LRB-1335/2
PJK:kaf:kat
1997 - 1998 LEGISLATURE
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
1An Act to repeal 767.25 (1m) (d) and 767.51 (5) (f);
to renumber 303.08 (5) (a)
2and 767.25 (1m) (a);
to renumber and amend 767.25 (1m) (c);
to amend
320.921 (2) (a), 46.10 (14) (b), 46.10 (14) (c) (intro.), 46.10 (14) (d), 102.27 (2) (a),
4303.08 (5) (c), 303.08 (5m), 767.25 (1m) (intro.), 767.25 (1m) (e), 767.25 (1n),
5767.25 (2), 767.265 (3h), 767.265 (4), 767.265 (6) (a), 767.265 (6) (b), 767.265 (6)
6(c), 767.51 (5) (intro.), 767.51 (5) (i) and 767.51 (5d);
to repeal and recreate
746.10 (14) (c) 7.; and
to create 49.22 (9m), 303.08 (5) (ac), 767.23 (1) (m), 767.25
8(1r), 767.25 (4g), 767.25 (4p), 767.32 (2p), 767.465 (1m), 767.48 (5) (c), 767.51
9(3g), 767.51 (3p), 767.51 (5) (cm) and 767.51 (5j) of the statutes;
relating to:
10considering certain statutory factors in deviating from the child support
11percentage standard, treatment of child care expenses, ordering trusts for the
12support of children, order of disbursement of wages for Huber law inmates,
13reducing a payer's child support obligation if the child receives a federal benefit,
14requiring a study of county child support agency staffing, ordering payment of
1postmajority support for a child with exceptional educational needs, requiring
2a report evaluating the adequacy of child support orders and paternity
3judgments 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
1Section
1. 20.921 (2) (a) of the statutes is amended to read:
AB192,4,92
20.921
(2) (a) Whenever it becomes necessary in pursuance of any federal or
3state law or court-ordered assignment of income under s. 46.10 (14) (e), 767.23 (1)
4(L)
or (m), 767.25 (4m) (c)
or (4p) (c), 767.265 or 767.51 (3m) (c)
or (3p) (c) to make
5deductions from the salaries of state officers or employes or employes of the
6University of Wisconsin Hospitals and Clinics Authority, the state agency or
7authority by which the officers or employes are employed is responsible for making
8such deductions and paying over the total thereof for the purposes provided by the
9laws or orders under which they were made.
AB192, s. 2
10Section
2. 46.10 (14) (b) of the statutes is amended to read:
AB192,4,1911
46.10
(14) (b) Except as provided in par. (c) and subject to par. (cm), liability
12of a parent specified in sub. (2) or s. 46.03 (18) for the care and maintenance of the
13parent's minor child who has been placed by a court order under s. 48.355, 48.357,
14938.183 (2), 938.355 or 938.357 in a residential, nonmedical facility such as a group
15home, foster home, treatment foster home, child caring institution or juvenile
16correctional institution shall be determined by the court by using the percentage
17standard established by the department of industry, labor and job development
18under s. 49.22 (9) and by applying the percentage standard in the manner
19established by the department
of health and family services under s. 46.247.
AB192, s. 3
20Section
3
. 46.10 (14) (c) (intro.) of the statutes is amended to read:
AB192,5,6
146.10
(14) (c) (intro.)
Upon request by a parent, the The court
may
shall modify
2the amount of child support
payments determined under par. (b)
, subject to par. (cm), 3if, after considering
all of the following factors
that the court determines are relevant,
4the court finds by the greater weight of the credible evidence that the
use of the
5percentage standard amount of child support determined under par. (b) is unfair to
6the child or to either of the parents:
AB192, s. 4
7Section
4. 46.10 (14) (c) 7. of the statutes is repealed and recreated to read:
AB192,5,98
46.10
(14) (c) 7. Extraordinary travel expenses incurred in exercising parental
9visitation with the child.
AB192, s. 5
10Section
5. 46.10 (14) (d) of the statutes is amended to read:
AB192,5,1811
46.10
(14) (d) If the court finds under par. (c) that
use of the percentage
12standard the amount of child support determined under par. (b) is unfair to the minor
13child or either of the parents, the court shall state in writing or on the record the
14amount of support that would be required by using the percentage standard, the
15amount by which the court's order deviates from that amount, its reasons for finding
16that
use of the percentage standard the amount of child support determined under
17par. (b) is unfair to the child or the parent, its reasons for the amount of the
18modification and the basis for the modification.
