the court-approved period of physical placement or visitation period.

(4)(a) It is an affirmative defense to prosecution for violation of this section if the action:

1. Is taken by a parent or by a person authorized by a parent to protect his or her child in a situation in which the parent or authorized person reasonably believes that there is a threat of physical harm or sexual assault to the child;

2. Is taken by a parent fleeing in a situation in which the parent reasonably believes that there is a threat of physical harm or sexual assault to himself or herself;

3. Is consented to by the other parent or any other person or agency having legal custody of the child; or

4. Is otherwise authorized by law.

(b) A defendant who raises an affirmative defense has the burden of proving the defense by a preponderance of the evidence.

(5) The venue of an action under this section is prescribed in s. 971.19(8).

(6) In addition to any other penalties provided for violation of this section, a court may order a violator to pay restitution, regardless of whether the violator is placed on probation under s. 973.09, to provide reimbursement for any reasonable expenses incurred by any person or any governmental entity in locating and returning the child. Any such amounts paid by the violator shall be paid to the person or governmental entity which incurred the expense on a prorated basis. Upon the application of any interested party, the court shall hold an evidentiary hearing to determine the amount of reasonable expenses.

Miscellaneous Statutes (Ch. 995)

Updated: 
September 12, 2018

Chapter 995. Miscellaneous Statutes

Updated: 
September 12, 2018

995.67 Domestic abuse services; prohibited disclosures

Updated: 
September 12, 2018

(1) In this section:

(a) "Domestic abuse" has the meaning given in s. 49.165(1)(a).

(b) "Domestic abuse services organization" means a nonprofit organization or a public agency that provides any of the following services for victims of domestic abuse:

1. Shelter facilities or private home shelter care.

2. Advocacy and counseling.

3. A 24-hour telephone service.

(c) "Service recipient" means any person who receives or has received domestic abuse services from a domestic abuse services organization.

(2)(a) No employee or agent of a domestic abuse services organization who provides domestic abuse services to a service recipient may intentionally disclose to any person the location of any of the following persons without the informed, written consent of the service recipient:

1. The service recipient.

2. Any minor child of the service recipient.

3. Any minor child in the care or custody of the service recipient.

4. Any minor child who accompanies the service recipient when the service recipient receives domestic abuse services.

(b) Any person who violates this subsection may be fined not more than $500 or imprisoned for not more than 30 days or both.