LRB-2439/1
PJK:mfd:km
1997 - 1998 LEGISLATURE
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
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), 102.27 (2) (a), 303.08 (5) (c), 303.08 (5m), 767.25
4(1m) (e), 767.25 (2), 767.265 (3h), 767.265 (4), 767.265 (6) (a), 767.265 (6) (b),
5767.265 (6) (c) and 767.51 (5) (i);
to repeal and recreate 46.10 (14) (c) 7.; and
6to create 303.08 (5) (ac), 767.23 (1) (m), 767.25 (4g), 767.25 (4p), 767.465 (1m),
7767.48 (5) (c), 767.51 (3g), 767.51 (3p) and 767.51 (5) (cm) of the statutes;
8relating to: treatment of child care expenses, ordering trusts for the support
9of children, order of disbursement of wages for Huber law inmates, ordering
10payment of postmajority support for a child with exceptional educational needs
11and 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
1Section
1. 20.921 (2) (a) of the statutes is amended to read:
SB138,3,92
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.
SB138, s. 2
10Section
2. 46.10 (14) (b) of the statutes is amended to read:
SB138,3,1911
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.
SB138, s. 3
20Section
3. 46.10 (14) (c) 7. of the statutes is repealed and recreated to read:
SB138,4,2
146.10
(14) (c) 7. Extraordinary travel expenses incurred in exercising parental
2visitation with the child.
SB138, s. 4
3Section
4. 102.27 (2) (a) of the statutes is amended to read:
SB138,4,64
102.27
(2) (a) A benefit under this chapter is assignable under s. 46.10 (14) (e),
5767.23 (1) (L)
or (m), 767.25 (4m) (c)
or (4p) (c), 767.265 (1) or 767.51 (3m) (c)
or (3p)
6(c).
SB138, s. 5
7Section
5. 303.08 (5) (a) of the statutes is renumbered 303.08 (5) (am).
SB138, s. 6
8Section
6. 303.08 (5) (ac) of the statutes is created to read:
SB138,4,99
303.08
(5) (ac) Payment of child support ordered under ch. 767;
SB138, s. 7
10Section
7. 303.08 (5) (c) of the statutes is amended to read:
SB138,4,1211
303.08
(5) (c) Support of the prisoner's dependents, if any
, other than child
12support ordered under ch. 767;
SB138, s. 8
13Section
8. 303.08 (5m) of the statutes is amended to read:
SB138,4,1614
303.08
(5m) A county may receive payments under sub. (5)
(a) (am) and (b) or
15seek reimbursement under s. 302.372, but may not collect for the same expenses
16twice.
SB138, s. 9
17Section
9. 767.23 (1) (m) of the statutes is created to read:
SB138,4,2018
767.23
(1) (m) Requiring either party or both parties to execute an assignment
19of income for payment of a minor child's day care expenses that are necessary to
20permit either parent to work.
SB138, s. 10
21Section
10. 767.25 (1m) (a) of the statutes is renumbered 767.25 (1m) (am).
SB138, s. 11
22Section
11
. 767.25 (1m) (c) of the statutes is renumbered 767.25 (1m) (ac) and
23amended to read:
SB138,5,3
1767.25
(1m) (ac) The
needs of the child and the standard of living the child
2would have enjoyed had the marriage not ended in annulment, divorce or legal
3separation.
SB138, s. 12
4Section
12. 767.25 (1m) (d) of the statutes is repealed.
SB138, s. 13
5Section
13. 767.25 (1m) (e) of the statutes is amended to read:
SB138,5,86
767.25
(1m) (e) The cost of day care if the custodian works outside the home
, 7or the value of custodial services performed by the custodian if
it is appropriate for 8the custodian
remains to remain in the home
as a full-time parent.
SB138, s. 14
9Section
14. 767.25 (2) of the statutes is amended to read:
SB138,5,1410
767.25
(2) The court may
, upon request by any party or the guardian ad litem
11or upon its own motion, protect and promote the best interests of the minor children
12by setting aside a portion of the child support which
either any party is ordered to
13pay in a separate fund or trust for the support, education and welfare of such
14children.
SB138, s. 15
15Section
15. 767.25 (4g) of the statutes is created to read:
SB138,5,1816
767.25
(4g) The court may order either party or both parties to pay for the
17support of any child of the parties who is 19 years of age or older and who satisfies
18all of the following:
SB138,5,1919
(a) Is a child with exceptional educational needs, as defined in s. 115.76 (3).
SB138,5,2020
(b) Is participating in a special education program under subch. V of ch. 115.
SB138, s. 16
21Section
16
. 767.25 (4p) of the statutes is created to read:
SB138,6,222
767.25
(4p) (a) When ordering child support for a child under sub. (1), the court
23shall consider and may specifically assign responsibility to one or both parents for
24and 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.
SB138,6,43
(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:
SB138,6,55
1. The other parent.
SB138,6,66
2. The day care provider.
SB138,6,87
3. The clerk of court for disbursement to the person for whom the payment has
8been awarded.
SB138,6,189
(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.
SB138, s. 17
19Section
17. 767.265 (3h) of the statutes is amended to read:
SB138,7,720
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.
SB138, s. 18
8Section
18. 767.265 (4) of the statutes is amended to read:
SB138,7,119
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.
SB138, s. 19
12Section
19. 767.265 (6) (a) of the statutes is amended to read:
SB138,7,2113
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.
SB138, s. 20
22Section
20. 767.265 (6) (b) of the statutes is amended to read:
SB138,8,323
767.265
(6) (b) If an employer who receives an assignment under this section
24or s. 767.23 (1) (L)
or (m), 767.25 (4m) (c)
or (4p) (c) or 767.51 (3m) (c)
or (3p) (c) fails
25to notify the clerk of court or support collection designee, whichever is appropriate,
1within 10 days after an employe is terminated or otherwise temporarily or
2permanently leaves employment, the employer may be proceeded against under the
3principal action under ch. 785 for contempt of court.
SB138, s. 21
4Section
21. 767.265 (6) (c) of the statutes is amended to read: