2005 Wisconsin Act 443

767.34 (title) Stipulation and property division Court-approved stipulation. (1) Authority. The parties in an action for an annulment, divorce, or legal separation may, subject to the approval of the court, stipulate for a division of property, for maintenance payments, for the support of children, for periodic family support payments under s. 767.261 767.531, or for legal custody and physical placement, in case a divorce or legal separation is granted or a marriage annulled.

(2) (a) A court may not approve a stipulation for child support or family support unless the stipulation provides for payment of child support, determined in a manner consistent with s. 767.25 767.511 or 767.51 767.89.

(am) 1. The state is not a real party in interest in the action under any of the circumstances specified in s. 767.075 (1) 767.205 (2) (a).

3. All payment obligations included in the order, other than the annual receiving and disbursing fee under s. 767.29 (1) (d) 767.57 (1e) (a), are expressed as a percentage of the payer's income.

443,55 Section 55. Subchapter II (title) of chapter 767 [precedes 767.105] of the statutes is created to read:

chapter 767

subchapter ii
provisions of general application

443,56 Section 56. 767.11 (title) and (1) of the statutes are renumbered 767.405 (title) and (1m), and 767.405 (title) and (1m) (a) and (b), as renumbered, are amended to read:

767.405 (title) Family court counseling services.

(1m) (a) Except as provided in par. (b) and subject to approval by the chief judge of the judicial administrative district, the circuit judge or judges in each county shall designate a person meeting the qualifications under sub. (4) as the director of family court counseling services in that county.

(b) If 2 or more contiguous counties enter into a cooperative agreement under sub. (3) (b), the circuit judges for the counties involved shall, subject to approval by the chief judge of the judicial administrative district, designate a person meeting the qualifications under sub. (4) as the director of family court counseling services for those counties.

443,57 Section 57. 767.11 (2) to (14) of the statutes, as affected by 2003 Wisconsin Act 130, are renumbered 767.405 (2) to (14), and 767.405 (2) (intro.), (c) and (d), (3) (a), (b) and (c), (5) (a) (intro.), (b) and (c), (6), (7), (8) (a), (12) and (13), as renumbered, are amended to read:

767.405 (2) Duties. (intro.) A director of family court counseling services designated under sub. (1) (1m) shall administer a family court counseling services office if such an office is established under sub. (3) (a) or (b). Regardless of whether such an the office is established, the director shall:

(c) Supervise and perform mediation and any legal custody and physical placement study services authorized under sub. (14), and evaluate the quality of any such the mediation or study services.

(d) Administer and manage funding for family court counseling services.

(3) (a) A county may establish a family court counseling services office to provide mediation in that county.

(b) Two or more contiguous counties may enter into a cooperative agreement to establish one family court counseling services office to provide mediation in those counties.

(c) A director of family court counseling services designated under sub. (1) (1m) may contract with any person or public or private entity, located in a county in which the director administers family court counseling services or in a contiguous county, to provide mediation in such a the county in which the person or entity is located.

(5) (a) (intro.) Except as provided in sub. (8) (b), in any action affecting the family, including a revision of judgment or order under s. 767.32 767.451 or 767.325 767.59, in which it appears that legal custody or physical placement is contested, the court or circuit court commissioner shall refer the parties to the director of family court counseling services for possible mediation of those contested issues. The court or circuit court commissioner shall inform the parties of all of the following:

(b) If both parties to any action affecting the family wish to have joint legal custody of a child, either party may request that the court or circuit court commissioner refer the parties to the director of family court counseling services for assistance in resolving any problem relating to joint legal custody and physical placement of the child. Upon request, the court shall so refer the parties.

(c) A person who is awarded periods of physical placement, or a child of such a that person, a person with visitation rights, or a person with physical custody of a child may notify a circuit court commissioner of any problem he or she has relating to any of these matters. Upon notification, the circuit court commissioner may refer any person involved in the matter to the director of family court counseling services for assistance in resolving the problem.

(6) Action upon referral. (a) Whenever a court or circuit court commissioner refers a party to the director of family court counseling services for possible mediation, the director shall assign a mediator to the case. The mediator shall provide mediation if he or she determines that it is appropriate. If the mediator determines that mediation is not appropriate, he or she shall so notify the court. Whenever a court or circuit court commissioner refers a party to the director of family court counseling services for any other family court counseling service, the director shall take appropriate action to provide the service.

(b) Any intake form that the family court counseling services requires the parties to complete before commencement of mediation shall ask each party whether either of the parties 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).

(7) Private mediator. The parties to any action affecting the family may, at their own expense, receive mediation services from a mediator other than one who provides services under sub. (3). Parties who receive services from such a mediator under this subsection shall sign and file with the director of family court counseling services and with the court or circuit court commissioner a written notice stating the mediator's name and the date of the first meeting with the mediator.

(8) (a) Except as provided in par. (b), in any action affecting the family, including an action for revision of judgment or order under s. 767.32 767.451 or 767.325 767.59, in which it appears that legal custody or physical placement is contested, the parties shall attend at least one session with a mediator assigned under sub. (6) (a) or contracted with under sub. (7) and, if the parties and the mediator determine that continued mediation is appropriate, no court may hold a trial of or a final hearing on legal custody or physical placement until after mediation is completed or terminated.

(12) Mediation agreement. (a) Any agreement which that resolves issues of legal custody or periods of physical placement between the parties and that is reached as a result of mediation under this section shall be prepared in writing, reviewed by the attorney, if any, for each party and by any appointed guardian ad litem, and submitted to the court to be included in the court order as a stipulation. Any reviewing attorney or guardian ad litem shall certify on the mediation agreement that he or she reviewed it, and the guardian ad litem, if any, shall comment on the agreement based on the best interest of the child. The mediator shall certify that the written mediation agreement is in the best interest of the child based on the information presented to the mediator and accurately reflects the agreement made between the parties. The court may approve or reject the agreement, based on the best interest of the child. The court shall state in writing its reasons for rejecting an agreement.

Note: Deletes current requirement that the mediator certify that the written mediation agreement is "in the best interest of the child" based on the information presented to the mediator. Reflects concern that a mediator, in general, does not have the expertise necessary, or sufficient knowledge of the information presented, to certify that the agreement is in the best interest of the child. The mediator will still be required to certify that the written mediation agreement accurately reflects the agreement made between the parties.

(b) If after mediation under this section the parties do not reach agreement on legal custody or periods of physical placement, the parties or the mediator shall so notify the court. Except as provided in s. 767.045 767.407 (1) (am), the court shall promptly appoint a guardian ad litem under s. 767.045 767.407. Regardless of whether the court appoints a guardian ad litem, the court shall, if appropriate, refer the matter for a legal custody or physical placement study under sub. (14). If the parties come to agreement on legal custody or physical placement after the matter has been referred for a study, the study shall be terminated. The parties may return to mediation at any time before any trial of or final hearing on legal custody or periods of physical placement. If the parties return to mediation, the county shall collect any applicable fee under s. 814.615.

(13) Powers of court or circuit court commissioner. Except as provided in sub. (8), referring parties to mediation under this section does not affect the power of the court or a circuit court commissioner to make any necessary order relating to the parties during the course of the mediation.

443,58 Section 58. 767.11 (15) of the statutes is repealed.

Note: Deletes an obsolete applicability provision.

443,59 Section 59 . 767.115 (title) of the statutes is renumbered 767.401 (title) and amended to read:

767.401 (title) Educational programs and classes in actions affecting the family.

443,60 Section 60. 767.115 (1) (a) of the statutes, as affected by 2003 Wisconsin Act 130, is renumbered 767.401 (1) (a) and amended to read:

767.401 (1) (a) At any time during During the pendency of an action affecting the family in which a minor child is involved and in which the court or circuit court commissioner determines that it is appropriate and in the best interest of the child, the court or circuit court commissioner, on its own motion, may order the parties to attend a program specified by the court or circuit court commissioner concerning the effects on a child of a dissolution of the marriage. If the court or circuit court commissioner orders the parties to attend a program under this paragraph and there is evidence that one or both of the parties have 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), the court or circuit court commissioner may not require the parties to attend the program together or at the same time.

443,61 Section 61. 767.115 (1) (b) of the statutes is renumbered 767.401 (1) (b) and amended to read:

767.401 (1) (b) At any time during During the pendency of an action to determine the paternity of a child, or an action affecting the family for which the underlying action was an action to determine the paternity of a child, if the court or circuit court commissioner determines that it is appropriate and in the best interest of the child, the court or circuit court commissioner, on its own motion, may order either or both of the parties to attend a program specified by the court or circuit court commissioner providing training in parenting or coparenting skills, or both.

443,62 Section 62. 767.115 (1m), (2) and (3) of the statutes are renumbered 767.401 (1) (c), (d) and (e) and amended to read:

767.401 (1) (c) A program under sub. (1) par. (a) or (b) shall be educational rather than therapeutic in nature and may not exceed a total of 4 hours in length. The parties shall be responsible for the cost, if any, of attendance at the program. The court or circuit court commissioner may specifically assign responsibility for payment of any cost. No facts or information obtained in the course of the program, and no report resulting from the program, is admissible in any action or proceeding.

