SB123: Bill Text

(3) Revises section titles, where appropriate, and provides subsection titles throughout the chapter.

(4) Repeals several provisions considered no longer necessary.

(5) Makes substantive changes the special committee concluded are relatively noncontroversial.

The special committee explicitly intends that, unless expressly noted, this bill makes no substantive changes in the statutory provisions treated by the bill. Substantive changes in the bill are identified in notes to the provisions substantively affected. If a question arises about the effect of any modification made by this bill, the special committee intends that the revisions in this bill be construed to have the same effect as the prior statutes.

Some of the notes to paternity-related provisions treated by the bill include references to the "paternity reform committee." That committee was established by the family law section of the State Bar of Wisconsin. The committee's report to the family law section board was approved by the board in May 2000. Several of the committee's recommendations are included in this bill.

For convenience, a table of contents listing all section numbers of reorganized ch. 767 and the newly created subchapters is included in this prefatory note. Also, a finding aid is included at the end of this bill identifying the treatment by this bill of current statutory provisions within ch. 767.

The remainder of this note consists of the table of contents for reorganized ch. 767: - See PDF for table

SB123, s. 1 Section 1. 46.21 (5) (b) of the statutes is amended to read:

SB123,8,3 46.21 (5) (b) Sections 46.10, 49.08, 49.90, and 301.12 and 767.42 govern the support and maintenance of persons in any of the institutions specified in sub. (2) (a).

Note: Reflects the repeal of s. 767.42 by Sec. 182 of this bill.

SB123, s. 2 Section 2. 48.988 (11) of the statutes is amended to read:

SB123,8,10 48.988 (11) Financial responsibility for any child placed under the interstate compact on the placement of children shall be determined in accordance with sub. (5) in the first instance. However, in the event of partial or complete default of performance thereunder, the provisions of s. 49.90 or 767.42, ch. 769, or any other applicable state law fixing responsibility for the support of children also may be invoked.

Note: Reflects the repeal of s. 767.42 by Sec. 182 of this bill.

SB123, s. 3 Section 3. 48.989 (2) of the statutes is amended to read:

SB123,8,17 48.989 (2) Financial responsibility. Financial responsibility for any child placed under the provisions of the interstate compact on the placement of children shall be determined in accordance with ss. 48.60 (4) (b) and 48.988 (5). In the event of partial or complete default of performance under the compact, the provisions of s. 49.90 or 767.42, ch. 769, or any other applicable state law fixing responsibility for the support of children may also be invoked.

Note: Reflects the repeal of s. 767.42 by Sec. 182 of this bill.

SB123, s. 4 Section 4. 69.15 (3) (b) 1. of the statutes is amended to read:

SB123,9,7 69.15 (3) (b) 1. Except as provided under par. (c), if the state registrar receives a statement acknowledging paternity on a form prescribed by the state registrar and signed by both of the birth parents of a child determined to be a marital child under s. 767.60 767.803, a certified copy of the parents' marriage certificate, and the fee required under s. 69.22 (5) (b) 1., the state registrar shall insert the name of the husband from the marriage certificate as the father if the name of the father was omitted on the original birth certificate. The state registrar shall include on the form for the acknowledgment a notice of the information in s. 767.458 (1) (a) to (e) the items in s. 767.813 (5g).

SB123, s. 5 Section 5. 69.15 (3) (b) 3. of the statutes is amended to read:

SB123,9,19 69.15 (3) (b) 3. Except as provided under par. (c), if the state registrar receives a statement acknowledging paternity on a form prescribed by the state registrar and signed by both parents, and by a parent or legal guardian of any parent who is under the age of 18 years, along with the fee under s. 69.22, the state registrar shall insert the name of the father under subd. 1. The state registrar shall mark the certificate to show that the form is on file. The form shall be available to the department of workforce development or a county child support agency under s. 59.53 (5) pursuant to the program responsibilities under s. 49.22 or to any other person with a direct and tangible interest in the record. The state registrar shall include on the form for the acknowledgment a notice of the information in ss. 767.458 (1) (a) to (e) and 767.62 s. 767.805 and the items in s. 767.813 (5g).

SB123, s. 6 Section 6. Subchapter I (title) of chapter 767 [precedes 767.001] of the statutes is created to read:

SB123,9,22 chapter 767

SB123,9,25 subchapter i definitions, scope, jurisdiction, and recognition of judgments

SB123, s. 7 Section 7. 767.001 (1b) of the statutes is created to read:

SB123,10,4 767.001 (1b) "Court" includes the circuit court commissioner when the circuit court commissioner has been authorized by law to exercise the authority of the court or has been delegated that authority as authorized by law.

