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813.125(2) (2)Commencement of action.
813.125(2)(a)(a) An action under this section may be commenced by filing a petition described under sub. (5) (a). No action under this section may be commenced by service of summons. 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. If the judge or a circuit court commissioner extends the time for a hearing under sub. (3) (c) and the petitioner files an affidavit with the court stating that personal service by the sheriff or a private server under s. 801.11 (1) (a) or (b) was unsuccessful because the respondent is avoiding service by concealment or otherwise, the judge or circuit court commissioner shall inform the petitioner that he or she may serve the respondent by publication of a summary of the petition as a class 1 notice, under ch. 985, and by mailing or sending a facsimile if the respondent's post-office address or facsimile number is known or can with due diligence be ascertained. The mailing or sending of a facsimile may be omitted if the post-office address or facsimile number cannot be ascertained with due diligence. A summary of the petition published as a class 1 notice shall include the name of the respondent and of the petitioner, notice of the temporary restraining order, and notice of the date, time, and place of the hearing regarding the injunction. 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. Section 813.06 does not apply to an action under this section.
813.125(2)(b) (b) Notwithstanding s. 803.01 (3) (a), a child, as defined in s. 813.122 (1) (b), or a parent, stepparent, or legal guardian of a child may be a petitioner under this section.
813.125(2g) (2g)Appointment of guardian ad litem. The court or circuit court commissioner, on its or his or her own motion, or on the motion of any party, may appoint a guardian ad litem for a child who is a party under this section when justice so requires.
813.125(2m) (2m)Two-part procedure. If the fee under s. 814.61 (1) for filing a petition under this section is waived under s. 814.61 (1) (e), the procedure for an action under this section is in 2 parts. First, if the petitioner requests a temporary restraining order the court shall issue or refuse to issue that order. Second, the court shall hold a hearing under sub. (4) on whether to issue an injunction, which is the final relief. If the court issues a temporary restraining order, the order shall set forth the date for the hearing on an injunction. If the court does not issue a temporary restraining order, the date for the hearing shall be set upon motion by either party.
813.125(3) (3)Temporary restraining order.
813.125(3)(a)(a) A judge or circuit court commissioner may issue a temporary restraining order ordering the respondent to cease or avoid the harassment of another person, to avoid the petitioner's residence, except as provided in par. (am), or any premises temporarily occupied by the petitioner or both, or any combination of these remedies requested in the petition, if all of the following occur:
813.125(3)(a)1. 1. The petitioner files a petition alleging the elements set forth under sub. (5) (a).
813.125(3)(a)2. 2. The judge or circuit court commissioner finds reasonable grounds to believe that the respondent has engaged in harassment with intent to harass or intimidate the petitioner.
813.125(3)(am) (am) If the petitioner and the respondent are not married, and the respondent owns the premises where the petitioner resides, and the petitioner has no legal interest in the premises, in lieu of ordering the respondent to avoid the petitioner's residence under par. (a) the judge or circuit court commissioner may order the respondent to avoid the premises for a reasonable time until the petitioner relocates and shall order the respondent to avoid the new residence for the duration of the order.
813.125(3)(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.
813.125(3)(c) (c) The temporary restraining order is in effect until a hearing is held on issuance of an injunction under sub. (4). A judge or circuit court commissioner 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 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.
813.125(3)(d) (d) The judge or circuit court commissioner shall advise the petitioner of the right to serve the respondent the petition by published notice if with due diligence the respondent cannot be served as provided under s. 801.11 (1) (a) or (b). The clerk of circuit court shall assist the petitioner with the preparation of the notice and filing of the affidavit of printing.
813.125(3)(e) (e) The judge or circuit court commissioner may not dismiss or deny granting a temporary restraining order because of the existence of a pending action or of any other court order that bars contact between the parties, nor due to the necessity of verifying the terms of an existing court order.
813.125(4) (4)Injunction.
813.125(4)(a)(a) A judge or circuit court commissioner may grant an injunction ordering the respondent to cease or avoid the harassment of another person, to avoid the petitioner's residence, except as provided in par. (am), or any premises temporarily occupied by the petitioner or both, or any combination of these remedies requested in the petition, if all of the following occur:
813.125(4)(a)1. 1. The petitioner has filed a petition alleging the elements set forth under sub. (5) (a).
813.125(4)(a)2. 2. The petitioner serves upon the respondent a copy of a restraining order obtained under sub. (3) and notice of the time for the hearing on the issuance of the injunction under sub. (3) (c). The restraining order or notice of hearing 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.
813.125(4)(a)3. 3. After hearing, the judge or circuit court commissioner finds reasonable grounds to believe that the respondent has engaged in harassment with intent to harass or intimidate the petitioner.
813.125(4)(aj) (aj) The judge or circuit court commissioner may not dismiss or deny granting an injunction because of the existence of a pending action or of any other court order that bars contact between the parties, nor due to the necessity of verifying the terms of an existing court order.
813.125(4)(am) (am) If the petitioner and the respondent are not married, and the respondent owns the premises where the petitioner resides, and the petitioner has no legal interest in the premises, in lieu of ordering the respondent to avoid the petitioner's residence under par. (a) the judge or circuit court commissioner may order the respondent to avoid the premises for a reasonable time until the petitioner relocates and shall order the respondent to avoid the new residence for the duration of the order.
813.125(4)(b) (b) The injunction may be entered only against the respondent named in the petition.
813.125(4)(c) (c) An injunction under this subsection is effective according to its terms, but for not more than 4 years.
813.125(4m) (4m)Restriction on firearm possession; surrender of firearms.
813.125(4m)(a)(a) If a judge or circuit court commissioner issues an injunction under sub. (4) and the judge or circuit court commissioner determines, based on clear and convincing evidence presented at the hearing on the issuance of the injunction, that the respondent may use a firearm to cause physical harm to another or to endanger public safety, the judge or circuit court commissioner may prohibit the respondent from possessing a firearm.
813.125(4m)(b) (b) An order prohibiting a respondent from possessing a firearm issued under par. (a) remains in effect until the expiration of the injunction issued under sub. (4).
813.125(4m)(c) (c) An order issued under par. (a) that prohibits a respondent from possessing a firearm shall do all of the following:
813.125(4m)(c)1. 1. Inform the respondent named in the petition of the requirements and penalties under s. 941.29.
813.125(4m)(c)2. 2. Except as provided in par. (cg), 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).
813.125(4m)(cg) (cg) If the respondent is a peace officer, an order issued under par. (a) 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.
813.125(4m)(cm)1.1. When a respondent surrenders a firearm under par. (c) 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.
813.125(4m)(cm)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. (d), the sheriff shall surrender to the respondent the original receipt and all of his or her copies of the receipt.
813.125(4m)(cm)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. (d).
813.125(4m)(cm)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.
813.125(4m)(cw) (cw) A sheriff may store a firearm surrendered to him or her under par. (c) 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.
813.125(4m)(d) (d) A firearm surrendered under par. (c) 2. may not be returned to the respondent until a judge or circuit court commissioner determines all of the following:
813.125(4m)(d)1. 1. That the injunction issued under sub. (4) has been vacated or has expired.
813.125(4m)(d)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.
813.125(4m)(e) (e) If a respondent surrenders a firearm under par. (c) 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).
813.125(5) (5)Petition.
813.125(5)(a)(a) The petition shall allege facts sufficient to show the following:
813.125(5)(a)1. 1. The name of the person who is the alleged victim.
813.125(5)(a)2. 2. The name of the respondent.
813.125(5)(a)3. 3. That the respondent has engaged in harassment with intent to harass or intimidate the petitioner.
813.125(5)(a)4. 4. 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:
813.125(5)(a)4.a. a. The name or type of the court proceeding.
813.125(5)(a)4.b. b. The date of the court proceeding.
813.125(5)(a)4.c. c. The type of provisions regarding contact between the petitioner and respondent.
813.125(5)(am) (am) The petition 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.
813.125(5)(b) (b) The clerk of circuit court shall provide simplified forms.
813.125(5g) (5g)Enforcement assistance.
813.125(5g)(a)(a) 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 local law enforcement agency which is the central repository for orders and injunctions and which has jurisdiction over the petitioner's premises.
813.125(5g)(b) (b) The sheriff or other appropriate local law enforcement agency under par. (a) shall enter the information received under par. (a) 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.
813.125(5g)(c) (c) If an order is issued under this section, upon request by the petitioner the court or circuit court commissioner shall order the sheriff to accompany the petitioner and assist in placing him or her in physical possession of his or her residence or to otherwise assist in executing or serving the temporary restraining order or injunction. The petitioner may, at the petitioner's expense, use a private process server to serve papers on the respondent.
813.125(5g)(d) (d) The issuance of an order or injunction under sub. (3) or (4) is enforceable despite the existence of any other criminal or civil order restricting or prohibiting contact.
813.125(5m) (5m)Confidentiality of victim's address. The petition under sub. (5) and the court order under sub. (3) or (4) may not disclose the address of the alleged victim. The petitioner shall provide the clerk of circuit court with the petitioner's address when he or she files a petition under this section. The clerk shall maintain the petitioner's address in a confidential manner.
813.125(5r) (5r)Notice to department of justice.
813.125(5r)(a)(a) If an order prohibiting a respondent from possessing a firearm is issued under sub. (4m), the clerk of the circuit court shall notify the department of justice of the existence of the order prohibiting a respondent from possessing a firearm and shall provide the department of justice with information concerning the period during which the order 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).
813.125(5r)(b) (b) Except as provided in par. (c), the department of justice may disclose information that it receives under par. (a) 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).
813.125(5r)(c) (c) The department of justice shall disclose any information that it receives under par. (a) to a law enforcement agency when the information is needed for law enforcement purposes.
813.125(6) (6)Arrest.
813.125(6)(am)(am) A law enforcement officer shall arrest and take a person into custody if all of the following occur:
813.125(6)(am)1. 1. A person named in a petition 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.
813.125(6)(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).
813.125(6)(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.
813.125(7) (7)Penalty. Whoever violates a temporary restraining order or injunction issued under this section shall be fined not more than $10,000 or imprisoned not more than 9 months or both.
813.125(8) (8)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.
813.125 AnnotationThis section is constitutional. Bachowski v. Salamone, 139 Wis. 2d 397, 407 N.W.2d 533 (1987).
813.125 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).
813.125 Annotation A hearing on issuing an injunction initially held within 7 days of the issuance of the temporary restraining order, then continued for seven months at the defendant's request, did not result in the court losing competency to proceed. In re Paternity of C.A.S. & C.D.S. 185 Wis. 2d 468, 518 N.W.2d 285 (Ct. App. 1994).
813.125 AnnotationProof of intent is discussed. In re Paternity of C.A.S. & C.D.S. 185 Wis. 2d 468, 518 N.W.2d 285 (Ct. App. 1994).
813.125 Annotation A municipal corporation is a "person" that may bring an action for an injunction under this section. Village of Tigerton v. Minniecheske, 211 Wis. 2d 777, 565 N.W.2d 586 (Ct. App. 1997), 96-1933.
813.125 Annotation Violating an injunction under this section is a crime and is not a lesser-included offense of harrassment under s. 947.013 (1r). A defendant may be convicted for violating this section and s. 947.013 without violating the prohibition against double jeopardy. Convictions for violating this section may be counted for purposes of determining whether the defendant may be sentenced as a repeat offender under s. 939.62. State v. Sveum, 2002 WI App 105, 254 Wis. 2d 868, 648 N.W.2d 496, 01-0230.
813.125 Annotation Banishment from a particular place is not a per se violation of the right to travel. There is no exact formula for determining whether a geographic restriction is narrowly tailored. Each case must be analyzed on its own facts, circumstances, and total atmosphere to determine whether the geographic restriction is narrowly drawn. Predick v. O'Connor, 2003 WI App 46, 260 Wis. 2d 323, 660 N.W.2d 1, 02-0503.
813.125 Annotation A violation of this section may not rest on conduct that serves a legitimate purpose, which is a determination that must of necessity be left to the fact finder, taking into account all the facts and circumstances. The legitimate purpose determination is such that the fact finder must determine if any legitimate purpose was intended at the time of the conduct. Welytok v. Ziolkowski, 2008 WI App 67, 312 Wis. 2d 435, 752 N.W.2d 359, 07-0347.
813.125 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 harassment protection order issued issued under this section in an action that the court has ordered sealed. OAG 2-10.
813.125 Annotation For an activity to violate an injunction issued under this section, it must be intentional and devoid of any legitimate purpose. Deputies did not have probable to arrest the subject of an injunction when they knew that the subject had entered a town hall to attend a meeting at which he a had personal interest in an agenda item prior to the persons protected by the injunction, that the persons protected by the injunction wished to attend the meeting, and that they possessed harassment injunctions commanding the subject of the injunction to avoid any premises temporarily occupied by the persons protected. Wagner v. Washington County, 493 F. 3d 833 (2007).
813.126 813.126 New hearing. If a party seeks to have the judge conduct a hearing de novo under s. 757.69 (8) of a determination, order, or ruling entered by a court commissioner in an action under s. 813.12, 813.122, 813.123, or 813.125, including a denial of a request for a temporary restraining order, the motion requesting the hearing must be filed with the court within 30 days after the circuit court commissioner issued the determination, order, or ruling. The court shall hold the de novo hearing within 30 days after the motion requesting the hearing is filed with the court unless the court finds good cause for an extension.
813.126 History History: 2009 a. 262.
813.127 813.127 Combined actions; domestic abuse, child abuse and harassment. A petitioner may combine in one action 2 or more petitions under one or more of the provisions in ss. 813.12, 813.122 and 813.125 if the respondent is the same person in each petition. In any such action, there is only one fee applicable under s. 814.61 (1) (a). In any such action, the hearings for different types of temporary restraining orders or injunctions may be combined.
813.127 History History: 1985 a. 234.
813.128 813.128 Foreign protection orders.
813.128(1) (1) Enforcement of foreign protection orders.
813.128(1)(a)(a) A foreign protection order or modification of the foreign protection order that meets the requirements under s. 806.247 (2) has the same effect as an order issued under s. 813.12, 813.122, 813.123 or 813.125, except that the foreign protection order or modification shall be enforced according to its own terms.
813.128(1)(b) (b) A law enforcement officer shall arrest and take the subject of a foreign protection order into custody if all of the following occur:
813.128(1)(b)1. 1. A person protected under a foreign protection order presents the law enforcement officer with a copy of a foreign protection order issued against the subject, or the law enforcement officer determines that a valid foreign protection order exists against the subject through communication with appropriate authorities. If a law enforcement officer examines a copy of a foreign protection order, the order, with any modification, is presumed to be valid if the order or modification appears to be valid on its face and circumstances suggest that the order and any modification are in effect.
813.128(1)(b)2. 2. The law enforcement officer has probable cause to believe that the person has violated the terms of the foreign protection order or modification of the order.
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2011-12 Wisconsin Statutes updated though 2013 Wis. Act 200 and all Supreme Court Orders entered before April 18, 2014. Published and certified under s. 35.18. Changes effective after April 18, 2014 are designated by NOTES. (Published 4-18-14)