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813.12(7) (7)Arrest.
813.12(7)(am)(am) A law enforcement officer shall arrest and take a person into custody if all of the following occur:
813.12(7)(am)1. 1. A petitioner under sub. (5) presents the law enforcement officer with a copy of a court order issued under sub. (3) or (4), or the law enforcement officer determines that such an order exists through communication with appropriate authorities.
813.12(7)(am)2. 2. The law enforcement officer has probable cause to believe that the person has violated the court order issued under sub. (3) or (4) by any circuit court in this state.
813.12(7)(c) (c) A respondent who does not appear at a hearing at which the court orders an injunction under sub. (4) but who has been served with a copy of the petition and notice of the time for hearing under sub. (4) (a) 2. has constructive knowledge of the existence of the injunction and shall be arrested for violation of the injunction regardless of whether he or she has been served with a copy of the injunction.
813.12(7m) (7m)Transcripts. The judge or circuit court commissioner shall record the temporary restraining order or injunction hearing upon the request of the petitioner.
813.12(8) (8)Penalty.
813.12(8)(a)(a) Whoever knowingly violates a temporary restraining order or injunction issued under sub. (3) or (4) shall be fined not more than $10,000 or imprisoned for not more than 9 months or both.
813.12(8)(b) (b) The petitioner does not violate the court order under sub. (3) or (4) if he or she admits into his or her residence a person ordered under sub. (3) or (4) to avoid that residence.
813.12(9) (9)Notice of full faith and credit. An order or injunction issued under sub. (3) or (4) 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.
813.12 AnnotationThis section is constitutional. Schramek v. Bohren, 145 Wis. 2d 695, 429 N.W.2d 501 (Ct. App. 1988).
813.12 Annotation Sub. (3) (am) provides for a limited-term injunction as an alternative to a restraining order under sub. (3) (a) when 3 stated conditions are met. Johnson v. Miller, 157 Wis. 2d 482, 459 N.W.2d 886 (Ct. App. 1990).
813.12 Annotation A person convicted of violating a harassment injunction may not collaterally attack the validity of the injunction in a criminal prosecution to enforce the injunction. State v. Bouzel, 168 Wis. 2d 642, 484 N.W.2d 362 (Ct. App. 1992).
813.12 Annotation This section does not authorize granting an injunction without filing a formal petition, thus precluding an injunction against the petitioner. Laluzerne v. Stange, 200 Wis. 2d 179, 546 N.W.2d 182 (Ct. App. 1996), 95-1718.
813.12 Annotation The definition of "household member" requires a continuous residential living arrangement between the parties. They need not reside in only one place, but must reside together on a continuous basis. Petrowsky v. Krause, 223 Wis. 2d 32, 588 N.W.2d 318 (Ct. App. 1998), 97-2205.
813.12 Annotation It is error to grant an injunction under this section for other than the length of time requested or to refuse to order the sheriff to place the petitioner in possession of his or her residence. The requirement that the injunction granted be for the length of time requested is constitutional. Hayen v. Hayen, 2000 WI App 29, 232 Wis. 2d 447, 606 N.W.2d 606, 99-1361.
813.12 Annotation Only a true threat is constitutionally punishable under statutes criminalizing threats. The constitutional boundaries for a true threat apply in domestic abuse injunction cases under this section. Acts underlying an earlier vacated domestic abuse injunction were relevant to a prediction of what the defendant would do if the domestic abuse injunction were not granted, and whether recent threats were true threats. Wittig v. Hoffart, 2005 WI App 198, 287 Wis. 2d 353, 704 N.W.2d 415, 04-1653.
813.12 Annotation If the initial injunction was for less than 4 years, but expired, and the petitioner states that an extension is necessary to protect him or her, sub. (4) (c) 2. requires the court to extend the injunction for up to 4 years from the date the injunction was first granted. Because the court is required to extend an injunction under the proper circumstances, even after it has expired, it follows that a court has the authority and jurisdiction to grant the extension request after the injunction has expired. Switzer v. Switzer, 2006 WI App 10, 289 Wis. 2d 83, 709 N.W.2d 871, 04-2943.
813.12 Annotation Applicable law allows electronic transmission of certain confidential case information among clerks of circuit court, county sheriff's offices, and the Department of Justice through electronic interfaces involving the Department of Administration's Office of Justice Assistance, specifically including electronic data messages regarding a domestic abuse protection order issued under this section in an action that the court has ordered sealed. OAG 2-10.
813.12 Annotation Construing this section to include a requirement of showing imminent danger, it is constitutional. Blazel v. Bradley, 698 F. Supp. 756 (1988).
813.12 Annotation Using Restraining Orders to Protect Elder Victims. Meuer. Wis. Law. Sept. 2000.
813.12 Annotation Trouble Ahead: Wisconsin's New Domestic Abuse Laws. Birdsall. Wis. Law. Feb. 2004.
813.122 813.122 Child abuse restraining orders and injunctions.
813.122(1)(1) Definitions. In this section:
813.122(1)(a) (a) "Abuse" has the meaning given in s. 48.02 (1) (a) and (b) to (gm) and, in addition, includes a threat to engage in any conduct under s. 48.02 (1), other than conduct under s. 48.02 (1) (am).
813.122(1)(b) (b) "Child" means any person under 18 years of age.
813.122(1)(c) (c) "Child victim" means the child who is the victim or the alleged victim of abuse.
813.122(1)(d) (d) "Child victim advocate" means any person who counsels child victims, assists child victims in coping with the impact of the crime or otherwise acts in support of child victims.
813.122(2) (2)Commencement of action and response.
813.122(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) (a). 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. Notwithstanding s. 803.01 (3) (a), the child victim or a parent, stepparent or legal guardian of the child victim may be a petitioner under this section. 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. The court shall inform the petitioner in writing that, if the petitioner chooses to have the documents in the action served by the sheriff, the petitioner should contact the sheriff to verify the proof of service of the petition.
813.122(2)(b) (b) When the respondent is served with the petition under this subsection, the person who serves the respondent shall also provide the respondent with all of the following information:
813.122(2)(b)1. 1. Notice of the requirements and penalties under s. 941.29 (1) (f) and (2) (e) and notice of any similar applicable federal laws and penalties.
813.122(2)(b)2. 2. An explanation of s. 813.1285, including the procedures for surrendering a firearm and the circumstances listed under s. 813.1285 under which a respondent must appear at a hearing to surrender firearms.
813.122(2)(b)3. 3. A firearm possession form developed under s. 813.1285 (5) (a), with instructions for completing and returning the form.
Effective date note NOTE: Sub. (2) is shown as affected eff. 11-1-14 by 2013 Wis. Act 321. Prior to 11-1-14 it reads:
Effective date text (2)Commencement of action and response. 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) (a). 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. Notwithstanding s. 803.01 (3) (a), the child victim or a parent, stepparent or legal guardian of the child victim may be a petitioner under this section. 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. The court shall inform the petitioner in writing that, if the petitioner chooses to have the documents in the action served by the sheriff, the petitioner should contact the sheriff to verify the proof of service of the petition.
813.122(3) (3)General procedure.
813.122(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.
813.122(3)(b)1m.1m. Except as provided in subd. 2m., the court or circuit court commissioner, on its or his or her own motion or the motion of any party, may order that a guardian ad litem be appointed for the child victim in accordance with s. 48.235.
813.122(3)(b)2m. 2m. The court or circuit court commissioner shall appoint a guardian ad litem if the respondent is a parent of the child.
813.122(3)(bp) (bp) All persons, other than the parties, their attorneys, witnesses, child victim advocates, service representatives, as defined in s. 895.45 (1) (c), court personnel and any guardian ad litem, shall be excluded from any hearing under this section.
813.122(3)(bq) (bq) Any record of an action under this section is confidential and is available only to the parties, their attorneys, any guardian ad litem, court personnel, the child victim, law enforcement, and any applicable court upon appeal, except that a record may be available to any other person as required by law, as necessary to effect service, or upon a court order for good cause shown.
813.122(3)(c) (c) An action under this section may pertain to more than one child victim.
813.122(4) (4)Temporary restraining order.
813.122(4)(a)(a) A judge or circuit court commissioner shall issue a temporary restraining order ordering the respondent to avoid the child victim's residence or any premises temporarily occupied by the child victim or both, and to avoid contacting or causing any person other than a party's attorney to contact the child victim unless the petitioner consents in writing and the judge or circuit court commissioner agrees that the contact is in the best interests of the child victim, if all of the following occur:
813.122(4)(a)1. 1. The petitioner submits to the judge or circuit court commissioner a petition alleging the elements set forth under sub. (6) (a).
813.122(4)(a)2. 2. The judge or circuit court commissioner finds reasonable grounds to believe that the respondent has engaged in, or based on prior conduct of the child victim and the respondent may engage in, abuse of the child victim.
813.122(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.
813.122(4)(c) (c) The temporary restraining order is in effect until a hearing is held on issuance of an injunction under sub. (5), except that the court may extend the temporary restraining order under s. 813.1285. A judge shall hold a hearing on issuance of an injunction within 14 days after the temporary restraining order is issued, unless the time is extended upon the written consent of the parties, extended under s. 801.58 (2m), or extended once for 14 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. A judge or court commissioner may not extend the temporary restraining order in lieu of ruling on the issuance of an injunction.
Effective date note NOTE: Par. (c) is shown as affected eff. 11-1-14 by 2013 Wis. Acts 321 and 322 and as merged by the legislative reference bureau under s. 13.92 (2) (i). Prior to 11-1-14 it reads:
Effective date text (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 14 days after the temporary restraining order is issued, unless the time is extended upon the written consent of the parties, extended under s. 801.58 (2m), or extended once for 14 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. A judge or court commissioner may not extend the temporary restraining order in lieu of ruling on the issuance of an injunction.
813.122(5) (5)Injunction.
813.122(5)(a)(a) A judge may grant an injunction ordering the respondent to avoid the child victim's residence or any premises temporarily occupied by the child victim or both, and to avoid contacting or causing any person other than a party's attorney to contact the child victim unless the petitioner consents to that contact in writing and the judge agrees that the contact is in the best interests of the child victim, if all of the following occur:
813.122(5)(a)1. 1. The petitioner files a petition alleging the elements set forth under sub. (6) (a).
813.122(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.
813.122(5)(a)3. 3. After hearing, the judge finds reasonable grounds to believe that the respondent has engaged in, or based upon prior conduct of the child victim and the respondent may engage in, abuse of the child victim.
813.122(5)(b) (b) If the respondent is the parent of the child victim, the judge shall modify the order under par. (a) to provide the parent reasonable visitation rights, unless the judge finds that visitation would endanger the child's physical, mental or emotional health. The judge may provide that any authorized visitation be supervised.
813.122(5)(c) (c) The injunction may be entered only against the respondent named in the petition.
813.122(5)(d)1.1. An injunction under this subsection is effective according to its terms, but, except as provided in par. (dm), for not more than 2 years or until the child victim attains 18 years of age, whichever occurs first.
813.122(5)(d)2. 2. When an injunction expires, the court shall extend the injunction if the petitioner states that an extension is necessary to protect the child victim. This extension shall remain in effect until 6 months after the date the court first entered the injunction or until the child attains 18 years of age, whichever occurs first, except as provided in par. (dm).
813.122(5)(d)3. 3. If the petitioner states that an extension is necessary to protect the child victim, the court may extend the injunction for not more than 2 years or until the child attains 18 years of age, whichever occurs first, except as provided in par. (dm).
813.122(5)(d)4. 4. Notice need not be given to the respondent before extending an injunction under subd. 2. or 3. The clerk of courts shall notify the respondent after the court extends an injunction under subd. 2. or 3.
813.122(5)(dm)1.1. A judge may, upon issuing an injunction or granting an extension of an injunction issued under this subsection, order that the injunction is in effect for not more than 5 years, if the court finds, by a preponderance of the evidence stated on the record, that any of the following are true:
813.122(5)(dm)1.a. a. There is a substantial risk that the respondent may commit first-degree intentional homicide under s. 940.01, or 2nd-degree intentional homicide under s. 940.05, against the child victim.
813.122(5)(dm)1.b. b. There is a substantial risk that the respondent may commit sexual assault under s. 940.225 (1), (2), or (3), or under s. 948.02 (1) or (2), against the child victim.
813.122(5)(dm)2. 2. This paragraph does not prohibit a petitioner from requesting a new temporary restraining order under sub. (4) or injunction under this subsection before or at the expiration of a previously entered order or injunction.
813.122(5)(e) (e) An injunction under this section may direct the payment of child support using a method of calculation authorized under s. 767.511.
813.122(5g) (5g)Confidentiality of addresses. The petition under sub. (6) and the court order under sub. (4) or (5) may not disclose the address of the petitioner or of the alleged child victim. The petitioner shall provide the clerk of circuit court with the address of the petitioner and of the alleged child victim when he or she files a petition under this section. The clerk shall maintain the addresses in a confidential manner.
813.122(5m) (5m)Notice of restriction on firearm possession; surrender of firearms.
813.122(5m)(a)(a) An injunction issued under sub. (5) shall do all of the following:
813.122(5m)(a)1. 1. Inform the respondent named in the petition of the requirements and penalties under s. 941.29 and any similar applicable federal laws and penalties.
Effective date note NOTE: Subd. 1. is shown as amended eff. 11-1-14 by 2013 Wis. Act 321. Prior to 11-1-14 it reads:
Effective date text 1. Inform the respondent named in the petition of the requirements and penalties under s. 941.29.
813.122(5m)(a)2. 2. Except as provided in par. (ag), require in writing the respondent to surrender any firearms that he or she owns or has in his or her possession to the sheriff of the county in which the action under this section was commenced, to the sheriff of the county in which the respondent resides or to another person designated by the respondent and approved by the judge or circuit court commissioner, in accordance with s. 813.1285.
Effective date note NOTE: Subd. 2. is shown as amended eff. 11-1-14 by 2013 Wis. Act 321. Prior to 11-1-14 it reads:
Effective date text 2. Except as provided in par. (ag), require the respondent to surrender any firearms that he or she owns or has in his or her possession to the sheriff of the county in which the action under this section was commenced, to the sheriff of the county in which the respondent resides or to another person designated by the respondent and approved by the judge or circuit court commissioner. The judge or circuit court commissioner shall approve the person designated by the respondent unless the judge or circuit court commissioner finds that the person is inappropriate and places the reasons for the finding on the record. If a firearm is surrendered to a person designated by the respondent and approved by the judge or circuit court commissioner, the judge or circuit court commissioner shall inform the person to whom the firearm is surrendered of the requirements and penalties under s. 941.29 (4).
813.122(5m)(ag) (ag) If the respondent is a peace officer, an injunction issued under sub. (5) may not require the respondent to surrender a firearm that he or she is required, as a condition of employment, to possess whether or not he or she is on duty.
813.122(5m)(am)1.1. When a respondent surrenders a firearm under par. (a) 2. to a sheriff, the sheriff who is receiving the firearm shall prepare a receipt for each firearm surrendered to him or her. The receipt shall include the manufacturer, model and serial number of the firearm surrendered to the sheriff and shall be signed by the respondent and by the sheriff to whom the firearm is surrendered.
813.122(5m)(am)2. 2. The sheriff shall keep the original of a receipt prepared under subd. 1. and shall provide an exact copy of the receipt to the respondent. When the firearm covered by the receipt is returned to the respondent under par. (b), the sheriff shall surrender to the respondent the original receipt and all of his or her copies of the receipt.
813.122(5m)(am)3. 3. A receipt prepared under subd. 1. is conclusive proof that the respondent owns the firearm for purposes of returning the firearm covered by the receipt to the respondent under par. (b).
813.122(5m)(am)4. 4. The sheriff may not enter any information contained on a receipt prepared under subd. 1. into any computerized or direct electronic data transfer system in order to store the information or disseminate or provide access to the information.
Effective date note NOTE: Par. (am) is repealed eff. 11-1-14 by 2013 Wis. Act 321.
813.122(5m)(aw) (aw) A sheriff may store a firearm surrendered to him or her under par. (a) 2. in a warehouse that is operated by a public warehouse keeper licensed under ch. 99. If a sheriff stores a firearm at a warehouse under this paragraph, the respondent shall pay the costs charged by the warehouse for storing that firearm.
Effective date note NOTE: Par. (aw) is repealed eff. 11-1-14 by 2013 Wis. Act 321.
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2011-12 Wisconsin Statutes updated though 2013 Wis. Act 380 and all Supreme Court Orders entered before June 30, 2014. Published and certified under s. 35.18. Changes effective after July 1, 2014 are designated by NOTES. (Published 7-1-14)