SB112: Bill Text

SB112,16,2 (2) Except as provided in s. 822.24, a court of this state, before hearing a child custody proceeding, shall examine the court documents and other information supplied by the parties under s. 822.29. If the court determines that a child custody proceeding has been commenced in a court in another state having jurisdiction substantially in accordance with this chapter, the court of this state shall stay its proceeding and communicate with the court of the other state. If the court of the state having jurisdiction substantially in accordance with this chapter does not determine that the court of this state is a more appropriate forum, the court of this state shall dismiss the proceeding.

SB112,16,6 (3) In a proceeding to modify a child custody determination, a court of this state shall determine whether a proceeding to enforce the determination has been commenced in another state. If a proceeding to enforce a child custody determination has been commenced in another state, the court may do any of the following:

SB112,16,9 (a) Stay the proceeding for modification pending the entry of an order of a court of the other state enforcing, staying, denying, or dismissing the proceeding for enforcement.

SB112,16,10 (b) Enjoin the parties from continuing with the proceeding for enforcement.

SB112,16,11 (c) Proceed with the modification under conditions it considers appropriate.

SB112,16,17 822.27 Inconvenient forum. (1) A court of this state that has jurisdiction under this chapter to make a child custody determination may decline to exercise its jurisdiction at any time if it determines that it is an inconvenient forum under the circumstances and that a court of another state is a more appropriate forum. The issue of inconvenient forum may be raised upon the motion of a party, the court's own motion, or the request of another court.

SB112,16,21 (2) Before determining whether it is an inconvenient forum, a court of this state shall consider whether it is appropriate for a court of another state to exercise jurisdiction. For this purpose, the court shall allow the parties to submit information and shall consider all relevant factors, including all of the following:

SB112,16,23 (a) Whether domestic violence has occurred and is likely to continue in the future and which state could best protect the parties and the child.

SB112,16,24 (b) The length of time that the child has resided outside this state.

SB112,17,2 (c) The distance between the court in this state and the court in the state that would assume jurisdiction.

SB112,17,3 (d) The relative financial circumstances of the parties.

SB112,17,4 (e) Any agreement of the parties as to which state should assume jurisdiction.

SB112,17,6 (f) The nature and location of the evidence required to resolve the pending litigation, including testimony of the child.

SB112,17,8 (g) The ability of the court of each state to decide the issue expeditiously and the procedures necessary to present the evidence.

SB112,17,10 (h) The familiarity of the court of each state with the facts and issues in the pending litigation.

SB112,17,15 (3) If a court of this state determines that it is an inconvenient forum and that a court of another state is a more appropriate forum, the court shall stay the proceedings upon condition that a child custody proceeding be promptly commenced in another designated state and may impose any other condition that the court considers just and proper.

SB112,17,19 (4) A court of this state may decline to exercise its jurisdiction under this chapter if a child custody determination is incidental to an action for divorce or another proceeding while still retaining jurisdiction over the divorce or other proceeding.

SB112,17,24 822.28 Jurisdiction declined by reason of conduct. (1) Except as provided in s. 822.24, if a court of this state has jurisdiction under this chapter because a person seeking to invoke its jurisdiction has engaged in unjustifiable conduct, the court shall decline to exercise its jurisdiction unless any of the following occurs:

SB112,18,2 (a) The parents and all persons acting as parents have acquiesced in the exercise of jurisdiction.

SB112,18,4 (b) A court of the state otherwise having jurisdiction under ss. 822.21 to 822.23 determines that this state is a more appropriate forum under s. 822.27.

SB112,18,6 (c) No court of any other state would have jurisdiction under the criteria specified in ss. 822.21 to 822.23.

SB112,18,11 (2) If a court of this state declines to exercise its jurisdiction under sub. (1), it may fashion an appropriate remedy to ensure the safety of the child and prevent a repetition of the unjustifiable conduct, including staying the proceeding until a child custody proceeding is commenced in a court having jurisdiction under ss. 822.21 to 822.23.

SB112,18,19 (3) If a court dismisses a petition or stays a proceeding because it declines to exercise its jurisdiction under sub. (1), it shall assess against the party seeking to invoke its jurisdiction necessary and reasonable expenses including costs, communication expenses, attorney fees, investigative fees, expenses for witnesses, travel expenses, and expenses for child care during the course of the proceedings, unless the party from whom fees are sought establishes that the assessment would be clearly inappropriate. The court may not assess fees, costs, or expenses against this state unless authorized by law other than this chapter.

SB112,18,25 822.29 Information to be submitted to court. (1) In a child custody proceeding, each party, in its first pleading or in an attached affidavit, shall give information, if reasonably ascertainable, under oath as to the child's present address or whereabouts, the places where the child has lived during the last 5 years, and the names and present addresses of the persons with whom the child has lived during that period. The pleading or affidavit shall state whether the party:

SB112,19,4 (a) Has participated, as a party or witness or in any other capacity, in any other proceeding concerning the custody of or physical placement or visitation with the child and, if so, shall identify the court, the case number, and the date of the child custody determination, if any.

SB112,19,8 (b) Knows of any proceeding that could affect the current proceeding, including proceedings for enforcement and proceedings relating to domestic violence, protective orders, termination of parental rights, and adoptions and, if so, shall identify the court, the case number, and the nature of the proceeding.

SB112,19,12 (c) Knows the names and addresses of any person not a party to the proceeding who has physical custody of the child or claims rights of legal custody or physical custody of, or physical placement or visitation with, the child and, if so, the names and addresses of those persons.

SB112,19,15 (2) If the information required by sub. (1) is not furnished, the court, upon motion of a party or its own motion, may stay the proceeding until the information is furnished.

SB112,19,20 (3) If the declaration as to any of the items described in sub. (1) (a) to (c) is in the affirmative, the declarant shall give additional information under oath as required by the court. The court may examine the parties under oath as to details of the information furnished and other matters pertinent to the court's jurisdiction and the disposition of the case.

SB112,19,22 (4) Each party has a continuing duty to inform the court of any proceeding in this or any other state that could affect the current proceeding.

SB112,20,3 (5) If a party alleges in an affidavit or a pleading under oath that the health, safety, or liberty of a party or child would be jeopardized by disclosure of identifying information, the information shall be sealed and may not be disclosed to the other party or the public unless the court orders the disclosure to be made after a hearing in which the court takes into consideration the health, safety, or liberty of the party or child and determines that the disclosure is in the interest of justice.

SB112,20,8 822.295 Appearance of parties and child. (1) In a child custody proceeding in this state, the court may order a party to the proceeding who is in this state to appear before the court in person with or without the child. The court may order any person who is in this state and who has physical custody or control of the child to appear in person with the child.

SB112,20,13 (2) If a party to a child custody proceeding whose presence is desired by the court is outside this state, the court may order that a notice given under s. 822.08 include a statement directing the party to appear in person with or without the child and informing the party that failure to appear may result in a decision adverse to the party.

SB112,20,15 (3) The court may enter any orders necessary to ensure the safety of the child and of any person ordered to appear under this section.

SB112,20,19 (4) If a party to a child custody proceeding who is outside this state is directed to appear under sub. (2) or desires to appear personally before the court with or without the child, the court may require another party to pay reasonable and necessary travel and other expenses of the party so appearing and of the child.

SB112,20,21 Subchapter III enforcement

SB112,20,22 822.31 Definitions. In this subchapter:

SB112,20,24 (1) "Judicial day" means each day except Saturday, Sunday, or a legal holiday under s. 895.20.

SB112,21,3 (2) "Petitioner" means a person who seeks enforcement of an order for the return of a child under the Hague Convention on the Civil Aspects of International Child Abduction or enforcement of a child custody determination.

SB112,21,7 (3) "Respondent" means a person against whom a proceeding has been commenced for enforcement of an order for the return of a child under the Hague Convention on the Civil Aspects of International Child Abduction or enforcement of a child custody determination.

SB112,21,11 822.32 Enforcement under Hague Convention. Under this subchapter, a court of this state may enforce an order for the return of the child made under the Hague Convention on the Civil Aspects of International Child Abduction as if it were a child custody determination.

