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 (am) is repealed eff. 11-1-14 by 2013 Wis.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 (aw) is repealed eff. 11-1-14 by 2013 Wis.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.
813.122(5m)(b) (b) A firearm surrendered under par. (a) 2. may not be returned to the respondent until a judge or circuit court commissioner determines all of the following:
813.122(5m)(b)1. 1. That the injunction issued under sub. (5) has been vacated or has expired and not been extended.
813.122(5m)(b)2. 2. That the person is not prohibited from possessing a firearm under any state or federal law or by the order of any federal court or state court, other than an order from which the judge or circuit court commissioner is competent to grant relief. The court or commissioner shall use the information provided under s. 165.63 to aid in making the determination under this subdivision.
Effective date note NOTE: Par. (b) is repealed eff. 11-1-14 by 2013 Wis. Act 321.
813.122(5m)(c) (c) If a respondent surrenders a firearm under par. (a) 2. that is owned by a person other than the respondent, the person who owns the firearm may apply for its return to the circuit court for the county in which the person to whom the firearm was surrendered is located. The court shall order such notice as it considers adequate to be given to all persons who have or may have an interest in the firearm and shall hold a hearing to hear all claims to its true ownership. If the right to possession is proved to the court's satisfaction, it shall order the firearm returned. If the court returns a firearm under this paragraph, the court shall inform the person to whom the firearm is returned of the requirements and penalties under s. 941.29 (4).
Effective date note NOTE: Par. (c) is repealed eff. 11-1-14 by 2013 Wis. Act 321.
813.122(6) (6)Petition.
813.122(6)(a)(a) The petition shall allege facts sufficient to show the following:
813.122(6)(a)1. 1. The name of the petitioner and the child victim.
813.122(6)(a)2. 2. The name of the respondent.
813.122(6)(a)3. 3. That the respondent engaged in, or based on prior conduct of the respondent and the child victim may engage in, abuse of the child victim.
813.122(6)(a)4. 4. If the payment of child support is requested, that the payment of child support is reasonable or necessary based on criteria provided under s. 767.511.
813.122(6)(a)5. 5. If the petitioner knows of any other court proceeding in which the petitioner is a person affected by a court order or judgment that includes provisions regarding contact with the respondent, any of the following that are known by the petitioner:
813.122(6)(a)5.a. a. The name or type of the court proceeding.
813.122(6)(a)5.b. b. The date of the court proceeding.
813.122(6)(a)5.c. c. The types of provisions regarding contact between the petitioner and respondent.
813.122(6)(b) (b) Upon request, the clerk of circuit court shall provide, without cost, the simplified forms obtained under s. 48.47 (7) (d) to a petitioner.
813.122(7) (7)Contact. Any order under this section directing a person to avoid contact with a child victim prohibits the person from knowingly touching, meeting, communicating or being in visual or audio contact with the child victim, except as provided in any modifications of the order under sub. (5) (b).
813.122(9) (9)Enforcement assistance.
813.122(9)(a)(a) If an order is issued under this section, upon request by the petitioner, the court or circuit court commissioner, as applicable, shall order the sheriff to assist in executing or serving the temporary restraining order or injunction.
813.122(9)(am)1.1. If an injunction is issued or extended under sub. (5), the clerk of the circuit court shall notify the department of justice of the injunction and shall provide the department of justice with information concerning the period during which the injunction is in effect and information necessary to identify the respondent for purposes of responding to a request under s. 165.63 or for purposes of a firearms restrictions record search under s. 175.35 (2g) (c) or a background check under s. 175.60 (9g) (a).
813.122(9)(am)2. 2. Except as provided in subd. 3., the department of justice may disclose information that it receives under subd. 1. only to respond to a request under s. 165.63 or as part of a firearms restrictions record search under s. 175.35 (2g) (c) or a background check under s. 175.60 (9g) (a).
813.122(9)(am)3. 3. The department of justice shall disclose any information that it receives under subd. 1. to a law enforcement agency when the information is needed for law enforcement purposes.
813.122(9)(b) (b) Within one business day after an order or injunction is issued, extended, modified or vacated under this section, the clerk of the 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 child victim's premises.
813.122(9)(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.
813.122(10) (10)Arrest.
813.122(10)(am)(am) A law enforcement officer shall arrest and take a person into custody if all of the following occur:
813.122(10)(am)1. 1. A petitioner under sub. (6) (a) presents the law enforcement officer with a copy of an order issued under sub. (4) or (5), or the law enforcement officer determines that such an order exists through communication with appropriate authorities.
813.122(10)(am)2. 2. The law enforcement officer has probable cause to believe that the person has violated the order issued under sub. (4) or (5).
813.122(10)(c) (c) A respondent who does not appear at a hearing at which the court orders an injunction under sub. (5) but who has been served with a copy of the petition and notice of the time for hearing under sub. (5) (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.
813.122(11) (11)Penalty. Whoever knowingly 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.
813.122(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.
813.122 History History: 1985 a. 234; 1987 a. 332 s. 64; Sup. Ct. Order, 151 Wis. 2d xxv (1989); 1991 a. 276; 1993 a. 227, 318; 1995 a. 71, 275, 306, 456; 1997 a. 292; 2001 a. 61; 2005 a. 155, 272; 2005 a. 443 s. 265; 2007 a. 20, 124; 2009 a. 262; 2011 a. 35; 2013 a. 223, 311, 321, 322; s. 13.92 (2) (i).
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.
813.122 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 child abuse protection orders and individual at risk protection orders in actions in which the court has ordered, under sub. (3) (b) 3. [now sub. (3) (bq)] and s. 813.23 (3) (c) 2., respectively, that access to any record of the case be available only to the individual at risk, parties, their attorneys, any guardian or guardian ad litem, court personnel, and any applicable appellate court. OAG 2-10.
813.123 813.123 Restraining orders and injunctions for individuals at risk.
813.123(1)(1) Definitions. In this section:
813.123(1)(a) (a) "Abuse" has the meaning given in s. 46.90 (1) (a).
813.123(1)(ae) (ae) "Adult at risk" has the meaning given in s. 55.01 (1e).
813.123(1)(am) (am) "Adult-at-risk agency" has the meaning given in s. 55.01 (1f).
813.123(1)(b) (b) "Bodily harm" has the meaning given in s. 46.90 (1) (aj).
813.123(1)(br) (br) "Caregiver" has the meaning given in s. 46.90 (1) (an).
813.123(1)(cg) (cg) "Elder adult at risk" has the meaning given in s. 46.90 (1) (br).
813.123(1)(d) (d) "False representation" includes a promise that is made with the intent not to fulfill the promise.
813.123(1)(dm) (dm) "Financial exploitation" has the meaning given in s. 46.90 (1) (ed).
813.123(1)(e) (e) "Great bodily harm" has the meaning given in s. 939.22 (14).
813.123(1)(eg) (eg) "Harassment" has the meaning given in s. 813.125 (1).
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(1)(g) (g) "Neglect" has the meaning given in s. 46.90 (1) (f).
813.123(1)(gr) (gr) "Self-neglect" has the meaning given in s. 46.90 (1) (g).
813.123(1)(gs) (gs) "Stalking" means engaging in a course of conduct, as defined in s. 940.32 (1) (a).
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. 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.
813.123(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, 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(3) (3)General procedure.
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(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) (4)Temporary restraining order.
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:
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, 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(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 or 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).
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), 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.
813.123(5) (5)Injunction.
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:
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. The notice served under this subdivision shall inform the respondent that, if the judge or circuit court commissioner issues an injunction, the judge or circuit court commissioner may also order the respondent not to possess a firearm while the injunction is in effect. The person who serves the respondent with the notice shall also provide the respondent with all of the following information:
813.123(5)(a)2.a. a. Notice of the requirements and penalties under s. 941.29 (1) (g) and (2) (d) and notice of any similar applicable federal laws and penalties.
813.123(5)(a)2.b. b. 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.
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2011-12 Wisconsin Statutes updated through 2013 Wis. Act 380 and all Supreme Court Orders entered before Sept. 3, 2014. Published and certified under s. 35.18. Changes effective after Sept. 3, 2014 are designated by NOTES. (Published 9-3-14)