767.205 Annotation
A mother's and child's interests in a paternity action are not sufficiently identical to place them in privity for the purpose of res judicata. Chad M.G. v. Kenneth J.Z.
194 Wis. 2d 690,
535 N.W.2d 97 (Ct. App. 1995).
767.205 Annotation
Sub. (2) (b) [now sub. (2) (b) 2.] allows a county corporation counsel to act as the guardian ad litem for a child in a paternity action so long as he or she only represents the child and does not represent the state in the action. Chad M.G. v. Kenneth J.Z.
194 Wis. 2d 690,
535 N.W.2d 97 (Ct. App. 1995).
767.205 Annotation
Because a child has a right to bring an independent action for paternity under s. 767.45 [now s. 767.80], if the child was not a party to an earlier state instituted paternity action, it would be a violation of the child's due process rights to preclude the child from litigating the paternity issue. Mayonia M.M. v. Kieth N.
202 Wis. 2d 460,
551 N.W.2d 34 (Ct. App. 1996),
95-2838.
767.215
767.215
Initiating action; petition and response. 767.215(1)(a)(a) Either or both of the parties to the marriage may initiate the action. The party initiating the action or his or her attorney shall sign the petition. Both parties or their respective attorneys shall sign a joint petition.
767.215(1)(b)
(b) The clerk of court shall provide without charge, to each person filing a petition requesting child support, a document setting forth the percentage standard established by the department under
s. 49.22 (9) and listing the factors that a court may consider under
s. 767.511 (1m).
767.215(1)(c)
(c) The clerk of court shall provide, without charge, to each person filing a petition showing that the parties have a minor child, a copy of
s. 767.41 (1m) or a parenting plan form if a standard form for parenting plans is used in the county.
767.215(2)
(2) Petition content. Except as otherwise provided, in an action affecting the family, the petition shall state:
767.215(2)(a)
(a) The name and birthdate of the parties, the date and place of marriage, and the facts relating to the residence of both parties.
767.215(2)(b)
(b) The name and birthdate of each minor child of the parties and each other child born to the wife during the marriage, and whether the wife is pregnant.
767.215(2)(c)
(c) If the relief requested is a divorce or a legal separation in which the parties do not file a petition under
s. 767.315 (2), that the marriage is irretrievably broken, or, alternatively, that both parties agree that the marriage is irretrievably broken.
767.215(2)(cm)
(cm) If the relief requested is a legal separation and the parties have filed a petition under
s. 767.315 (2), that both parties agree that the marital relationship is broken.
767.215(2)(d)
(d) Whether an action for divorce or legal separation by either of the parties has been at any time commenced, or is pending in any other court, in this state or elsewhere.
767.215(2)(dm)
(dm) Whether either party was previously married and, if so, the manner in which the marriage was terminated, and, if terminated by court judgment, the name of the court that granted the judgment and the time and place the judgment was granted, if known.
767.215(2)(e)
(e) Whether the parties have entered into a written agreement as to support, legal custody, and physical placement of the children, maintenance of either party, or property division. If so, the written agreement shall be attached.
767.215(2)(f)
(f) The relief requested. If the relief requested is a legal separation, the petition shall state the specific reason for requesting that relief.
767.215(2)(h)
(h) That during the pendency of the action, the parties are prohibited from, and may be held in contempt of court for, harassing, intimidating, physically abusing or imposing any restraint on the personal liberty of the other party or a minor child of either party.
767.215(2)(i)
(i) If the action is one under
s. 767.001 (1) (a),
(b),
(c),
(d),
(h), or
(i), that during the pendency of the action, without the consent of the other party or an order of the court, the parties are prohibited from, and may be held in contempt of court for, encumbering, concealing, damaging, destroying, transferring, or otherwise disposing of property owned by either or both of the parties, except in the usual course of business, in order to secure necessities, or in order to pay reasonable costs and expenses of the action, including attorney fees.
767.215(2)(j)
(j) Unless the action is one under
s. 767.001 (1) (g) or
(h), that during the pendency of the action the parties are prohibited from, and may be held in contempt of court for, doing any of the following without the consent of the other party or an order of the court:
767.215(2)(j)1.
1. Establishing a residence with a minor child of the parties outside the state or more than 150 miles from the residence of the other party within the state.
767.215(2)(j)2.
2. Removing a minor child of the parties from the state for more than 90 consecutive days.
767.215(2)(j)3.
3. Concealing a minor child of the parties from the other party.
767.215(2e)
(2e) Relationship of petition to complaint. All references to a "complaint" in
chs. 801 to
807 apply to petitions under this section.
767.215(2m)(a)(a) Except as provided in
par. (b), if only one party initiates the action and the parties have minor children, the summons served on the other party:
767.215(2m)(a)2.
2. Shall be accompanied by a document, provided without charge by the clerk of court, setting forth the percentage standard established by the department under
s. 49.22 (9) and listing the factors that a court may consider under
s. 767.511 (1m).
767.215(2m)(a)3.
3. Shall be accompanied by a copy of
s. 767.41 (1m) or a standard parenting plan form used in the county, provided without charge by the clerk of court.
767.215(2m)(b)
(b) If service is by publication, notification regarding
s. 948.31 may consist of references to the statute numbers and titles, and information relating to the percentage standard and the factors and completing and filing parenting plans need not be provided.
767.215(3)
(3) Service. If only one party initiates the action, the other shall be served under
ch. 801 and may serve a response or counterclaim within 20 days after the date of service, except that questions of jurisdiction may be raised at any time prior to judgment. Service shall be made upon the petitioner, and the original copy of the response shall be filed in court. If the parties together initiate the action with a joint petition, service of summons is not required.
767.215(4)(b)
(b) The court may, upon the petitioner's demonstration of good cause, and without notice, order one additional 60-day extension for service of the initial papers in the action if the extension motion is made within 90 days after filing the initial papers. If the extension motion is not made within the 90-day period, the court may grant the motion only if it finds excusable neglect for failure to act and good cause shown for granting the extension.
767.215(5)(a)(a) When the petition under this section is filed with the court, the party filing the petition shall submit a separate form, furnished by the court, containing all of the following:
767.215(5)(a)1.
1. The name, date of birth, and social security number of each party.
767.215(5)(a)2.
2. The name, date of birth, and social security number of each minor child of the parties and of each child born to the wife during the marriage.
767.215(5)(b)
(b) A form submitted under this subsection shall be maintained with the confidential information required under
s. 767.54 or maintained separately from the case file. The form may be disclosed only to the parties and their attorneys, a county child support enforcement agency, and any other person authorized by law or court order to have access to the information on the form.
767.215 History
History: 1971 c. 220;
1977 c. 105;
1979 c. 32 ss.
50,
92 (4);
1979 c. 196;
1979 c. 352 s.
39; Stats. 1979 s. 767.085;
1985 a. 29;
1987 a. 332 s.
64;
1987 a. 355,
403;
1989 a. 31,
56,
132;
1993 a. 78,
481;
1995 a. 27 s.
9126 (19);
1995 a. 201,
404;
1997 a. 191;
2001 a. 61;
2005 a. 443 ss.
31,
46 to
49,
71,
83,
84; Stats. 2005 s. 767.215;
2007 a. 187.
767.215 Note
NOTE: 2005 Wis. Act 443, which affected this section, contains explanatory notes.
767.217
767.217
Notice to Child Support Program. 767.217(1)
(1)
Notice of pleading or motion. In an action affecting the family in which either party is a recipient of benefits under
ss. 49.141 to
49.161 or aid under
s. 48.645,
49.19, or
49.45, each party shall, either within 20 days after serving the opposite party with a motion or pleading requesting the court to order or to modify a previous order relating to child support, maintenance, or family support, or before filing the motion or pleading in court, serve a copy of the motion or pleading on the county child support agency under
s. 59.53 (5) of the county in which the action is begun.
767.217(2)
(2) Notice of appeal. In an appeal of an action affecting the family in which support or maintenance of a child of any party is at issue, the person who initiates the appeal shall notify the department of the appeal by sending a copy of the notice of appeal to the department.
767.217(3)
(3) Noncompliance. A judgment in an action affecting the family may not be granted unless this section is complied with or a court orders otherwise.
767.225
767.225
Orders during pendency of action. 767.225(1)
(1)
Temporary orders. Except as provided in
ch. 822, in an action affecting the family the court may, during the pendency of the action, make just and reasonable temporary orders concerning the following matters:
767.225(1)(a)
(a) Upon request of one party, granting legal custody of the minor children to the parties jointly, to one party solely, or to a relative or agency specified under
s. 767.41 (3), in a manner consistent with
s. 767.41, except that the court may order sole legal custody without the agreement of the other party and without the findings required under
s. 767.41 (2) (b) 2. An order under this paragraph is not binding on a final custody determination.
767.225(1)(am)
(am) Upon the request of a party, granting periods of physical placement to a party in a manner consistent with
s. 767.41. The court shall make a determination under this paragraph within 30 days after the request for a temporary order regarding periods of physical placement is filed.
767.225(1)(ap)
(ap) Upon the request of a party, granting periods of electronic communication to a party in a manner consistent with
s. 767.41. The court or circuit court commissioner shall make a determination under this paragraph within 30 days after the request for a temporary order regarding periods of electronic communication is filed.
767.225(1)(c)
(c) Subject to
s. 767.85, requiring either party or both parties to make payments for the support of minor children, which payment amounts 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. 767.34 (2) (am) 1. to
3. are satisfied.
767.225(1)(d)
(d) Requiring either party to pay for the maintenance of the other party. Maintenance under this paragraph may include the expenses and attorney fees incurred by the other party in bringing or responding to the action affecting the family.
767.225(1)(f)
(f) Requiring either party to execute an assignment of income under
s. 767.75 or an authorization for transfer under
s. 767.76.
767.225(1)(g)
(g) Requiring either party or both parties to pay debts or perform other actions in relation to the persons or property of the parties.
767.225(1)(i)
(i) Requiring counseling of either party or both parties.
767.225(1)(k)
(k) Subject to
s. 767.85, requiring either party or both parties to maintain minor children as beneficiaries on a health insurance policy or plan.
767.225(1)(L)
(L) Requiring either party or both parties to execute an assignment of income for payment of health care expenses of minor children.
767.225(1n)(a)(a) Before making a temporary order under
sub. (1), the court shall consider those factors that the court is required by this chapter to consider before entering a final judgment on the same subject matter. In making a determination under
sub. (1) (a) or
(am), the court shall consider the factors under
s. 767.41 (5) (am), subject to
s. 767.41 (5) (bm).
767.225(1n)(b)1.1. If the court makes a temporary child support order that deviates from the amount of support that would be required by using the percentage standard established by the department under
s. 49.22 (9), the court shall comply with the requirements of
s. 767.511 (1n).
767.225(1n)(b)2.
2. If the court finds by a preponderance of the evidence that a party has engaged in a pattern or serious incident of interspousal battery, as described under
s. 940.19 or
940.20 (1m), or domestic abuse, as defined in
s. 813.12 (1) (am), and makes a temporary order awarding joint or sole legal custody or periods of physical placement to the party, the court shall comply with the requirements of
s. 767.41 (6) (f) and, if appropriate,
s. 767.41 (6) (g).
767.225(1n)(b)3.
3. If the court or circuit court commissioner requires one party to cover the child under a health insurance policy or plan under
sub. (1) (k), the court or circuit court commissioner shall order the party to provide to the other party a health insurance identification card for the child.
Section 767.513 (2m) (b) and
(c) applies to a failure to comply with a temporary order under this subdivision.
767.225(1n)(c)
(c) A temporary order under
sub. (1) may be based upon the written stipulation of the parties, subject to the approval of the court. Temporary orders made by a circuit court commissioner may be reviewed by the court.
767.225(2)
(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 after commencement and shall be accompanied by an affidavit stating the basis for the request for relief.
767.225(3m)
(3m) Availability of domestic abuse restraining order. If a circuit court commissioner believes that a temporary restraining order or injunction under
s. 813.12 is appropriate in an action, the circuit court commissioner shall inform the parties of their right to seek the order or injunction and the procedure to follow. On a motion for such a restraining order or injunction, the circuit court commissioner shall submit the motion to the court within 5 working days.
767.225 History
History: 1971 c. 149;
1971 c. 211 s.
126;
1971 c. 220,
307;
1975 c. 283; Sup. Ct. Order, 73 Wis. 2d xxxi (1976);
1977 c. 105;
1979 c. 32 ss.
50,
92 (4);
1979 c. 111,
196;
1979 c. 352 s.
39; Stats. 1979 s. 767.23;
1983 a. 27;
1983 a. 204 s.
22;
1983 a. 447;
1985 a. 29 s.
3202 (9);
1987 a. 355,
364,
413;
1989 a. 212;
1991 a. 39;
1993 a. 78,
481,
490;
1995 a. 27 ss.
7100h,
9126 (19);
1995 a. 70,
404;
1999 a. 9;
2001 a. 16,
61;
2003 a. 130,
326;
2005 a. 174,
342;
2005 a. 443 ss.
86 to
91; Stats. 2005 s. 767.225;
2007 a. 96.
767.225 Cross-reference
Cross Reference: See also ch.
DCF 150, Wis. adm. code.
767.235
767.235
Trial or hearing on judgment. 767.235(1)
(1)
Before court. In an action affecting the family, all hearings and trials to determine whether judgment shall be granted, except hearings under
s. 757.69 (1) (p) 3., shall be before the court. Testimony shall be taken by the reporter and shall be transcribed and filed with the record if so ordered by the court. Custody proceedings have priority in being set for hearing.
767.235(2)
(2) Appearance of litigants. Unless nonresidence in the state is shown by competent evidence, service is by publication, or the court for other good cause orders otherwise, both parties in actions affecting the family shall appear upon the final hearing or trial. An order of the court to that effect shall be procured by the moving party, and shall be served upon the nonmoving party before the hearing or trial. No order is required in the case of a joint petition.
767.235(3)
(3) Exclusion from courtroom. The court may on its own motion, or on motion of any party to an action affecting the family, exclude from the courtroom all persons other than the parties, their attorneys and any guardians ad litem.
767.235 History
History: 2005 a. 443 ss.
65,
67,
77,
93.
767.235 Note
NOTE: 2005 Wis. Act 443, which affected this section, contains explanatory notes.
767.241
767.241
Award of attorney fees and other fees and costs. 767.241(1)(1)
Court authority. The court, after considering the financial resources of both parties, may do the following:
767.241(1)(a)
(a) Order either party to pay a reasonable amount for the cost to the other party of maintaining or responding to an action affecting the family and for attorney fees to either party.
767.241(1)(b)
(b) If one party receives services under
s. 49.22 or services provided by the state or county as a result of an assignment of income under
s. 49.19, order the other party to pay any fee chargeable under
s. 49.22 (6) or the cost of services rendered by the state or county under
s. 49.19.
767.241(2)
(2) Preaction and postaction fees. Any amount ordered under
sub. (1) may include sums for legal services rendered and costs incurred prior to the commencement of the proceeding or after entry of judgment.
767.241(3)
(3) To whom paid. The court may order that the amount be paid directly to the attorney or to the state or the county providing services under
s. 49.22 or
49.19, who may enforce the order in its name.
767.241(4)(a)(a) Except as provided in
par. (b), no court may order payment of costs under this section by the state or any county which may be a party to the action.
767.241(4)(b)
(b) The court may order payment of costs under this section by the department or its designee, whichever is appropriate, in an action in which the court finds that the record of payments and arrearages kept by the department or its designee is substantially incorrect and that the department or its designee has failed to correct the record within 30 days after having received information that the court determines is sufficient for making the correction.
767.241 History
History: 1977 c. 105;
1979 c. 32 s.
50;
1979 c. 352 s.
39; Stats. 1979 s. 767.262;
1983 a. 27;
1993 a. 481,
490;
1995 a. 201,
279,
404;
1997 a. 27,
35,
252;
2005 a. 443 ss.
99,
112; Stats. 2005 s. 767.241.
