LRB-3036/2
PJK&GMM:jlg:kjf
1999 - 2000 LEGISLATURE
June 10, 1999 - Introduced by Representatives Plouff, Kreibich, Gunderson,
Lassa, Musser and
Turner, cosponsored by Senators Clausing, Darling,
Huelsman, Lazich, Roessler and Zien, by request of Melanie Wiegand.
Referred to Committee on Family Law.
AB382,1,10
1An Act to renumber and amend 48.355 (3), 48.428 (6) and 938.355 (3);
to
2amend 48.207 (1) (a), 48.207 (1) (b), 48.345 (3) (a), 48.345 (3) (b), 48.42 (1m) (b),
348.42 (1m) (c), 48.925 (1) (intro.), 767.245 (1), 880.155 (2), 938.207 (1) (a),
4938.207 (1) (b), 938.34 (3) (a) and 938.34 (3) (b); and
to create 48.355 (3) (b),
548.357 (4d), 48.42 (1m) (e), 48.428 (6) (b), 48.925 (1m), 767.245 (1m), 767.245
6(6), 767.247, 767.325 (4m), 880.155 (3m), 880.155 (4m), 880.157, 938.355 (3) (b)
7and 938.357 (4d) of the statutes;
relating to: prohibiting a parent or other
8person who is convicted for the solicitation to commit the first-degree
9intentional homicide of a parent of a child from having visitation or physical
10placement with the child.
Analysis by the Legislative Reference Bureau
Under current law, in a divorce or legal separation that involves a minor child,
the court must award legal custody of the child and allocate to the parents physical
placement with the child. The court may not deny a parent physical placement
unless the court finds that the physical placement would endanger the child's
physical, mental or emotional health. In an action affecting the family, the court may
grant visitation with a minor child to a grandparent, stepparent or person who has
had a relationship similar to a parent-child relationship with the child if the court
determines that the visitation is in the child's best interest. In a guardianship matter
that involves a minor child, the court may grant visitation rights to a grandparent
or stepparent of the child if one or both of the child's parents are deceased and the
court determines that the visitation is in the child's best interest.
This bill prohibits a court from granting visitation or physical placement rights
with a child to a parent of the child or to another person if that parent or other person
has been convicted for solicitation to commit the first-degree intentional homicide
of a parent of the child. The prohibition applies in any action affecting the family that
involves the child and in any guardianship matter that involves the child.
Additionally, a court is required to modify an existing physical placement or
visitation order by denying physical placement or visitation with a child if the parent
or other person is convicted for solicitation to commit the first-degree intentional
homicide of the child's other parent. The prohibition on the granting of physical
placement or visitation applies regardless of whether the conviction occurred before
or occurs after the passage of the bill, and the requirement to modify any physical
placement or visitation order applies regardless of when the conviction occurred or
occurs and regardless of whether the order exists when the bill is passed or is granted
after the passage of the bill.
Under current law, the court assigned to exercise jurisdiction under the
children's code and the juvenile justice code (juvenile court) may place a child or a
juvenile who is in need of temporary physical custody or who has been adjudged to
be delinquent or in need of protection or services in, among other placements, the
home of a parent or other relative of the child or, if the placement is for less than 30
days, the home of a guardian of the child. Also, under current law, if the juvenile
court places such a child or juvenile outside of his or her home, the juvenile court may
set reasonable rules of parental visitation if the juvenile court finds that parental
visitation would be in the best interests of the child. In addition, under current law,
the juvenile court may issue a temporary restraining order and injunction
prohibiting a parent against whom a petition for involuntary termination of parental
rights (TPR) has been filed from visitation or contact with the child and may order
or prohibit visitation by a birth parent of a child who has been placed in sustaining
care following a TPR. Finally, under current law, the juvenile court may grant
reasonable visitation rights to a relative, for example, a grandparent, who has
maintained a relationship similar to a parent-child relationship with a child who has
been adopted by a stepparent or relative.
This bill prohibits a juvenile court from placing a child or juvenile who is in need
of temporary physical custody or who has been adjudged to be delinquent or in need
of protection or services in the home of a parent, other relative or guardian of the
child or juvenile if the parent, other relative or guardian has been convicted for
solicitation to commit the first-degree intentional homicide of a parent of the child.
The bill also requires a juvenile court, when a child or juvenile is placed in the home
of a parent by juvenile court order, to change the placement of the child or juvenile
to a placement outside of that home if the parent is convicted for solicitation to
commit the first-degree intentional homicide of a parent of the child or juvenile.
In addition, the bill prohibits a juvenile court from granting visitation to a
parent of a child or juvenile who has been adjudged to be delinquent or in need of
protection or services, to a birth parent of a child who has been placed in sustaining
care following a TPR or to a relative who has maintained a relationship similar to
a parent-child relationship with a child if the parent, birth parent or relative has
been convicted for solicitation to commit the first-degree intentional homicide of a
parent of the child or juvenile. The bill also requires a juvenile court, when such a
parent, birth parent or relative has previously been granted visitation, to issue an
order prohibiting any further visitation if the parent is convicted for solicitation to
commit the first-degree intentional homicide of a parent of the child or juvenile.
Additionally, the bill requires a juvenile court, on petition, to prohibit a parent
against whom a petition for involuntary TPR has been filed from visitation or contact
with the child if the parent has been convicted for solicitation to commit the
first-degree intentional homicide of the child's other parent.
The prohibition on the juvenile court placing a child or juvenile in the home of
a parent, other relative or guardian or granting visitation with a child or juvenile and
the requirement that a juvenile court prohibit any visitation or contact with a child
or juvenile apply regardless of when the conviction occurs.
The people of the state of Wisconsin, represented in senate and assembly, do
enact as follows:
AB382, s. 1
1Section
1. 48.207 (1) (a) of the statutes is amended to read:
AB382,3,62
48.207
(1) (a) The home of a parent or guardian
, except that a child may not
3be held in the home of a parent or guardian if the parent or guardian has been
4convicted under s. 939.30 for the solicitation to commit the first-degree intentional
5homicide of a parent of the child, and the conviction has not been reversed, set aside
6or vacated.
AB382, s. 2
7Section
2. 48.207 (1) (b) of the statutes is amended to read:
AB382,3,118
48.207
(1) (b) The home of a relative
, except that a child may not be held in the
9home of a relative if the relative has been convicted under s. 939.30 for the
10solicitation to commit the first-degree intentional homicide of a parent of the child,
11and the conviction has not been reversed, set aside or vacated.
AB382, s. 3
1Section
3. 48.345 (3) (a) of the statutes is amended to read:
AB382,4,62
48.345
(3) (a) The home of a
parent or other relative of the child
, except that
3the judge may not designate the home of a parent or other relative of the child as the
4child's placement if the parent or other relative has been convicted under s. 939.30
5for the solicitation to commit the first-degree intentional homicide of a parent of the
6child, and the conviction has not been reversed, set aside or vacated.
AB382, s. 4
7Section
4. 48.345 (3) (b) of the statutes is amended to read:
AB382,4,138
48.345
(3) (b)
A home which need not be The home of a person who is not
9required to be licensed if placement is for less than 30 days
, except that the judge may
10not designate the home of a person who is not required to be licensed as the child's
11placement if the person has been convicted under s. 939.30 for the solicitation to
12commit the first-degree intentional homicide of a parent of the child, and the
13conviction has not been reversed, set aside or vacated.
AB382, s. 5
14Section
5. 48.355 (3) of the statutes is renumbered 48.355 (3) (a) and amended
15to read:
AB382,4,1916
48.355
(3) (a)
If Except as provided in par. (b), if, after a hearing on the issue
17with due notice to the parent or guardian, the
judge
court finds that it would be in
18the best interest of the child, the
judge court may set reasonable rules of parental
19visitation.
AB382, s. 6
20Section
6. 48.355 (3) (b) of the statutes is created to read:
AB382,4,2421
48.355
(3) (b) 1. The court may not grant visitation under par. (a) to a parent
22of a child if the parent has been convicted under s. 939.30 for the solicitation to
23commit the first-degree intentional homicide of the child's other parent, and the
24conviction has not been reversed, set aside or vacated.
AB382,5,8
12. If a parent who is granted visitation rights with a child under par. (a) is
2convicted under s. 939.30 for the solicitation to commit the first-degree intentional
3homicide of the child's other parent, and the conviction has not been reversed, set
4aside or vacated, the court shall issue an order prohibiting the parent from having
5visitation with the child on petition of the child, the guardian or legal custodian of
6the child, a person or agency bound by the dispositional order or the district attorney
7or corporation counsel of the county in which the dispositional order was entered, or
8on the court's own motion, and on notice to the parent.
AB382, s. 7
9Section
7. 48.357 (4d) of the statutes is created to read:
AB382,5,1310
48.357
(4d) (a) The court may not change a child's placement to a placement
11in the home of a person who has been convicted under s. 939.30 for the solicitation
12to commit the first-degree intentional homicide of a parent of the child, if the
13conviction has not been reversed, set aside or vacated.
AB382,5,2114
(b) If a parent in whose home a child is placed is convicted under s. 939.30 for
15the solicitation to commit the first-degree intentional homicide of the child's other
16parent, and the conviction has not been reversed, set aside or vacated, the court shall
17change the child's placement to a placement out of the home of the parent on petition
18of the child, the guardian or legal custodian of the child, a person or agency bound
19by the dispositional order or the district attorney or corporation counsel of the county
20in which the dispositional order was entered, or on the court's own motion, and on
21notice to the parent.
AB382, s. 8
22Section
8. 48.42 (1m) (b) of the statutes is amended to read:
AB382,6,323
48.42
(1m) (b)
The Subject to par. (e), the court may issue the temporary order
24ex parte or may refuse to issue the temporary order and hold a hearing on whether
25to issue an injunction. The temporary order is in effect until a hearing is held on the
1issuance of an injunction. The court shall hold a hearing on the issuance of an
2injunction on or before the date of the hearing on the petition to terminate parental
3rights under s. 48.422 (1).
AB382, s. 9
4Section
9. 48.42 (1m) (c) of the statutes is amended to read:
AB382,6,115
48.42
(1m) (c) Notwithstanding any other order under s. 48.355 (3), the court
,
6subject to par. (e), may grant an injunction prohibiting the respondent from visiting
7or contacting the child if the court determines that the prohibition would be in the
8best interests of the child. An injunction under this subsection is effective according
9to its terms but may not remain in effect beyond the date the court dismisses the
10petition for termination of parental rights under s. 48.427 (2) or issues an order
11terminating parental rights under s. 48.427 (3).
AB382, s. 10
12Section
10. 48.42 (1m) (e) of the statutes is created to read:
AB382,6,1713
48.42
(1m) (e) The court shall issue a temporary order and injunction
14prohibiting a parent of a child from visitation or contact with the child if the parent
15has been convicted under s. 939.30 for the solicitation to commit the first-degree
16intentional homicide of the child's other parent, and the conviction has not been
17reversed, set aside or vacated.
AB382, s. 11
18Section
11. 48.428 (6) of the statutes is renumbered 48.428 (6) (a) and
19amended to read:
AB382,6,2120
48.428
(6) (a)
The Except as provided in par. (b), the court may order or prohibit
21visitation by a birth parent of a child placed in sustaining care.
AB382, s. 12
22Section
12. 48.428 (6) (b) of the statutes is created to read:
AB382,7,223
48.428
(6) (b) 1. The court may not grant visitation under par. (a) to a birth
24parent of a child who has been placed in sustaining care if the birth parent has been
25convicted under s. 939.30 for the solicitation to commit the first-degree intentional
1homicide of the child's other birth parent, and the conviction has not been reversed,
2set aside or vacated.
AB382,7,103
2. If a birth parent who is granted visitation rights with a child under par. (a)
4is convicted under s. 939.30 for the solicitation to commit the first-degree intentional
5homicide of the child's other birth parent, and the conviction has not been reversed,
6set aside or vacated, the court shall issue an order prohibiting the birth parent from
7having visitation with the child on petition of the child, the guardian or legal
8custodian of the child, or the district attorney or corporation counsel of the county in
9which the dispositional order was entered, or on the court's own motion, and on notice
10to the birth parent.
AB382, s. 13
11Section
13. 48.925 (1) (intro.) of the statutes is amended to read:
AB382,7,1912
48.925
(1) (intro.) Upon petition by a relative who has maintained a
13relationship similar to a parent-child relationship with a child who has been adopted
14by a stepparent or relative, the court
, subject to subs. (1m) and (2), may grant
15reasonable visitation rights to that person if the petitioner has maintained such a
16relationship within 2 years prior to the filing of the petition, if the adoptive parent
17or parents, or, if a birth parent is the spouse of an adoptive parent, the adoptive
18parent and birth parent, have notice of the hearing and if the court determines all
19of the following:
AB382, s. 14
20Section
14. 48.925 (1m) of the statutes is created to read:
AB382,7,2521
48.925
(1m) (a) The court may not grant visitation rights under sub. (1) to a
22relative who has maintained a relationship similar to a parent-child relationship
23with a child if the relative has been convicted under s. 939.30 for the solicitation to
24commit the first-degree intentional homicide of a parent of the child, and the
25conviction has not been reversed, set aside or vacated.
AB382,8,6
1(b) If a relative who is granted visitation rights with a child under sub. (1) is
2convicted under s. 939.30 for the solicitation to commit the first-degree intentional
3homicide of a parent of the child, and the conviction has not been reversed, set aside
4or vacated, the court shall issue an order prohibiting the relative from having
5visitation with the child on petition of the child or the parent, guardian or legal
6custodian of the child, or on the court's own motion, and on notice to the relative.
AB382, s. 15
7Section
15. 767.245 (1) of the statutes is amended to read:
AB382,8,128
767.245
(1) Except as provided in
sub.
subs. (1m) and (2m), upon petition by
9a grandparent, greatgrandparent, stepparent or person who has maintained a
10relationship similar to a parent-child relationship with the child, the court may
11grant reasonable visitation rights to that person if the parents have notice of the
12hearing and if the court determines that visitation is in the best interest of the child.
AB382, s. 16
13Section
16. 767.245 (1m) of the statutes is created to read:
AB382,8,1714
767.245
(1m) The court may not grant visitation rights under sub. (1) to a
15person who has been convicted under s. 939.30 for the solicitation to commit the
16first-degree intentional homicide of a parent of the child, and the conviction has not
17been reversed, set aside or vacated.
AB382, s. 17
18Section
17. 767.245 (6) of the statutes is created to read:
AB382,8,2519
767.245
(6) If a person granted visitation rights with a child under this section
20is convicted under s. 939.30 for the solicitation to commit the first-degree intentional
21homicide of a parent of the child, and the conviction has not been reversed, set aside
22or vacated, the court shall modify the visitation order by denying visitation with the
23child upon petition, motion or order to show cause by a parent or guardian of the
24child, or upon the court's own motion, and upon notice to the person granted
25visitation rights.
AB382, s. 18
1Section
18. 767.247 of the statutes is created to read:
AB382,9,8
2767.247 Prohibiting visitation or physical placement if a parent kills
3other parent. Notwithstanding ss. 767.23 (1) (am), 767.24 (1), (4) and (5), 767.51
4(3) and 767.62 (4) (a), in an action under this chapter that affects a minor child, a
5court or family court commissioner may not grant to the child's parent visitation or
6physical placement rights with the child if the parent has been convicted under s.
7939.30 for the solicitation to commit the first-degree intentional homicide of the
8child's other parent, and the conviction has not been reversed, set aside or vacated.
AB382, s. 19
9Section
19. 767.325 (4m) of the statutes is created to read:
AB382,9,1610
767.325
(4m) Denial of physical placement for killing other parent. 11Notwithstanding subs. (1) to (4), upon petition, motion or order to show cause by a
12party or on its own motion, a court shall modify a physical placement order by
13denying a parent physical placement with a child if the parent has been convicted
14under s. 939.30 for the solicitation to commit the first-degree intentional homicide
15of the child's other parent, and the conviction has not been reversed, set aside or
16vacated.
AB382, s. 20
17Section
20. 880.155 (2) of the statutes is amended to read:
AB382,9,2518
880.155
(2) If one or both parents of a minor child are deceased and the child
19is in the custody of the surviving parent or any other person, a grandparent or
20stepparent of the child may petition for visitation privileges with respect to the child,
21whether or not the person with custody is married. The grandparent or stepparent
22may file the petition in a guardianship or temporary guardianship proceeding under
23this chapter that affects the minor child or may file the petition to commence an
24independent action under this chapter.
The Except as provided in sub. (3m), the 25court may grant reasonable visitation privileges to the grandparent or stepparent if
1the surviving parent or other person who has custody of the child has notice of the
2hearing and if the court determines that visitation is in the best interest of the child.
AB382, s. 21
3Section
21. 880.155 (3m) of the statutes is created to read:
AB382,10,74
880.155
(3m) The court may not grant visitation privileges to a grandparent
5or stepparent under this section if the grandparent or stepparent has been convicted
6under s. 939.30 for the solicitation to commit the first-degree intentional homicide
7of a parent of the child, and the conviction has not been reversed, set aside or vacated.