Either party has a significant problem with alcohol or drug abuse.
Other evidence which indicates one of the parties' health or safety will be endangered if mediation is not terminated.
Any agreement which resolves issues of legal custody or periods of physical placement between the parties reached as a result of mediation under this section shall be prepared in writing, reviewed by the attorney, if any, for each party and by any appointed guardian ad litem, and submitted to the court to be included in the court order as a stipulation. Any reviewing attorney or guardian ad litem shall certify on the mediation agreement that he or she reviewed it and the guardian ad litem, if any, shall comment on the agreement based on the best interest of the child. The mediator shall certify that the written mediation agreement is in the best interest of the child based on the information presented to the mediator and accurately reflects the agreement made between the parties. The court may approve or reject the agreement, based on the best interest of the child. The court shall state in writing its reasons for rejecting an agreement.
If after mediation under this section the parties do not reach agreement on legal custody or periods of physical placement, the parties or the mediator shall so notify the court. The court shall promptly appoint a guardian ad litem under s. 767.045
. After the appointment the court shall, if appropriate, refer the matter for a legal custody or physical placement study under sub. (14)
. If the parties come to agreement on legal custody or physical placement after the matter has been referred for a study, the study shall be terminated. The parties may return to mediation at any time before any trial of or final hearing on legal custody or periods of physical placement. If the parties return to mediation, the county shall collect any applicable fee under s. 814.615
(13) Powers of court or family court commissioner.
Except as provided in sub. (8)
, referring parties to mediation under this section does not affect the power of the court or family court commissioner to make any necessary order relating to the parties during the course of the mediation.
(14) Legal custody and physical placement study. 767.11(14)(a)(a)
A county or 2 or more contiguous counties shall provide legal custody and physical placement study services. The county or counties may elect to provide these services by any of the means set forth in sub. (3)
with respect to mediation. Regardless of whether a county so elects, whenever legal custody or physical placement of a minor child is contested and mediation under this section is not used or does not result in agreement between the parties, or at any other time the court considers it appropriate, the court may order a person or entity designated by the county to investigate the following matters relating to the parties:
Each party's performance of parental duties and responsibilities relating to the child.
Any other matter relevant to the best interest of the child.
The person or entity investigating the parties under par. (a)
shall complete the investigation and submit the results to the court. The court shall make the results available to both parties. The report shall be a part of the record in the action unless the court orders otherwise.
No person who provided mediation to the parties under this section may investigate the parties under this subsection unless each party personally so consents by written stipulation after mediation has ended and after receiving notice from the person who provided mediation that consent waives the inadmissibility of communications in mediation under s. 904.085
This section applies to each county on the date established by that county, or on June 1, 1989, whichever is earlier.
History: 1987 a. 355
; 1989 a. 56
; 1991 a. 269
; Sup. Ct. Order No. 93-03
, 179 W (2d) xv; 1995 a. 275
NOTE: 1987 Wis. Act 355
, which created this section, contains explanatory notes.
Judicial Council Note, 1993. Subsections (5) (a) and (14) (c) are amended because the rule of inadmissibility under s. 904.085 is not a privilege; it is waivable only if the parties stipulate that the mediator may conduct the custody investigation.
Educational program on the effects of divorce on children. 767.115(1)(1)
At any time during the pendency of an action affecting the family in which a minor child is involved and in which the court or family court commissioner determines that it is appropriate and in the best interest of the child, the court or family court commissioner, on its own motion, may order the parties to attend a program specified by the court or family court commissioner concerning the effects on a child of a dissolution of the marriage. A program under this subsection shall be educational rather than therapeutic in nature and may not exceed a total of 4 hours in length. The parties shall be responsible for the cost, if any, of attendance at the program. The court or family court commissioner may specifically assign responsibility for payment of any cost. No facts or information obtained in the course of the program, and no report resulting from the program, is admissible in any action or proceeding.
Notwithstanding s. 767.07
, the court or family court commissioner may require the parties to attend a program under sub. (1)
as a condition to the granting of a final judgment or order in the action affecting the family that is pending before the court or family court commissioner.
History: 1993 a. 225
Trial procedure. 767.12(1)(1)
In actions affecting the family, all hearings and trials to determine whether judgment shall be granted, except hearings under s. 767.13 (5)
, shall be before the court. The testimony shall be taken by the reporter and shall be written out and filed with the record if so ordered by the court. Custody proceedings shall receive priority in being set for hearing.
