SB138: Bill Text

LRB-2439/1

PJK:mfd:km

1997 - 1998 LEGISLATURE

1997 Senate BILL 138

March 26, 1997 - Introduced by Senators Weeden, Huelsman and Buettner, cosponsored by Representatives Ainsworth, R. Young, Albers, Kedzie, Springer, La Fave, Turner, Gunderson, Owens, M. Lehman and Hahn. Referred to Committee on Judiciary, Campaign Finance Reform and Consumer Affairs.

SB138,1,11 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), 102.27 (2) (a), 303.08 (5) (c), 303.08 (5m), 767.25 (1m) (e), 767.25 (2), 767.265 (3h), 767.265 (4), 767.265 (6) (a), 767.265 (6) (b), 767.265 (6) (c) and 767.51 (5) (i); to repeal and recreate 46.10 (14) (c) 7.; and to create 303.08 (5) (ac), 767.23 (1) (m), 767.25 (4g), 767.25 (4p), 767.465 (1m), 767.48 (5) (c), 767.51 (3g), 767.51 (3p) and 767.51 (5) (cm) of the statutes; relating to: treatment of child care expenses, ordering trusts for the support of children, order of disbursement of wages for Huber law inmates, ordering payment of postmajority support for a child with exceptional educational needs 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 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 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).

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.

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:

SB138, s. 1 Section 1. 20.921 (2) (a) of the statutes is amended to read:

SB138,3,9 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.

SB138, s. 2 Section 2. 46.10 (14) (b) of the statutes is amended to read:

SB138,3,19 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.

SB138, s. 3 Section 3. 46.10 (14) (c) 7. of the statutes is repealed and recreated to read:

SB138,4,2 46.10 (14) (c) 7. Extraordinary travel expenses incurred in exercising parental visitation with the child.

SB138, s. 4 Section 4. 102.27 (2) (a) of the statutes is amended to read:

SB138,4,6 102.27 (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).

SB138, s. 5 Section 5. 303.08 (5) (a) of the statutes is renumbered 303.08 (5) (am).

SB138, s. 6 Section 6. 303.08 (5) (ac) of the statutes is created to read:

SB138,4,9 303.08 (5) (ac) Payment of child support ordered under ch. 767;

SB138, s. 7 Section 7. 303.08 (5) (c) of the statutes is amended to read:

SB138,4,12 303.08 (5) (c) Support of the prisoner's dependents, if any, other than child support ordered under ch. 767;

SB138, s. 8 Section 8. 303.08 (5m) of the statutes is amended to read:

SB138,4,16 303.08 (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.

SB138, s. 9 Section 9. 767.23 (1) (m) of the statutes is created to read:

SB138,4,20 767.23 (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.

SB138, s. 10 Section 10. 767.25 (1m) (a) of the statutes is renumbered 767.25 (1m) (am).

SB138, s. 11 Section 11 . 767.25 (1m) (c) of the statutes is renumbered 767.25 (1m) (ac) and amended to read:

SB138,5,3 767.25 (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.

SB138, s. 12 Section 12. 767.25 (1m) (d) of the statutes is repealed.

SB138, s. 13 Section 13. 767.25 (1m) (e) of the statutes is amended to read:

SB138,5,8 767.25 (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.

SB138, s. 14 Section 14. 767.25 (2) of the statutes is amended to read:

SB138,5,14 767.25 (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.

SB138, s. 15 Section 15. 767.25 (4g) of the statutes is created to read:

SB138,5,18 767.25 (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:

SB138,5,19 (a) Is a child with exceptional educational needs, as defined in s. 115.76 (3).

SB138,5,20 (b) Is participating in a special education program under subch. V of ch. 115.

SB138, s. 16 Section 16 . 767.25 (4p) of the statutes is created to read:

SB138,6,2 767.25 (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.

SB138,6,4 (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:

SB138,6,5 1. The other parent.

SB138,6,6 2. The day care provider.

SB138,6,8 3. The clerk of court for disbursement to the person for whom the payment has been awarded.

SB138,6,18 (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.

SB138, s. 17 Section 17. 767.265 (3h) of the statutes is amended to read: