Wisconsin's Child Removal Law. Wis. Law. June 1993.
Revisions agreed to by stipulation.
If after an initial order is entered under s. 767.24
, the parties agree to a modification in an order of physical placement or legal custody and file a stipulation with the court that specifies the agreed upon modification, the court shall incorporate the terms of the stipulation into a revised order of physical placement or legal custody.
History: 1987 a. 355
Acceptance of stipulation is not mandatory; trial court is not prohibited from examining best interests of the child. In re Paternity of S.A. 165 W (2d) 530, 478 NW (2d) 21 (Ct. App. 1991).
Annual adjustments in child support order. 767.33(1)(1)
An order for child support under s. 767.23
may provide for an adjustment in the amount to be paid based on a change in the obligor's income, as reported on the disclosure form under s. 767.27 (2m)
or as disclosed under s. 49.22 (2m)
to the department or county child support agency under s. 59.53 (5)
. The order may specify the date on which the annual adjustment becomes effective. No adjustment may be made unless the order so provides and the party receiving payments applies for an adjustment as provided in sub. (2)
. An adjustment under this section may be made only once in any year.
Except as provided in par. (b)
, this section applies only to an order under s. 767.23
in which payment is expressed as a fixed sum. It does not apply to such an order in which payment is expressed as a percentage of parental income.
If payment is expressed in an order under s. 767.23
in the alternative as the greater or lesser of either a percentage of parental income or a fixed sum, this section applies only to the fixed sum alternative under the order.
An adjustment under sub. (1)
may be made only if the party receiving payments applies to the family court commissioner for the adjustment. If the order specifies the date on which the annual adjustment becomes effective, the application to the family court commissioner must be made at least 20 days before the effective date of the adjustment. The family court commissioner, upon application by the party receiving payments, shall send a notice by certified mail to the last-known address of the obligor. The notice shall be postmarked no later than 10 days after the date on which the application was filed and shall inform the obligor that an adjustment in payments will become effective on the date specified in the order or, if no date is specified in the order, 10 days after the date on which the notice is sent. The obligor may, after receipt of notice and before the effective date of the adjustment, request a hearing on the issue of whether the adjustment should take effect, in which case the adjustment shall be held in abeyance pending the outcome of the hearing. The family court commissioner shall hold a hearing requested under this subsection within 10 working days after the request. If at the hearing the obligor establishes that extraordinary circumstances beyond his or her control prevent fulfillment of the adjusted child support obligation, the family court commissioner may direct that all or part of the adjustment not take effect until the obligor is able to fulfill the adjusted obligation. If at the hearing the obligor does not establish that extraordinary circumstances beyond his or her control prevent fulfillment of the adjusted obligation, the adjustment shall take effect as of the date it would have become effective had no hearing been requested. Either party may, within 15 working days of the date of the decision by the family court commissioner under this subsection, seek review of the decision by the court with jurisdiction over the action.
Effect of judgment. 767.37(1)(a)(a)
In any action affecting the family, if the court orders maintenance payments or other allowances for a party or children or retains jurisdiction in such matters, the written judgment shall include a provision that disobedience of the court order with respect to the same is punishable under ch. 785
by commitment to the county jail or house of correction until such judgment is complied with and the costs and expenses of the proceedings are paid or until the party committed is otherwise discharged, according to law. The written judgment in any action affecting the family shall include the social security numbers of the parties and of any child of the parties. The findings of fact and conclusions of law and the written judgment shall be drafted by the attorney for the moving party, and shall be submitted to the court and filed with the clerk of the court within 30 days after judgment is granted; but if the respondent has been represented by counsel, the findings, conclusions and judgment shall first be submitted to respondent's counsel for approval and if the family court commissioner has appeared at the trial of the action, such papers shall also be sent to the family court commissioner for approval. After any necessary approvals are obtained, the findings of fact, conclusions of law and judgment shall be submitted to the court. Final stipulations of the parties may be appended to the judgment and incorporated by reference therein.
At the time of filing any judgment for an annulment, divorce or legal separation, the attorney for the moving party shall present to the clerk of court 2 true copies thereof in addition to the original judgment, and until such copies are presented the clerk may refuse to accept such judgment for filing. After the judgment is filed, the clerk shall mail a copy forthwith to each party to the action at the last-known address, and the court record shall show such mailing.
So far as a judgment of divorce affects the marital status of the parties the court has the power to vacate or modify the judgment for sufficient cause shown, upon its own motion, or upon the application of both parties to the action, at any time within 6 months from the granting of such judgment. No such judgment shall be vacated or modified without service of notice of motion on the family court commissioner. The court may direct the family court commissioner or appoint some other attorney, to bring appropriate proceedings for the vacation of the judgment. The compensation of the family court commissioner when not on a salaried basis or other attorney for performing such services shall be at the rate of $50 per day, which shall be paid out of the county treasury upon order of the presiding judge and the certificate of the clerk of the court. If the judgment is vacated it shall restore the parties to the marital relation that existed before the granting of such judgment. If after vacation of the judgment either of the parties brings an action in this state for divorce against the other the court may order the petitioner in such action to reimburse the county the amount paid by it to the family court commissioner or other attorney in connection with such vacation proceedings. Whenever a judgment of divorce is set aside under this subsection, the court shall order the record in the action impounded without regard to s. 767.19
; and thereafter neither the record nor any part of the record shall be offered or admitted into evidence in any action or proceeding except by special order of the court of jurisdiction upon good cause shown in any paternity proceedings under this chapter or by special order of any court of record upon a showing of necessity to clear title to real estate.
When a judgment of divorce is granted it shall be effective immediately except as provided in s. 765.03 (2)
. Every judge who grants a judgment of divorce shall inform the parties appearing in court that the judgment is effective immediately except as provided in s. 765.03 (2)
Sub. (2) does not authorize vacating or modifying a judgment as to paternity of children determined in the original judgment. E.... v. E...., 57 W (2d) 436, 204 NW (2d) 503.
Sub. (2) provides no authority for reopening divorce judgment as it relates to property division. Conrad v. Conrad, 92 W (2d) 407, 284 NW (2d) 674 (1979).
Death of party within 6 months of divorce judgment did not void judgment or divest court of jurisdiction to order property division. In re Marriage of Roeder v. Roeder, 103 W (2d) 411, 308 NW (2d) 904 (Ct. App. 1981).
Judgment revoked on remarriage.
When a judgment of divorce has been granted and the parties shall afterwards intermarry, the court, upon their joint application and upon satisfactory proof of such marriage, shall revoke all judgments and any orders which will not affect the right of 3rd persons and order the record impounded without regard to s. 767.19
and neither the record nor any part of the record shall be offered or admitted into evidence in any action or proceeding except by special order of the court of jurisdiction upon good cause shown in any paternity proceedings under this chapter or by special order of any court of record upon a showing of necessity to clear title to real estate.
History: 1977 c. 105
; 1979 c. 32
, 92 (4)
; 1979 c. 352
; Stats. 1979 s. 767.38.
Maintenance payments or other allowances pending appeal. 767.39(1)(1)
In actions affecting the family pending in an appellate court, no allowance for suit money, counsel fees or disbursements in the court, nor for temporary maintenance payments to the spouse or the children during the pendency of the appeal will be made in the court.
Allowances specified in sub. (1)
, if made at all, shall be made by the proper trial court upon motion made and decided after the entry of the order or judgment appealed from and prior to the return of the record to an appellate court, provided, that if the allowance is ordered before the appeal is taken the order shall be conditioned upon the taking of the appeal and shall be without effect unless and until the record is transmitted to the court of appeals.
History: 1975 c. 94
; 1977 c. 105
; 1977 c. 187
; 1979 c. 32
; 1979 c. 352
; Stats. 1979 s. 767.39; Sup. Ct. Order, 146 W (2d) xiii (1988).
All contempt orders in which confinement is imposed shall be issued by a judge.
History: 1977 c. 323
; 1979 c. 32
; Stats. 1979 s. 767.40.
Abandonment; seizure of property. 767.42(1)
If a person absconds or is about to abscond from his or her children or spouse, or is about to remove permanently from the municipality in which he or she resides leaving a spouse or children, or both, chargeable or likely to become chargeable upon the public for support or neglects or refuses to support or provide for the spouse or children, the county where the spouse or children may be, by the official or agency designated to administer public assistance, may apply to the circuit court for any county in which any real or personal property of the parent or spouse is situated for a warrant to seize the property.
Upon due proof of the facts the court shall issue a warrant authorizing the county to seize the property of that person wherever found in the county; and they shall, respectively, be vested with all the rights and title, as limited in this section, to that property which the person had at the time of his or her departure. They shall immediately make an inventory of the property and return it with the warrant and their proceedings thereon to the circuit court. All sales and transfers of any real or personal property left in that county made by the person after the issuing of the warrant is void.
Upon the return the circuit court may inquire into the facts and circumstances and may confirm the seizure or discharge the same. If the seizure is confirmed, the court shall from time to time direct what part of the personal property shall be sold and how much of the proceeds of the sales and the rents and profits of the real estate shall be applied toward the maintenance of the spouse or children of the person. All such sales shall be at public auction in accordance with the laws relating to execution sales of personalty and realty as provided in ss. 815.29
The county shall receive the proceeds of all property so sold and the rents and profits of the real estate of such person and apply the same to the maintenance and support of the spouse or children of such person; and it shall account to the court for the moneys so received and for the application thereof from time to time.
If the person whose property has been seized under this section returns and supports the abandoned spouse or children or gives security to the county, with its approval, that the spouse or children shall not thereafter be chargeable to the county, the court shall discharge the warrant and order the restoration of the property seized and remaining unappropriated, or the unappropriated proceeds, after deducting the expenses of the proceedings.
Sup. Ct. Order, 67 W (2d) 585, 773 (1975); 1977 c. 449
; 1979 c. 352
; 1985 a. 29
, 3200 (23)
; 1985 a. 332
Determination of paternity. 767.45(1)
The following persons may bring an action or motion, including an action or motion for declaratory judgment, for the purpose of determining the paternity of a child or for the purpose of rebutting the presumption of paternity under s. 891.405
or 891.41 (1)
A man alleged or alleging himself to be the father of the child.
The personal representative of a person specified under pars. (a)
if that person has died.
The legal or physical custodian of the child.
This state whenever the circumstances specified in s. 767.075 (1)
apply, including the delegates of the state as specified in sub. (6)
A parent of a person listed under par. (b)
, if the parent is liable or is potentially liable for maintenance of a child of a dependent person under s. 49.90 (1) (a) 2.
In conjunction with the filing of a petition for visitation with respect to the child under s. 767.245 (3)
, a parent of a person who has filed a declaration of paternal interest under s. 48.025
with respect to the child or a parent of a person who, before April 1, 1998, signed and filed a statement acknowledging paternity under s. 69.15 (3) (b) 3.
with respect to the child.
Regardless of its terms, an agreement made after July 1, 1981, other than an agreement approved by the court between an alleged or presumed father and the mother or child, does not bar an action under this section. Whenever the court approves an agreement in which one of the parties agrees not to commence an action under this section, the court shall first determine whether or not the agreement is in the best interest of the child. The court shall not approve any provision waiving the right to bring an action under this section if this provision is contrary to the best interests of the child.
If an action under this section is brought before the birth of the child, all proceedings shall be stayed until after the birth, except that service of process, service and filing of pleadings, the first appearance and the taking of depositions to preserve testimony may be done before the birth of the child.
The child may be a party to any action under this section.
In this subsection, "any alleged father" includes any male who has engaged in sexual intercourse with the child's mother during a possible time of conception of the child.
An action under this section may be joined with any other action for child support and shall be governed by the procedures specified in s. 767.05
relating to child support, except that the title of the action shall be "In re the paternity of A.B." The petition shall state the name and date of birth of the child if born or that the mother is pregnant if the child is unborn, the name of any alleged father, whether or not an action by any of the parties to determine the paternity of the child or rebut the presumption of paternity to the child has at any time been commenced, or is pending before any judge or court commissioner, in this state or elsewhere. If a paternity judgment has been rendered, or if a paternity action has been dismissed, the petition shall state the court which rendered the judgment or dismissed the action, and the date and the place the judgment was granted if known. The petition shall also give notice of a party's right to request a genetic test under s. 49.225
Except as provided in ss. 767.458 (3)
, 767.465 (2)
, unless a man is presumed the child's father under s. 891.41 (1)
, is adjudicated the child's father either under s. 767.51
or by final order or judgment of a court of competent jurisdiction in another state or has acknowledged himself to be the child's father under s. 767.62 (1)
or a substantially similar law of another state, no order or temporary order may be entered for child support, legal custody or physical placement until the man is adjudicated the father using the procedure set forth in ss. 767.45
. Except as provided in ss. 767.477
, the exclusive procedure for establishment of child support obligations, legal custody or physical placement rights for a man who is not presumed the child's father under s. 891.41 (1)
, adjudicated the father or acknowledged under s. 767.62 (1)
or a substantially similar law of another state to be the father is by an action under ss. 767.45
or under s. 769.701
. No person may waive the use of this procedure. If a presumption under s. 891.41 (1)
exists, a party denying paternity has the burden of rebutting the presumption.
The attorney responsible for support enforcement under s. 59.53 (6) (a)
shall provide the representation for the state as specified under s. 767.075 (1)
in cases brought under this section.
The attorney under s. 59.53 (6) (a)
is the only county attorney who may provide representation when the state delegates its authority under sub. (1) (g)
The attorney under s. 59.53 (6) (a)
or any state attorney acting under par. (b)
may not represent the state as specified under s. 767.075 (1)
in an action under this section and at the same time act as guardian ad litem for the child or the alleged child of the party.
The attorney designated under sub. (6) (a)
shall commence an action under this section on behalf of the state within 6 months after receiving notification under s. 69.03 (15)
that no father is named on the birth certificate of a child who is a resident of the county if paternity has not been acknowledged under s. 767.62 (1)
or a substantially similar law of another state or adjudicated, except in situations under s. 69.14 (1) (g)
and as provided by the department by rule.
Give priority to matters referred under s. 48.299 (6) (a)
or 938.299 (6) (a)
, including priority in determining whether an action should be brought under this section and, if the determination is that such an action should be brought, priority in bringing the action and in establishing the existence or nonexistence of paternity.
As soon as possible, but no later than 30 days after the date on which the referral is received, notify the court that referred the matter of one of the following:
The date on which an action has been brought under this section or the approximate date on which such an action will be brought.
That a determination has been made that an action should not be brought under this section or, if such a determination has not been made, the approximate date on which a determination will be made as to whether such an action should be brought.
If an action is brought under this section, notify the court that referred the matter as soon as possible of a judgment or order determining the existence or nonexistence of paternity.
The attorney designated under sub. (6) (a)
who receives a referral under s. 48.299 (7)
or 938.299 (7)
may bring an action under this section on behalf of the state and may give priority to the referral and notify the referring court in the same manner as is required under par. (a)
when a matter is referred under s. 48.299 (6) (a)
or 938.299 (6) (a)
The clerk of court shall provide without charge, to each person bringing an action under this section, except to the state under sub. (1) (g)
, a document setting forth the percentage standard established by the department under s. 49.22 (9)
and listing the factors which a court may consider under s. 767.51 (5)
Paternity proceeding may not be maintained posthumously. In re Estate of Blumreich, 84 W (2d) 545, 267 NW (2d) 870 (1978).
See note to Art. I, sec. 9, citing In re Paternity of R.W.L. 116 W (2d) 150, 341 NW (2d) 682 (1984).
Paternity action may not be brought against deceased putative father. Paternity of N. L. B., 140 W (2d) 400, 411 NW (2d) 144 (Ct. App. 1987).
Under facts of case, nonbiological father wasn't equitably estopped from denying paternity or child support. Marriage of A. J. N. & J. M. N., 141 W (2d) 99, 414 NW (2d) 68 (Ct. App. 1987).
Posthumous paternity action is allowable where it is brought by personal representative of the deceased putative father. Le Fevre v. Schreiber, 167 W (2d) 733, 482 NW (2d) 904 (1992).
Paternity action may not be used to challenge paternity previously decided in divorce action; that paternity was not challenged in divorce is irrelevant where it could have been litigated. In Re Paternity of Nathan T. 174 W (2d) 352, 497 NW (2d) 740 (Ct. App. 1993).
Full-faith-and-credit clause of U.S. Constitution did not bar petition to determine paternity where paternity decree of another state would have been subject to collateral attack in that state. In Re Paternity of R.L.L. 176 W (2d) 224, NW (2d) (Ct. App. 1993).
Because a child has a right to bring an independent action for paternity under sub. (1) (a), where the child was not a party to an earlier paternity action, it would be a violation of the child's due process rights to preclude the child from litigating the paternity issue. Mayonia M.M. v. Kieth N. 202 W (2d) 461, 551 NW (2d) 34 (Ct. App. 1996).
An alleged father has a statutory right to a determination of paternity. A hearing to determine whether the child's best interests would be served by a paternity proceeding is not authorized by statute. Thomas M.P. v. Kimberly J.L. 207 W (2d) 390, 558 NW (2d) 897 (Ct. App. 1996).
The summons shall state the purpose of the action.
The process shall be signed by the clerk of the court or by the petitioner's attorney.
(3) Return date.
Every summons shall specify a return date and time before the court. The clerk of the court shall set the date and hour at which the summons is returnable.
The summons and petition shall be served in the manner provided in s. 801.11 (1) (a)
or, notwithstanding s. 990.001 (13)
, by registered or certified mail, with return receipt signed by the respondent.
The summons shall be in substantially the following form:
STATE OF WISCONSIN, CIRCUIT COURT: ....COUNTY