If both of the parties 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.
If the parties 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.
If the court finds no reasonable prospect of reconciliation, it shall make a finding that the marriage is irretrievably broken; or
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.
(3) Breakdown of marital relationship.
If both of the parties 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.
Sup. Ct. Order, 67 W (2d) 585, 756 (1975); 1977 c. 105
; 1979 c. 32
; 1979 c. 352
; Stats. 1979 s. 767.12; 1983 a. 436
; 1989 a. 132
Abolition of guilt in marriage dissolution: Wisconsin's adoption of no-fault divorce. 61 MLR 672 (1978).
Order for appearance of litigants.
Unless nonresidence in the state is shown by competent evidence, service is by publication, or the court shall for other good cause otherwise order, both parties in actions affecting the family shall be required to appear upon the trial. An order of the court or family court commissioner to that effect shall accordingly be procured by the moving party, and shall be served upon the nonmoving party before the trial. In the case of a joint petition the order is not required.
History: 1977 c. 105
; 1979 c. 32
; 1979 c. 196
; 1979 c. 352
; Stats. 1979 s. 767.125.
Family court commissioner; appointment; powers; oaths; assistants. 767.13(1)(a)(a)
In each county, except in a county having a population of 500,000 or more, the circuit judges for the county, subject to the approval of the chief judge of the judicial administrative district, shall, by order filed in the office of the clerk of the circuit court on or before the first Monday of July of each year, appoint some reputable attorney of recognized ability and standing at the bar as the family court commissioner for the county.
Powers; civil service; oath; temporary appointment; assistants.
The family court commissioner, by virtue of the office and to the extent required for the performance of the duties, has the powers of a court commissioner. The family court commissioner is in addition to the maximum number of court commissioners permitted by s. 757.68
. The office of the family court commissioner, or any assistant commissioner, may be placed under a county civil service system by resolution of the county board. Before entering upon the discharge of the duties the family court commissioner shall take and file the official oath. The person appointed shall continue to act until a successor is appointed and qualified, except that in the event of disability or extended absence the judges may appoint another reputable attorney to act as temporary family court commissioner. The county board may provide that one or more assistant family court commissioners shall be appointed by the circuit judges for the county, subject to the approval of the chief judge of the judicial administrative district. An assistant family court commissioner shall have the same qualifications as the commissioner and shall take and file the official oath.
Appointment; assistants; civil service.
In counties having a population of 500,000 or more, there is created in the classified civil service the office of family court commissioner and such additional assistant family court commissioners as the county board shall determine and authorize, who shall be appointed from the membership of the bar residing in the county by the chief judge of the judicial administrative district under ss. 63.01
Oath; powers; salary; unavailability; duties.
Before entering upon the performance of their duties, the family court commissioner and assistant family court commissioners shall take and file the official oath. The family court commissioner and assistant family court commissioners shall, by virtue of their respective positions and to the extent required for the performance of their duties, each have the powers of a court commissioner. They shall receive such salary as may be fixed by the county board, shall perform their duties under the direction of the chief judge of the judicial administrative district or a designee and shall be furnished with quarters and necessary office furnishings and supplies. The county board shall provide them their necessary stenographic and investigational service. When the family court commissioner is unavailable, any assistant family court commissioner shall perform all the duties and have all the powers of the family court commissioner as directed by the commissioner or by the chief judge of the judicial administrative district or other judge as the chief judge may designate. In addition to the duties of the family court commissioner under this chapter, the family court commissioner shall perform other duties as the chief judge of the judicial administrative district, or other judge as the chief judge may designate, directs.
(3) Menominee county.
Menominee county shall be attached to Shawano county to the extent of office and functions of the family court commissioner, and the duly appointed family court commissioner of Shawano county shall serve as family court commissioner for Menominee county with all the duties, rights and power of the family court commissioner therein; and no family court commissioner shall be appointed in Menominee county, the county not being organized for that purpose.
(4) Retired judges.
In any county one or more retired or former judges or retired family court commissioners may be appointed as temporary or temporary assistant family court commissioners by a majority of the judges of the county subject to the approval of the chief judge of the judicial administrative district. The temporary or temporary assistant family court commissioners shall be compensated by the county.
(5) Judgments in certain actions affecting the family. 767.13(5)(a)(a) Divorce.
On authority delegated by a judge, which may be by a standard order, and with the approval of the chief judge of the judicial administrative district, a family court commissioner may preside at any hearing held to determine whether a judgment of divorce shall be granted, if both parties state that the marriage is irretrievably broken and that all material issues, including but not limited to division of property or estate, legal custody, physical placement, child support, spousal maintenance and family support, are resolved or if one party does not participate in the action for divorce. The family court commissioner may grant and enter judgment in any action over which he or she presides under this paragraph unless the judgment modifies an agreement between the parties on material issues. If the family court commissioner does not approve an agreement between the parties on material issues, the action shall be certified to the court for trial.
Enforcement or revision; maintenance, custody, physical placement and visitation.
On authority delegated by a judge, which may be by a standard order, a family court commissioner may conduct hearings and enter judgments in actions for enforcement of, or revision of judgment for, maintenance, custody, physical placement or visitation.
Establishment, enforcement or revision; paternity and support.
Except when otherwise ordered by a judge, a family court commissioner may conduct hearings and enter orders and judgments in actions to establish paternity, in actions to establish or enforce a child support or a family support obligation and in actions to revise orders or judgments for child support or family support.
(6) Review of the decisions of the family court commissioner.
Upon the motion of any party any decision of the family court commissioner shall be reviewed by the judge of the branch of the court to which the case has been assigned. Upon the motion of any party any such review shall include a new hearing on the subject of the decision, order or ruling.
Each family court commissioner shall cooperate with the county and the department to ensure that all dependent children receive reasonable and necessary child support.
Family court commissioners, except those appointed under (4), are county employes and subject to mandatory retirement. State ex rel. Sheets v. Fay, 54 W (2d) 642, 196 NW (2d) 651.
Party may record proceedings, but commissioner may limit recording to extent it interferes with achievement of reasonable settlement. Forsythe v. Family Court Com'r. 131 W (2d) 322, 388 NW (2d) 580 (1986).
Upon motion under (6), trial court must hold new hearing and may not rely upon proceedings before court commissioner. Marriage of Long v. Wasielewski, 147 W (2d) 57, 432 NW (2d) 615 (Ct. App. 1988).
Family court commissioner is without authority to charge $15 fee to hear order to show cause in domestic relations case. 61 Atty. Gen. 358.
Service on and appearance by family court commissioner.
In any action affecting the family, each party shall, either within 20 days after making service on the opposite party of any petition or pleading or before filing such petition or pleading in court, serve a copy of the same upon the family court commissioner of the county in which the action is begun, whether such action is contested or not. No judgment in any such action shall be granted unless this section is complied with except when otherwise ordered by the court. Such commissioner may appear in an action under this chapter when appropriate; and shall appear when requested by the court.
History: 1977 c. 105
; 1979 c. 32
; 1979 c. 352
; Stats. 1979 s. 767.14.
Enlargement of time. 767.145(1)(1)
After the expiration of the period specified by the statute, the court may in its discretion, upon petition and without notice, extend the time within which service shall be made upon the family court commissioner.
Except as provided in s. 767.456
, extension of time under any other circumstances shall be governed by s. 801.15 (2)
, except that the court may, upon the petitioner's demonstration of good cause, and without notice, order one additional 60-day extension for service of the initial papers in the action.
Sup. Ct. Order, 67 W (2d) 585, 775 (1975); 1979 c. 32
; 1979 c. 196
; Stats. 1979 s. 767.145; 1983 a. 447
Service on child support program. 767.15(1)
In any action affecting the family in which either party is a recipient of benefits under ss. 49.141
or aid under s. 46.261
, each party shall, either within 20 days after making service on the opposite party of any motion or pleading requesting the court or family court commissioner to order, or to modify a previous order, relating to child support, maintenance or family support, or before filing the motion or pleading in court, serve a copy of the motion or pleading upon the child support program designee under s. 59.53 (5)
of the county in which the action is begun.
NOTE: Sub. (1) is shown as affected by two acts of the 1995 legislature and as merged by the revisor under s. 13.93 (2) (c).
In any appeal of any action affecting the family in which support or maintenance of a child of any party is at issue, the person who initiates the appeal shall notify the department of the appeal by sending a copy of the notice of appeal to the department.
No judgment in any action affecting the family may be granted unless this section is complied with or a court orders otherwise.
Family court commissioner or law partner; when interested; procedure.
Neither a family court commissioner nor a partner may appear in any action affecting the family in any court held in the county in which the family court commissioner is acting, except when authorized to appear by s. 767.14
. In case the commissioner or a partner shall be in any way interested in such action, the presiding judge shall appoint some reputable attorney to perform the services enjoined upon such family court commissioner and such attorney, so appointed, shall take and file the oath and receive the compensation provided by law.
History: 1979 c. 32
, 92 (4)
; 1979 c. 176
; 1979 c. 352
; Stats. 1979 s. 767.16.
Family court commissioner; salary.
In counties having a population of less than 500,000, the county board shall by resolution provide an annual salary for the family court commissioner whether on a full or part-time basis and may furnish an office with necessary office furnishings, supplies and stenographic services and may also by resolution prescribe other duties not in conflict with the duties as family court commissioner.
History: 1979 c. 32
; 1979 c. 176
; Stats. 1979 s. 767.17.
Record; impounding. 767.19(1)(1)
No record or evidence in any case shall be impounded, or access thereto refused, except by special written order of the court made in its discretion in the interests of public morals. And when impounded no officer or other person shall permit a copy of any of the testimony or pleadings, or the substance thereof, to be taken by any person other than a party to the action, or his or her attorney of record, without the special order of the court.
The court may on its own motion, or on motion of any party to an action affecting the family, exclude from the courtroom all persons other than the parties, their attorneys and any guardians ad litem.
History: 1977 c. 105
; 1979 c. 32
; 1979 c. 352
; Stats. s. 767.19.
Name of spouse.
The court, upon granting a divorce, shall allow either spouse, upon request, to resume a former legal surname, if any.
History: 1975 c. 94
; 1979 c. 32
; Stats. 1979 s. 767.20.
Women's names in Wisconsin: In Re Petition of Kruzel. MacDougall, 1975 WBB No. 4.
Full faith and credit; comity. 767.21(1)
Actions in courts of other states. 767.21(1)(a)(a)
Full faith and credit shall be given in all courts of this state to a judgment in any action affecting the family, except an action relating to child custody, by a court of competent jurisdiction in another state, territory or possession of the United States, when both spouses personally appear or when the respondent has been personally served. Full faith and credit shall also be given in all courts of this state to the amount of arrearages owed for nonpayment or late payment of a child support, family support or maintenance payment under an order issued by a court of competent jurisdiction in another state, territory or possession of the United States. A court in this state may not adjust the amount of arrearages owed except as provided in s. 767.32 (1m)
Full faith and credit shall be given in all courts of this state to a determination of paternity made by any other state, whether established through voluntary acknowledgment or an administrative or judicial process.
(2) Actions in courts of foreign countries.
Any court of this state may recognize a judgment in any action affecting the family involving Wisconsin domiciliaries, except an action relating to child custody, by a court of competent jurisdiction in a foreign country, in accordance with the principles of international comity.
(3) Child custody actions.
All matters relating to the effect of the judgment of another court concerning child custody shall be governed by ch. 822
History: 1977 c. 105
; 1979 c. 32
; 1979 c. 352
; Stats. 1979 s. 767.21; 1989 a. 212
; 1993 a. 481
Full faith and credit is not applicable where a decree or judgment is obtained in a jurisdiction outside of the U.S. Estate of Steffke, 65 W (2d) 199, 222 NW (2d) 628.
A Wisconsin court has equitable jurisdiction to decide issues of maintenance and property division when an out-of-state divorce judgment fails to address those issues. Haeuser v. Haeuser, 200 W (2d) 750, 548 NW (2d) 750 (Ct. App. 1996).
Uniform divorce recognition act. 767.22(1)
A divorce obtained in another jurisdiction shall be of no force or effect in this state, if the court in such other jurisdiction lacks subject matter jurisdiction to hear the case because both parties to the marriage were domiciled in this state at the time the proceeding for the divorce was commenced.
Proof that a person obtaining a divorce in another jurisdiction was (a) domiciled in this state within 12 months prior to the commencement of the proceeding therefor, and resumed residence in this state within 18 months after the date of the person's departure therefrom, or (b) at all times after the person's departure from this state, and until the person's return maintained a place of residence within this state, shall be prima facie evidence that the person was domiciled in this state when the divorce proceeding was commenced.