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822.38(4) (4) An order issued under sub. (3) shall state the time and place of the hearing and advise the respondent that at the hearing the court will order that the petitioner may take immediate physical custody of the child and the payment of costs, fees, and expenses under s. 822.42, and the court may schedule a hearing to determine whether further relief is appropriate, unless the respondent appears and establishes one of the following:
822.38(4)(a) (a) The child custody determination has not been registered and confirmed under s. 822.35 and any of the following:
822.38(4)(a)1. 1. The issuing court did not have jurisdiction under subch. II.
822.38(4)(a)2. 2. The child custody determination for which enforcement is sought has been vacated, stayed, or modified by a court having jurisdiction to do so under subch. II.
822.38(4)(a)3. 3. The respondent was entitled to notice, but notice was not given in accordance with the standards of s. 822.08 in the proceedings before the court that issued the order for which enforcement is sought.
822.38(4)(b) (b) The child custody determination for which enforcement is sought was registered and confirmed under s. 822.35, but has been vacated, stayed, or modified by a court of a state having jurisdiction to do so under subch. II.
822.38 History History: 2005 a. 130.
822.39 822.39 Service of petition and order. Except as provided in s. 822.41, the petition and order must be served, by any method authorized by the laws of this state, upon the respondent and any person who has physical custody of the child.
822.39 History History: 2005 a. 130.
822.40 822.40 Hearing and order.
822.40(1)(1) Unless the court issues a temporary emergency order under s. 822.24, upon a finding that a petitioner is entitled to immediate physical custody of the child, the court shall order that the petitioner may take immediate physical custody of the child unless the respondent establishes one of the following:
822.40(1)(a) (a) The child custody determination has not been registered and confirmed under s. 822.35 and any of the following:
822.40(1)(a)1. 1. The issuing court did not have jurisdiction under subch. II.
822.40(1)(a)2. 2. The child custody determination for which enforcement is sought has been vacated, stayed, or modified by a court of a state having jurisdiction to do so under subch. II.
822.40(1)(a)3. 3. The respondent was entitled to notice, but notice was not given in accordance with the standards of s. 822.08 in the proceedings before the court that issued the order for which enforcement is sought.
822.40(1)(b) (b) The child custody determination for which enforcement is sought was registered and confirmed under s. 822.35, but has been vacated, stayed, or modified by a court of a state having jurisdiction to do so under subch. II.
822.40(2) (2) The court shall award the costs, fees, and expenses authorized under s. 822.42 and may grant additional relief, including a request for the assistance of law enforcement officials, and may set a further hearing to determine whether additional relief is appropriate.
822.40(3) (3) If a party called to testify refuses to answer on the ground that the testimony may be self-incriminating, the court may draw an adverse inference from the refusal.
822.40(4) (4) A privilege against disclosure of communications between spouses and a defense of immunity based on the relationship of husband and wife or parent and child may not be invoked in a proceeding under this subchapter.
822.40 History History: 2005 a. 130.
822.41 822.41 Warrant to take physical custody of child.
822.41(1)(1) Upon the filing of a petition seeking enforcement of a child custody determination, the petitioner may file a verified application for the issuance of a warrant to take physical custody of the child if the child is imminently likely to suffer serious physical harm or be removed from this state.
822.41(2) (2) If the court, upon the testimony of the petitioner or other witness, finds that the child is imminently likely to suffer serious physical harm or be removed from this state, it may issue a warrant to take physical custody of the child. The petition shall be heard on the next judicial day after the warrant is executed unless that date is impossible. In that event, the court shall hold the hearing on the first judicial day possible. The application for the warrant must include the statements required by s. 822.38 (2).
822.41(3) (3) A warrant to take physical custody of a child shall do all of the following:
822.41(3)(a) (a) Recite the facts upon which a conclusion of imminent serious physical harm or removal from the state is based.
822.41(3)(b) (b) Direct law enforcement officers to take physical custody of the child immediately.
822.41(3)(c) (c) Provide for the placement of the child pending final relief.
822.41(4) (4) The respondent shall be served with the petition, warrant, and order immediately after the child is taken into physical custody.
822.41(5) (5) A warrant to take physical custody of a child is enforceable throughout this state. If the court finds on the basis of the testimony of the petitioner or other witness that a less intrusive remedy is not effective, it may authorize law enforcement officers to enter private property to take physical custody of the child. If required by exigent circumstances of the case, the court may authorize law enforcement officers to make a forcible entry at any hour.
822.41(6) (6) The court may impose conditions upon placement of a child to ensure the appearance of the child and the child's custodian.
822.41 History History: 2005 a. 130.
822.42 822.42 Costs, fees, and expenses.
822.42(1) (1) The court shall award the prevailing party, including a state, necessary and reasonable expenses incurred by or on behalf of the party, including costs, communication expenses, attorney fees, investigative fees, expenses for witnesses, travel expenses, and expenses for child care during the course of the proceedings, unless the party from whom fees or expenses are sought establishes that the award would be clearly inappropriate.
822.42(2) (2) The court may not assess fees, costs, or expenses against a state unless authorized by law other than this chapter.
822.42 History History: 2005 a. 130.
822.43 822.43 Recognition and enforcement. A court of this state shall accord full faith and credit to an order issued by another state and consistent with this chapter that enforces a child custody determination by a court of another state unless the order has been vacated, stayed, or modified by a court having jurisdiction to do so under subch. II.
822.43 History History: 2005 a. 130.
822.44 822.44 Appeals. An appeal may be taken from a final order in a proceeding under this subchapter in accordance with ch. 809. Unless the court enters a temporary emergency order under s. 822.24, the enforcing court may not stay an order enforcing a child custody determination pending appeal.
822.44 History History: 2005 a. 130.
822.45 822.45 Role of prosecutor.
822.45(1)(1) A prosecutor, in a case arising under this chapter or involving the Hague Convention on the Civil Aspects of International Child Abduction, may take any lawful action, including resort to a proceeding under this subchapter or any other available civil proceeding to locate a child, obtain the return of a child, or enforce a child custody determination if any of the following exists:
822.45(1)(a) (a) A child custody determination.
822.45(1)(b) (b) A request to do so from a court in a pending child custody proceeding.
822.45(1)(c) (c) A reasonable belief that a criminal statute has been violated.
822.45(1)(d) (d) A reasonable belief that the child has been wrongfully removed or retained in violation of the Hague Convention on the Civil Aspects of International Child Abduction.
822.45(2) (2) A prosecutor acting under this section acts on behalf of the court and may not represent any party.
822.45 History History: 2005 a. 130.
822.46 822.46 Role of law enforcement. At the request of a prosecutor acting under s. 822.45, a law enforcement officer may take any lawful action reasonably necessary to locate a child or a party and assist a prosecutor with responsibilities under s. 822.45.
822.46 History History: 2005 a. 130.
822.47 822.47 Costs and expenses. If the respondent is not the prevailing party, the court may assess against the respondent all direct expenses and costs incurred by the prosecutor and law enforcement officers under s. 822.45 or 822.46.
822.47 History History: 2005 a. 130.
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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)