Note: Permits substitution of "court" for "court or circuit court commissioner" or "judge or circuit court commissioner" as the latter appears in ch. 767. Separate references to "supplemental court commissioner" in ch. 767 are retained.

SB123, s. 8 Section 8. 767.001 (3) and (4) of the statutes are renumbered 767.405 (1) (a) and (b).

Note: Relocates definitions of "mediation" and "mediator" in the current general definitions section of ch. 767 to the section in the chapter relating to family court services. With the exception of 2 cross-references to the terms in other sections in this chapter, this is the only section in the chapter in which those terms appear.

SB123, s. 9 Section 9. 767.005 of the statutes is created to read:

SB123,10,8 767.005 Scope. This chapter applies to actions affecting the family.

Note: Explicitly states what is implicit in current ch. 767. Note that the term "action affecting the family" is now a defined term in the definitions section. See Sec. 15 of this bill.

SB123, s. 10 Section 10 . 767.01 (1) of the statutes is amended to read:

SB123,10,17 767.01 (1) Generally. The circuit courts have jurisdiction of all actions affecting the family and have authority to do all acts and things necessary and proper in such those actions and to carry their orders and judgments into execution as prescribed in this chapter. All actions affecting the family shall be commenced and conducted and the orders and judgments enforced according to these statutes in respect to actions in circuit court, as far as applicable, except as provided in this chapter Except as provided in subs. (2) and (2m), jurisdiction may be exercised as provided under ch. 801.

Note: 1. The substance of the stricken sentence is relocated to s. 767.201, in subch. III, general procedure.

2. The underscored sentence restates part of current s. 767.05 (1), stats., which is repealed by Sec. 26 of this bill. Current s. 767.05 (1) provides: "A court of this state having jurisdiction to hear actions affecting the family may exercise jurisdiction as provided under ch. 769 or 801.". Reference to ch. 769 is already included in current s. 767.01 (2), stats.

SB123, s. 11 Section 11. 767.01 (2) (title) of the statutes is created to read:

SB123,11,2 767.01 (2) (title) Paternity and child support.

SB123, s. 12 Section 12. 767.01 (3) of the statutes is renumbered 767.80 (1m) and amended to read:

SB123,11,8 767.80 (1m) Venue. An action under s. 767.45 this section may be brought in the county in which the child or the alleged father resides or is found or, if the father is deceased, in which proceedings for probate of his estate have been or could be commenced.

SB123, s. 13 Section 13. 767.015 of the statutes is renumbered 767.01 (2m), and 767.01 (2m) (title), as renumbered, is amended to read:

SB123,11,11 767.01 (2m) (title) Child custody jurisdiction.

Note: Combines s. 767.015 with s. 767.01, which currently and under this bill contains jurisdiction provisions.

SB123, s. 14 Section 14 . 767.02 (title) of the statutes is repealed.

SB123, s. 15 Section 15 . 767.02 (1) of the statutes is renumbered 767.001 (1), and 767.001 (1) (intro.) and (k), as renumbered, are amended to read:

SB123,11,16 767.001 (1) (intro.) Actions " Action affecting the family are" means any of the following actions:

SB123,11,19 (k) Concerning periods of physical placement or visitation rights to children, including an action to prohibit a move with or the removal of a child under s. 767.327 767.481 (3) (c).

Note: Relocates s. 767.02 (1), which currently delineates those actions comprising "actions affecting the family," into the general definitions section for ch. 767.

SB123, s. 16 Section 16. 767.02 (2) of the statutes is renumbered 767.001 (1f) and amended to read:

SB123,12,2 767.001 (1f) "Divorce" means divorce from the bonds of matrimony or absolute divorce, when used in this chapter dissolution of the marriage relationship.

Note: Modernizes the definition of "divorce" and relocates the definition into the general definitions section for ch. 767.

SB123, s. 17 Section 17. 767.025 (title) of the statutes is renumbered 767.281 (title) and amended to read:

SB123,12,6 767.281 (title) Filing procedures and orders for enforcement or modification of judgments or orders in actions affecting the family.

SB123, s. 18 Section 18. 767.025 (intro.) of the statutes is renumbered 767.281 (1) and amended to read:

SB123,12,11 767.281 (1) Applicability. The following filing procedures shall apply This section applies to all enforcement or modification petitions, motions or orders to show cause filed for actions affecting the family under s. 767.02 767.001 (1) (i):.

SB123, s. 19 Section 19. 767.025 (1) of the statutes is renumbered 767.281 (1m) and amended to read:

SB123,13,2 767.281 (1m) Generally. Except as provided in sub. (2), if a petition, motion, or order to show cause requesting enforcement or modification of a judgment or order in an action affecting the family which that was granted by a court of this state is filed in a county other than the county in which the judgment or order was rendered, the petitioner or party bringing the motion or order to show cause shall send a copy of the petition, motion, or order to show cause and summons to the clerk of the court in which the judgment or order was rendered. If a question arises as to which court should exercise jurisdiction, a conference involving both judges, all counsel, and guardians ad litem may be convened under s. 807.13 (3) to resolve the question. The petitioner shall send a copy of any order rendered pursuant to this the petition, motion, or order to show cause to the clerk of the court in which the original judgment or order was rendered.

SB123, s. 20 Section 20. 767.025 (2) and (4) of the statutes are renumbered 767.281 (2) and (4).

SB123, s. 21 Section 21. 767.027 of the statutes is renumbered 767.70, and 767.70 (title), (1) (intro.) and (b) and (2), as renumbered, are amended to read:

SB123,13,11 767.70 (title) Notice Child support enforcement: notice and service of process requirements. (1) When satisfied. (intro.) In any an action under s. 767.02 767.001 (1) (i) to enforce or modify a judgment or order with respect to child support, due process requirements related to notice and service of process are satisfied to the extent that if the court finds all of the following:

Note: Clarifies that the provision applies to actions to modify child support orders and judgments.

SB123,13,14 (b) That written notice of the action to the respondent has been delivered to the most recent residential address or employer address provided by the respondent under s. 767.263 767.58 (2) to the county child support agency under s. 59.53 (5).

SB123,13,20 (2) Rules on locating respondent. The department shall promulgate rules that specify specifying the process that the department will use under sub. (1) (a) to ascertain the location of the respondent. Notwithstanding sub. (1) (b), the process specified in the rules shall utilize all reasonable means to which the department has access, including electronic means, interfaces with other programs , and information provided by the postmaster, for determining the current address of the respondent.

SB123, s. 22 Section 22. 767.03 (title) of the statutes is renumbered 767.313 (title).

SB123, s. 23 Section 23 . 767.03 of the statutes is renumbered 767.313 (1), and 767.313 (1) (intro.), as renumbered, is amended to read:

SB123,14,4 767.313 (1) Grounds; when suit may be brought. (intro.) No marriage may be annulled or held void except pursuant to judicial proceedings. No marriage may be annulled after the death of either party to the marriage. A court may annul a marriage entered into under upon any of the following circumstances grounds:

Note: The stricken sentences are relocated to new s. 767.313 (2), created by Sec. 145 of this bill.

SB123, s. 24 Section 24. 767.04 of the statutes is renumbered 767.18 and amended to read:

SB123,14,10 767.18 Actions to affirm marriage. When If the validity of any a marriage shall be is denied or doubted by either of the parties the other party may commence an action to affirm the marriage, and the. The judgment in such an action to affirm marriage shall declare such the marriage valid or annul the same marriage, and be is conclusive upon all persons concerned.

SB123, s. 25 Section 25. 767.045 of the statutes, as affected by 2003 Wisconsin Act 130, is renumbered 767.407, and 767.407 (1) (am) 1., (c) and (e), (2) and (4), as renumbered, are amended to read:

SB123,14,16 767.407 (1) (am) 1. Legal custody or physical placement is contested in an action to modify legal custody or physical placement under s. 767.325 767.451 or 767.327 767.481.

SB123,14,23 (c) The attorney responsible for support enforcement under s. 59.53 (6) (a) may request that the court or a circuit court commissioner appoint a guardian ad litem to bring an action or motion on behalf of a minor who is a nonmarital child whose paternity has not been acknowledged under s. 767.62 767.805 (1) or a substantially similar law of another state or adjudicated for the purpose of determining the paternity of the child, and the court or circuit court commissioner shall appoint a guardian ad litem, if any of the following applies:

SB123,15,4 1. Aid is provided under s. 46.261, 48.57 (3m) or (3n), 49.19 , or 49.45 on behalf of the child, or benefits are provided to the child's custodial parent under ss. 49.141 to 49.161, but the state and its delegate under s. 49.22 (7) are barred by a statute of limitations from commencing an action under s. 767.45 767.80 on behalf of the child.

SB123,15,8 2. An application for legal services has been filed with the child support program under s. 49.22 on behalf of the child, but the state and its delegate under s. 49.22 (7) are barred by a statute of limitations from commencing an action under s. 767.45 767.80 on behalf of the child.

SB123,15,12 (e) Nothing in this subsection prohibits the court from making a temporary order under s. 767.23 767.225 that concerns the child before a guardian ad litem is appointed or before the guardian ad litem has made a recommendation to the court, if the court determines that the temporary order is in the best interest of the child.

SB123,15,17 (2) Time for appointment. The court shall appoint a guardian ad litem under sub. (1) (a) 1. or (b) whenever the court deems it appropriate. The court shall appoint a guardian ad litem under sub. (1) (a) 2. at the time specified in s. 767.11 767.405 (12) (b), unless upon motion by a party or its own motion, the court determines that earlier appointment is necessary.

SB123,16,9 (4) Responsibilities. The guardian ad litem shall be an advocate for the best interests of a minor child as to paternity, legal custody, physical placement, and support. The guardian ad litem shall function independently, in the same manner as an attorney for a party to the action, and shall consider, but shall not be bound by, the wishes of the minor child or the positions of others as to the best interests of the minor child. The guardian ad litem shall consider the factors under s. 767.24 767.41 (5) (am), subject to s. 767.24 767.41 (5) (bm), and custody studies under s. 767.11 767.405 (14). The guardian ad litem shall investigate whether there is evidence that either parent has engaged in interspousal battery, as described in s. 940.19 or 940.20 (1m), or domestic abuse, as defined in s. 813.12 (1) (am), and shall report to the court on the results of the investigation. The guardian ad litem shall review and comment to the court on any mediation agreement and stipulation made under s. 767.11 767.405 (12) and on any parenting plan filed under s. 767.24 767.41 (1m). Unless the child otherwise requests, the guardian ad litem shall communicate to the court the wishes of the child as to the child's legal custody or physical placement under s. 767.24 767.41 (5) (am) 2. The guardian ad litem has none of the rights or duties of a general guardian.

SB123, s. 26 Section 26 . 767.05 (title) and (1) of the statutes are repealed.

Note: The substance of this subsection is relocated to the general section on jurisdiction. See Sec. 10 .

SB123, s. 27 Section 27. 767.05 (1m) of the statutes is renumbered 767.301 and amended to read:

SB123,17,2 767.301 Residence requirements. No action to affirm marriage or for annulment under s. 767.02 767.001 (1) (a) or (b) may be brought unless at least one of the parties has been a bona fide resident of the county in which the action is brought for not less than 30 days next preceding the commencement of the action, or unless the marriage has been contracted within this state within one year prior to the commencement of the action. No action for divorce or legal separation under s. 767.02 767.001 (1) (c) or (d) may be brought unless at least one of the parties has been a bona fide resident of the county in which the action is brought for not less than 30 days next preceding the commencement of the action. No action for divorce under s. 767.02 767.001 (1) (c) may be brought unless at least one of the parties has been a bona fide resident of this state for not less than 6 months next preceding the commencement of the action.

Note: The type of action to which the cross-references refer is included for convenience.

SB123, s. 28 Section 28. 767.05 (2) (title) of the statutes is repealed.

SB123, s. 29 Section 29. 767.05 (2) of the statutes is renumbered 767.41 (1) (a) and amended to read:

SB123,17,13 767.41 (1) (a) 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 is 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, as provided in s. 822.12. Nothing in this section chapter may be construed to foreclose a person other than a parent who has physical custody of a child from proceeding under ch. 822.

SB123, s. 30 Section 30. 767.05 (3) of the statutes is renumbered 767.205 (1) and amended to read:

SB123,17,23 767.205 (1) Parties. The party initiating an action affecting the family shall be denominated is the petitioner. The party responding to the action shall be denominated is the respondent. All references to "plaintiff" in chs. 801 to 807 shall apply to the petitioner, and all references to "defendant" in chs. 801 to 807 shall apply to the respondent. Both parties together may initiate the petition together by signing and filing a joint petition. The parties to a joint petition shall be called are joint petitioners. The parties to a joint petition shall state within in the joint petition that both parties consent to personal jurisdiction and waive service of summons.

SB123, s. 31 Section 31. 767.05 (4) of the statutes is renumbered 767.215 (2e) and amended to read:

SB123,18,5 767.215 (2e) Petition Relationship of petition to complaint. All references to a "complaint" in chs. 801 to 807 shall apply to petitions under s. 767.085 this section.

SB123, s. 32 Section 32 . 767.05 (5) of the statutes is renumbered 767.205 (3) and amended to read: