2005 Wisconsin Act 443

767.225 (2) Notice of motion for order. Notice of motion for an order or order to show cause under sub. (1) may be served at the time the action is commenced or at any time thereafter after commencement and shall be accompanied by an affidavit stating the basis for the request for relief.

443,92 Section 92. 767.23 (3) of the statutes is renumbered 767.264 (2) and amended to read:

767.264 (2) Attorney fees and other amounts owing. (a) Upon making any an order for dismissal of an action affecting the family or, for substitution of attorneys attorney in an action affecting the family, for withdrawal of attorney from, or for vacation of a judgment theretofore granted in any such an action affecting the family, the court shall, prior to or in its order render and, grant separate judgment in favor of any an attorney who has appeared for a party to the action and in favor of any a guardian ad litem for a party or a child for the amount of fees and disbursements to which the attorney or guardian ad litem is, in the court's judgment, entitled and against the party responsible therefor for the fees and disbursements.

(b) Upon making any an order for dismissal of an action affecting the family or for vacation of a judgment granted in any such the order, the court shall, prior to or in its order of dismissal or vacation, also preserve the right of the state or a political subdivision of the state to collect any arrearages, by an action under this chapter or under ch. 785, owed to the state if either party in the case was a recipient of aid under ch. 49.

Note: Clarifies the application of the provision to withdrawal of an attorney from an action affecting the family.

443,93 Section 93. 767.235 (3) (title) of the statutes is created to read:

767.235 (3) (title) Exclusion from courtroom.

443,94 Section 94. 767.24 (title) of the statutes is renumbered 767.41 (title).

443,95 Section 95. 767.24 (1) (title) of the statutes is renumbered 767.41 (1) (title).

443,96 Section 96 . 767.24 (1) of the statutes is renumbered 767.41 (1) (b) and amended to read:

767.41 (1) (b) In rendering a judgment of annulment, divorce, legal separation, or paternity, or in rendering a judgment in an action under s. 767.02 (1) (e) or 767.62 (3) 767.001 (1) (e), 767.501, or 767.805 (3), the court shall make such provisions as it deems just and reasonable concerning the legal custody and physical placement of any minor child of the parties, as provided in this section.

Note: Adds actions to compel support and maintenance under renumbered s. 767.501 (former s. 767.08) to the list of actions covered by renumbered s. 767.41 (former s. 767.24), relating to legal custody and physical placement orders in specified actions affecting the family. See, also, Sec. 217 of this bill.

443,97 Section 97. 767.24 (1m) to (8) of the statutes, as affected by 2003 Wisconsin Act 130, are renumbered 767.41 (1m) to (8), and 767.41 (1m) (intro.), (3) (e) and (4) (d), as renumbered, are amended to read:

767.41 (1m) Parenting plan. (intro.) In an action for annulment, divorce, or legal separation, an action to determine paternity, or an action under s. 767.02 (1) (e) or 767.62 (3) 767. 001 (1) (e), 767.501, or 767.805 (3), in which legal custody or physical placement is contested, a party seeking sole or joint legal custody or periods of physical placement shall file a parenting plan with the court before any pretrial conference. Except for cause shown, a party required to file a parenting plan under this subsection who does not timely file a parenting plan waives the right to object to the other party's parenting plan. A parenting plan shall provide information about the following questions:

(3) (e) The charges for care furnished to a child whose custody is transferred under this subsection shall be pursuant to the procedure under s. 48.36 (1) or 938.36 (1) except as provided in s. 767.29 767.57 (3).

(4) (d) If the court grants periods of physical placement to more than one parent, it shall order a parent with legal custody and physical placement rights to provide the notice required under s. 767.327 767.481 (1).

443,98 Section 98. 767.24 (9) of the statutes is repealed.

Note: Deletes an obsolete applicability provision.

443,99 Section 99. 767.241 (1) (title), (2) (title), (3) (title) and (4) (title) of the statutes are created to read:

767.241 (1) (title) Court authority.

(2) (title) Preaction and postaction fees.

(3) (title) To whom paid.

(4) (title) Payment by state or county.

443,100 Section 100. 767.242 of the statutes, as affected by 2001 Wisconsin Act 109, is renumbered 767.471, and 767.471 (1) (a) and (b), (2) (intro.), (3), (4), (5) (a), (b) (intro.), 1. b. and 2. b. and c., (c), (d) and (e) and (6) (a) and (b), as renumbered, are amended to read:

767.471 (1) (a) "Petitioner" "Moving party" means the parent filing a petition motion under this section, regardless of whether that parent was the petitioner in the action in which periods of physical placement were awarded under s. 767.24 767.41.

(b) "Respondent" "Responding party" means the parent upon whom a petition motion under this section is served, regardless of whether that parent was the respondent in the action in which periods of physical placement were awarded under s. 767.24 767.41.

(2) Who may file. (intro.) A parent who has been awarded periods of physical placement under s. 767.24 767.41 may file a petition motion under sub. (3) if any of the following applies:

(3) Petition Motion. (a) The petition motion shall allege facts sufficient to show the following:

1. The name of the petitioner moving party and that the petitioner moving party has been awarded periods of physical placement.

2. The name of the respondent responding party.

3. That one or more of the criteria in sub. (2) apply.

(b) The petition motion shall request the imposition of a remedy or any combination of remedies under sub. (5) (b) and (c). This paragraph does not prohibit a judge or circuit court commissioner court from imposing a remedy under sub. (5) (b) or (c) if the remedy was not requested in the petition motion.

(c) A judge or circuit court commissioner court shall accept any legible petition motion for an order under this section.

(d) The petition motion shall be filed under the principal action under which the periods of physical placement were awarded.

(e) A petition motion under this section is a motion for remedial sanction for purposes of s. 785.03 (1) (a).

(4) Service on respondent responding party; response. Upon the filing of a petition motion under sub. (3), the petitioner moving party shall serve a copy of the petition motion upon the respondent responding party by personal service in the same manner as a summons is served under s. 801.11. The respondent responding party may respond to the petition motion either in writing before or at the hearing under sub. (5) (a) or orally at that hearing.

(5) (a) A judge or circuit court commissioner The court shall hold a hearing on the petition motion no later than 30 days after the petition motion has been served, unless the time is extended by mutual agreement of the parties or upon the motion of a guardian ad litem and the approval of the judge or circuit court commissioner court. The judge or circuit court commissioner court may, on his or her its own motion or the motion of any party, order that a guardian ad litem be appointed for the child prior to the hearing.

(b) (intro.) If, at the conclusion of the hearing , the judge or circuit court commissioner court finds that the respondent responding party has intentionally and unreasonably denied the petitioner moving party one or more periods of physical placement or that the respondent responding party has intentionally and unreasonably interfered with one or more of the petitioner's moving party's periods of physical placement, the court or circuit court commissioner:

1. b. Award the petitioner moving party a reasonable amount for the cost of maintaining an action under this section and for attorney fees.

2. b. Find the respondent responding party in contempt of court under ch. 785.

c. Grant an injunction ordering the respondent responding party to strictly comply with the judgment or order relating to the award of physical placement. In determining whether to issue an injunction, the judge or circuit court commissioner court shall consider whether alternative remedies requested by the petitioner moving party would be as effective in obtaining compliance with the order or judgment relating to physical placement.

(c) If, at the conclusion of the hearing, the judge or circuit court commissioner court finds that the petitioner moving party has incurred a financial loss or expenses as a result of the respondent's responding party's failure, intentionally and unreasonably and without adequate notice to the petitioner moving party, to exercise one or more periods of physical placement under an order allocating specific times for the exercise of periods of physical placement, the judge or circuit court commissioner court may issue an order requiring the respondent responding party to pay to the petitioner moving party a sum of money sufficient to compensate the petitioner moving party for the financial loss or expenses.

(d) Except as provided in par. (b) 1. a. and 2. a., the judge or circuit court commissioner court may not modify an order of legal custody or physical placement in an action under this section.

(e) An injunction issued under par. (b) 2. c. is effective according to its terms, for the period of time that the petitioner moving party requests, but not more than 2 years.

(6) (a) If an injunction is issued under sub. (5) (b) 2. c., upon request by the petitioner the judge or circuit court commissioner moving party the court shall order the sheriff to assist the petitioner moving party in executing or serving the injunction.

(b) Within 24 hours after a request by the petitioner moving party, the clerk of the circuit court shall send a copy of an injunction issued under sub. (5) (b) 2. c. to the sheriff or to any other local law enforcement agency that is the central repository for orders and that has jurisdiction over the respondent's responding party's residence. If the respondent responding party does not reside in this state, the clerk shall send a copy of the injunction to the sheriff of the county in which the circuit court is located.

Note: Replaces "petition" with "motion", "petitioner" with "moving party", and "respondent" with "responding party". This change is intended to avoid the current confusion resulting from using "petition", "petitioner", and "respondent" with reference to both the original petition in the action in which physical placement was ordered and the petition to enforce that order under this section, current s. 767.242.

443,101 Section 101. 767.245 of the statutes is renumbered 767.43, and 767.43 (4), as renumbered, is amended to read:

767.43 (4) Paternity determination. If the paternity of the child has not yet been determined in an action under sub. (3) that is commenced by a person other than a parent of the child's mother but the person filing the petition under sub. (3) has, in conjunction with that petition, filed a petition or motion under s. 767.45 767.80 (1) (k), the court shall make a determination as to paternity before determining visitation rights under sub. (3).

443,102 Section 102. 767.247 of the statutes is renumbered 767.44 and amended to read:

767.44 Prohibiting visitation or physical placement if a parent kills other parent. (1) When prohibited. Notwithstanding ss. 767.23 (1) (am), 767.24 (1), (4) and (5), 767.51 (3) and 767.62 (4) (a) 767.225 (1) (am), 767.41 (1), (4), and (5), 767.805 (4) (a), and 767.89 (3) and except as provided in sub. (2), in an action under this chapter that affects a minor child, a court or circuit court commissioner may not grant to the child's parent visitation or physical placement rights with the child if the parent has been convicted under s. 940.01 of the first-degree intentional homicide, or under s. 940.05 of the 2nd-degree intentional homicide, of the child's other parent, and the conviction has not been reversed, set aside, or vacated.

(2) When not applicable. Subsection (1) does not apply if the court or circuit court commissioner determines by clear and convincing evidence that the visitation or periods of physical placement would be in the best interests of the child. The court or circuit court commissioner shall consider the wishes of the child in making the determination.

443,103 Section 103. 767.25 (title) and (1) to (4) of the statutes are renumbered 767.511 (title) and (1) to (4), and 767.511 (1) and (1m) (em) and (f), as renumbered, are amended to read:

767.511 (1) When ordered. Whenever When the court approves a stipulation for child support under s. 767.10 767.34, enters a judgment of annulment, divorce, or legal separation, or enters an order or a judgment in a paternity action or in an action under s. 767.02 (1) (f) or (j), 767.08 or 767.62 (3) 767.001 (1) (f) or (j), 767.501, or 767.805 (3), the court shall do all of the following:

(a) Order either or both parents to pay an amount reasonable or necessary to fulfill a duty to support a child. The support amount must be expressed as a fixed sum unless the parties have stipulated to expressing the amount as a percentage of the payer's income and the requirements under s. 767.10 767.34 (2) (am) 1. to 3. are satisfied.

(b) Ensure that the parties have stipulated which party, if either is eligible, will claim each child as an exemption for federal income tax purposes under 26 USC 151 (c) (1) (B), or as an exemption for state income tax purposes under s. 71.07 (8) (b) or under the laws of another state. If the parties are unable to reach an agreement about the tax exemption for each child, the court shall make the decision in accordance with state and federal tax laws. In making its decision, the court shall consider whether the parent who is assigned responsibility for the child's health care expenses under sub. (4m) s. 767.513 is covered under a health insurance policy or plan, including a self-insured plan, that is not subject to s. 632.897 (10) and that conditions coverage of a dependent child on whether the child is claimed by the insured parent as an exemption for purposes of federal or state income taxes.

(1m) (em) Extraordinary travel expenses incurred in exercising the right to periods of physical placement under s. 767.24 767.41.

(f) The physical, mental, and emotional health needs of the child, including any costs for health insurance as provided for under sub. (4m) s. 767.513.

443,104 Section 104 . 767.25 (4m) of the statutes is renumbered 767.513, and 767.513 (1) to (3), (4) (b), (5) (b) and (6), as renumbered, are amended to read:

767.513 (1) Definition. In this subsection section, "health insurance" does not include medical assistance provided under subch. IV of ch. 49.

(2) Responsibility and payment. In addition to ordering child support for a child under sub. s. 767.511 (1), the court shall specifically assign responsibility for and direct the manner of payment of the child's health care expenses. In assigning responsibility for a child's health care expenses, the court shall consider whether a child is covered under a parent's health insurance policy or plan at the time the court approves a stipulation for child support under s. 767.10 767.34, enters a judgment of annulment, divorce, or legal separation, or enters an order or a judgment in a paternity action or in an action under s. 767.02 (1) (f) or (j), 767.08 or 767.62 (3) 767.001 (1) (f) or (j), 767.501, or 767.805 (3), the availability of health insurance to each parent through an employer or other organization, the extent of coverage available to a child, and the costs to the parent for the coverage of the child. A parent may be required to initiate or continue health care insurance coverage for a child under this subsection section. If a parent is required to do so, he or she shall provide copies of necessary program or policy identification to the custodial parent and is liable for any health care costs for which he or she receives direct payment from an insurer. This subsection section shall not be construed to limit the authority of the court to enter or modify support orders containing provisions for payment of medical expenses, medical costs, or insurance premiums which that are in addition to and not inconsistent with this subsection section.

(3) Income withholding and assignment. (a) In directing the manner of payment of a child's health care expenses, the court may order that payment, including payment for health insurance premiums, be withheld from income and sent to the appropriate health care insurer, provider, or plan, as provided in s. 767.265 767.75 (3h), or sent to the department or its designee , whichever is appropriate, for disbursement to the person for whom the payment has been awarded if that person is not a health care insurer, provider, or plan. If the court orders income withholding and assignment for the payment of health care expenses, the court or county child support agency under s. 59.53 (5) shall send notice of assignment in the manner provided under s. 767.265 767.75 (2r) and may include the notice of assignment under this subdivision paragraph with a notice of assignment under s. 767.265 767.75. The department or its designee, whichever is appropriate, shall keep a record of all moneys received and disbursed by the department or its designee for health care expenses that are directed to be paid to the department or its designee.

(b) If the court orders a parent to initiate or continue health insurance coverage for a child under a health insurance policy that is available to the parent through an employer or other organization but the court does not specify the manner in which payment of the health insurance premiums shall be made, the clerk of court or county child support agency under s. 59.53 (5) may provide notice of assignment in the manner provided under s. 767.265 767.75 (2r) for the withholding from income of the amount necessary to pay the health insurance premiums. The notice of assignment under this subdivision paragraph may be sent with or included as part of any other notice of assignment under s. 767.265, if appropriate 767.75. A person who receives notice of assignment under this subdivision paragraph shall send the withheld health insurance premiums to the appropriate health care insurer, provider, or plan, as provided in s. 767.265 767.75 (3h).

(4) (b) Provide family coverage of health care expenses for the child, if eligible for coverage, upon application by the parent, the child's other parent, the department, or the county child support agency under s. 59.53 (5), or upon receiving a notice under par. (f) 1. sub. (6) (a).

(5) (b) Section 767.265 767.75 (4) applies to a garnishment based on a judgment obtained under subd. 1. par. (a).

(6) Change of employment; notice. (a) If a parent who provides coverage of the health care expenses of a child under an order under this subsection section changes employers and that parent has a court-ordered child support obligation with respect to the child, the county child support agency under s. 59.53 (5) shall provide notice of the order to provide coverage of the child's health care expenses to the new employer and to the parent.

(b) The notice provided to the parent shall inform the parent that coverage for the child under the new employer's health benefit plan will be in effect upon the employer's receipt of the notice. The notice shall inform the parent that he or she may, within 10 business days after receiving the notice, by motion request a hearing before the court on the issue of whether the order to provide coverage of the child's health care expenses should remain in effect. A motion under this subdivision paragraph may be heard by a circuit court commissioner. If the parent requests a hearing and the court or circuit court commissioner determines that the order to provide coverage of the child's health care expenses should not remain in effect, the court shall provide notice to the employer that the order is no longer in effect.

Note: Section 104 renumbers s. 767.25 (4m) (health care expenses) so that it becomes a stand alone section, separate from the general child support section. See, also, the creation of s. 767.511 (1) (c) by Sec. 219 of the bill.

443,105 Section 105. 767.25 (5) to (7) of the statutes are renumbered 767.511 (5) to (7), and 767.511 (5), (6) (intro.) and (7), as renumbered, are amended to read:

767.511 (5) Liability for past support. Subject to ss. 767.51 (4) and 767.62 (4m) 767.805 (4m) and 767.89 (4), liability for past support shall be is limited to the period after the birth of the child.

(6) Interest on arrearage. (intro.) A party ordered to pay child support under this section shall pay simple interest at the rate of 1% per month on any amount in arrears that is equal to or greater than the amount of child support due in one month. If the party no longer has a current obligation to pay child support, interest at the rate of 1% per month shall accrue on the total amount of child support in arrears, if any. Interest under this subsection is in lieu of interest computed under s. 807.01 (4), 814.04 (4), or 815.05 (8) and is paid to the department or its designee under s. 767.29 767.57. Except as provided in s. 767.29 767.57 (1m), the department or its designee, whichever is appropriate, shall apply all payments received for child support as follows:

(7) Effect of joint legal custody. An order of joint legal custody under s. 767.24 767.41 does not affect the amount of child support ordered.

443,106 Section 106. 767.253 (title) of the statutes is repealed.

443,107 Section 107. 767.253 of the statutes is renumbered 767.55 (1) and amended to read:

767.55 (1) Generally. In an action for modification of a child support order under s. 767.32 767.59 or an action in which an order for child support is required under s. 767.25 (1), 767.51 (3) or 767.62 (4) 767.511 (1), 767.805 (4), or 767.89 (3), the court may order either or both parents of the child to seek employment or participate in an employment or training program.

443,108 Section 108. 767.254 of the statutes is renumbered 767.55 (4), and 767.55 (4) (a) (intro.) and 4. and (b) (intro.), as renumbered, are amended to read:

767.55 (4) (a) (intro.) In this section subsection, "unemployed teenage parent" means a parent who satisfies all of the following criteria:

4. Would be ordered to make payments for the support of a child but for par. (c) subd. 3.

(b) (intro.) In an action for revision of a judgment or order providing for child support under s. 767.32 767.59 or an action in which an order for child support is required under s. 767.25 (1), 767.51 (3) or 767.62 (4) 767.511 (1), 767.805 (4), or 767.89 (3), the court shall order an unemployed teenage parent to do one or more of the following:

443,109 Section 109 . 767.255 of the statutes is renumbered 767.61, and 767.61 (1) and (3) (i), as renumbered, are amended to read:

767.61 (1) Division required. Upon every judgment of annulment, divorce, or legal separation, or in rendering a judgment in an action under s. 767.02 767.001 (1) (h), the court shall divide the property of the parties and divest and transfer the title of any such property accordingly. A certified copy of the portion of the judgment that affects title to real estate shall be recorded in the office of the register of deeds of the county in which the lands so affected are situated. The court may protect and promote the best interests of the children by setting aside a portion of the property of the parties in a separate fund or trust for the support, maintenance, education and general welfare of any minor children of the parties.

Note: 1. The language stricken from the first sentence, and the stricken second sentence, are relocated, with revisions, into new subs. (5) (a) and (6). See Sec. 232 of this bill.

2. The last sentence is relocated to new sub. (4). See Sec. 232 of this bill.

(3) (i) The amount and duration of an order under s. 767.26 767.56 granting maintenance payments to either party, any order for periodic family support payments under s. 767.261 767.531 and whether the property division is in lieu of such payments.

443,110 Section 110. 767.26 of the statutes is renumbered 767.56, and 767.56 (intro.), (3) and (8), as renumbered, are amended to read:

767.56 Maintenance payments. (intro.) Upon every a judgment of annulment, divorce , or legal separation, or in rendering a judgment in an action under s. 767.02 767.001 (1) (g) or (j), the court may grant an order requiring maintenance payments to either party for a limited or indefinite length of time after considering:

(3) The division of property made under s. 767.255 767.61.

(8) Any mutual agreement made by the parties before or during the marriage, according to the terms of which one party has made financial or service contributions to the other with the expectation of reciprocation or other compensation in the future, where such if the repayment has not been made, or any mutual agreement made by the parties before or during the marriage concerning any arrangement for the financial support of the parties.

443,111 Section 111. 767.261 of the statutes is renumbered 767.531, and 767.531 (intro.), as renumbered, is amended to read: