AB192: Bill Text

LRB-1335/2

PJK:kaf:kat

1997 - 1998 LEGISLATURE

1997 Assembly BILL 192

March 20, 1997 - Introduced by Representatives Ainsworth, Kreuser, Goetsch, Wood, Duff, Ott, Brandemuehl, Olsen, Hahn, Owens, Musser, Lorge, F. Lasee, La Fave, Gunderson and Harsdorf, cosponsored by Senator Wirch. Referred to Committee on Children and Families.

AB192,2,3 An Act to repeal 767.25 (1m) (d) and 767.51 (5) (f); to renumber 303.08 (5) (a) and 767.25 (1m) (a); to renumber and amend 767.25 (1m) (c); to amend 20.921 (2) (a), 46.10 (14) (b), 46.10 (14) (c) (intro.), 46.10 (14) (d), 102.27 (2) (a), 303.08 (5) (c), 303.08 (5m), 767.25 (1m) (intro.), 767.25 (1m) (e), 767.25 (1n), 767.25 (2), 767.265 (3h), 767.265 (4), 767.265 (6) (a), 767.265 (6) (b), 767.265 (6) (c), 767.51 (5) (intro.), 767.51 (5) (i) and 767.51 (5d); to repeal and recreate 46.10 (14) (c) 7.; and to create 49.22 (9m), 303.08 (5) (ac), 767.23 (1) (m), 767.25 (1r), 767.25 (4g), 767.25 (4p), 767.32 (2p), 767.465 (1m), 767.48 (5) (c), 767.51 (3g), 767.51 (3p), 767.51 (5) (cm) and 767.51 (5j) of the statutes; relating to: considering certain statutory factors in deviating from the child support percentage standard, treatment of child care expenses, ordering trusts for the support of children, order of disbursement of wages for Huber law inmates, reducing a payer's child support obligation if the child receives a federal benefit, requiring a study of county child support agency staffing, ordering payment of postmajority support for a child with exceptional educational needs, requiring a report evaluating the adequacy of child support orders and paternity judgments and blood test costs.

Analysis by the Legislative Reference Bureau

This bill makes a number of miscellaneous changes relating to child support and paternity actions. Under current law, a court must determine child support payments by using the percentage standard, which specifies the amount of child support as a function of the payer's gross monthly income and the number of children being supported. Upon the request of a party, the court may modify the amount of child support that would result by using the percentage standard if, after considering a number of factors, the court determines that using the percentage standard is unfair to the child or any of the parties. The bill requires the court, without request, to modify the amount of child support that would result by using the percentage standard if, after considering those of the specified factors that the court determines are relevant, the court determines that the resulting amount of child support is unfair to the child or any of the parties. This change applies to the determination of child support in divorce and paternity actions and when children are placed in substitute care. The bill also makes a couple of changes with respect to the factors that a court must consider when deciding whether to order child support that deviates from the amount that would result by using the percentage standard in order to make those factors more consistent among the 3 situations in which the court determines child support (divorce, paternity and substitute care).

Also related to determining child support, the bill requires a court to reduce the amount of child support that the court would otherwise order in a divorce or paternity action by any amount of social security benefits received by the child as a result of the payer's entitlement to federal old-age or disability insurance benefits. Under the bill, the court may order either or both parties in a divorce or paternity action to pay for the support of a child who is 19 years of age or older if the child has exceptional educational needs resulting from any of a list of specified handicaps and disabilities and is participating in a special educational program. Current law authorizes a court, when ordering child support, to set aside a portion of the support in a separate fund or trust for the support, education and welfare of the child. The bill specifies that a court may set aside support in this manner on its own motion or on the request of a party or the guardian ad litem. The bill requires a court, when ordering child support in a divorce or paternity action, to consider a child's day care expenses and authorizes the court to assign responsibility to one or both parents for payment of those day care expenses that are necessary to permit either parent to work. The court may order that day care expenses be withheld from income if a parent who is assigned responsibility to pay day care expenses fails to make a payment within 10 days after its due date. Responsibility for payment of a child's day care expenses may also be assigned in a temporary order during the pendency of the action.

The bill makes 2 changes to procedure in paternity actions. Under current law, if the petitioner in a paternity action fails to appear at the pretrial hearing or trial, the court may enter an order dismissing the action. If the alleged father is the respondent and he fails to appear at the first appearance, scheduled genetic test, pretrial hearing or trial, the court may enter an order adjudicating the alleged father to be the father of the child. Under the bill, if the mother of the child fails to appear at the first appearance, scheduled genetic testing, pretrial hearing or trial and there is sufficient evidence to establish the alleged father as the father of the child, the court may enter an order adjudicating the alleged father to be the father of the child. Also under the bill, unless the state is a petitioner, the court may order any or all of the parties in a paternity action to pay for the cost of genetic tests in advance if the court finds that the parties have sufficient resources to pay those costs.

The bill makes a change in the disbursement of wages or other compensation earned by prisoners who are allowed to leave jail for employment purposes ("Huber law" privileges). Prisoners who have Huber law privileges for employment outside of jail must turn over all compensation to the sheriff. Under current law, the sheriff must use the compensation first for the prisoner's board, next, for the prisoner's travel expenses to and from work and then for the support of any dependents of the prisoner. The bill requires the sheriff to pay any child support ordered in an action affecting the family, such as a divorce or a paternity action, first. Next, the sheriff is to pay for the prisoner's board, then for necessary travel expenses and then for support of any dependents of the prisoner, other than support ordered in an action affecting the family.

The bill requires the department of industry, labor and job development (DILJD) to study the staffing levels of all county child and spousal support agencies in the state and to determine an appropriate staffing level. DILJD must submit a report on the study no later than January 1, 1998, to the appropriate standing committees.

Finally, the bill requires DILJD to submit a report to the legislature on January 1, 1999, and every 4 years thereafter, on the use of the percentage standard for determining child support. (Although the percentage standard was originally established by administrative rule by the department of health and family services, DILJD now has responsibility for the rule and any amendments to it.) The report must evaluate the adequacy of support orders determined by using the percentage standard and must take into consideration economic data on the cost of raising children in households with one parent and in households with 2 parents, economic data on the cost of raising children in 2 households with shared physical placement of the children, case data on the application of and deviation from the percentage standard and case data on the costs of providing health care and day care for children for whom child support has been ordered.

For further information see the state and local fiscal estimate, which will be printed as an appendix to this bill.

The people of the state of Wisconsin, represented in senate and assembly, do enact as follows:

AB192, s. 1 Section 1. 20.921 (2) (a) of the statutes is amended to read:

AB192,4,9 20.921 (2) (a) Whenever it becomes necessary in pursuance of any federal or state law or court-ordered assignment of income under s. 46.10 (14) (e), 767.23 (1) (L) or (m), 767.25 (4m) (c) or (4p) (c), 767.265 or 767.51 (3m) (c) or (3p) (c) to make deductions from the salaries of state officers or employes or employes of the University of Wisconsin Hospitals and Clinics Authority, the state agency or authority by which the officers or employes are employed is responsible for making such deductions and paying over the total thereof for the purposes provided by the laws or orders under which they were made.

AB192, s. 2 Section 2. 46.10 (14) (b) of the statutes is amended to read:

AB192,4,19 46.10 (14) (b) Except as provided in par. (c) and subject to par. (cm), liability of a parent specified in sub. (2) or s. 46.03 (18) for the care and maintenance of the parent's minor child who has been placed by a court order under s. 48.355, 48.357, 938.183 (2), 938.355 or 938.357 in a residential, nonmedical facility such as a group home, foster home, treatment foster home, child caring institution or juvenile correctional institution shall be determined by the court by using the percentage standard established by the department of industry, labor and job development under s. 49.22 (9) and by applying the percentage standard in the manner established by the department of health and family services under s. 46.247.

AB192, s. 3 Section 3 . 46.10 (14) (c) (intro.) of the statutes is amended to read:

AB192,5,6 46.10 (14) (c) (intro.) Upon request by a parent, the The court may shall modify the amount of child support payments determined under par. (b), subject to par. (cm), if, after considering all of the following factors that the court determines are relevant, the court finds by the greater weight of the credible evidence that the use of the percentage standard amount of child support determined under par. (b) is unfair to the child or to either of the parents:

AB192, s. 4 Section 4. 46.10 (14) (c) 7. of the statutes is repealed and recreated to read:

AB192,5,9 46.10 (14) (c) 7. Extraordinary travel expenses incurred in exercising parental visitation with the child.

AB192, s. 5 Section 5. 46.10 (14) (d) of the statutes is amended to read:

AB192,5,18 46.10 (14) (d) If the court finds under par. (c) that use of the percentage standard the amount of child support determined under par. (b) is unfair to the minor child or either of the parents, the court shall state in writing or on the record the amount of support that would be required by using the percentage standard, the amount by which the court's order deviates from that amount, its reasons for finding that use of the percentage standard the amount of child support determined under par. (b) is unfair to the child or the parent, its reasons for the amount of the modification and the basis for the modification.

AB192, s. 6 Section 6. 49.22 (9m) of the statutes is created to read:

AB192,5,24 49.22 (9m) The department shall, by January 1, 1999, and by January 1 every 4 years thereafter, submit a report to the legislature under s. 13.172 (2) on the use of the child support percentage standard under sub. (9). The report shall evaluate the adequacy of child support orders determined by using the percentage standard and shall include consideration of the following factors:

AB192,6,2 (a) Economic data on the cost of raising children in households with only one parent and in households with 2 parents.

AB192,6,4 (b) Economic data on the cost of raising children in 2 households under shared physical placement arrangements.

AB192,6,7 (c) Case data on the application of and deviation from the percentage standard and case data, to the extent that it is available, on the costs incurred in providing health care and day care for children for whom child support has been ordered.

AB192, s. 7 Section 7. 102.27 (2) (a) of the statutes is amended to read:

AB192,6,11 102.27 (2) (a) A benefit under this chapter is assignable under s. 46.10 (14) (e), 767.23 (1) (L) or (m), 767.25 (4m) (c) or (4p) (c), 767.265 (1) or 767.51 (3m) (c) or (3p) (c).

AB192, s. 8 Section 8. 303.08 (5) (a) of the statutes is renumbered 303.08 (5) (am).

AB192, s. 9 Section 9. 303.08 (5) (ac) of the statutes is created to read:

AB192,6,14 303.08 (5) (ac) Payment of child support ordered under ch. 767;

AB192, s. 10 Section 10. 303.08 (5) (c) of the statutes is amended to read:

AB192,6,17 303.08 (5) (c) Support of the prisoner's dependents, if any, other than child support ordered under ch. 767;

AB192, s. 11 Section 11. 303.08 (5m) of the statutes is amended to read:

AB192,6,21 303.08 (5m) A county may receive payments under sub. (5) (a) (am) and (b) or seek reimbursement under s. 302.372, but may not collect for the same expenses twice.

AB192, s. 12 Section 12. 767.23 (1) (m) of the statutes is created to read:

AB192,6,25 767.23 (1) (m) Requiring either party or both parties to execute an assignment of income for payment of a minor child's day care expenses that are necessary to permit either parent to work.

AB192, s. 13 Section 13 . 767.25 (1m) (intro.) of the statutes is amended to read:

AB192,7,7 767.25 (1m) (intro.) Upon request by a party, the The court may shall modify the amount of child support payments determined under sub. (1j) if, after considering all of the following factors that the court determines are relevant, the court finds by the greater weight of the credible evidence that use of the percentage standard the amount of child support determined under sub. (1j) is unfair to the child or to any of the parties:

AB192, s. 14 Section 14. 767.25 (1m) (a) of the statutes is renumbered 767.25 (1m) (am).

AB192, s. 15 Section 15 . 767.25 (1m) (c) of the statutes is renumbered 767.25 (1m) (ac) and amended to read:

AB192,7,13 767.25 (1m) (ac) The needs of the child and the standard of living the child would have enjoyed had the marriage not ended in annulment, divorce or legal separation.

AB192, s. 16 Section 16. 767.25 (1m) (d) of the statutes is repealed.

AB192, s. 17 Section 17. 767.25 (1m) (e) of the statutes is amended to read:

AB192,7,18 767.25 (1m) (e) The cost of day care if the custodian works outside the home, or the value of custodial services performed by the custodian if it is appropriate for the custodian remains to remain in the home as a full-time parent.

AB192, s. 18 Section 18. 767.25 (1n) of the statutes amended to read:

AB192,8,2 767.25 (1n) If the court finds under sub. (1m) that use of the percentage standard the amount of child support determined under sub. (1j) is unfair to the child or the requesting any party, the court shall state in writing or on the record the amount of support that would be required by using the percentage standard, the amount by which the court's order deviates from that amount, its reasons for finding that use of the percentage standard the amount of child support determined under sub. (1j) is unfair to the child or the any party, its reasons for the amount of the modification and the basis for the modification.

AB192, s. 19 Section 19 . 767.25 (1r) of the statutes is created to read:

AB192,8,9 767.25 (1r) The court shall reduce the amount of a parent's child support payments determined under sub. (1j) or (1m), if the court finds that the child receives benefits under 42 USC 402 (d) based on the parent's entitlement to federal old-age or disability insurance benefits under 42 USC 401 to 433. The parent's child support payments shall be reduced by the amount of the benefit under 42 USC 402 (d) received by the child.

AB192, s. 20 Section 20. 767.25 (2) of the statutes is amended to read:

AB192,8,15 767.25 (2) The court may, upon request by any party or the guardian ad litem or upon its own motion, protect and promote the best interests of the minor children by setting aside a portion of the child support which either any party is ordered to pay in a separate fund or trust for the support, education and welfare of such children.

AB192, s. 21 Section 21. 767.25 (4g) of the statutes is created to read:

AB192,8,19 767.25 (4g) The court may order either party or both parties to pay for the support of any child of the parties who is 19 years of age or older and who satisfies all of the following:

AB192,8,20 (a) Is a child with exceptional educational needs, as defined in s. 115.76 (3).

AB192,8,21 (b) Is participating in a special education program under subch. V of ch. 115.

AB192, s. 22 Section 22 . 767.25 (4p) of the statutes is created to read:

AB192,9,2 767.25 (4p) (a) When ordering child support for a child under sub. (1), the court shall consider and may specifically assign responsibility to one or both parents for and direct the manner of payment of the child's day care expenses that are necessary to permit either parent to work. A parent may be required to initiate or continue payment of day care expenses for a child under this subsection.

AB192,9,4 (b) In directing the manner of payment of a child's day care expenses, the court shall order that payment be made to one of the following:

AB192,9,5 1. The other parent.

AB192,9,6 2. The day care provider.

AB192,9,8 3. The clerk of court for disbursement to the person for whom the payment has been awarded.

AB192,9,18 (c) If a parent who is ordered to pay child care expenses under this subsection fails to make a required payment within 10 days after its due date, the court may order that payment be withheld from the person's income and assigned for the payment of day care expenses. If the court orders income withholding and assignment for the payment of day care expenses, the court shall direct that payment under the assignment be made to the clerk of court for disbursement to the other parent as provided in s. 767.29 and shall send notice of the assignment and of the opportunity to request a hearing in the manner provided under s. 767.265 (2h). The clerk of court shall keep a record of all moneys received and disbursed by the clerk for day care expenses that are directed to be paid to the clerk.

AB192, s. 23 Section 23. 767.265 (3h) of the statutes is amended to read:

AB192,9,25 767.265 (3h) A person who receives notice of assignment under this section or s. 767.23 (1) (L) or (m), 767.25 (4m) (c) or (4p) (c) or 767.51 (3m) (c) or (3p) (c) or similar laws of another state shall withhold the amount specified in the notice from any money that person pays to the payer later than one week after receipt of notice of assignment. Within 5 days after the day the person pays money to the payer, the person shall send the amount withheld to the clerk of court or support collection designee, whichever is appropriate, of the jurisdiction providing notice or, in the case of an amount ordered withheld for health care expenses, to the appropriate health care insurer, provider or plan. Except as provided in sub. (3m), for each payment sent to the clerk of court or support collection designee, the person from whom the payer receives money shall receive an amount equal to the person's necessary disbursements, not to exceed $3, which shall be deducted from the money to be paid to the payer. Section 241.09 does not apply to assignments under this section.

AB192, s. 24 Section 24. 767.265 (4) of the statutes is amended to read:

AB192,10,11 767.265 (4) A withholding assignment or order under this section or s. 767.23 (1) (L) or (m), 767.25 (4m) (c) or (4p) (c) or 767.51 (3m) (c) or (3p) (c) has priority over any other assignment, garnishment or similar legal process under state law.

AB192, s. 25 Section 25. 767.265 (6) (a) of the statutes is amended to read:

AB192,10,21 767.265 (6) (a) Except as provided in sub. (3m), if after receipt of notice of assignment the person from whom the payer receives money fails to withhold the money or send the money to the clerk of court or support collection designee or the appropriate health care insurer, provider or plan as provided in this section or s. 767.23 (1) (L) or (m), 767.25 (4m) (c) or (4p) (c) or 767.51 (3m) (c) or (3p) (c), the person may be proceeded against under the principal action under ch. 785 for contempt of court or may be proceeded against under ch. 778 and be required to forfeit not less than $50 nor more than an amount, if the amount exceeds $50, that is equal to 1% of the amount not withheld or sent.

AB192, s. 26 Section 26. 767.265 (6) (b) of the statutes is amended to read:

AB192,11,3 767.265 (6) (b) If an employer who receives an assignment under this section or s. 767.23 (1) (L) or (m), 767.25 (4m) (c) or (4p) (c) or 767.51 (3m) (c) or (3p) (c) fails to notify the clerk of court or support collection designee, whichever is appropriate, within 10 days after an employe is terminated or otherwise temporarily or permanently leaves employment, the employer may be proceeded against under the principal action under ch. 785 for contempt of court.

AB192, s. 27 Section 27. 767.265 (6) (c) of the statutes is amended to read: