SB438: Bill Text

2. Are members of the same household.

3. Are former spouses.

4. Have a child in common.

This bill expands the types of relationships that adults may be in for purposes of domestic abuse injunctions to include an adult who is being cared for by another adult and adults who have a dating relationship. The bill defines a "dating relationship" as a social relationship between two adults that involves a romantic or intimate association, and requires the court to consider the length and type of the relationship and the frequency of the interaction between the parties when determining if a dating relationship exists. The bill provides that a dating relationship is not a casual relationship or ordinary fraternization between two adult individuals.

Currently, the types of behavior that are considered domestic abuse include sexual assault, intentional infliction of pain or injury, intentional impairment of physical condition, and the threat to commit one of those acts. This bill expands the types of behavior that are considered domestic abuse to include destruction of property of the other person and mistreatment of an animal belonging to the other person.

Under current law, a court action is started by petitioning the court for a temporary restraining order, then the petitioner serves the other party, the court schedules a hearing and after determining the merits, the court issues a permanent injunction. If the petitioner is unable to serve the respondent personally with the petition, currently the petitioner may publish the petition and mail a copy of the petition to the respondent. The bill replaces the requirement to publish the petition when personal service is impossible with a requirement to publish a summary of the petition, which includes the the name of the petitioner and respondent and the date, time, and place of the hearing regarding the requested injunction. The bill allows the petitioner to send the summary of the petition to the respondent by facsimile or mail. The bill also allows the guardian of an incompetent individual to file the petition for a domestic abuse order on behalf of the incompetent individual.

Currently, a hearing on the request to issue an injunction must be held within seven days after the temporary restraining order is issued, unless the hearing is extended once for 14 days to allow the petitioner more time to serve the respondent or is extended for a period of time agreed to by the parties in writing. This bill changes the requirement to hold the hearing within seven days after the issuance of the temporary restraining order to 14 days after that order is issued. Under current law, a domestic abuse injunction is issued for the period requested by the petitioner, but not more than two years and can be extended for an additional period up to the two-year maximum if the extension is necessary to protect the petitioner. This bill extends the maximum period to four years.

The bill prohibits the inclusion of the petitioner's address in the petition, temporary restraining order, or injunction.

For further information see the state and local fiscal estimate, which will be printed as an appendix to this bill.

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

SB438, s. 1 Section 1. 106.50 (5m) (d) of the statutes is amended to read:

SB438,3,14 106.50 (5m) (d) Nothing in this section requires that housing be made available to an individual whose tenancy would constitute a direct threat to the safety of other tenants or persons employed on the property or whose tenancy would result in substantial physical damage to the property of others, if the risk of direct threat or damage cannot be eliminated or sufficiently reduced through reasonable accommodations. A claim that an individual's tenancy poses a direct threat or a substantial risk of harm or damage must be evidenced by behavior by the individual which that caused harm or damage, which that directly threatened harm or damage , or which that caused a reasonable fear of harm or damage to other tenants, persons employed on the property, or the property. No claim that an individual's tenancy would constitute a direct threat to the safety of other persons or would result in substantial damage to property may be based on the fact that a tenant has been or may be the victim of domestic abuse, as defined in s. 813.12 (1) (a) (am).

SB438, s. 2 Section 2. 767.11 (8) (b) 2. of the statutes is amended to read:

SB438,3,17 767.11 (8) (b) 2. Interspousal battery as described under s. 940.19 or 940.20 (1m) or domestic abuse as defined in s. 813.12 (1) (a) (am).

SB438, s. 3 Section 3. 767.11 (10) (e) 2. of the statutes is amended to read:

SB438,3,20 767.11 (10) (e) 2. There is evidence of interspousal battery as described under s. 940.19 or 940.20 (1m) or domestic abuse as defined in s. 813.12 (1) (a) (am).

SB438, s. 4 Section 4. 767.24 (1m) (b) of the statutes is amended to read:

SB438,4,3 767.24 (1m) (b) Where the parent lives currently and where the parent intends to live during the next 2 years. If there is evidence that the other parent engaged in interspousal battery, as described under s. 940.19 or 940.20 (1m), or domestic abuse, as defined in s. 813.12 (1) (a) (am), with respect to the parent providing the parenting plan, the parent providing the parenting plan is not required to disclose the specific address but only a general description of where he or she currently lives and intends to live during the next 2 years.

SB438, s. 5 Section 5. 767.24 (1m) (c) of the statutes is amended to read:

SB438,4,10 767.24 (1m) (c) Where the parent works and the hours of employment. If there is evidence that the other parent engaged in interspousal battery, as described under s. 940.19 or 940.20 (1m), or domestic abuse, as defined in s. 813.12 (1) (a) (am), with respect to the parent providing the parenting plan, the parent providing the parenting plan is not required to disclose the specific address but only a general description of where he or she works.

SB438, s. 6 Section 6. 767.24 (1m) (o) of the statutes is amended to read:

SB438,4,16 767.24 (1m) (o) If there is evidence that either party engaged in interspousal battery, as described under s. 940.19 or 940.20 (1m), or domestic abuse, as defined in s. 813.12 (1) (a) (am), with respect to the other party, how the child will be transferred between the parties for the exercise of physical placement to ensure the safety of the child and the parties.

SB438, s. 7 Section 7. 767.24 (2) (b) 2. c. of the statutes is amended to read:

SB438,4,25 767.24 (2) (b) 2. c. The parties will not be able to cooperate in the future decision making required under an award of joint legal custody. In making this finding the court shall consider, along with any other pertinent items, any reasons offered by a party objecting to joint legal custody. Evidence that either party engaged in abuse, as defined in s. 813.122 (1) (a), of the child, as defined in s. 48.02 (2), or evidence of interspousal battery, as described under s. 940.19 or 940.20 (1m), or domestic abuse, as defined in s. 813.12 (1) (a) (am), creates a rebuttable presumption that the parties will not be able to cooperate in the future decision making required.

SB438, s. 8 Section 8. 767.24 (5) (i) of the statutes is amended to read:

SB438,5,3 767.24 (5) (i) Whether there is evidence of interspousal battery as described under s. 940.19 or 940.20 (1m) or domestic abuse as defined in s. 813.12 (1) (a) (am).

SB438, s. 9 Section 9. 813.12 (1) (a) (intro.), 1., 2., and 3. of the statutes are renumbered 813.12 (1) (am) (intro.), 1., 2., and 3., and 813.12 (1) (am) (intro.), as renumbered, is amended to read:

SB438,5,13 813.12 (1) (am) (intro.) "Domestic abuse" means any of the following engaged in by an adult family member or adult household member against another adult family member or adult household member, by an adult caregiver against an adult who is under the caregiver's care by an adult against his or her adult former spouse, by an adult against an adult with whom the individual has or had a dating relationship, or by an adult against an adult with whom the person has a child in common:

SB438, s. 10 Section 10. 813.12 (1) (a) 4. of the statutes is renumbered 813.12 (1) (am) 8. and amended to read:

SB438,5,17 813.12 (1) (am) 8. A threat to engage in the conduct under subd. 1., 2. or, 3., 5., or 6.

SB438, s. 11 Section 11. 813.12 (1) (ad) of the statutes is created to read:

SB438,5,20 813.12 (1) (ad) "Caregiver" means an individual who is a provider of in-home or community care to an individual through regular and direct contact.

SB438, s. 12 Section 12. 813.12 (1) (ag) of the statutes is created to read:

SB438,6,3 813.12 (1) (ag) "Dating relationship" means a romantic or intimate social relationship between 2 adult individuals but "dating relationship" does not include a casual relationship or an ordinary fraternization between 2 individuals in a business or social context. A court shall determine if a dating relationship existed by considering the length of the relationship, the type of the relationship, and the frequency of the interaction between the adult individuals involved in the relationship.

SB438, s. 13 Section 13. 813.12 (1) (am) 5. of the statutes is created to read:

SB438,6,6 813.12 (1) (am) 5. A violation of s. 943.01, involving property that belongs to the individual.

SB438, s. 14 Section 14. 813.12 (1) (am) 6. of the statutes is created to read:

SB438,6,9 813.12 (1) (am) 6. A violation of s. 951.02, involving an animal that belongs to the individual.

SB438, s. 15 Section 15. 813.12 (1) (cg) of the statutes is created to read:

SB438,6,12 813.12 (1) (cg) "Reasonable grounds" means more likely than not that a specific event has occurred or will occur.

SB438, s. 16 Section 16. 813.12 (1) (cj) of the statutes is created to read:

SB438,6,15 813.12 (1) (cj) "Regular and direct contact" means face-to-face physical proximity to an individual that is planned, scheduled, expected, or periodic.

SB438, s. 17 Section 17. 813.12 (2) (a) of the statutes is amended to read:

SB438,7,8 813.12 (2) (a) No action under this section may be commenced by complaint and summons. An action under this section may be commenced only by a petition described under sub. (5) (a). The action commences with service of the petition upon the respondent if a copy of the petition is filed before service or promptly after service. If the judge or family court commissioner extends the time for a hearing under sub. (3) (c) and the petitioner files an affidavit with the court stating that personal service by the sheriff or a private server under s. 801.11 (1) (a) or (b) was unsuccessful because the respondent is avoiding service by concealment or otherwise, the judge or family court commissioner shall inform the petitioner that he or she may serve the respondent by publication of a summary of the petition as a class 1 notice, under ch. 985, and by mailing or sending a facsimile if the respondent's post-office address or facsimile number is known or can with due diligence be ascertained. The mailing or sending of a facsimile may be omitted if the post-office address or facsimile number cannot be ascertained with due diligence. A summary of the petition published as a class 1 notice shall include the name of the respondent and of the petitioner, notice of the temporary restraining order, and notice of the date, time, and place of the hearing regarding the injunction.

SB438, s. 18 Section 18. 813.12 (3) (a) (intro.) of the statutes is amended to read:

SB438,7,18 813.12 (3) (a) (intro.) A judge or family court commissioner shall issue a temporary restraining order ordering the respondent to refrain from committing acts of domestic abuse against the petitioner, to avoid the petitioner's residence, except as provided in par. (am), or any premises other location temporarily occupied by the petitioner or both, or to avoid contacting or causing any person other than a party's attorney or a law enforcement officer to contact the petitioner unless the petitioner consents in writing, or any combination of these remedies requested in the petition, or any other appropriate remedy not inconsistent with the remedies requested in the petition, if all of the following occur:

SB438, s. 19 Section 19. 813.12 (3) (a) 2. of the statutes is amended to read:

SB438,7,22 813.12 (3) (a) 2. The judge or family court commissioner finds reasonable grounds to believe that the respondent has engaged in, or based on prior conduct of the petitioner and the respondent may engage in, domestic abuse of the petitioner.

SB438,8,7 (aj) In determining whether to issue a temporary restraining order, the judge or family court commissioner shall consider the potential danger posed to the petitioner and the pattern of abusive conduct of the respondent but may not base his or her decision solely on the length of time since the last domestic abuse or the length of time since the relationship ended. The judge or family court commissioner may grant only the remedies requested or approved by the petitioner. The judge or family court commissioner may not dismiss or deny granting a temporary restraining order because of the existence of a pending action or of any other court order that bars contact between the parties, nor due to the necessity of verifying the terms of an existing court order.

SB438, s. 20 Section 20. 813.12 (3) (c) of the statutes is amended to read:

SB438,8,16 813.12 (3) (c) The temporary restraining order is in effect until a hearing is held on issuance of an injunction under sub. (4). The temporary restraining order is not voided if the respondent is admitted into a dwelling that the order directs him or her to avoid. A judge or family court commissioner shall hold a hearing on issuance of an injunction within 7 14 days after the temporary restraining order is issued, unless the time is extended upon the written consent of the parties or extended once for 14 days upon a finding that the respondent has not been served with a copy of the temporary restraining order although the petitioner has exercised due diligence.

SB438, s. 21 Section 21. 813.12 (4) (a) (intro.) of the statutes is amended to read:

SB438,9,2 813.12 (4) (a) (intro.) A judge or family court commissioner may grant an injunction ordering the respondent to refrain from committing acts of domestic abuse against the petitioner, to avoid the petitioner's residence, except as provided in par. (am), or any premises other location temporarily occupied by the petitioner or both, or to avoid contacting or causing any person other than a party's attorney or a law enforcement officer to contact the petitioner unless the petitioner consents to that contact in writing, or any combination of these remedies requested in the petition, or any other appropriate remedy not inconsistent with the remedies requested in the petition, if all of the following occur:

SB438, s. 22 Section 22. 813.12 (4) (a) 2. of the statutes is amended to read:

SB438,9,7 813.12 (4) (a) 2. The petitioner serves upon the respondent a copy or summary of the petition and notice of the time for hearing on the issuance of the injunction, or the respondent serves upon the petitioner notice of the time for hearing on the issuance of the injunction.

SB438, s. 23 Section 23. 813.12 (4) (a) 3. of the statutes is amended to read:

SB438,9,12 813.12 (4) (a) 3. After hearing, the judge or family court commissioner finds reasonable grounds to believe that the respondent has engaged in, or based upon prior conduct of the petitioner and the respondent may engage in, domestic abuse of the petitioner.

SB438,9,21 (aj) In determining whether to issue an injunction, the judge or family court commissioner shall consider the potential danger posed to the petitioner and the pattern of abusive conduct of the respondent but may not base his or her decision solely on the length of time since the last domestic abuse or the length of time since the relationship ended. The judge or family court commissioner may grant only the remedies requested by the petitioner. The judge or family court commissioner may not dismiss or deny granting an injunction because of the existence of a pending action or of any other court order that bars contact between the parties, nor due to the necessity of verifying the terms of an existing court order.

SB438, s. 24 Section 24. 813.12 (4) (c) 1. of the statutes is amended to read:

SB438,9,25 813.12 (4) (c) 1. An injunction under this subsection is effective according to its terms, for the period of time that the petitioner requests, but not more than 2 4 years. An injunction granted under this subsection is not voided if the petitioner allows or initiates contact with the respondent or by the admittance of the respondent into a dwelling that the injunction directs him or her to avoid.

SB438, s. 25 Section 25. 813.12 (4) (c) 2. of the statutes is amended to read:

SB438,10,7 813.12 (4) (c) 2. When an injunction granted for less than 2 4 years expires, the court shall extend the injunction if the petitioner states that an extension is necessary to protect him or her. This extension shall remain in effect until 2 4 years after the date the court first entered the injunction.

SB438, s. 26 Section 26. 813.12 (5) (d) of the statutes is created to read:

SB438,10,12 813.12 (5) (d) A petition may be prepared and filed by the person who alleges that he or she has been the subject of domestic abuse or by the guardian, as defined in s. 880.01 (3), of an incompetent individual, as defined in s. 880.01 (4), who has been the subject of domestic abuse.

SB438, s. 27 Section 27. 813.12 (5m) of the statutes is created to read:

SB438,10,16 813.12 (5m) Confidentiality of victim's address. The petition under sub. (5) and the court order under sub. (3) or (4) shall not disclose the address of the alleged victim.

SB438, s. 28 Section 28. 813.12 (6) (d) of the statutes is created to read:

SB438,10,20 813.12 (6) (d) The issuance of an order under s. 813.12 (3) or (4) is enforceable despite the existence of any other criminal or civil order restricting or prohibiting contact.

SB438, s. 29 Section 29. 813.12 (7) (c) of the statutes is created to read:

SB438,11,2 813.12 (7) (c) A respondent who does not appear at a hearing at which the court orders an injunction under s. 813.12 (4) but who has been served with a copy of the petition and notice of the time for hearing under s. 813.12 (3) has constructive knowledge of the existence of the injunction and shall be arrested for violation of the injunction regardless of whether he or she has been served with a copy of the injunction.

SB438, s. 30 Section 30. 814.61 (1) (e) of the statutes is amended to read:

SB438,11,12 814.61 (1) (e) No fee charged under this subsection in any action commenced under s. 813.122, 813.123, or 813.125 may be collected from a petitioner under s. 813.122, 813.123, or 813.125 if the petition alleges conduct that is the same as or similar to conduct that is prohibited by s. 940.32 or that is listed in s. 813.12 (1) (a) (am) 1. to 4. 8. If no fee is collected under this paragraph, the fee charged under this subsection for petitions filed and granted under s. 813.122, 813.123 , or 813.125 shall be collected from the respondent under s. 813.122, 813.123, or 813.125 if he or she is convicted of violating a temporary restraining order or injunction issued under s. 813.122 (4) or (5), 813.123 (4) or (5), or 813.125 (3) or (4).

SB438, s. 31 Section 31. 814.70 (1) of the statutes is amended to read:

SB438,12,7 814.70 (1) Service of process. For each service or attempted service of a summons or any other process for commencement of an action, a writ, an order of injunction, a subpoena, or any other order, $12 for each defendant or person. If there is more than one defendant or person to be served at a given address, $6 for each additional defendant or person. No fee charged under this subsection in any action commenced under s. 813.12, 813.122, or 813.123 may be collected from a petitioner under s. 813.12, 813.122, or 813.123. The fee charged under this subsection in any action commenced under s. 813.12, 813.122, 813.123, or 813.125 shall be collected from the respondent under s. 813.12, 813.122, or 813.123 if he or she is convicted of violating a temporary restraining order or injunction issued under s. 813.12 (3) or (4), 813.122 (4) or (5), 813.123 (4) or (5), or 813.125 (3) or (4). No fee charged under this subsection in any action commenced under s. 813.125 may be collected from a petitioner under s. 813.125 if the petition alleges conduct that is the same as or similar to conduct that is prohibited by s. 940.32 or that is listed in s. 813.12 (1) (a) (am) 1. to 4. 8. If no fee is collected under this subsection from a petitioner under s. 813.125, the fee charged under this subsection in any action commenced under s. 813.125 shall be collected from the respondent under s. 813.125 if he or she is convicted of violating a temporary restraining order or injunction issued under s. 813.125 (3) or (4).

SB438, s. 32 Section 32. 814.70 (3) (intro.) of the statutes is amended to read:

SB438,12,19 814.70 (3) (intro.) For travel in serving any summons, writ or other process, except criminal warrants, and except that a fee under this subsection in any action commenced under s. 813.12, 813.122, or 813.123 may not be collected from a petitioner but shall be collected from the respondent if he or she is convicted of violating a temporary restraining order or injunction issued under s. 813.12 (3) or (4), 813.122 (4) or (5), 813.123 (4) or (5), or 813.125 (3) or (4), and except that a fee under this subsection in any action commenced under s. 813.125 may not be collected from a petitioner if the petition alleges conduct that is the same as or similar to conduct that is prohibited by s. 940.32 or that is listed in s. 813.12 (1) (a) (am) 1. to 4. 8. but shall be collected from the respondent if he or she is convicted of violating a temporary restraining order or injunction issued under s. 813.125 (3) or (4):

SB438, s. 33 Section 33. 895.73 (1) (a) of the statutes is amended to read:

SB438,12,25 895.73 (1) (a) "Abusive conduct" means domestic abuse, as defined under s. 46.95 (1) (a), 813.12 (1) (a) (am), or 968.075 (1) (a), harassment, as defined under s. 813.125 (1), sexual exploitation by a therapist under s. 940.22, sexual assault under s. 940.225, child abuse, as defined under s. 813.122 (1) (a), or child abuse under ss. 948.02 to 948.11.

SB438, s. 34 Section 34. Initial applicability.

SB438,13,3 (1) This act first applies to actions commenced on the effective date of this subsection.

SB438,13,4 (End)