SB112: Bill Text

SB112,1,4 An Act to repeal 20.625 (3); to amend 48.977 (4) (b) 5., 48.978 (2) (b) 10., 303.068 (1m), 767.05 (2), 801.05 (11) and 948.31 (3) (b); and to repeal and recreate chapter 822 of the statutes; relating to: the Uniform Child Custody Jurisdiction and Enforcement Act.

Analysis by the Legislative Reference Bureau

This bill replaces the Uniform Child Custody Jurisdiction Act (UCCJA), enacted into current law in 1975, with the updated Uniform Child Custody Jurisdiction and Enforcement Act (UCCJEA), which was in 1997 approved and recommended for passage in all states by the National Conference of Commissioners on Uniform State Laws. The purpose of the UCCJEA is to standardize among the states the general procedural and jurisdictional requirements for interstate child custody matters, which under the UCCJEA include legal custody, physical placement, and visitation.

With respect to child custody proceedings and orders, the UCCJEA does all of the following:

1. Specifies what notice is sufficient for a court to have jurisdiction over a person who is outside the state and specifies to whom notice must be given before a court may make a child custody determination.

2. Authorizes a court of one state to communicate with a court of another state concerning a child custody proceeding in one of those states and to request the court of the other state to perform various functions, such as ordering an evaluation, holding an evidentiary hearing, and forwarding a transcript of a hearing.

3. Specifies the circumstances under which a court of a state has jurisdiction to make an initial child custody determination, such as when the state is the home state of the child.

4. Authorizes temporary emergency jurisdiction to make a child custody determination if the child is present in the state and has been abandoned or is being subjected to or threatened with mistreatment or abuse.

5. Specifies how long a court that made a child custody determination has exclusive, continuing jurisdiction over the determination, such as until a court of that or another state determines that the child and the child's parents no longer reside in the state.

6. Specifies the circumstances under which a court that made a child custody determination has jurisdiction to modify that determination and the circumstances under which a court has jurisdiction to modify a child custody determination made by a court of another state.

7. Specifies that a court may decline to exercise its jurisdiction to make a child custody determination if it is an inconvenient forum and provides factors for a court to consider in making that determination.

8. Provides procedures for a court to follow with respect to a child custody proceeding if a child custody proceeding already has been commenced in another state.

9. Specifies basic information that must be included in the first pleading in a child custody proceeding and the persons whom the court may require to appear in a child custody proceeding.

10. Imposes a duty on a court to recognize and enforce a child custody determination made by another court if that other court exercised jurisdiction in conformity with the standards under the UCCJEA.

11. Provides defenses for a respondent when a court orders that a petitioner may take immediate physical custody of a child.

12. Authorizes a court to issue a warrant that directs law enforcement to take immediate physical custody of a child if the court finds that the child is imminently likely to suffer serious physical harm or be removed from the state.

In general, the UCCJEA under the bill provides clearer standards for original jurisdiction in child custody proceedings and more complete standards for jurisdiction to modify child custody determinations than does the UCCJA under current law. In addition, the UCCJEA adds standards for continuing jurisdiction over child custody determinations, for temporary emergency jurisdiction over child custody matters, and for enforcement of child custody determinations.

The people of the state of Wisconsin, represented in senate and assembly, do enact as follows:

SB112, s. 1 Section 1. 20.625 (3) of the statutes is repealed.

SB112, s. 2 Section 2. 48.977 (4) (b) 5. of the statutes is amended to read:

SB112,3,3 48.977 (4) (b) 5. A statement of whether the proceedings are subject to the uniform child custody jurisdiction act Uniform Child Custody Jurisdiction and Enforcement Act under ch. 822.

SB112, s. 3 Section 3. 48.978 (2) (b) 10. of the statutes is amended to read:

SB112,3,7 48.978 (2) (b) 10. A statement of whether the proceedings are subject to the uniform child custody jurisdiction act Uniform Child Custody Jurisdiction and Enforcement Act under ch. 822.

SB112, s. 4 Section 4. 303.068 (1m) of the statutes is amended to read:

SB112,3,10 303.068 (1m) In sub. (1), "parent" includes a person who was previously a person acting as a parent, as defined in s. 822.02 (8) (13), for the inmate.

SB112, s. 5 Section 5. 767.05 (2) of the statutes is amended to read:

SB112,3,20 767.05 (2) Actions for custody of children. Subject to ch. 822, the question of a child's custody may be determined as an incident of any action affecting the family or in an independent action for custody. The effect of any determination of a child's custody shall not be binding personally against any parent or guardian unless the parent or guardian has been made personally subject to the jurisdiction of the court in the action as provided under ch. 801 or has been notified under s. 822.05 822.08 as provided in s. 822.12 822.06. Nothing in this section may be construed to foreclose a person other than a parent who has physical custody of a child from proceeding under ch. 822.

SB112, s. 6 Section 6. 801.05 (11) of the statutes is amended to read:

SB112,4,7 801.05 (11) Certain marital actions. In addition to personal jurisdiction under sub. (1) and s. 801.06, in any action affecting the family, except for actions under ch. 769, in which a personal claim is asserted against the respondent commenced in the county in which the petitioner resides at the commencement of the action when the respondent resided in this state in marital relationship with the petitioner for not less than 6 consecutive months within the 6 years next preceding the commencement of the action and the respondent is served personally under s. 801.11. The effect of any determination of a child's custody shall not be binding personally against any parent or guardian unless the parent or guardian has been made personally subject to the jurisdiction of the court in the action as provided under this chapter or has been notified under s. 822.05 822.08 as provided in s. 822.12 822.06.

SB112, s. 7 Section 7. Chapter 822 of the statutes is repealed and recreated to read:

SB112,4,12 Chapter 822 uniform child custody Jurisdiction and enforcement act

SB112,4,14 Subchapter I GENERAL PROVISIONS

SB112,4,17 822.01 Short title; purposes; construction of provisions. (1) This chapter may be cited as the "Uniform Child Custody Jurisdiction and Enforcement Act."

SB112,4,18 (2) The general purposes of this chapter are to do all of the following:

SB112,4,21 (a) Avoid jurisdictional competition and conflict with courts of other states in matters of child custody that have in the past resulted in the shifting of children from state to state with harmful effects on their well-being.

SB112,4,23 (b) Promote cooperation with the courts of other states to the end that a custody decree is rendered in the state that can best decide the case in the interest of the child.

SB112,4,25 (c) Discourage the use of the interstate system for continuing controversies over child custody.

SB112,5,1 (d) Deter abductions of children.

SB112,5,2 (e) Avoid relitigation in this state of custody decisions of other states.

SB112,5,3 (f) Facilitate the enforcement of custody decrees of other states.

SB112,5,4 822.02 Definitions. In this chapter:

SB112,5,6 (1) "Abandoned" means left without provision for reasonable and necessary care or supervision.

SB112,5,7 (2) "Child" means an individual who has not attained 18 years of age.

SB112,5,12 (3) "Child custody determination" means a judgment, decree, or other order of a court providing for legal custody, physical custody, physical placement, or visitation with respect to a child. The term includes a permanent, temporary, initial, and modification order. The term does not include an order relating to child support or other monetary obligation of an individual.

SB112,5,19 (4) "Child custody proceeding" means a proceeding in which legal custody, physical custody, physical placement, or visitation with respect to a child is an issue. The term includes a proceeding for divorce, legal separation, neglect, abuse, dependency, guardianship, paternity, termination of parental rights, and protection from domestic violence, in which the issue may appear. "Child custody proceeding" does not include a proceeding involving juvenile delinquency, contractual emancipation, or enforcement under subch. III.

SB112,5,20 (5) "Commencement" means the filing of the first pleading in a proceeding.

SB112,5,22 (6) "Court" means an entity authorized under the law of a state to establish, enforce, or modify a child custody determination.

SB112,6,3 (7) "Home state" means the state in which a child lived with a parent or a person acting as a parent for at least 6 consecutive months immediately before the commencement of a child custody proceeding. In the case of a child less than 6 months of age, the term means the state in which the child lived from birth with any of the persons mentioned in this subsection. A period of temporary absence of any of the persons mentioned in this subsection is part of the period.

SB112,6,5 (8) "Initial determination" means the first child custody determination concerning a particular child.

SB112,6,7 (9) "Issuing court" means the court that makes a child custody determination for which enforcement is sought under this chapter.

SB112,6,9 (10) "Issuing state" means the state in which a child custody determination is made.

SB112,6,13 (11) "Modification" means a child custody determination that changes, replaces, supersedes, or is otherwise made after a previous determination concerning the same child, whether or not it is made by the court that made the previous determination.

SB112,6,17 (12) "Person" means an individual, corporation, business trust, estate, trust, partnership, limited liability company, association, joint venture, or government; governmental subdivision, agency, or instrumentality; public corporation; or any other legal or commercial entity.

SB112,6,19 (13) "Person acting as a parent" means a person, other than a parent, to whom all of the following apply:

SB112,6,22 (a) He or she has physical custody of the child or has had physical custody for a period of 6 consecutive months, including any temporary absence, within one year immediately before the commencement of a child custody proceeding.

SB112,6,24 (b) He or she has been awarded legal custody by a court or claims a right to legal custody under the law of this state.

SB112,6,25 (14) "Physical custody" means the physical care and supervision of a child.

SB112,7,3 (15) "State" means a state of the United States, the District of Columbia, Puerto Rico, the U.S. Virgin Islands, or any territory or insular possession subject to the jurisdiction of the United States.

SB112,7,5 (16) "Tribe" means an American Indian tribe or band, or Alaskan Native village, that is recognized by federal law or formally acknowledged by a state.

SB112,7,7 (17) "Warrant" means an order issued by a court authorizing law enforcement officers to take physical custody of a child.

SB112,7,10 822.03 Proceedings governed by other law. This chapter does not govern an adoption proceeding or a proceeding pertaining to the authorization of emergency medical care for a child.

SB112,7,14 822.04 Application to Indian tribes. (1) A child custody proceeding that pertains to an Indian child as defined in the Indian Child Welfare Act, 25 USC 1901 et seq., is not subject to this chapter to the extent that it is governed by the Indian Child Welfare Act.

SB112,7,16 (2) A court of this state shall treat a tribe as if it were a state for the purpose of applying subchs. I and II.

SB112,7,19 (3) A child custody determination made by a tribe under factual circumstances in substantial conformity with the jurisdictional standards of this chapter shall be recognized and enforced under subch. III.

SB112,7,22 822.05 International application. (1) A court of this state shall treat a foreign country as if it were a state for the purpose of applying this subchapter and subch. II.

SB112,8,2 (2) Except as provided in sub. (3), a child custody determination made in a foreign country under factual circumstances in substantial conformity with the jurisdictional standards of this chapter shall be recognized and enforced under subch. III.

SB112,8,4 (3) A court of this state need not apply this chapter if the child custody law of a foreign country violates fundamental principles of human rights.

SB112,8,11 822.06 Effect of child custody determination. A child custody determination made by a court of this state that had jurisdiction under this chapter binds all persons who have been served in accordance with the laws of this state or notified in accordance with s. 822.08 or who have submitted to the jurisdiction of the court, and who have been given an opportunity to be heard. As to those persons, the determination is conclusive as to all decided issues of law and fact except to the extent that the determination is modified.

SB112,8,14 822.07 Priority. If a question of existence or exercise of jurisdiction under this chapter is raised in a child custody proceeding, the question, upon request of a party, shall be given priority on the calendar and handled expeditiously.

SB112,8,19 822.08 Notice to persons outside state. (1) Notice required for the exercise of jurisdiction when a person is outside this state may be given in a manner prescribed by the law of this state for service of process or by the law of the state in which the service is made. Notice shall be given in a manner reasonably calculated to give actual notice but may be by publication if other means are not effective.

SB112,8,21 (2) Proof of service may be made in the manner prescribed by law of this state or by the law of the state in which the service is made.

SB112,8,23 (3) Notice is not required for the exercise of jurisdiction with respect to a person who submits to the jurisdiction of the court.

SB112,9,4 822.09 Appearance and limited immunity. (1) A party to a child custody proceeding, including a modification proceeding, or a petitioner or respondent in a proceeding to enforce or register a child custody determination, is not subject to personal jurisdiction in this state for another proceeding or purpose solely by reason of having participated, or of having been physically present for the purpose of participating, in the proceeding.

SB112,9,8 (2) A person who is subject to personal jurisdiction in this state on a basis other than physical presence is not immune from service of process in this state. A party present in this state who is subject to the jurisdiction of another state is not immune from service of process allowable under the laws of that state.

SB112,9,11 (3) The immunity granted by sub. (1) does not extend to civil litigation based on acts unrelated to the participation in a proceeding under this chapter committed by an individual while present in this state.

SB112,9,14 822.10 Communication between courts. (1) In this section, "record" means information that is inscribed on a tangible medium or that is stored in an electronic or other medium and is retrievable in perceivable form.

SB112,9,16 (2) A court of this state may communicate with a court in another state concerning a proceeding arising under this chapter.

SB112,9,20 (3) The court may allow the parties to participate in the communication. If the parties are not able to participate in the communication, they shall be given the opportunity to present facts and legal arguments before a decision on jurisdiction is made.

SB112,9,23 (4) Communication between courts on schedules, calendars, court records, and similar matters may occur without informing the parties. A record need not be made of the communication.

SB112,10,3 (5) Except as provided in sub. (4), a record shall be made of a communication under this section. The parties shall be informed promptly of the communication and granted access to the record.

SB112,10,10 822.11 Taking testimony in another state. (1) In addition to other procedures available to a party, a party to a child custody proceeding may offer testimony of witnesses who are located in another state, including testimony of the parties and the child, by deposition or other means allowable in this state for testimony taken in another state. The court on its own motion may order that the testimony of a person be taken in another state and may prescribe the manner in which and the terms upon which the testimony is taken.

SB112,10,15 (2) A court of this state may permit an individual residing in another state to be deposed or to testify by telephone, audiovisual means, or other electronic means before a designated court or at another location in that state. A court of this state shall cooperate with courts of other states in designating an appropriate location for the deposition or testimony.

SB112,10,18 (3) Documentary evidence transmitted from another state to a court of this state by technological means that do not produce an original writing may not be excluded from evidence on an objection based on the means of transmission.

SB112,10,21 822.12 Cooperation between courts; preservation of records. (1) A court of this state may request the appropriate court of another state to do any of the following:

SB112,10,22 (a) Hold an evidentiary hearing.

SB112,10,23 (b) Order a person to produce or give evidence under procedures of that state.