SB123: Bill Text

Note: Provides an exception to the requirement that the court incorporate the terms of a stipulation to modify physical placement or legal custody into the revised order: unless the court finds the modification is not in the best interest of the child. The exception is based on a court of appeals decision holding that acceptance of a stipulation is not mandatory and that the trial court is not prohibited from examining the best interests of the child. [Paternity of S.A., 165 Wis. 2d 530, 478 N.W.2d 21 (Ct. App. 1991).]

SB123, s. 167 Section 167. 767.33 of the statutes is renumbered 767.553, and 767.553 (1) (c), (2), (3), (4) (a) (intro.), (b), (c) (intro.) and (d) and (5), as renumbered, are amended to read:

SB123,94,15 767.553 (1) (c) In the order the court or circuit court commissioner shall specify what information the parties must exchange to determine whether the payer's income has changed, and shall specify the manner and timing of the information exchange.

SB123,95,2 (2) Form for stipulating. If the court or circuit court commissioner provides for an annual adjustment, the court or circuit court commissioner shall make available to the parties, including the state if the state is a real party in interest under s. 767.075 (1) 767.205 (2) (a), a form approved by the court or circuit court commissioner for the parties to use in stipulating to an adjustment of the amount of child or family support and to modification of any applicable income-withholding order. The form shall include an order, to be signed by a judge or circuit court commissioner the court, for approval of the stipulation of the parties.

SB123,95,7 (3) Income changes. (a) If the payer's income changes from the amount found by the court or circuit court commissioner or stipulated to by the parties for the current child or family support order, the parties may implement an adjustment under this section by stipulating, on the form under sub. (2), to the changed income amount and the adjusted child or family support amount, subject to sub. (1) (b).

SB123,95,14 (b) The stipulation form must shall be signed by all parties, including the state if the state is a real party in interest under s. 767.075 (1) 767.205 (2) (a), and filed with the court. If the stipulation is approved, the order shall be signed by a judge or circuit court commissioner the court and implemented in the same manner as an order for a revision under s. 767.32 767.59. An adjustment under this subsection shall be is effective as of the date on which the order is signed by the judge or circuit court commissioner.

SB123,95,18 (4) (a) (intro.) Any party, including the state if the state is a real party in interest under s. 767.075 (1) 767.205 (2) (a), may file a motion, petition, or order to show cause for implementation of an annual adjustment under this section if any of the following applies:

SB123,95,25 (b) If the court or circuit court commissioner determines after a hearing that an adjustment should be made, the court or circuit court commissioner shall enter an order adjusting the child or family support payments by the amount determined by the court or circuit court commissioner, subject to sub. (1) (b). An adjustment under this subsection may not take effect before the date on which the party responding to the motion, petition, or order to show cause received notice of the action under this subsection.

SB123,96,3 (c) (intro.) Notwithstanding par. (b), the court or circuit court commissioner may direct that all or part of the adjustment not take effect until such time as the court or circuit court commissioner directs, if any of the following applies:

SB123,96,10 (d) If in an action under this subsection the court or circuit court commissioner determines that a party has unreasonably failed to provide the information required under sub. (1) (c) or to provide the information on a timely basis, or unreasonably failed or refused to sign a stipulation for an annual adjustment, the court or circuit court commissioner may award to the aggrieved party actual costs, including service costs, any costs attributable to time missed from employment, the cost of travel to and from court, and reasonable attorney fees.

SB123,96,13 (5) (a) Nothing in this section affects a party's right to file at any time a motion, petition, or order to show cause under s. 767.32 767.59 for revision of a judgment or order with respect to an amount of child or family support.

SB123, s. 168 Section 168. 767.34 (2) (title) of the statutes is created to read:

SB123,96,15 767.34 (2) (title) Limitations on court approval.

SB123, s. 169 Section 169. 767.37 (title) of the statutes is renumbered 767.251 (title) and amended to read:

SB123,96,18 767.251 (title) Effect Content, preparation, and approval of judgment.

SB123, s. 170 Section 170 . 767.37 (1) (a) of the statutes is renumbered 767.251 and amended to read:

SB123,97,6 767.251 (1) Content. In any an action affecting the family, if the court orders maintenance payments or other allowances for a party or children or retains jurisdiction in such those matters, the written judgment shall include a provision statement that disobedience of the court order with respect to the same is punishable under ch. 785 by commitment to the county jail or house of correction until such the judgment is complied with and the costs and expenses of the proceedings are paid or until the party committed is otherwise discharged, according to law. The written judgment in any action affecting the family shall include the social security numbers of the parties and of any child of the parties Final written agreements and stipulations of the parties shall, unless set forth in the judgment, be appended to the judgment and incorporated by reference.

SB123,97,11 (2) Preparation. The findings of fact and, conclusions of law, and the written judgment shall be drafted by the attorney for the moving party petitioner unless the court otherwise directs, and shall be submitted to the court and filed with the clerk of the court within 30 days after judgment is granted; but if the respondent has been represented by counsel, the.

SB123,97,20 (3) Approval. The draft findings, conclusions, and judgment shall first be submitted to respondent's counsel for approval and if the circuit court commissioner has appeared at the trial of the action, such papers shall also be sent to the circuit court commissioner for approval be approved by all counsel appearing, including a guardian ad litem and county child support enforcement agency attorney, and any other person designated by the court or local rule. After any necessary approvals are obtained, the findings of fact, conclusions of law, and judgment shall be submitted to the court. Final stipulations of the parties may be appended to the judgment and incorporated by reference therein.

Note: 1. Subdivided into 3 subsections.

2. The last sentence, which is stricken, is revised and relocated to sub. (1). Final written agreements and stipulations now must be appended to the judgment (unless set forth in the judgment) and incorporated by reference.

3. Clarifies responsibility for preparation and approval of the draft findings, conclusions, and judgment.

SB123, s. 171 Section 171. 767.37 (1) (c) of the statutes is renumbered 767.36 and amended to read:

SB123,98,9 767.36 Copies of judgment to parties. At the time of filing any a judgment for an annulment, divorce, or legal separation, the attorney for the moving party who prepared the judgment shall present furnish to the clerk of court 2 true copies thereof of the judgment, including any attachments to the judgment referenced in the judgment, in addition to the original judgment, and until such. Until the copies are presented, the clerk may refuse to accept such the judgment for filing. After the judgment is filed, the clerk shall mail a copy forthwith promptly to each party to the action at the last-known address, and the mailing shall be shown in the court record shall show such mailing.

Note: Clarifies: (1) the party who prepared the judgment is to provide copies to the clerk; and (2) the copies are to include any attachments referenced in the judgment.

SB123, s. 172 Section 172. 767.37 (2) of the statutes is renumbered 767.35 (6) and amended to read:

SB123,99,12 767.35 (6) Vacating or modifying divorce judgment as it affects marital status. So far as a judgment of divorce affects the marital status of the parties, the court has the power to may vacate or modify the judgment for sufficient cause shown, upon its own motion, or upon the application of both parties to the action, at any time within 6 months from the granting of such the judgment. No such judgment shall be vacated or modified without service of notice of motion on the office of family court commissioner. The court may direct a circuit court commissioner or appoint some other attorney, to bring appropriate proceedings for the vacation of the judgment. The compensation of the circuit court commissioner when not on a salaried basis or other attorney for performing such services shall be at the rate of $50 per day, which shall be paid out of the county treasury upon order of the presiding judge and the certificate of the clerk of the court. If the judgment is vacated it shall restore the parties to the marital relation that existed before the granting of such the judgment. If after vacation of the judgment either of the parties brings an action in this state for divorce against the other the court may order the petitioner in such action to reimburse the county the amount paid by it to the circuit court commissioner or other attorney in connection with such vacation proceedings. Whenever If a judgment of divorce is set aside under this subsection, the court shall order the record in the action impounded without regard to s. 767.19; and thereafter neither 767.13. After the record is impounded, the record nor any part of the record shall may not be offered or admitted in whole or in part into evidence in any action or proceeding except by special order of the court of jurisdiction upon good cause shown in any paternity proceedings under this chapter or by special order of any a court of record upon a showing of necessity to clear title to real estate.

Note: Deletes, as obsolete, provisions relating to the court option to direct a circuit court commissioner or appoint an attorney to bring an action for vacating a divorce judgment under this section.

SB123, s. 173 Section 173. 767.37 (3) of the statutes is renumbered 767.35 (3) and amended to read:

SB123,99,20 767.35 (3) When divorce judgment effective. When a A judgment of divorce is granted it shall be effective immediately except as provided in s. 765.03 (2). Every judge who grants when granted. A court granting a judgment of divorce shall inform the parties appearing in court that the judgment is effective immediately except as provided in s. 765.03 (2) when granted but that it is unlawful under s. 765.03 (2) for a party to marry again until 6 months after the judgment is granted.

Note: Clarifies what the court is required to inform the parties concerning the limitation on remarrying under s. 765.03 (2).

SB123, s. 174 Section 174 . 767.38 of the statutes is renumbered 767.35 (7) and amended to read:

SB123,100,11 767.35 (7) Judgment Divorce judgment revoked on remarriage of parties. When a judgment of divorce has been granted and the parties shall afterwards subsequently intermarry, the court, upon their joint application and upon satisfactory proof of such the marriage, shall revoke all judgments and any orders which that will not affect the right of 3rd persons and. If the judgment is revoked, the court shall order the record impounded without regard to s. 767.19 767.13, and neither the record nor any part of the record shall may not be offered or admitted, in whole or in part, into evidence in any action or proceeding except by special order of the court of jurisdiction upon good cause shown in any a paternity proceedings proceeding under this chapter or by special order of any a court of record upon a showing of necessity to clear title to real estate.

SB123, s. 175 Section 175. 767.39 (title) of the statutes is repealed.

SB123, s. 176 Section 176 . 767.39 (1) of the statutes is renumbered 767.273 and amended to read:

SB123,100,23 767.273 Allowances pending appeal. In actions an action affecting the family pending in an appellate court, no an allowance for suit money, counsel fees, or disbursements in the court, nor or for temporary maintenance or support payments to the spouse or the children during the pendency of the appeal will may be made in the by the proper trial court upon motion made and decided after entry of the order or judgment appealed from and prior to the return of the record to appellate court. If the allowance is ordered before the appeal is taken, the order shall be conditioned upon the taking of the appeal and is not effective until the record is transmitted to appellate court.

Note: Incorporates the substance of current s. 767.39 (2), stats., which is repealed.

SB123, s. 177 Section 177. 767.39 (2) of the statutes is repealed.

Note: Restated in renumbered s. 767.273. See Sec. 176 of the bill.

SB123, s. 178 Section 178. 767.40 of the statutes is renumbered 785.07 and amended to read:

SB123,101,5 785.07 Contempt proceedings orders imposing confinement. All A contempt orders in which order imposing confinement is imposed shall be issued by a judge.

Note: Relocated to current ch. 785, stats., contempt of court. The provision has been interpreted as applying to contempt proceedings generally, not just those arising from an action affecting the family.

SB123, s. 179 Section 179. Subchapter V (title) of chapter 767 [precedes 767.401] of the statutes is created to read:

SB123,101,8 chapter 767

SB123,101,11 subchapter V child custody, placement, and visitation

SB123, s. 180 Section 180. 767.401 (1) (title) and (2) (title) of the statutes are created to read:

SB123,101,14 767.401 (1) (title) Programs: effects of dissolution on children; parenting skills.

SB123,101,15 (2) (title) Classes on parenting.

SB123, s. 181 Section 181. 767.405 (1) (intro.) of the statutes is created to read:

SB123,101,17 767.405 (1) Definitions. (intro.) In this section:

SB123, s. 182 Section 182 . 767.42 of the statutes is repealed.

Note: Repealed as obsolete. The section, which apparently is not currently in use, allows a county to seize and sell property for the support of a spouse or child if a person abandons and fails to support the spouse or child.

SB123, s. 183 Section 183. 767.43 (1) (title), (1m) (title), (2) (title), (2m) (title), (3) (title), (3c) (title), (3m) (title), (5) (title) and (6) (title) of the statutes are created to read:

SB123,101,21 767.43 (1) (title) Petition; who may file.

SB123,102,1 (1m) (title) Exception; homicide conviction.

SB123,102,2 (2) (title) Wishes of the child.

SB123,102,3 (2m) (title) When special grandparent provision applicable.

SB123,102,4 (3) (title) Special grandparent visitation provision.

SB123,102,5 (3c) (title) Action in which petition filed; alternatives.

SB123,102,6 (3m) (title) Pretrial hearing; recommendation.

SB123,102,7 (5) (title) Interference with visitation rights.

SB123,102,8 (6) (title) Modification of order if homicide conviction.

SB123, s. 184 Section 184. 767.45 of the statutes is renumbered 767.80, and 767.80 (1) (intro.), (c), (d), (g), (i) and (k), (5) (b), (5m), (6) (a) and (c), (6m), (6r) (a) 2. c. and (7), as renumbered, are amended to read:

SB123,102,15 767.80 (1) Who may bring action or file motion. (intro.) The following persons may bring an action or file a motion, including an action or motion for declaratory judgment, for the purpose of determining the paternity of a child or for the purpose of rebutting the presumption of paternity under s. 891.405 or 891.41 (1):

SB123,102,17 (c) Unless s. 767.62 767.805 (1) applies, a man male presumed to be the child's father under s. 891.405 or 891.41 (1).

SB123,102,18 (d) A man male alleged or alleging himself to be the father of the child.

SB123,102,20 (g) This state whenever the circumstances specified in s. 767.075 (1) 767.205 (2) (a) apply, including the delegates of the state as specified in sub. (6).

SB123,102,22 (i) A guardian ad litem appointed for the child under s. 48.235, 767.045 767.407 (1) (c), or 938.235.

SB123,103,2 (k) In conjunction with the filing of a petition for visitation with respect to the child under s. 767.245 767.43 (3), a parent of a person who has filed a declaration of paternal interest under s. 48.025 with respect to the child or a parent of a person who, before April 1, 1998, signed and filed a statement acknowledging paternity under s. 69.15 (3) (b) 3. with respect to the child.

SB123,103,15 (5) (b) An action under this section may be joined with any other action for child support and shall be is governed by the procedures specified in s. 767.05 767.205 relating to child support, except that the title of the action shall be "In re the paternity of A.B." The petition shall state the name and date of birth of the child if born or that the mother is pregnant if the child is unborn, the name of any alleged father, whether or not an action by any of the parties to determine the paternity of the child or rebut the presumption of paternity to the child has at any time been commenced, or is pending before any judge or circuit court commissioner court, in this state or elsewhere. If a paternity judgment has been rendered, or if a paternity action has been dismissed, the petition shall state the court which that rendered the judgment or dismissed the action, and the date and the place the judgment was granted if known. The petition shall also give notice of a party's right to request a genetic test under s. 49.225 or 767.48 767.84.

SB123,104,8 (5m) Applicable procedure; exceptions. Except as provided in ss. 767.458 (3), 767.465 (2) and (2m), 767.477, 767.62 767.805, 767.863 (3), 767.85, 767.893 (2) and (2m), and 769.401, unless a man male is presumed the child's father under s. 891.41 (1), is adjudicated the child's father either under s. 767.51 767.89 or by final order or judgment of a court of competent jurisdiction in another state, or has acknowledged himself to be the child's father under s. 767.62 767.805 (1) or a substantially similar law of another state, no order or temporary order may be entered for child support, legal custody, or physical placement until the man male is adjudicated the father using the procedure set forth in ss. 767.45 to 767.60 this subchapter, except s. 767.805. Except as provided in ss. 767.477, 767.62 767.805, 767.85, and 769.401, the exclusive procedure for establishment of child support obligations, legal custody, or physical placement rights for a man male who is not presumed the child's father under s. 891.41 (1), adjudicated the father , or acknowledged under s. 767.62 767.805 (1) or a substantially similar law of another state to be the father is by an action under ss. 767.45 to 767.60 this subchapter, except s. 767.805, or under s. 769.701. No person may waive the use of this procedure. If a presumption under s. 891.41 (1) exists, a party denying paternity has the burden of rebutting the presumption.

SB123,104,11 (6) (a) The attorney responsible for support enforcement under s. 59.53 (6) (a) shall provide the representation for the state as specified under s. 767.075 (1) 767.205 (2) (a) in cases brought under this section.

SB123,104,15 (c) The attorney under s. 59.53 (6) (a) or any state attorney acting under par. (b) may not represent the state as specified under s. 767.075 (1) 767.205 (2) (a) in an action under this section and at the same time act as guardian ad litem for the child or the alleged child of the party.

SB123,104,22 (6m) When action must be commenced. The attorney designated under sub. (6) (a) shall commence an action under this section on behalf of the state within 6 months after receiving notification under s. 69.03 (15) that no father is named on the birth certificate of a child who is a resident of the county if paternity has not been acknowledged under s. 767.62 767.805 (1) or a substantially similar law of another state or adjudicated, except in situations under s. 69.14 (1) (g) and (h) and as provided by the department by rule.

SB123,104,24 (6r) (a) 2. c. That the man male designated in s. 48.299 (6) (a) or 938.299 (6) (a) has previously been excluded as the father of the child.

SB123,105,5 (7) Clerk to provide document. The clerk of court shall provide without charge, to each person bringing an action under this section, except to the state under sub. (1) (g) or (6m), a document setting forth the percentage standard established by the department under s. 49.22 (9) and listing the factors which that a court may consider under s. 767.25 767.511 (1m).

SB123, s. 185 Section 185. 767.455 (title) and (1) to (4) of the statutes are renumbered 767.813 (title) and (1) to (4).

SB123, s. 186 Section 186. 767.455 (5) of the statutes is renumbered 767.813 (5) and amended to read:

SB123,105,11 767.813 (5) Form Forms. The summons shall be in substantially one of the following form forms:

SB123,105,12 (a) Mother as petitioner.

SB123,105,13 STATE OF WISCONSIN,                        CIRCUIT COURT: ....COUNTY

SB123,105,15 In re the Paternity of A. B.

SB123,105,16 STATE OF WISCONSIN

SB123,105,17   and

SB123,105,18 C. D. (Mother-Petitioner)

SB123,105,19 Address

SB123,105,20 City, State Zip Code                                               File No. ...

SB123,105,21        , Petitioners