AB445: Bill Text

LRB-3433/1

PJK:kg&cmh:hmh

1999 - 2000 LEGISLATURE

1999 Assembly BILL 445

September 2, 1999 - Introduced by Representative Musser, cosponsored by Senator George. Referred to Committee on Family Law.

AB445,2,7 An Act to repeal 767.51 (3m), 767.51 (3r), 767.51 (4g), 767.51 (4m), 767.51 (5), 767.51 (5d) and 767.51 (5p); to renumber and amend 767.24 (4) (a); to amend 20.921 (2) (a), 66.184, 102.27 (2) (a), 120.13 (2) (g), 565.30 (5m), 632.897 (10) (a) 3., 767.045 (1) (a) 2., 767.078 (1) (a) 1., 767.078 (2), 767.11 (12) (b), 767.115 (title), 767.23 (1) (a), 767.23 (1) (am), 767.23 (1) (c), 767.23 (1) (k), 767.23 (1n), 767.24 (1), 767.24 (2) (a), 767.24 (2) (b), 767.24 (4) (c), 767.24 (5) (intro.), 767.24 (5) (a), 767.24 (5) (g), 767.25 (1) (intro.), 767.25 (1m) (b), 767.25 (1m) (c), 767.25 (4m) (b), 767.25 (5), 767.25 (6) (intro.), 767.253, 767.254 (2) (intro.), 767.261 (intro.), 767.265 (1), 767.265 (3h), 767.265 (4), 767.265 (6) (a), 767.265 (6) (b), 767.265 (6) (c), 767.267 (1), 767.29 (1m) (intro.), 767.295 (2) (a) (intro.), 767.295 (2) (c), 767.303 (1), 767.303 (1), 767.32 (1) (b) 4., 767.32 (2m), 767.327 (4), 767.45 (7), 767.455 (6), 767.477 (1), 767.477 (2), 767.53 (intro.), 767.53 (1) (intro.), 802.12 (3) (d) 1., 802.12 (3) (d) 3., 808.075 (4) (d) 11. and 948.22 (7) (bm); to repeal and recreate 767.51 (3), 767.51 (4) and 767.62 (4); and to create 767.045 (1) (am), 767.045 (1) (e), 767.045 (4m), 767.115 (4), 767.24 (1m), 767.24 (2) (am), 767.24 (2) (c), 767.24 (4) (a) 3., 767.24 (5) (bm), 767.24 (5) (cm), 767.24 (5) (dm), 767.24 (5) (em), 767.24 (5) (fm), 767.24 (5) (jm), 767.242, 767.325 (2m), 767.325 (5m), 767.325 (6m), 767.327 (5m), 767.53 (3) and 767.62 (4m) of the statutes; relating to: legal custody and physical placement determinations, enforcement of physical placement orders, guardian ad litem appointments and status hearings and providing a penalty.

Analysis by the Legislative Reference Bureau

Legal custody and physical placement

Current law specifies how a court is to determine legal custody of a minor child. In an annulment, divorce or legal separation, the court must base its decision on the best interest of the child after considering a number of specified factors, such as the wishes of the child and the parents, the interaction of the child with the parents, whether one party is likely to interfere with the other party's relationship with the child and whether there is evidence that a party has a significant problem with alcohol or drug abuse. The court may give sole legal custody to one of the parties or joint legal custody to both parties, but the court may give joint legal custody only if both parties agree to it or if one party requests it and the court finds all of the following: 1) that both parties are capable of performing parental duties and responsibilities and wish to have an active role in raising the child; 2) that no conditions exist that would substantially interfere with the exercise of joint legal custody; and 3) that the parties will be able to cooperate in the future decision making required. Evidence of abuse of the child or of interspousal battery or domestic abuse creates a rebuttable presumption that the parties will not be able to cooperate in the future decision making, but clear and convincing evidence that the abuse will not interfere with the parties' ability to cooperate rebuts the presumption.

For paternity actions, and actions for legal custody when the parents of the child have voluntarily acknowledged paternity by signing and filing a statement acknowledging paternity, current law provides that the mother shall have sole legal custody of the child unless the court orders otherwise.

Current law authorizes a judge or family court commissioner to make a temporary order giving legal custody while any action affecting the family is pending. In making a temporary order, the judge or family court commissioner must consider the same factors that must be considered for a final judgment. The judge or family court commissioner, however, may give joint legal custody without an agreement or the findings that are required for awarding joint legal custody in an annulment, divorce or legal separation.