(d) Notwithstanding s. 767.07 767.35 (1), the court or circuit court commissioner may require the parties to an action affecting the family in which a minor child is involved to attend a program under sub. (1) par. (a) or (b) as a condition to the granting of a final judgment or order in the action affecting the family that is pending before the court or circuit court commissioner.

(e) A party who fails to attend a program ordered under sub. (1) par. (a) or (b) or pay costs specifically ordered under sub. (1m) par. (c) may be proceeded against under ch. 785 for contempt of court.

443,63 Section 63. 767.115 (4) of the statutes is renumbered 767.401 (2), and 767.401 (2) (a), (b) and (c) 2., as renumbered, are amended to read:

767.401 (2) (a) At any time during During the pendency of a divorce or paternity action, the court or circuit court commissioner may order the parties to attend a class that is approved by the court or circuit court commissioner and that addresses such issues as child development, family dynamics, how parental separation affects a child's development, and what parents can do to make raising a child in a separated situation less stressful for the child.

(b) The court or circuit court commissioner may not require the parties to attend a class under this subsection as a condition to the granting of the final judgment or order in the divorce or paternity action, however, the court or circuit court commissioner may refuse to hear a custody or physical placement motion of a party who refuses to attend a class ordered under this subsection.

(c) 2. If the court or circuit court commissioner finds that a party is indigent, any costs that would be the responsibility of that party shall be paid by the county.

443,64 Section 64. 767.117 (1) (title) and (3) (title) of the statutes are created to read:

767.117 (1) (title) Prohibitions.

(3) (title) Violations.

443,65 Section 65. 767.12 (title) and (1) of the statutes are renumbered 767.235 (title) and (1) and amended to read:

767.235 (title) Trial procedure or hearing on judgment. (1) Proceedings Before court. In actions 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. The testimony Testimony shall be taken by the reporter and shall be written out transcribed and filed with the record if so ordered by the court. Custody proceedings shall receive have priority in being set for hearing.

443,66 Section 66. 767.12 (2) and (3) of the statutes are renumbered 767.315 (1) and (2) and amended to read:

767.315 (1) Irretrievable breakdown. (a) If both of the parties to a legal separation or divorce action by petition or otherwise have stated under oath or affirmation that the marriage is irretrievably broken, or if the parties have voluntarily lived apart continuously for 12 months or more immediately prior to commencement of the action and one party has so stated, the court, after hearing, shall make a finding that the marriage is irretrievably broken for purposes of s. 767.35 (1) (b) 1.

(b) If the parties to a legal separation or divorce action have not voluntarily lived apart for at least 12 months immediately prior to commencement of the action and if only one party has stated under oath or affirmation that the marriage is irretrievably broken, the court shall consider all relevant factors, including the circumstances that gave rise to filing the petition and the prospect of reconciliation., and proceed as follows:

1. If the court finds no reasonable prospect of reconciliation, it shall make a finding that the marriage is irretrievably broken; or for purposes of s. 767.35 (1) (b) 1.

2. If the court finds that there is a reasonable prospect of reconciliation, it shall continue the matter for further hearing not fewer than 30 nor more than 60 days later, or as soon thereafter as the matter may be reached on the court's calendar, and may suggest to the parties that they seek counseling. The court, at the request of either party or on its own motion, may order counseling. At the adjourned hearing, if either party states under oath or affirmation that the marriage is irretrievably broken, the court shall make a finding whether the marriage is irretrievably broken for purposes of s. 767.35 (1) (b) 1.

(2) Breakdown of marital relationship. If both of the parties to a legal separation or divorce action by petition or otherwise have stated under oath or affirmation that the marital relationship is broken, the court, after hearing, shall make a finding that the marital relationship is broken for purposes of s. 767.35 (1) (b) 2.

443,67 Section 67. 767.125 of the statutes is renumbered 767.235 (2) and amended to read:

767.235 (2) Order for appearance Appearance of litigants. Unless nonresidence in the state is shown by competent evidence, service is by publication, or the court shall for other good cause orders otherwise order, both parties in actions affecting the family shall be required to appear upon the final hearing or trial. An order of the court or a circuit court commissioner to that effect shall accordingly be procured by the moving party, and shall be served upon the nonmoving party before the hearing or trial. In No order is required in the case of a joint petition the order is not required.

Note: Clarifies that the appearance requirement extends to final hearings.

443,68 Section 68. 767.127 (3) (title) of the statutes is created to read:

767.127 (3) (title) Confidentiality of disclosed information.

443,69 Section 69 . 767.14 of the statutes is repealed.

Note: Repealed as unnecessary. The repealed section provides:

767.14 Service on office of family court commissioner and appearance by circuit court commissioner. In any action affecting the family, each party shall, either within 20 days after making service on the opposite party of any petition or pleading or before filing such petition or pleading in court, serve a copy of the same upon the circuit court commissioner supervising the office of family court commissioner of the county in which the action is begun, whether such action is contested or not. No judgment in any such action shall be granted unless this section is complied with except when otherwise ordered by the court. A circuit court commissioner assisting in matters affecting the family may appear in an action under this chapter when appropriate; and shall appear when requested by the court.

Those judicial circuits desiring to continue service on the circuit court court commissioner may do so by adopting a local rule.

443,70 Section 70. 767.145 (title) and (1) of the statutes are repealed.

Note: Reflects the repeal of s. 767.14 by Sec. 69 of this bill. Section 767.145 (1) provides:

767.145 (1) After the expiration of the period specified by the statute, the court may in its discretion, upon petition and without notice, extend the time within which service shall be made upon the circuit court commissioner supervising the office of family court commissioner.

443,71 Section 71. 767.145 (2) of the statutes is renumbered 767.215 (4) (a) and amended to read:

767.215 (4) (a) Except as provided in s. 767.456 par. (b) and s. 767.815, extension of time under any other circumstances shall be is governed by s. 801.15 (2), except that the.

(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.

Note: Clarifies when motions for a 60-day extension for serving the initial papers must be made and the standard for granting the motion if made more than 90 days after filing the papers.

443,72 Section 72. 767.15 of the statutes is renumbered 767.217 and amended to read:

767.217 (title) Service on child support program Notice to Child Support Program. (1) Notice of pleading or motion. In any 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. 46.261, 49.19, or 49.45, each party shall, either within 20 days after making service on serving the opposite party of any with a motion or pleading requesting the court or circuit court commissioner 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 upon on the county child support agency under s. 59.53 (5) of the county in which the action is begun.

(2) Notice of appeal. In any an appeal of any 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.

(3) Noncompliance. No A judgment in any an action affecting the family may not be granted unless this section is complied with or a court orders otherwise.

443,73 Section 73. 767.16 of the statutes is amended to read:

767.16 Circuit court commissioner or law partner; when interested; procedure. Neither a A circuit court commissioner assisting in matters affecting the family nor a partner or a member of the commissioner's law firm may not appear in any action affecting the family in any court held in the county in which the circuit court commissioner is acting, except when authorized to appear by s. 767.14. In case the. If a circuit court commissioner or a partner shall be in any way member of the commissioner's law firm is interested in such an action affecting the family and no other circuit court commissioner is available, the presiding judge shall appoint some reputable an attorney to perform the services enjoined upon the act as circuit court commissioner in that action. The appointed attorney shall take and file the oath and receive the compensation provided by law.

Note: 1. Removes as obsolete reference to an appearance by a court commissioner when authorized by s. 767.14. Section 767.14 is repealed by Sec. 69 of this bill.

2. Clarifies remaining language.

443,74 Section 74. 767.17 of the statutes is created to read:

767.17 Review of circuit court commissioner decisions. A decision of a circuit court commissioner under this chapter is reviewable under s. 757.69 (8).

Note: For convenience, adds a cross-reference to the provision on review of circuit court commissioner decisions by the court, including opportunity for a de novo hearing.

443,75 Section 75. 767.19 (title) of the statutes is repealed.

443,76 Section 76. 767.19 (1) of the statutes is renumbered 767.13 and amended to read:

767.13 Impoundment of record. No Except as provided in s. 767.127 (3), the record or evidence in any case shall an action affecting the family may not be impounded, or and access thereto to the record or evidence may not be refused, except by special written order of the court made in its discretion in the interests of public morals. And when impounded no officer or other for good cause shown. No person shall may permit a copy of any of the testimony or pleadings impounded record or evidence, or the substance thereof of the record or evidence, to be taken by any person other than a party to the action, or his or her attorney of record, without the special order of the unless a court orders otherwise.

Note: 1. Substitutes, as the standard for impounding or denying access to the record or evidence in an action affecting the family, "good cause shown" for "in the interests of public morals". The new language is a more current standard for the exercise of judicial discretion, although it is recognized that it is broader than the previous standard. Inclusion of "shown" in the new language implies that someone other than the court must seek impoundment or denial of access and has the burden of persuading the court.

2. The exception clause refers to the provision on confidentiality of required asset disclosure, treated by Sec. 123 of the bill.

443,77 Section 77. 767.19 (2) of the statutes is renumbered 767.235 (3).