AB192, s. 6
19Section
6. 49.22 (9m) of the statutes is created to read:
AB192,5,2420
49.22
(9m) The department shall, by January 1, 1999, and by January 1 every
214 years thereafter, submit a report to the legislature under s. 13.172 (2) on the use
22of the child support percentage standard under sub. (9). The report shall evaluate
23the adequacy of child support orders determined by using the percentage standard
24and shall include consideration of the following factors:
AB192,6,2
1(a) Economic data on the cost of raising children in households with only one
2parent and in households with 2 parents.
AB192,6,43
(b) Economic data on the cost of raising children in 2 households under shared
4physical placement arrangements.
AB192,6,75
(c) Case data on the application of and deviation from the percentage standard
6and case data, to the extent that it is available, on the costs incurred in providing
7health care and day care for children for whom child support has been ordered.
AB192, s. 7
8Section
7. 102.27 (2) (a) of the statutes is amended to read:
AB192,6,119
102.27
(2) (a) A benefit under this chapter is assignable under s. 46.10 (14) (e),
10767.23 (1) (L)
or (m), 767.25 (4m) (c)
or (4p) (c), 767.265 (1) or 767.51 (3m) (c)
or (3p)
11(c).
AB192, s. 8
12Section
8. 303.08 (5) (a) of the statutes is renumbered 303.08 (5) (am).
AB192, s. 9
13Section
9. 303.08 (5) (ac) of the statutes is created to read:
AB192,6,1414
303.08
(5) (ac) Payment of child support ordered under ch. 767;
AB192, s. 10
15Section
10. 303.08 (5) (c) of the statutes is amended to read:
AB192,6,1716
303.08
(5) (c) Support of the prisoner's dependents, if any
, other than child
17support ordered under ch. 767;
AB192, s. 11
18Section
11. 303.08 (5m) of the statutes is amended to read:
AB192,6,2119
303.08
(5m) A county may receive payments under sub. (5)
(a) (am) and (b) or
20seek reimbursement under s. 302.372, but may not collect for the same expenses
21twice.
AB192, s. 12
22Section
12. 767.23 (1) (m) of the statutes is created to read:
AB192,6,2523
767.23
(1) (m) Requiring either party or both parties to execute an assignment
24of income for payment of a minor child's day care expenses that are necessary to
25permit either parent to work.
AB192, s. 13
1Section
13
. 767.25 (1m) (intro.) of the statutes is amended to read:
AB192,7,72
767.25
(1m) (intro.)
Upon request by a party, the The court
may shall modify
3the amount of child support
payments determined under sub. (1j) if, after
4considering
all of the following factors
that the court determines are relevant, the
5court finds by the greater weight of the credible evidence that
use of the percentage
6standard the amount of child support determined under sub. (1j) is unfair to the child
7or to any of the parties:
AB192, s. 14
8Section
14. 767.25 (1m) (a) of the statutes is renumbered 767.25 (1m) (am).
AB192, s. 15
9Section
15
. 767.25 (1m) (c) of the statutes is renumbered 767.25 (1m) (ac) and
10amended to read:
AB192,7,1311
767.25
(1m) (ac) The
needs of the child and the standard of living the child
12would have enjoyed had the marriage not ended in annulment, divorce or legal
13separation.
AB192, s. 16
14Section
16. 767.25 (1m) (d) of the statutes is repealed.
AB192, s. 17
15Section
17. 767.25 (1m) (e) of the statutes is amended to read:
AB192,7,1816
767.25
(1m) (e) The cost of day care if the custodian works outside the home
, 17or the value of custodial services performed by the custodian if
it is appropriate for 18the custodian
remains to remain in the home
as a full-time parent.
AB192, s. 18
19Section
18. 767.25 (1n) of the statutes amended to read:
AB192,8,220
767.25
(1n) If the court finds under sub. (1m) that
use of the percentage
21standard the amount of child support determined under sub. (1j) is unfair to the child
22or
the requesting any party, the court shall state in writing or on the record the
23amount of support that would be required by using the percentage standard, the
24amount by which the court's order deviates from that amount, its reasons for finding
25that
use of the percentage standard the amount of child support determined under
1sub. (1j) is unfair to the child or
the
any party, its reasons for the amount of the
2modification and the basis for the modification.
AB192, s. 19
3Section 19
. 767.25 (1r) of the statutes is created to read:
AB192,8,94
767.25
(1r) The court shall reduce the amount of a parent's child support
5payments determined under sub. (1j) or (1m), if the court finds that the child receives
6benefits under
42 USC 402 (d) based on the parent's entitlement to federal old-age
7or disability insurance benefits under
42 USC 401 to
433. The parent's child support
8payments shall be reduced by the amount of the benefit under
42 USC 402 (d)
9received by the child.
AB192, s. 20
10Section
20. 767.25 (2) of the statutes is amended to read:
AB192,8,1511
767.25
(2) The court may
, upon request by any party or the guardian ad litem
12or upon its own motion, protect and promote the best interests of the minor children
13by setting aside a portion of the child support which
either any party is ordered to
14pay in a separate fund or trust for the support, education and welfare of such
15children.
AB192, s. 21
16Section
21. 767.25 (4g) of the statutes is created to read:
AB192,8,1917
767.25
(4g) The court may order either party or both parties to pay for the
18support of any child of the parties who is 19 years of age or older and who satisfies
19all of the following:
AB192,8,2020
(a) Is a child with exceptional educational needs, as defined in s. 115.76 (3).
AB192,8,2121
(b) Is participating in a special education program under subch. V of ch. 115.
AB192, s. 22
22Section
22
. 767.25 (4p) of the statutes is created to read:
AB192,9,223
767.25
(4p) (a) When ordering child support for a child under sub. (1), the court
24shall consider and may specifically assign responsibility to one or both parents for
25and direct the manner of payment of the child's day care expenses that are necessary
1to permit either parent to work. A parent may be required to initiate or continue
2payment of day care expenses for a child under this subsection.
AB192,9,43
(b) In directing the manner of payment of a child's day care expenses, the court
4shall order that payment be made to one of the following:
AB192,9,55
1. The other parent.
AB192,9,66
2. The day care provider.
AB192,9,87
3. The clerk of court for disbursement to the person for whom the payment has
8been awarded.
AB192,9,189
(c) If a parent who is ordered to pay child care expenses under this subsection
10fails to make a required payment within 10 days after its due date, the court may
11order that payment be withheld from the person's income and assigned for the
12payment of day care expenses. If the court orders income withholding and
13assignment for the payment of day care expenses, the court shall direct that payment
14under the assignment be made to the clerk of court for disbursement to the other
15parent as provided in s. 767.29 and shall send notice of the assignment and of the
16opportunity to request a hearing in the manner provided under s. 767.265 (2h). The
17clerk of court shall keep a record of all moneys received and disbursed by the clerk
18for day care expenses that are directed to be paid to the clerk.
AB192, s. 23
19Section
23. 767.265 (3h) of the statutes is amended to read:
AB192,9,2520
767.265
(3h) A person who receives notice of assignment under this section or
21s. 767.23 (1) (L)
or (m), 767.25 (4m) (c)
or (4p) (c) or 767.51 (3m) (c)
or (3p) (c) or similar
22laws of another state shall withhold the amount specified in the notice from any
23money that person pays to the payer later than one week after receipt of notice of
24assignment. Within 5 days after the day the person pays money to the payer, the
25person shall send the amount withheld to the clerk of court or support collection
1designee, whichever is appropriate, of the jurisdiction providing notice or, in the case
2of an amount ordered withheld for health care expenses, to the appropriate health
3care insurer, provider or plan. Except as provided in sub. (3m), for each payment sent
4to the clerk of court or support collection designee, the person from whom the payer
5receives money shall receive an amount equal to the person's necessary
6disbursements, not to exceed $3, which shall be deducted from the money to be paid
7to the payer. Section 241.09 does not apply to assignments under this section.
AB192, s. 24
8Section
24. 767.265 (4) of the statutes is amended to read:
AB192,10,119
767.265
(4) A withholding assignment or order under this section or s. 767.23
10(1) (L)
or (m), 767.25 (4m) (c)
or (4p) (c) or 767.51 (3m) (c)
or (3p) (c) has priority over
11any other assignment, garnishment or similar legal process under state law.
AB192, s. 25
12Section
25. 767.265 (6) (a) of the statutes is amended to read:
AB192,10,2113
767.265
(6) (a) Except as provided in sub. (3m), if after receipt of notice of
14assignment the person from whom the payer receives money fails to withhold the
15money or send the money to the clerk of court or support collection designee or the
16appropriate health care insurer, provider or plan as provided in this section or s.
17767.23 (1) (L)
or (m), 767.25 (4m) (c)
or (4p) (c) or 767.51 (3m) (c)
or (3p) (c), the person
18may be proceeded against under the principal action under ch. 785 for contempt of
19court or may be proceeded against under ch. 778 and be required to forfeit not less
20than $50 nor more than an amount, if the amount exceeds $50, that is equal to 1%
21of the amount not withheld or sent.