LRB-3191/3
RPN:hmh:pg
2001 - 2002 LEGISLATURE
February 13, 2002 - Introduced by Senators Burke, Huelsman, Breske, Cowles,
Darling, George, Hansen, Moore, Plache, Risser, Roessler and Harsdorf,
cosponsored by Representatives
Wieckert, Albers, Boyle, Coggs, Hahn,
Kaufert, La Fave, Lassa, J. Lehman, Musser, Olsen, Pocan, Richards,
Shilling, Sykora, Turner, Wasserman and Berceau. Referred to Committee
on Judiciary, Consumer Affairs, and Campaign Finance Reform.
SB438,1,9
1An Act to renumber and amend 813.12 (1) (a) (intro.), 1., 2., and 3. and 813.12
2(1) (a) 4.;
to amend 106.50 (5m) (d), 767.11 (8) (b) 2., 767.11 (10) (e) 2., 767.24
3(1m) (b), 767.24 (1m) (c), 767.24 (1m) (o), 767.24 (2) (b) 2. c., 767.24 (5) (i), 813.12
4(2) (a), 813.12 (3) (a) (intro.), 813.12 (3) (a) 2., 813.12 (3) (c), 813.12 (4) (a) (intro.),
5813.12 (4) (a) 2., 813.12 (4) (a) 3., 813.12 (4) (c) 1., 813.12 (4) (c) 2., 814.61 (1) (e),
6814.70 (1), 814.70 (3) (intro.) and 895.73 (1) (a); and
to create 813.12 (1) (ad),
7813.12 (1) (ag), 813.12 (1) (am) 5., 813.12 (1) (am) 6., 813.12 (1) (cg), 813.12 (1)
8(cj), 813.12 (5) (d), 813.12 (5m), 813.12 (6) (d) and 813.12 (7) (c) of the statutes;
9relating to: domestic abuse restraining orders and injunctions.
Analysis by the Legislative Reference Bureau
Under current law, "domestic abuse" for purposes of obtaining an injunction, is
defined as certain types of behavior engaged in by an adult against another adult if
the two adults are involved in one of the following relationships:
1. Are members of the same family.
2. Are members of the same household.
3. Are former spouses.
4. Have a child in common.
This bill expands the types of relationships that adults may be in for purposes
of domestic abuse injunctions to include an adult who is being cared for by another
adult and adults who have a dating relationship. The bill defines a "dating
relationship" as a social relationship between two adults that involves a romantic or
intimate association, and requires the court to consider the length and type of the
relationship and the frequency of the interaction between the parties when
determining if a dating relationship exists. The bill provides that a dating
relationship is not a casual relationship or ordinary fraternization between two adult
individuals.
Currently, the types of behavior that are considered domestic abuse include
sexual assault, intentional infliction of pain or injury, intentional impairment of
physical condition, and the threat to commit one of those acts. This bill expands the
types of behavior that are considered domestic abuse to include destruction of
property of the other person and mistreatment of an animal belonging to the other
person.
Under current law, a court action is started by petitioning the court for a
temporary restraining order, then the petitioner serves the other party, the court
schedules a hearing and after determining the merits, the court issues a permanent
injunction. If the petitioner is unable to serve the respondent personally with the
petition, currently the petitioner may publish the petition and mail a copy of the
petition to the respondent. The bill replaces the requirement to publish the petition
when personal service is impossible with a requirement to publish a summary of the
petition, which includes the the name of the petitioner and respondent and the date,
time, and place of the hearing regarding the requested injunction. The bill allows
the petitioner to send the summary of the petition to the respondent by facsimile or
mail. The bill also allows the guardian of an incompetent individual to file the
petition for a domestic abuse order on behalf of the incompetent individual.
Currently, a hearing on the request to issue an injunction must be held within
seven days after the temporary restraining order is issued, unless the hearing is
extended once for 14 days to allow the petitioner more time to serve the respondent
or is extended for a period of time agreed to by the parties in writing. This bill
changes the requirement to hold the hearing within seven days after the issuance of
the temporary restraining order to 14 days after that order is issued. Under current
law, a domestic abuse injunction is issued for the period requested by the petitioner,
but not more than two years and can be extended for an additional period up to the
two-year maximum if the extension is necessary to protect the petitioner. This bill
extends the maximum period to four years.
The bill prohibits the inclusion of the petitioner's address in the petition,
temporary restraining order, or injunction.
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:
SB438, s. 1
1Section
1. 106.50 (5m) (d) of the statutes is amended to read:
SB438,3,142
106.50
(5m) (d) Nothing in this section requires that housing be made available
3to an individual whose tenancy would constitute a direct threat to the safety of other
4tenants or persons employed on the property or whose tenancy would result in
5substantial physical damage to the property of others, if the risk of direct threat or
6damage cannot be eliminated or sufficiently reduced through reasonable
7accommodations. A claim that an individual's tenancy poses a direct threat or a
8substantial risk of harm or damage must be evidenced by behavior by the individual
9which that caused harm or damage,
which that directly threatened harm or damage
, 10or
which that caused a reasonable fear of harm or damage to other tenants, persons
11employed on the property
, or the property. No claim that an individual's tenancy
12would constitute a direct threat to the safety of other persons or would result in
13substantial damage to property may be based on the fact that a tenant has been or
14may be the victim of domestic abuse, as defined in s. 813.12 (1)
(a) (am).
SB438, s. 2
15Section
2. 767.11 (8) (b) 2. of the statutes is amended to read:
SB438,3,1716
767.11
(8) (b) 2. Interspousal battery as described under s. 940.19 or 940.20
17(1m) or domestic abuse as defined in s. 813.12 (1)
(a)
(am).
SB438, s. 3
18Section
3. 767.11 (10) (e) 2. of the statutes is amended to read:
SB438,3,2019
767.11
(10) (e) 2. There is evidence of interspousal battery as described under
20s. 940.19 or 940.20 (1m) or domestic abuse as defined in s. 813.12 (1)
(a) (am).
SB438, s. 4
21Section
4. 767.24 (1m) (b) of the statutes is amended to read:
SB438,4,322
767.24
(1m) (b) Where the parent lives currently and where the parent intends
23to live during the next 2 years. If there is evidence that the other parent engaged in
24interspousal battery, as described under s. 940.19 or 940.20 (1m), or domestic abuse,
25as defined in s. 813.12 (1)
(a) (am), with respect to the parent providing the parenting
1plan, the parent providing the parenting plan is not required to disclose the specific
2address but only a general description of where he or she currently lives and intends
3to live during the next 2 years.
SB438, s. 5
4Section
5. 767.24 (1m) (c) of the statutes is amended to read:
SB438,4,105
767.24
(1m) (c) Where the parent works and the hours of employment. If there
6is evidence that the other parent engaged in interspousal battery, as described under
7s. 940.19 or 940.20 (1m), or domestic abuse, as defined in s. 813.12 (1)
(a) (am), with
8respect to the parent providing the parenting plan, the parent providing the
9parenting plan is not required to disclose the specific address but only a general
10description of where he or she works.
SB438, s. 6
11Section
6. 767.24 (1m) (o) of the statutes is amended to read:
SB438,4,1612
767.24
(1m) (o) If there is evidence that either party engaged in interspousal
13battery, as described under s. 940.19 or 940.20 (1m), or domestic abuse, as defined
14in s. 813.12 (1)
(a) (am), with respect to the other party, how the child will be
15transferred between the parties for the exercise of physical placement to ensure the
16safety of the child and the parties.
SB438, s. 7
17Section
7. 767.24 (2) (b) 2. c. of the statutes is amended to read:
SB438,4,2518
767.24
(2) (b) 2. c. The parties will not be able to cooperate in the future decision
19making required under an award of joint legal custody. In making this finding the
20court shall consider, along with any other pertinent items, any reasons offered by a
21party objecting to joint legal custody. Evidence that either party engaged in abuse,
22as defined in s. 813.122 (1) (a), of the child, as defined in s. 48.02 (2), or evidence of
23interspousal battery, as described under s. 940.19 or 940.20 (1m), or domestic abuse,
24as defined in s. 813.12 (1)
(a) (am), creates a rebuttable presumption that the parties
25will not be able to cooperate in the future decision making required.
SB438, s. 8
1Section
8. 767.24 (5) (i) of the statutes is amended to read:
SB438,5,32
767.24
(5) (i) Whether there is evidence of interspousal battery as described
3under s. 940.19 or 940.20 (1m) or domestic abuse as defined in s. 813.12 (1)
(a) (am).
SB438, s. 9
4Section
9. 813.12 (1) (a) (intro.), 1., 2., and 3. of the statutes are renumbered
5813.12 (1) (am) (intro.), 1., 2., and 3., and 813.12 (1) (am) (intro.), as renumbered, is
6amended to read:
SB438,5,137
813.12
(1) (am) (intro.) "Domestic abuse" means any of the following engaged
8in by an adult family member or adult household member against another adult
9family member or adult household member, by an adult caregiver against an adult
10who is under the caregiver's care by an adult against his or her adult former spouse
,
11by an adult against an adult with whom the individual has or had a dating
12relationship, or by an adult against an adult with whom the person has a child in
13common:
SB438, s. 10
14Section
10. 813.12 (1) (a) 4. of the statutes is renumbered 813.12 (1) (am) 8.
15and amended to read:
SB438,5,1716
813.12
(1) (am) 8. A threat to engage in the conduct under subd. 1., 2.
or, 3.
, 5.,
17or 6.
SB438, s. 11
18Section
11. 813.12 (1) (ad) of the statutes is created to read:
SB438,5,2019
813.12
(1) (ad) "Caregiver" means an individual who is a provider of in-home
20or community care to an individual through regular and direct contact.
SB438, s. 12
21Section
12. 813.12 (1) (ag) of the statutes is created to read:
SB438,6,322
813.12
(1) (ag) "Dating relationship" means a romantic or intimate social
23relationship between 2 adult individuals but "dating relationship" does not include
24a casual relationship or an ordinary fraternization between 2 individuals in a
25business or social context. A court shall determine if a dating relationship existed
1by considering the length of the relationship, the type of the relationship, and the
2frequency of the interaction between the adult individuals involved in the
3relationship.
SB438, s. 13
4Section
13. 813.12 (1) (am) 5. of the statutes is created to read:
SB438,6,65
813.12
(1) (am) 5. A violation of s. 943.01, involving property that belongs to
6the individual.
SB438, s. 14
7Section
14. 813.12 (1) (am) 6. of the statutes is created to read:
SB438,6,98
813.12
(1) (am) 6. A violation of s. 951.02, involving an animal that belongs to
9the individual.
SB438, s. 15
10Section
15. 813.12 (1) (cg) of the statutes is created to read:
SB438,6,1211
813.12
(1) (cg) "Reasonable grounds" means more likely than not that a specific
12event has occurred or will occur.
SB438, s. 16
13Section
16. 813.12 (1) (cj) of the statutes is created to read:
SB438,6,1514
813.12
(1) (cj) "Regular and direct contact" means face-to-face physical
15proximity to an individual that is planned, scheduled, expected, or periodic.
SB438, s. 17
16Section
17. 813.12 (2) (a) of the statutes is amended to read:
SB438,7,817
813.12
(2) (a) No action under this section may be commenced by complaint and
18summons. An action under this section may be commenced only by a petition
19described under sub. (5) (a). The action commences with service of the petition upon
20the respondent if a copy of the petition is filed before service or promptly after service.
21If the judge or family court commissioner extends the time for a hearing under sub.
22(3) (c) and the petitioner files an affidavit with the court stating that personal service
23by the sheriff or a private server under s. 801.11 (1) (a) or (b) was unsuccessful
24because the respondent is avoiding service by concealment or otherwise, the
judge
25or family court commissioner shall inform the petitioner
that he or she may serve the
1respondent by publication of
a summary of the petition as a class 1 notice, under ch.
2985, and by mailing
or sending a facsimile if the respondent's post-office address
or
3facsimile number is known or can with due diligence be ascertained. The mailing
or
4sending of a facsimile may be omitted if the post-office address
or facsimile number 5cannot be ascertained with due diligence.
A summary of the petition published as
6a class 1 notice shall include the name of the respondent and of the petitioner, notice
7of the temporary restraining order, and notice of the date, time, and place of the
8hearing regarding the injunction.
SB438, s. 18
9Section
18. 813.12 (3) (a) (intro.) of the statutes is amended to read:
SB438,7,1810
813.12
(3) (a) (intro.) A judge or family court commissioner shall issue a
11temporary restraining order ordering the respondent to refrain from committing acts
12of domestic abuse against the petitioner, to avoid the petitioner's residence, except
13as provided in par. (am), or any
premises other location temporarily occupied by the
14petitioner or both, or to avoid contacting or causing any person other than a party's
15attorney
or a law enforcement officer to contact the petitioner unless the petitioner
16consents in writing, or any combination of these remedies requested in the petition,
17or any other appropriate remedy not inconsistent with the remedies requested in the
18petition, if all of the following occur:
SB438, s. 19
19Section
19. 813.12 (3) (a) 2. of the statutes is amended to read:
SB438,7,2220
813.12
(3) (a) 2. The judge or family court commissioner finds reasonable
21grounds to believe that the respondent has engaged in, or based on prior conduct of
22the petitioner and the respondent may engage in, domestic abuse of the petitioner.
SB438,8,7
23(aj) In determining whether to issue a temporary restraining order, the judge
24or family court commissioner shall consider the potential danger posed to the
25petitioner and the pattern of abusive conduct of the respondent but may not base his
1or her decision solely on the length of time since the last domestic abuse or the length
2of time since the relationship ended. The judge or family court commissioner may
3grant only the remedies requested or approved by the petitioner.
The judge or family
4court commissioner may not dismiss or deny granting a temporary restraining order
5because of the existence of a pending action or of any other court order that bars
6contact between the parties, nor due to the necessity of verifying the terms of an
7existing court order.
SB438, s. 20
8Section
20. 813.12 (3) (c) of the statutes is amended to read:
SB438,8,169
813.12
(3) (c) The temporary restraining order is in effect until a hearing is held
10on issuance of an injunction under sub. (4). The temporary restraining order is not
11voided if the respondent is admitted into a dwelling that the order directs him or her
12to avoid. A judge or family court commissioner shall hold a hearing on issuance of
13an injunction within
7 14 days after the temporary restraining order is issued, unless
14the time is extended upon the written consent of the parties or extended once for 14
15days upon a finding that the respondent has not been served with a copy of the
16temporary restraining order although the petitioner has exercised due diligence.
SB438, s. 21
17Section
21. 813.12 (4) (a) (intro.) of the statutes is amended to read:
SB438,9,218
813.12
(4) (a) (intro.) A judge or family court commissioner may grant an
19injunction ordering the respondent to refrain from committing acts of domestic abuse
20against the petitioner, to avoid the petitioner's residence, except as provided in par.
21(am), or any
premises other location temporarily occupied by the petitioner or both,
22or to avoid contacting or causing any person other than a party's attorney
or a law
23enforcement officer to contact the petitioner unless the petitioner consents to that
24contact in writing, or any combination of these remedies requested in the petition,
1or any other appropriate remedy not inconsistent with the remedies requested in the
2petition, if all of the following occur:
SB438, s. 22
3Section
22. 813.12 (4) (a) 2. of the statutes is amended to read:
SB438,9,74
813.12
(4) (a) 2. The petitioner serves upon the respondent a copy
or summary 5of the petition and notice of the time for hearing on the issuance of the injunction,
6or the respondent serves upon the petitioner notice of the time for hearing on the
7issuance of the injunction.
SB438, s. 23
8Section
23. 813.12 (4) (a) 3. of the statutes is amended to read:
SB438,9,129
813.12
(4) (a) 3. After hearing, the judge or family court commissioner finds
10reasonable grounds to believe that the respondent has engaged in, or based upon
11prior conduct of the petitioner and the respondent may engage in, domestic abuse of
12the petitioner.
SB438,9,21
13(aj) In determining whether to issue an injunction, the judge or family court
14commissioner shall consider the potential danger posed to the petitioner and the
15pattern of abusive conduct of the respondent but may not base his or her decision
16solely on the length of time since the last domestic abuse or the length of time since
17the relationship ended. The judge or family court commissioner may grant only the
18remedies requested by the petitioner.
The judge or family court commissioner may
19not dismiss or deny granting an injunction because of the existence of a pending
20action or of any other court order that bars contact between the parties, nor due to
21the necessity of verifying the terms of an existing court order.
SB438, s. 24
22Section
24. 813.12 (4) (c) 1. of the statutes is amended to read:
SB438,9,2523
813.12
(4) (c) 1. An injunction under this subsection is effective according to its
24terms, for the period of time that the petitioner requests, but not more than
2 4 years.
25An injunction granted under this subsection is not voided
if the petitioner allows or
1initiates contact with the respondent or by the admittance of the respondent into a
2dwelling that the injunction directs him or her to avoid.
SB438, s. 25
3Section
25. 813.12 (4) (c) 2. of the statutes is amended to read:
SB438,10,74
813.12
(4) (c) 2. When an injunction granted for less than
2 4 years expires, the
5court shall extend the injunction if the petitioner states that an extension is
6necessary to protect him or her. This extension shall remain in effect until
2 4 years
7after the date the court first entered the injunction.