SB112,21,17 822.33 Duty to enforce. (1) A court of this state shall recognize and enforce a child custody determination of a court of another state if the latter court exercised jurisdiction in substantial conformity with this chapter or the determination was made under factual circumstances meeting the jurisdictional standards of this chapter and the determination has not been modified in accordance with this chapter.

SB112,21,21 (2) A court of this state may utilize any remedy available under other law of this state to enforce a child custody determination made by a court of another state. The remedies provided in this subchapter are cumulative and do not affect the availability of other remedies to enforce a child custody determination

SB112,21,24 822.34 Temporary physical placement or visitation. (1) A court of this state that does not have jurisdiction to modify a child custody determination may issue a temporary order enforcing any of the following:

SB112,22,2 (a) A physical placement or visitation schedule made by a court of another state.

SB112,22,5 (b) The physical placement or visitation provisions of a child custody determination of another state that does not provide for a specific physical placement or visitation schedule.

SB112,22,10 (2) If a court of this state makes an order under sub. (1) (b), it shall specify in the order a period that it considers adequate to allow the petitioner to obtain an order from a court having jurisdiction under the criteria specified in subch. II. The order remains in effect until an order is obtained from the other court or until the period expires.

SB112,22,14 822.35 Registration of child custody determination. (1) A child custody determination issued by a court of another state may be registered in this state, with or without a simultaneous request for enforcement, by sending to the office of the clerk of any circuit court in this state all of the following:

SB112,22,15 (a) A letter or other document requesting registration.

SB112,22,19 (b) Two copies, including one certified copy, of the determination sought to be registered, and a statement under penalty of perjury that to the best of the knowledge and belief of the person seeking registration the determination has not been modified.

SB112,22,23 (c) Except as provided in s. 822.29, the name and address of the person seeking registration and any parent or person acting as a parent who has been awarded custody, physical placement, or visitation in the child custody determination sought to be registered.

SB112,22,25 (2) On receipt of the documents required by sub. (1), the registering court shall do all of the following:

SB112,23,2 (a) Cause the determination to be filed as a foreign judgment, together with one copy of any accompanying documents and information, regardless of their form.

SB112,23,4 (b) Serve notice upon the persons named under sub. (1) (c) and provide them with an opportunity to contest the registration in accordance with this section.

SB112,23,5 (3) The notice required by sub. (2) (b) shall state all of the following:

SB112,23,7 (a) That a registered determination is enforceable as of the date of the registration in the same manner as a determination issued by a court of this state.

SB112,23,9 (b) That a hearing to contest the validity of the registered determination shall be requested within 20 days after service of the notice.

SB112,23,12 (c) That failure to contest the registration will result in confirmation of the child custody determination and preclude further contest of that determination with respect to any matter that could have been asserted.

SB112,23,16 (4) A person seeking to contest the validity of a registered determination shall request a hearing within 20 days after service of the notice. At that hearing, the court shall confirm the registered determination unless the person contesting registration establishes any of the following:

SB112,23,17 (a) The issuing court did not have jurisdiction under subch. II.

SB112,23,19 (b) The child custody determination sought to be registered has been vacated, stayed, or modified by a court having jurisdiction to do so under subch. II.

SB112,23,22 (c) The person contesting registration was entitled to notice, but notice was not given in accordance with the standards of s. 822.08 in the proceedings before the court that issued the determination for which registration is sought.

SB112,23,25 (5) If a timely request for a hearing to contest the validity of the registration is not made, the registration is confirmed as a matter of law and the person requesting registration and all persons served must be notified of the confirmation.

SB112,24,3 (6) Confirmation of a registered determination, whether by operation of law or after notice and hearing, precludes further contest of the determination with respect to any matter that could have been asserted at the time of registration.

SB112,24,6 822.36 Enforcement of registered determination. (1) A court of this state may grant any relief normally available under the law of this state to enforce a registered child custody determination made by a court of another state.

SB112,24,9 (2) A court of this state shall recognize and enforce, but may not modify, except in accordance with subch. II, a registered child custody determination of a court of another state.

SB112,24,16 822.37 Simultaneous proceedings. If a proceeding for enforcement under this subchapter is commenced in a court of this state and the court determines that a proceeding to modify the determination is pending in a court of another state having jurisdiction to modify the determination under subch. II, the enforcing court shall immediately communicate with the modifying court. The proceeding for enforcement continues unless the enforcing court, after consultation with the modifying court, stays or dismisses the proceeding.

SB112,24,20 822.38 Expedited enforcement of child custody determination. (1) A petition under this subchapter must be verified. Certified copies of all orders sought to be enforced and any order confirming registration must be attached to the petition. A copy of a certified copy of an order may be attached instead of the original.

SB112,24,22 (2) A petition for enforcement of a child custody determination shall state all of the following:

SB112,24,25 (a) Whether the court that issued the determination identified the jurisdictional basis it relied upon in exercising jurisdiction and, if so, what the basis was.

SB112,25,4 (b) Whether the determination for which enforcement is sought has been vacated, stayed, or modified by a court whose decision shall be enforced under this chapter and, if so, shall identify the court, the case number, and the nature of the proceeding.

SB112,25,8 (c) Whether any proceeding has been commenced that could affect the current proceeding, including proceedings relating to domestic violence, protective orders, determination of parental rights, and adoptions and, if so, shall identify the court, the case number, and the nature of the proceeding.

SB112,25,9 (d) The present physical address of the child and the respondent, if known.

SB112,25,12 (e) Whether relief, in addition to the immediate physical custody of the child and attorney fees is sought, including a request for assistance from law enforcement officials and, if so, the relief sought.

SB112,25,14 (f) If the child custody determination has been registered and confirmed under s. 822.35, the date and place of registration.

SB112,25,20 (3) Upon the filing of a petition, the court shall issue an order directing the respondent to appear in person with or without the child at a hearing and may enter any order necessary to ensure the safety of the parties and the child. The hearing shall be held on the next judicial day after service of the order unless that date is impossible. In that event, the court shall hold the hearing on the first judicial day possible. The court may extend the date of hearing at the request of the petitioner.

SB112,26,2 (4) An order issued under sub. (3) shall state the time and place of the hearing and advise the respondent that at the hearing the court will order that the petitioner may take immediate physical custody of the child and the payment of costs, fees, and expenses under s. 822.42, and the court may schedule a hearing to determine whether further relief is appropriate, unless the respondent appears and establishes one of the following:

SB112,26,4 (a) The child custody determination has not been registered and confirmed under s. 822.35 and any of the following:

SB112,26,5 1. The issuing court did not have jurisdiction under subch. II.

SB112,26,7 2. The child custody determination for which enforcement is sought has been vacated, stayed, or modified by a court having jurisdiction to do so under subch. II.

SB112,26,10 3. The respondent was entitled to notice, but notice was not given in accordance with the standards of s. 822.08 in the proceedings before the court that issued the order for which enforcement is sought.

SB112,26,13 (b) The child custody determination for which enforcement is sought was registered and confirmed under s. 822.35, but has been vacated, stayed, or modified by a court of a state having jurisdiction to do so under subch. II.

SB112,26,16 822.39 Service of petition and order. Except as provided in s. 822.41, the petition and order must be served, by any method authorized by the laws of this state, upon the respondent and any person who has physical custody of the child.

SB112,26,21 822.40 Hearing and order. (1) Unless the court issues a temporary emergency order under s. 822.24, upon a finding that a petitioner is entitled to immediate physical custody of the child, the court shall order that the petitioner may take immediate physical custody of the child unless the respondent establishes one of the following:

SB112,26,23 (a) The child custody determination has not been registered and confirmed under s. 822.35 and any of the following:

SB112,26,24 1. The issuing court did not have jurisdiction under subch. II.

SB112,27,3 2. The child custody determination for which enforcement is sought has been vacated, stayed, or modified by a court of a state having jurisdiction to do so under subch. II.

SB112,27,6 3. The respondent was entitled to notice, but notice was not given in accordance with the standards of s. 822.08 in the proceedings before the court that issued the order for which enforcement is sought.

SB112,27,9 (b) The child custody determination for which enforcement is sought was registered and confirmed under s. 822.35, but has been vacated, stayed, or modified by a court of a state having jurisdiction to do so under subch. II.