The bill changes how legal custody is determined in an annulment, divorce or legal separation. In addition, under the bill the requirements for determining legal custody in an annulment, divorce or legal separation also apply when the court is determining legal custody in a paternity action or in a custody action when the parents have voluntarily acknowledged paternity. Under the bill, the court must still base a decision on legal custody on the best interest of the child after considering the factors specified in current law, but the court must presume that joint legal custody is in the child's best interest. The court may give sole legal custody to one party only if both parties agree to it or if at least one party requests it and the court finds at least one of the following: 1) that one party is not capable of performing parental duties and responsibilities or does not wish to have an active role in raising the child; 2) that one or more conditions exist that would substantially interfere with the exercise of joint legal custody; or 3) that the parties will not be able to cooperate in the future decision making required for joint legal custody. Evidence of abuse of the child or of interspousal battery or domestic abuse still creates a rebuttable presumption that the parties will not be able to cooperate in the future decision making, but the bill removes the language specifying that the presumption may be rebutted by clear and convincing evidence that the abuse will not interfere with the parties' ability to cooperate, leaving it to the judge to determine what evidence rebuts the presumption. In addition, the bill provides that the court may not give sole legal custody to a party who unreasonably refuses to cooperate with the other party.

For temporary orders for legal custody, the bill still requires a judge or family court commissioner to consider the same factors that the court must consider in making a final order, but, in addition, the judge or family court commissioner must determine temporary custody in a manner that is consistent with the requirements for making a final determination. The judge or family court commissioner, however, may order sole custody without an agreement or the findings required for ordering sole custody in a final order.

Current law specifies how a court is to determine physical placement of a minor child in an annulment, divorce or legal separation. If the court orders sole or joint legal custody in the annulment, divorce or legal separation, the court must allocate periods of physical placement between the parties. In determining the allocation, the court must consider the same specified factors that the court considers for a legal custody determination. Only if the court finds that physical placement with a parent would endanger the child's physical, mental or emotional health may the court deny a parent periods of physical placement. For paternity actions, and actions for physical placement when the parents of the child have voluntarily acknowledged paternity, current law provides only that the judgment or order may contain a provision concerning periods of physical placement. Current law does not specify how physical placement in these situations is to be determined.

The bill modifies how physical placement is awarded in an annulment, divorce or legal separation. In addition, just as for legal custody determinations, the bill expands the requirements related to determining physical placement in annulments, divorces and legal separations to paternity actions and physical placement actions when the parents have voluntarily acknowledged paternity. Under the bill, the court is still required to allocate periods of physical placement between the parties and to consider the specified factors. The basis for denying a parent periods of physical placement remains the same. The bill requires the court to 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 that a child may spend with each parent. However, the court must presume that any placement proposal to which the parties have voluntarily agreed is in the child's best interest.

Just as for temporary orders for legal custody in actions affecting the family, the bill provides that temporary orders for physical placement in actions affecting the family must be determined in a manner that is consistent with the requirements for making a final determination on physical placement.

As discussed briefly before, among the specified factors in current law that the court must consider in making legal custody and physical placement determinations are the wishes of the child and the parents, the interaction of the child with the parents, the child's adjustment to the community and school, the mental and physical health of the child and the parents, the availability of child care services, whether one party is likely to interfere with the other party's relationship with the child, whether there is evidence of abuse and whether a party has a significant problem with alcohol or drug abuse. The bill adds the following factors for the court to consider: 1) the age of the child and the child's developmental and educational needs at different ages; 2) the cooperation and communication between the parties and whether a party unreasonably refuses to cooperate or communicate; 3) the amount and quality of time that each parent has spent with the child in the past and any life-style changes that a parent proposes to make to be able to spend time with the child in the future; 4) the right of the child to spend the same amount of time or substantial amounts of time with each parent; and 5) the need for regularly occurring and meaningful periods of physical placement to provide predictability and stability for the child.

The bill adds a requirement that, if legal custody or physical placement is contested in an annulment, divorce, legal separation, paternity action or action for physical placement or legal custody when the parents have voluntarily acknowledged paternity, a party seeking legal custody or physical placement must file a parenting plan with the court before any pretrial conference. A party who is required to file a parenting plan and who does not do so on time waives the right to object to a parenting plan filed by the other party. The bill specifies what information a parenting plan must contain, such as who will provide child care, where the child will go to school, the doctor or health care facility that will provide medical care for the child, what the child's religious affiliation will be, how the holidays will be divided between the parents and how the child will be transferred between the parties for physical placement exchanges if there is evidence of spousal abuse.

Enforcement of physical placement

Under current law, a person who violates a physical placement order may be found in contempt of court for violating a court order. The penalties for contempt of court include imprisonment, a forfeiture of up to $2,000 for each day that the contempt of court continues and an order designed to ensure compliance with the prior court order. The bill establishes an additional mechanism for the enforcement of physical placement orders.

The bill provides that a parent who has been awarded periods of physical placement may file a petition to enforce the award of physical placement if any of the following applies: 1) the parent has had one or more periods of physical placement denied by the other parent; 2) the parent has had one or more periods of physical placement substantially interfered with by the other parent; or 3) 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. The petition must be served on the other parent (the respondent), who may respond to the petition either in writing, before or at the hearing, or orally at the hearing.

The bill requires a judge or family court commissioner to accept any legible petition and to hold a hearing on the petition no later than 30 days after the petition has been served, unless the time is extended by agreement of the parties or for other reasons. A judge or family court commissioner may, on his or her own motion or the motion of any party, order that a guardian ad litem be appointed for the child prior to the hearing.

At the conclusion of the hearing, if the judge or family court commissioner finds that the respondent has intentionally and unreasonably denied or interfered with one or more of the petitioner's periods of physical placement, the judge or family court commissioner is required to issue an order granting additional periods of physical placement to replace those denied or interfered with and to award the petitioner a reasonable amount for the cost of maintaining the action and for attorney fees. In addition, the judge or family court commissioner may do any of the following: 1) issue an order specifying times for the exercise of periods of physical placement if the original order or judgment does not specify times; 2) find the respondent in contempt of court; or 3) grant an injunction ordering the respondent to strictly comply with the judgment or order relating to the award of physical placement. The judge or family court commissioner may not modify the original order of legal custody or physical placement in an action to enforce a physical placement order.

If the judge or family court commissioner finds that the petitioner has incurred a financial loss or expenses because the respondent has intentionally and unreasonably failed to exercise one or more periods of physical placement under an order allocating specific times for the exercise of periods of physical placement without adequate notice to the petitioner, the judge or family court commissioner may issue an order requiring the respondent to pay a sum of money sufficient to compensate the petitioner for the financial loss or expenses.

Under the bill, any injunction issued ordering the respondent to strictly comply with the judgment or order relating to the award of physical placement is effective for not more than two years. The court or family court commissioner, upon request by the petitioner, must order the sheriff to assist the petitioner to execute or serve the injunction. Within 24 hours after the petitioner's request, the clerk of court must send a copy of the injunction to the sheriff or to any other local law enforcement agency that is the central repository for orders and that has jurisdiction over the respondent's residence. If the respondent resides outside of Wisconsin, the clerk of court must send a copy of the injunction to the sheriff of the county in which the court is located. The sheriff must make available to other law enforcement agencies information on the existence and status of any injunction issued. The bill also provides that a law enforcement officer may arrest a person and take him or her into custody if the petitioner presents a law enforcement officer with a copy of an injunction and the law enforcement officer has probable cause to believe that the person against whom the injunction is issued has violated the injunction. A violation of an injunction is punishable by a fine of not more than $10,000 or imprisonment for not more than two years or both.

The bill also authorizes a court, in an action to modify an order of custody or physical placement, to modify periods of physical placement if the court finds that a parent has, without giving reasonable advance notice to the other parent, 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.

Guardian ad litem

Under current law, the court is required to appoint a guardian ad litem to advocate for the best interests of a minor child in an action affecting the family if the court has reason for special concern as to the welfare of a minor child or if the legal custody or physical placement of a child is contested. The bill provides that the court is not required to appoint a guardian ad litem if the legal custody or physical placement of a child is contested in an action affecting the family to modify legal custody or physical placement if the modification sought would not substantially alter the amount of time that a parent could spend with his or her child and if the court determines either that the facts or circumstances make the likely determination so clear that the appointment of a guardian ad litem would not assist the court or that a party seeks the appointment of a guardian ad litem solely for a tactical purpose or for delay.

The bill establishes the right of a party to request a status hearing on the actions taken and work performed thus far in a matter by a guardian ad litem. A party may request a status hearing at any time after 120 days after a guardian ad litem has been appointed, and again at any time after 120 days after a status hearing has been held in the matter.

Under the bill, the joint legislative council is requested to establish a committee to study reforming the guardian ad litem system in actions affecting the family and to petition the supreme court to consider rules for the reform of the system on the basis of the committee's recommendations.

Miscellaneous changes to paternity provisions

Current law provides generally that an order determining paternity, or an order in an action concerning custody, child support or physical placement rights when the parents of a child have voluntarily acknowledged paternity, may contain any provision directed against the appropriate party concerning such issues as custody or guardianship of the child, child support, physical placement rights and any other matter in the best interest of the child. The bill specifically itemizes what provisions these orders must contain by expanding and elaborating upon the provisions contained in current law.

Because many of the provisions concerning child support ordered in divorce actions, paternity actions and support actions when the parents have voluntarily acknowledged paternity are identical and duplicative, the bill deletes the redundant provisions and expands the applicability of the child support provisions for divorce actions to paternity actions and support actions when the parents have voluntarily acknowledged paternity.

Under current law, when child support is ordered in a paternity action or in a support action when the parents of a child have voluntarily acknowledged paternity, the father's liability for support is limited to the period after the birth of the child. Under the bill, a party's liability for support in a paternity action or support action when the parents have voluntarily acknowledged paternity is limited to the period after the day on which the paternity or support action is commenced unless the party seeking child support shows that he or she was induced to delay the commencement of the action and that he or she did not unreasonably delay commencement after the inducement ceased to operate. In no event, however, may support be ordered for any period before the birth of the child.

Under current law, if in a pending paternity action genetic test results show that the alleged father is not excluded and that his probability of parentage is 99% or higher, the court must make a temporary order for child support. The bill requires the court to also make temporary orders for custody and physical placement if the probability of the alleged father's paternity is 99% or higher.

Under current law, records of any pending or past paternity proceedings are closed except to a list of specified persons involved with the proceedings. The bill changes this provision so that records of any pending paternity proceedings are closed except to the list of specified persons, while the records of any past paternity proceedings are open for inspection.

Miscellaneous changes

Under current law, a judge or family court commissioner may order the parties in an action affecting the family in which a minor child is involved to attend an educational program on the effects on a child of a dissolution of the marriage and may condition the granting of the final order on attendance. Also under current law, in an action to determine the paternity of a child, a judge or family court commissioner may order either or both of the parties to attend a program that provides training in parenting or coparenting skills. The bill authorizes a judge or family court commissioner to order the parties in a divorce or paternity action to attend a class that is approved by the judge or family court commissioner and that addresses such issues as child development, family dynamics, how parental separation affects a child's development and what parents can do to make raising a child in a separated situation less stressful for the child. Although the judge or family court commissioner may not condition the granting of the final order in the action on attendance at such a class, the judge or family court commissioner may refuse to hear a custody or physical placement motion of a party who refuses to attend a class that is ordered.

Current law specifies the situations under which a legal custody or physical placement order may be modified. Generally, such an order may not be modified before two years after the initial order is granted unless the modification is necessary because the current custodial conditions are physically or emotionally harmful to the child. After two years after the initial order is granted, such an order may be modified if there has been a substantial change in circumstances and the modification is in the best interest of the child. The bill does not change the circumstances under which a legal custody or physical placement order may be modified. The bill provides, however, that in any action to modify a legal custody or physical placement order the court must consider those specified factors that the court considers when making an initial legal custody or physical placement order and that the court must make its modification determination in a manner consistent with the requirements for making an initial legal custody or physical placement determination. In addition, the court may require the party seeking the modification to file a parenting plan before any hearing is held.

Under current law, interest on child support arrearages or family support arrearages accrues at the rate of 1.5% per month. The bill changes the rate at which interest accrues on child or family support arrearages to 1% per month.

For further information see the state and local fiscal estimate, which will be printed as an appendix to this bill.

The people of the state of Wisconsin, represented in senate and assembly, do enact as follows:

AB445, s. 1 Section 1. 20.921 (2) (a) of the statutes is amended to read:

AB445,8,9 20.921 (2) (a) Whenever it becomes necessary in pursuance of any federal or state law or court-ordered assignment of income under s. 46.10 (14) (e), 301.12 (14) (e), 767.23 (1) (L), 767.25 (4m) (c), or 767.265, 767.51 (3m) (c) or 767.62 (4) (b) 3. to make deductions from the salaries of state officers or employes or employes of the University of Wisconsin Hospitals and Clinics Authority, the state agency or authority by which the officers or employes are employed is responsible for making such deductions and paying over the total thereof for the purposes provided by the laws or orders under which they were made.

AB445, s. 2 Section 2. 66.184 of the statutes is amended to read:

AB445,9,7 66.184 Self-insured health plans. If a city, including a 1st class city, or a village provides health care benefits under its home rule power, or if a town provides health care benefits, to its officers and employes on a self-insured basis, the self-insured plan shall comply with ss. 49.493 (3) (d), 631.89, 631.90, 631.93 (2), 632.746 (10) (a) 2. and (b) 2., 632.747 (3), 632.85, 632.853, 632.855, 632.87 (4) and (5), 632.895 (9) to (13), 632.896, and 767.25 (4m) (d), 767.51 (3m) (d) and 767.62 (4) (b) 4.

AB445, s. 3 Section 3. 102.27 (2) (a) of the statutes is amended to read:

AB445,9,11 102.27 (2) (a) A benefit under this chapter is assignable under s. 46.10 (14) (e), 301.12 (14) (e), 767.23 (1) (L), 767.25 (4m) (c), or 767.265 (1), 767.51 (3m) (c) or 767.62 (4) (b) 3.

AB445, s. 4 Section 4. 120.13 (2) (g) of the statutes is amended to read: