Amendment ASA1-AB279

LRBs0104/2

PJK:cjs:cph

2003 - 2004 LEGISLATURE

ASSEMBLY SUBSTITUTE AMENDMENT 1, TO 2003 ASSEMBLY BILL 279

September 11, 2003 - Offered by Representatives Berceau and Friske.

AB279-ASA1,2,3 An Act to renumber 767.11 (6), 767.24 (5) (a), 767.24 (5) (b), 767.24 (5) (c), 767.24 (5) (cm), 767.24 (5) (d), 767.24 (5) (dm), 767.24 (5) (em), 767.24 (5) (f), 767.24 (5) (fm), 767.24 (5) (g), 767.24 (5) (h), 767.24 (5) (i), 767.24 (5) (j), 767.24 (5) (jm) and 767.24 (5) (k); to renumber and amend 767.11 (5) (a), 767.23 (1n), 767.24 (5) (intro.) and 767.24 (5) (e); to amend 757.48 (1) (a), 767.045 (4), 767.11 (4), 767.11 (8) (a), 767.11 (8) (c), 767.11 (9) (intro.), 767.11 (10) (intro.), 767.115 (1) (a), 767.24 (2) (a), 767.24 (2) (am), 767.24 (2) (b) (intro.), 767.24 (2) (c), 767.24 (4) (a) 2. and 767.325 (5m); and to create 767.11 (5) (a) 2., 767.11 (6) (b), 767.11 (14) (a) 2m., 767.23 (1n) (b) 2., 767.24 (2) (d), 767.24 (5) (bm), 767.24 (6) (f) and 767.24 (6) (g) of the statutes; relating to: creating a rebuttable presumption against awarding a parent joint or sole legal custody if the court finds that the parent has engaged in a pattern or serious incident of abuse, requiring a guardian ad litem and a mediator to have training related to domestic violence, requiring a guardian ad litem to investigate whether a party in an action affecting the family engaged in domestic violence, and requiring screening for domestic abuse at the initial mediation session.

Analysis by the Legislative Reference Bureau

Under current law, in an action affecting the family, such as a divorce or a paternity action, a court must determine the legal custody of a child based on the best interest of the child. Although the court may grant sole legal custody to one parent or joint legal custody to both parents, the court must presume that joint legal custody is in the child's best interest. The court may grant sole legal custody only if both parents agree to sole legal custody with the same parent or if at least one parent requests sole legal custody and the court finds that: 1) one parent is not capable of performing parental duties or does not wish to have an active role in raising the child; 2) one or more conditions exist that would substantially interfere with the exercise of joint legal custody; or 3) the parties will not be able to cooperate in future decision making. Evidence of child or spousal abuse creates a rebuttable presumption that the parties will not be able to cooperate in future decision making. Current law requires the court to allocate periods of physical placement between the parties if the court orders sole or joint legal custody. The court may deny periods of physical placement with a parent only if the court finds that the physical placement would endanger the child's physical, mental, or emotional health. The statutes list a number of factors that the court must consider in awarding both legal custody and periods of physical placement. Among those factors is whether there is evidence of child or spousal abuse.

This substitute amendment provides that, if a court finds by a preponderance of the evidence that a parent has engaged in a pattern or serious incident of spousal abuse, there is a rebuttable presumption that it is detrimental to the child and contrary to the child's best interest for that parent to have either sole or joint legal custody of the child. This presumption takes precedence over the other rules regarding the determination of legal custody, such as the presumption that joint legal custody is in the child's best interest, and may be rebutted only by a preponderance of evidence that: 1) the abusive party has completed treatment for batterers provided through a certified treatment program or by a certified treatment provider and is not abusing alcohol or any other drug, and 2) it is in the best interest of the child that the abusive party be given joint or sole legal custody based on the statutory factors that the court must consider in awarding custody and physical placement. If the court finds that a party has engaged in a pattern or serious incident of spousal abuse, the court must state in writing in the custody order whether the presumption against awarding custody to the abusive party was rebutted and, if so, what evidence rebutted the presumption and why its findings related to legal custody and physical placement are in the best interest of the child.

The substitute amendment provides that, if the court finds that both parties have engaged in a pattern or serious incident of spousal abuse, for purposes of the presumption the court must attempt to determine which party was the primary physical aggressor. In order to do that, the court must consider a number of specified factors, such as prior acts of domestic violence between the parties, the relative severity of injuries, if any, whether one of the parties acted in self-defense, and whether there has been a pattern of coercive and abusive behavior. If one, but not both, of the parties was convicted of a crime that was an act of domestic abuse, the court must find the party who was convicted to be the primary physical aggressor. If the court determines that neither party was the primary physical aggressor, the presumption against sole or joint legal custody does not apply.

The substitute amendment provides that, if the court grants periods of physical placement to a parent who the court finds has engaged in a pattern or serious incident of spousal abuse, the court must provide for the safety and well-being of the child and for the safety of the other party. The substitute amendment specifies a number of actions that the court must consider, and one or more of which the court must impose, for ensuring the safety of the child and the other party, such as requiring supervised periods of physical placement for the abusive parent, requiring the exchange of the child in a protected setting or in the presence of an appropriate third party who agrees to assume that responsibility, requiring the abusive parent to attend and complete treatment for batterers as a condition of exercising his or her physical placement, and prohibiting an abusive parent with an alcohol or drug abuse problem from consuming alcohol during his or her periods of physical placement and from being under the influence of alcohol or another drug when the parties exchange the child for periods of physical placement.

Under current law, a guardian ad litem (GAL) in an action affecting the family must be an attorney and must have completed three hours of approved continuing legal education relating to a GAL's functions. The substitute amendment requires the continuing legal education to include training on the dynamics of domestic violence and its effects on victims of domestic violence and on children. The substitute amendment requires a GAL in an action affecting the family to investigate whether there is evidence of interspousal battery or domestic abuse and to report to the court on the results of the investigation.

Under current law, unless the court waives the requirement, at least one session of mediation is required in an action affecting the family if legal custody or physical placement is contested. The substitute amendment requires the court or circuit court commissioner to inform the parties that the court may waive the mediation requirement if the court determines that attending a session will cause undue hardship or endanger the health or safety of one of the parties and the bases on which the court may make its determination, including evidence of interspousal battery or domestic abuse. Under current law, a mediator may terminate mediation if there is evidence that a party has engaged in interspousal battery or domestic violence. The substitute amendment requires every mediator to have training on the dynamics of domestic violence and its effects on victims of domestic violence and on children; requires the first mediation session, which is a screening and evaluation session, to include screening for domestic abuse; and requires any intake form that the parties are required to complete before the start of mediation to ask each party whether either party has engaged in domestic abuse.

Under current law, one of the factors that a court must consider when awarding legal custody and physical placement is the mental and physical health of the persons living in a proposed custodial household. The substitute amendment modifies this factor by requiring the court to consider whether the mental and physical health of the persons living in a proposed custodial household negatively affects the child's intellectual, physical, or emotional well-being. The substitute amendment also provides that, if the court finds that a parent has engaged in interspousal battery or domestic violence, the child's safety and well-being and the safety of the other parent are the paramount concerns when the court is awarding legal custody and physical placement.

The people of the state of Wisconsin, represented in senate and assembly, do enact as follows:

AB279-ASA1, s. 1 Section 1. 757.48 (1) (a) of the statutes is amended to read:

AB279-ASA1,4,9 757.48 (1) (a) Except as provided in s. 879.23 (4), in all matters in which a guardian ad litem is appointed by the court, the guardian ad litem shall be an attorney admitted to practice in this state. In order to be appointed as a guardian ad litem under s. 767.045, an attorney shall have completed 3 hours of approved continuing legal education relating that relates to the functions and duties of a guardian ad litem under ch. 767 and that includes training on the dynamics of domestic violence and the effects of domestic violence on victims of domestic violence and on children.

AB279-ASA1, s. 2 Section 2. 767.045 (4) of the statutes is amended to read:

AB279-ASA1,5,11 767.045 (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 (5) (am), subject to s. 767.24 (5) (bm), and custody studies under s. 767.11 (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 (12) and on any parenting plan filed under s. 767.24 (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 (5) (b) (am) 2. The guardian ad litem has none of the rights or duties of a general guardian.

AB279-ASA1, s. 3 Section 3. 767.11 (4) of the statutes is amended to read:

AB279-ASA1,5,17 767.11 (4) Mediator qualifications. Every mediator assigned under sub. (6) (a) shall have not less than 25 hours of mediation training or not less than 3 years of professional experience in dispute resolution. Every mediator assigned under sub. (6) (a) shall have training on the dynamics of domestic violence and the effects of domestic violence on victims of domestic violence and on children.

AB279-ASA1, s. 4 Section 4. 767.11 (5) (a) of the statutes is renumbered 767.11 (5) (a) (intro.) and amended to read:

AB279-ASA1,5,25 767.11 (5) (a) (intro.) In Except as provided in sub. (8) (b), in any action affecting the family, including a revision of judgment or order under s. 767.32 or 767.325, 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 that of all of the following:

AB279-ASA1,6,4 1. That the confidentiality of communications in mediation is waived if the parties stipulate under sub. (14) (c) that the person who provided mediation to the parties may also conduct the legal custody or physical placement study under sub. (14).

AB279-ASA1, s. 5 Section 5. 767.11 (5) (a) 2. of the statutes is created to read:

AB279-ASA1,6,9 767.11 (5) (a) 2. That the court may waive the requirement to attend at least one mediation session if the court determines that attending the session will cause undue hardship or would endanger the health or safety of one of the parties and the bases on which the court may make its determination.

AB279-ASA1, s. 6 Section 6. 767.11 (6) of the statutes is renumbered 767.11 (6) (a).

AB279-ASA1, s. 7 Section 7. 767.11 (6) (b) of the statutes is created to read:

AB279-ASA1,6,15 767.11 (6) (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).

AB279-ASA1, s. 8 Section 8. 767.11 (8) (a) of the statutes is amended to read:

AB279-ASA1,6,23 767.11 (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 or 767.325, 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.

AB279-ASA1, s. 9 Section 9. 767.11 (8) (c) of the statutes is amended to read:

AB279-ASA1,7,4 767.11 (8) (c) The initial session under par. (a) shall be a screening and evaluation mediation session, including screening for domestic abuse, to determine whether mediation is appropriate and whether both parties wish to continue in mediation.

AB279-ASA1, s. 10 Section 10. 767.11 (9) (intro.) of the statutes is amended to read:

AB279-ASA1,7,9 767.11 (9) Prohibited issues in mediation. (intro.) If mediation is provided by a mediator assigned under sub. (6) (a), no issue relating to property division, maintenance, or child support may be considered during the mediation unless all of the following apply:

AB279-ASA1, s. 11 Section 11. 767.11 (10) (intro.) of the statutes is amended to read:

AB279-ASA1,7,13 767.11 (10) Powers and duties of mediator. (intro.) A mediator assigned under sub. (6) (a) shall be guided by the best interest of the child and may do any of the following, at his or her discretion:

AB279-ASA1, s. 12 Section 12. 767.11 (14) (a) 2m. of the statutes is created to read:

AB279-ASA1,7,17 767.11 (14) (a) 2m. Whether either party 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).

AB279-ASA1, s. 13 Section 13. 767.115 (1) (a) of the statutes is amended to read:

AB279-ASA1,8,4 767.115 (1) (a) At any time 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.

AB279-ASA1, s. 14 Section 14. 767.23 (1n) of the statutes is renumbered 767.23 (1n) (a) and amended to read:

AB279-ASA1,8,12 767.23 (1n) (a) Before making any temporary order under sub. (1), the court or circuit court commissioner 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 or circuit court commissioner shall consider the factors under s. 767.24 (5) (am), subject to s. 767.24 (5) (bm).

AB279-ASA1,8,17 (b) 1. If the court or circuit court commissioner 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 or circuit court commissioner shall comply with the requirements of s. 767.25 (1n).

AB279-ASA1,8,21 (c) A temporary order under sub. (1) may be based upon the written stipulation of the parties, subject to the approval of the court or the circuit court commissioner. Temporary orders made by a circuit court commissioner may be reviewed by the court.

AB279-ASA1, s. 15 Section 15. 767.23 (1n) (b) 2. of the statutes is created to read:

AB279-ASA1,9,4 767.23 (1n) (b) 2. If the court or circuit court commissioner 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 or circuit court commissioner shall comply with the requirements of s. 767.24 (6) (f) and, if appropriate, (g).

AB279-ASA1, s. 16 Section 16. 767.24 (2) (a) of the statutes is amended to read:

AB279-ASA1,9,9 767.24 (2) (a) Subject to pars. (am), (b) and, (c), and (d), based on the best interest of the child and after considering the factors under sub. (5) (am), subject to sub. (5) (bm), the court may give joint legal custody or sole legal custody of a minor child.