AB445: Bill Text

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:

AB445,9,16 120.13 (2) (g) Every self-insured plan under par. (b) 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. 5 Section 5. 565.30 (5m) of the statutes is amended to read:

AB445,9,25 565.30 (5m) Withholding of child support, spousal support, maintenance or family support. The administrator shall report to the department of workforce development the name, address and social security number of each winner of a lottery prize that is payable in instalments. Upon receipt of the report, the department of workforce development shall certify to the administrator whether any payee named in the report is obligated to provide child support, spousal support, maintenance or family support under s. 767.02 (1) (f) or (g), 767.10, 767.23, 767.25, 767.26, 767.261, 767.458 (3), 767.465 (2m), 767.477, 767.51 (3), 767.62 (4) (a) or 948.22 (7) or ch. 769 and the amount required to be withheld from the lottery prize under s. 767.265. The administrator shall withhold the certified amount from each payment made to the winner and remit the certified amount to the department of workforce development.

AB445, s. 6 Section 6. 632.897 (10) (a) 3. of the statutes is amended to read:

AB445,10,11 632.897 (10) (a) 3. The fact that the group member or insured does not claim the child as an exemption for federal income tax purposes under 26 USC 151 (c) (1) (B), or as an exemption for state income tax purposes under s. 71.07 (8) (b) or under the laws of another state, if a court order under s. 767.25 (4m), 767.51 (3m) or 767.62 (4) (b) or the laws of another state assigns responsibility for the child's health care expenses to the group member or insured.

AB445, s. 7 Section 7. 767.045 (1) (a) 2. of the statutes is amended to read:

AB445,10,14 767.045 (1) (a) 2. The Except as provided in par. (am), the legal custody or physical placement of the child is contested.

AB445, s. 8 Section 8. 767.045 (1) (am) of the statutes is created to read:

AB445,10,17 767.045 (1) (am) The court is not required to appoint a guardian ad litem under par. (a) 2. if all of the following apply:

AB445,10,19 1. Legal custody or physical placement is contested in an action to modify legal custody or physical placement under s. 767.325 or 767.327.

AB445,10,21 2. The modification sought would not substantially alter the amount of time that a parent may spend with his or her child.

AB445,10,22 3. The court determines any of the following:

AB445,10,25 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.

AB445,11,3 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.

AB445, s. 9 Section 9. 767.045 (1) (e) of the statutes is created to read:

AB445,11,9 767.045 (1) (e) Nothing in this subsection prohibits the court from making a temporary order under s. 767.23 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.

AB445, s. 10 Section 10. 767.045 (4m) of the statutes is created to read:

AB445,11,14 767.045 (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.

AB445,11,17 (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.

AB445, s. 11 Section 11. 767.078 (1) (a) 1. of the statutes is amended to read:

AB445,11,21 767.078 (1) (a) 1. Is an action for modification of a child support order under s. 767.32 or an action in which an order for child support is required under s. 767.25 (1), 767.51 (3) or 767.62 (4) (a).

AB445, s. 12 Section 12. 767.078 (2) of the statutes is amended to read:

AB445,12,2 767.078 (2) Subsection (1) does not limit the authority of a court to issue an order, other than an order under sub. (1), regarding employment of a parent in an action for modification of a child support order under s. 767.32 or an action in which an order for child support is required under s. 767.25 (1), 767.51 (3) or 767.62 (4) (a).

AB445, s. 13 Section 13. 767.11 (12) (b) of the statutes is amended to read:

AB445,12,14 767.11 (12) (b) 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 Except as provided in s. 767.045 (1) (am), the court shall promptly appoint a guardian ad litem under s. 767.045. After the appointment Regardless of whether the court appoints a guardian ad litem, 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.

AB445, s. 14 Section 14. 767.115 (title) of the statutes is amended to read:

AB445,12,17 767.115 (title) Educational program in action programs and classes in actions affecting the family.

AB445, s. 15 Section 15. 767.115 (4) of the statutes is created to read:

AB445,12,24 767.115 (4) (a) At any time during the pendency of a divorce or paternity action, the court or family court commissioner may order the parties to attend a class that is approved by the court 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.

AB445,13,5 (b) The court or family court commissioner may not require the parties to attend a class under this subsection as a condition to the granting of the final judgment or order in the divorce or paternity action, however, the court or family court commissioner may refuse to hear a custody or physical placement motion of a party who refuses to attend a class ordered under this subsection.

AB445,13,7 (c) 1. Except as provided in subd. 2., the parties shall be responsible for any cost of attending the class.

AB445,13,9 2. If the court or family court commissioner finds that a party is indigent, any costs that would be the responsibility of that party shall be paid by the county.

AB445, s. 16 Section 16. 767.23 (1) (a) of the statutes is amended to read:

AB445,13,17 767.23 (1) (a) Upon Subject to s. 767.477, upon request of one party, granting legal custody of the minor children to the parties jointly, to one party solely or to a relative or agency specified under s. 767.24 (3). The , in a manner consistent with s. 767.24, except that the court or family court commissioner may order joint sole legal custody without the agreement of the other party and without the findings required under s. 767.24 (2) (b) 2. This order may not have a binding effect on a final custody determination.

AB445, s. 17 Section 17. 767.23 (1) (am) of the statutes is amended to read:

AB445,13,23 767.23 (1) (am) Upon Subject to s. 767.477, upon the request of a party, granting periods of physical placement to a party in a manner consistent with s. 767.24. The court or family court commissioner shall make a determination under this paragraph within 30 days after the request for a temporary order regarding periods of physical placement is filed.

AB445, s. 18 Section 18. 767.23 (1) (c) of the statutes is amended to read:

AB445,14,5 767.23 (1) (c) Requiring Subject to s. 767.477, requiring either party or both parties to make payments for the support of minor children, which payment amounts may be expressed as a percentage of parental income or as a fixed sum, or as a combination of both in the alternative by requiring payment of the greater or lesser of either a percentage of parental income or a fixed sum.

AB445, s. 19 Section 19. 767.23 (1) (k) of the statutes is amended to read:

AB445,14,9 767.23 (1) (k) Requiring Subject to s. 767.477, requiring either party or both parties to maintain minor children as beneficiaries on a health insurance policy or plan.

AB445, s. 20 Section 20. 767.23 (1n) of the statutes is amended to read:

AB445,14,23 767.23 (1n) Before making any temporary order under sub. (1), the court or family court commissioner shall consider those factors which that the court is required by this chapter to consider before entering a final judgment on the same subject matter. In making a determination under sub. (1) (a) or (am), the court or family court commissioner shall consider the factors under s. 767.24 (5). If the court or family court commissioner makes a temporary child support order that deviates from the amount of support that would be required by using the percentage standard established by the department under s. 49.22 (9), the court or family court commissioner shall comply with the requirements of s. 767.25 (1n). A temporary order under sub. (1) may be based upon the written stipulation of the parties, subject to the approval of the court or the family court commissioner. Temporary orders made by the family court commissioner may be reviewed by the court as provided in s. 767.13 (6).

AB445, s. 21 Section 21. 767.24 (1) of the statutes is amended to read:

AB445,15,5 767.24 (1) General provisions. In rendering a judgment of annulment, divorce or, legal separation or paternity, or in rendering a judgment in an action under s. 767.02 (1) (e) or 767.62 (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.

AB445, s. 22 Section 22. 767.24 (1m) of the statutes is created to read:

AB445,15,14 767.24 (1m) Parenting plan. In an action for annulment, divorce or legal separation, an action to determine paternity or an action under s. 767.02 (1) (e) or 767.62 (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 before any pretrial conference. 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:

AB445,15,15 (a) What legal custody or physical placement the parent is seeking.

AB445,15,22 (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) (a), 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.

AB445,16,3 (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) (a), 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.

AB445,16,5 (d) Who will provide any necessary child care when the parent cannot and who will pay for the child care.

AB445,16,6 (e) Where the child will go to school.

AB445,16,7 (f) What doctor or health care facility will provide medical care for the child.

AB445,16,8 (g) How the child's medical expenses will be paid.

AB445,16,9 (h) What the child's religious commitment will be, if any.

AB445,16,11 (i) Who will make decisions about the child's education, medical care, choice of child care providers and extracurricular activities.

AB445,16,12 (j) How the holidays will be divided.

AB445,16,13 (k) What the child's summer schedule will be.