813.122 Annotation
This section implicitly envisions a change of placement and custody if the trial court issues a child abuse injunction against a parent who has custody or placement of a child under a divorce order or judgment. Scott M.H. v. Kathleen M.H.
218 Wis. 2d 605,
581 N.W.2d 564 (Ct. App. 1998),
97-0814.
813.123
813.123
Restraining orders and injunctions for individuals at risk. 813.123(1)(d)
(d) "False representation" includes a promise that is made with the intent not to fulfill the promise.
813.123(1)(ep)
(ep) "Individual at risk" means an elder adult at risk or an adult at risk.
813.123(1)(fm)
(fm) "Mistreatment of an animal" means cruel treatment of any animal owned by or in service to an individual at risk.
813.123(2)
(2) Commencement of action and response. 813.123(2)(a)(a) No action under this section may be commenced by complaint and summons. An action under this section may be commenced only by a petition described under
sub. (6). The action commences with service of the petition upon the respondent if a copy of the petition is filed before service or promptly after service. The individual at risk, any person acting on behalf of an individual at risk, an elder-adult-at-risk agency, or an adult-at-risk agency may be a petitioner under this section. If the petition is filed by a person other than the individual at risk, the petitioner shall serve a copy of the petition on the individual at risk.
Section 813.06 does not apply to an action under this section. The respondent may respond to the petition either in writing before or at the hearing on the issuance of the injunction or orally at that hearing.
813.123(2)(b)
(b) The court may go forward with a petition filed under
sub. (6) if the individual at risk has been adjudicated incompetent under
ch. 880 [ch.
880, 2003 stats., or
ch. 54], notwithstanding an objection by an individual at risk who is the subject of the petition, or an objection by the guardian of the individual at risk.
813.123 Note
NOTE: The correct cross-reference is shown in brackets. Corrective legislation is pending.
813.123(3)(a)(a) Procedure for an action under this section is in 2 parts. First, if the petitioner requests a temporary restraining order, the court or circuit court commissioner shall issue or refuse to issue that order. Second, the court shall hold a hearing under
sub. (5) on whether to issue an injunction, which is the final relief. If the court or circuit court commissioner issues a temporary restraining order, the order shall set forth the date for the hearing on an injunction. If the court or circuit court commissioner does not issue a temporary restraining order, the date for the hearing shall be set upon motion by either party.
813.123(3)(b)
(b) The court or circuit court commissioner, on its or his or her own motion or the motion of any party, shall order that a guardian ad litem be appointed for the individual at risk, if the petition under
sub. (6) was filed by a person other than the individual at risk, and may order that a guardian ad litem be appointed in other instances when justice so requires.
813.123 Note
NOTE: Par. (b) is shown as affected by 2 acts of the 2005 Wisconsin legislature and as merged by the revisor under s. 13.93 (2) (c).
813.123(3)(c)
(c) The court or circuit court commissioner, on its or his or her own motion or the motion of any party, may order any of the following:
813.123(3)(c)1.
1. That all persons, other than the individual at risk, the parties, their attorneys, a representative of the adult-at-risk agency or elder-adult-at-risk agency, witnesses, court personnel, and any guardian or any guardian ad litem, be excluded from any hearing under this section.
813.123(3)(c)2.
2. That access to any record of an action under this section be available only to the individual at risk, the parties, their attorneys, any guardian or any guardian ad litem, the adult-at-risk agency or elder-adult-at-risk agency, court personnel, and, upon appeal, any applicable court.
813.123(4)(a)(a) Unless the individual at risk, guardian, or guardian ad litem consents in writing and the judge or circuit court commissioner agrees that the contact is in the best interests of the individual at risk, a judge or circuit court commissioner shall issue a temporary restraining order, as specified in
par. (ar), if all of the following occur:
Effective date text
(a) Unless the vulnerable adult, guardian or guardian ad litem consents in writing and the judge or circuit court commissioner agrees that the contact is in the best interests of the vulnerable adult, a judge or circuit court commissioner shall issue a temporary restraining order ordering the respondent to avoid interference with an investigation of the vulnerable adult under s. 55.043 or the delivery of protective services to or a protective placement of the vulnerable adult under ch. 55 if all of the following occur:
813.123(4)(a)1.
1. The petitioner submits to the judge or circuit court commissioner a petition alleging the elements set forth under
sub. (6).
813.123(4)(a)2.
2. The judge or circuit court commissioner finds reasonable grounds to believe any of the following:
813.123(4)(a)2.a.
a. That the respondent has interfered with or, based on prior conduct of the respondent, may interfere with an investigation of the individual at risk, or the delivery of protective services to or a protective placement of the individual at risk under
ch. 55, or the delivery of services to an elder adult at risk under
s. 46.90 (5m); and that the interference complained of, if continued, would make it difficult to determine whether abuse, financial exploitation, neglect, or self-neglect has occurred, is occurring, or may recur.
813.123 Note
NOTE: Subd. 2. a. is shown as affected by 2 acts of the 2005 Wisconsin legislature and as merged by the revisor under s. 13.93 (2) (c).
813.123(4)(a)2.b.
b. That the respondent engaged in or threatened to engage in the abuse, financial exploitation, neglect, harassment, or stalking of an individual at risk or the mistreatment of an animal.
813.123(4)(ar)
(ar) A temporary restraining order issued under
par. (a) shall order the respondent to do one or more of the following:
813.123(4)(ar)1.
1. Avoid interference with an investigation of the elder adult at risk under
s. 46.90 or the adult at risk under
s. 55.043, the delivery of protective services to the individual at risk under
s. 55.05 or a protective placement of the individual at risk under
s. 55.06, or the delivery of services to the elder adult at risk under
s. 46.90 (5m).
813.123(4)(ar)2.
2. Cease engaging in or threatening to engage in the abuse, financial exploitation, neglect, harassment, or stalking of an individual at risk or mistreatment of an animal.
813.123(4)(ar)3.
3. Avoid the residence of the individual at risk or any other location temporarily occupied by the individual at risk, or both.
813.123(4)(ar)4.
4. Avoid contacting or causing any person other than a party's attorney or a law enforcement officer to contact the individual at risk.
813.123(4)(ar)5.
5. Engage in any other appropriate remedy not inconsistent with the remedies requested in the petition.
813.123(4)(b)
(b) Notice need not be given to the respondent before issuing a temporary restraining order under this subsection. A temporary restraining order may be entered only against the respondent named in the petition.
813.123(4)(c)
(c) The temporary restraining order is in effect until a hearing is held on issuance of an injunction under
sub. (5). A judge shall hold a hearing on issuance of an injunction within 7 days after the temporary restraining order is issued, unless the time is extended upon the written consent of the parties or extended once for 7 days upon a finding that the respondent has not been served with a copy of the temporary restraining order although the petitioner has exercised due diligence.
813.123(5)(a)(a) Unless the individual at risk, guardian, or guardian ad litem consents in writing to a contact and the judge agrees that the contact is in the best interests of the individual at risk, a judge may grant an injunction ordering the respondent, as specified in
par. (ar), if all of the following occur:
Effective date text
(a) Unless the vulnerable adult, guardian or guardian ad litem consents to that contact in writing and the judge agrees that the contact is in the best interests of the vulnerable adult, a judge may grant an injunction ordering the respondent to avoid interference with an investigation of the vulnerable adult under s. 55.043 or the delivery of protective services to or a protective placement of the vulnerable adult under ch. 55 if all of the following occur:
813.123(5)(a)1.
1. The petitioner files a petition alleging the elements set forth under
sub. (6).
813.123(5)(a)2.
2. The petitioner serves upon the respondent a copy of the petition and notice of the time for hearing on the issuance of the injunction, or the respondent serves upon the petitioner notice of the time for hearing on the issuance of the injunction.
813.123(5)(a)3.
3. After hearing, the judge finds reasonable cause to believe any of the following:
813.123(5)(a)3.a.
a. That the respondent has interfered with or, based upon prior conduct of the respondent, may interfere with an investigation of the elder adult at risk under
s. 46.90 or the adult at risk under
s. 55.043 and that the interference complained of, if continued, would make it difficult to determine if abuse, financial exploitation, neglect, harassment, or stalking of an individual at risk or mistreatment of an animal is occurring or may recur.
813.123(5)(a)3.b.
b. That the respondent has interfered with the delivery [to the] individual at risk of protective services [[to]] or a protective placement of the individual at risk under
ch. 55 after the offer of protective services or protective placement has been made and the individual at risk or his or her guardian, if any, has consented to receipt of the protective services or protective placement; or that the respondent has interfered with the delivery of services to an elder adult at risk under
s. 46.90 (5m).
813.123 Note
NOTE: Subd. 3. b. is shown as affected by 2 acts of the 2005 Wisconsin legislature and as merged by the revisor under s. 13.93 (2) (c). The bracketed language was deleted by
2005 Wis. Act 264 but is required to complete the phrase intended by the insertion of "individual at risk" by
2005 Wis. Act 388. The double bracketed language was inserted by
2005 Wis. Act 264 but rendered surplusage. Corrective legislation is pending.
813.123(5)(a)3.c.
c. That the respondent has engaged in or threatened to engage in the abuse, financial exploitation, neglect, harassment, or stalking of an individual at risk or the mistreatment of an animal.
813.123(5)(ar)
(ar) An injunction granted under
par. (a) shall order the respondent to do one or more of the following:
813.123(5)(ar)1.
1. Avoid interference with an investigation of the elder adult at risk under
s. 46.90 or the adult at risk under
s. 55.043, the delivery of protective services to the individual at risk under
s. 55.05 or a protective placement of the individual at risk under
s. 55.06, or the delivery of services to the elder adult at risk under
s. 46.90 (5m).
813.123(5)(ar)2.
2. Cease engaging in or threatening to engage in the abuse, financial exploitation, neglect, harassment, or stalking of an individual at risk or the mistreatment of an animal.
813.123(5)(ar)3.
3. Avoid the residence of the individual at risk or any other location temporarily occupied by the individual at risk, or both.
813.123(5)(ar)4.
4. Avoid contacting or causing any person other than a party's attorney or a law enforcement officer to contact the individual at risk.
813.123(5)(ar)5.
5. Any other appropriate remedy not inconsistent with the remedies requested in the petition.
813.123(5)(b)
(b) The injunction may be entered only against the respondent named in the petition.
813.123(5)(c)1.1. An injunction under this subsection is effective according to its terms[,] but for not more than 4 years.
813.123 Note
NOTE: The bracketed comma was deleted by
2005 Wis. Act 388 without being shown as stricken. No change was intended. Corrective legislation is pending.
813.123(5)(c)2.
2. When an injunction that has been in effect for less than 6 months expires, the court shall extend the injunction if the petitioner states that an extension is necessary to protect the individual at risk. This extension shall remain in effect until 6 months after the date on which the court first entered the injunction.
813.123(5)(c)3.
3. If the petitioner states that an extension is necessary to protect the individual at risk, the court may extend the injunction for not more than 2 years.
813.123(5)(c)4.
4. Notice need not be given to the respondent before extending an injunction under
subd. 2. or
3. The petitioner shall notify the respondent after the court extends an injunction under
subd. 2. or
3.
813.123(6)
(6) Petition. The petition shall allege facts sufficient to show the following:
813.123(6)(a)
(a) The name of the petitioner and the individual at risk.
813.123(6)(b)
(b) The name of the respondent and that the respondent is an adult.
813.123(6)(c)
(c) That the respondent interfered with or, based on prior conduct of the respondent, may interfere with an investigation of the elder adult at risk under
s. 46.90 (5), an investigation of the adult at risk under
s. 55.043 or the delivery of protective services to [the] individual at risk, a protective placement of the individual at risk under
ch. 55, or the delivery of services to the elder adult at risk under
s. 46.90 (5m); or that the respondent engaged in, or threatened to engage in, the abuse, financial exploitation, neglect, stalking, or harassment of an individual at risk or mistreatment of an animal.
813.123 Note
NOTE: Par. (c) is shown as affected by 2 acts of the 2005 Wisconsin legislature and as merged by the revisor under s. 13.93 (2) (c). The bracketed "the" was deleted by
2005 Wis. Act 264 but must be reinserted for correct grammar. Corrective legislation is pending.
813.123(7)
(7) Interference order. Any order under [or
ch. 55]
sub. (4) (ar) 1. or
2. or
(5) (ar) 1. or
2. also shall prohibit the respondent from intentionally preventing a representative or employee of the county protective services agency from meeting, communicating, or being in visual or audio contact with the adult at risk, except as provided in the order.
813.123 Note
NOTE: Sub. (7) is shown as affected by 2 acts of the 2005 Wisconsin legislature and as merged by the revisor under s. 13.93 (2) (c). The bracketed material was inserted
2005 Wis. Act 264 but rendered surplusage by
2005 Wis. Act 388. Corrective legislation is pending.
813.123(8)(a)(a) If an order is issued under this section, upon request by the petitioner, the court or circuit court commissioner shall order the sheriff to assist in executing or serving the temporary restraining order or injunction.
813.123(8)(b)
(b) Within one business day after an order or injunction is issued, extended, modified or vacated under this section, the clerk of circuit court shall send a copy of the order or injunction, or of the order extending, modifying or vacating an order or injunction, to the sheriff or to any other local law enforcement agency which is the central repository for orders and injunctions and which has jurisdiction over the vulnerable adult's premises.
813.123(8)(c)
(c) The sheriff or other appropriate local law enforcement agency under
par. (b) shall enter the information received under
par. (b) concerning an order or injunction issued, extended, modified or vacated under this section into the transaction information for management of enforcement system no later than 24 hours after receiving the information and shall make available to other law enforcement agencies, through a verification system, information on the existence and status of any order or injunction issued under this section. The information need not be maintained after the order or injunction is no longer in effect.
813.123(9)
(9) Arrest. A law enforcement officer shall arrest and take a person into custody if all of the following occur:
813.123(9)(a)
(a) A petitioner presents the law enforcement officer with a copy of an order issued under
sub. (4) or an injunction issued under
sub. (5), or the law enforcement officer determines that such an order exists through communication with appropriate authorities.
813.123(9)(b)
(b) The law enforcement officer has probable cause to believe that the person has violated the order issued under
sub. (4) or the injunction issued under
sub. (5).
813.123(10)
(10) Penalty. Whoever intentionally violates a temporary restraining order or injunction issued under this section shall be fined not more than $1,000 or imprisoned for not more than 9 months or both.
813.123(12)
(12) Notice of full faith and credit. An order or injunction issued under
sub. (4) or
(5) shall include a statement that the order or injunction may be accorded full faith and credit in every civil or criminal court of the United States, civil or criminal courts of any other state and Indian tribal courts to the extent that such courts may have personal jurisdiction over nontribal members.
813.125
813.125
Harassment restraining orders and injunctions. 813.125(1)(1)
Definition. In this section, "harassment" means any of the following:
