SB112: Bill Text

SB112,7,22 822.05 International application. (1) A court of this state shall treat a foreign country as if it were a state for the purpose of applying this subchapter and subch. II.

SB112,8,2 (2) Except as provided in sub. (3), a child custody determination made in a foreign country under factual circumstances in substantial conformity with the jurisdictional standards of this chapter shall be recognized and enforced under subch. III.

SB112,8,4 (3) A court of this state need not apply this chapter if the child custody law of a foreign country violates fundamental principles of human rights.

SB112,8,11 822.06 Effect of child custody determination. A child custody determination made by a court of this state that had jurisdiction under this chapter binds all persons who have been served in accordance with the laws of this state or notified in accordance with s. 822.08 or who have submitted to the jurisdiction of the court, and who have been given an opportunity to be heard. As to those persons, the determination is conclusive as to all decided issues of law and fact except to the extent that the determination is modified.

SB112,8,14 822.07 Priority. If a question of existence or exercise of jurisdiction under this chapter is raised in a child custody proceeding, the question, upon request of a party, shall be given priority on the calendar and handled expeditiously.

SB112,8,19 822.08 Notice to persons outside state. (1) Notice required for the exercise of jurisdiction when a person is outside this state may be given in a manner prescribed by the law of this state for service of process or by the law of the state in which the service is made. Notice shall be given in a manner reasonably calculated to give actual notice but may be by publication if other means are not effective.

SB112,8,21 (2) Proof of service may be made in the manner prescribed by law of this state or by the law of the state in which the service is made.

SB112,8,23 (3) Notice is not required for the exercise of jurisdiction with respect to a person who submits to the jurisdiction of the court.

SB112,9,4 822.09 Appearance and limited immunity. (1) A party to a child custody proceeding, including a modification proceeding, or a petitioner or respondent in a proceeding to enforce or register a child custody determination, is not subject to personal jurisdiction in this state for another proceeding or purpose solely by reason of having participated, or of having been physically present for the purpose of participating, in the proceeding.

SB112,9,8 (2) A person who is subject to personal jurisdiction in this state on a basis other than physical presence is not immune from service of process in this state. A party present in this state who is subject to the jurisdiction of another state is not immune from service of process allowable under the laws of that state.

SB112,9,11 (3) The immunity granted by sub. (1) does not extend to civil litigation based on acts unrelated to the participation in a proceeding under this chapter committed by an individual while present in this state.

SB112,9,14 822.10 Communication between courts. (1) In this section, "record" means information that is inscribed on a tangible medium or that is stored in an electronic or other medium and is retrievable in perceivable form.

SB112,9,16 (2) A court of this state may communicate with a court in another state concerning a proceeding arising under this chapter.

SB112,9,20 (3) The court may allow the parties to participate in the communication. If the parties are not able to participate in the communication, they shall be given the opportunity to present facts and legal arguments before a decision on jurisdiction is made.

SB112,9,23 (4) Communication between courts on schedules, calendars, court records, and similar matters may occur without informing the parties. A record need not be made of the communication.

SB112,10,3 (5) Except as provided in sub. (4), a record shall be made of a communication under this section. The parties shall be informed promptly of the communication and granted access to the record.

SB112,10,10 822.11 Taking testimony in another state. (1) In addition to other procedures available to a party, a party to a child custody proceeding may offer testimony of witnesses who are located in another state, including testimony of the parties and the child, by deposition or other means allowable in this state for testimony taken in another state. The court on its own motion may order that the testimony of a person be taken in another state and may prescribe the manner in which and the terms upon which the testimony is taken.

SB112,10,15 (2) A court of this state may permit an individual residing in another state to be deposed or to testify by telephone, audiovisual means, or other electronic means before a designated court or at another location in that state. A court of this state shall cooperate with courts of other states in designating an appropriate location for the deposition or testimony.

SB112,10,18 (3) Documentary evidence transmitted from another state to a court of this state by technological means that do not produce an original writing may not be excluded from evidence on an objection based on the means of transmission.

SB112,10,21 822.12 Cooperation between courts; preservation of records. (1) A court of this state may request the appropriate court of another state to do any of the following:

SB112,10,22 (a) Hold an evidentiary hearing.

SB112,10,23 (b) Order a person to produce or give evidence under procedures of that state.

SB112,10,25 (c) Order that an evaluation be made with respect to the custody of a child involved in a pending proceeding.

SB112,11,3 (d) Forward to the court of this state a certified copy of the transcript of the record of the hearing, the evidence otherwise presented, and any evaluation prepared in compliance with the request.

SB112,11,5 (e) Order a party to a child custody proceeding or any person having physical custody of the child to appear in the proceeding with or without the child.

SB112,11,7 (2) Upon request of a court of another state, a court of this state may hold a hearing or enter an order described in sub. (1).

SB112,11,9 (3) Travel and other necessary and reasonable expenses incurred under subs. (1) and (2) may be assessed against the parties according to the law of this state.

SB112,11,14 (4) A court of this state shall preserve the pleadings, orders, decrees, records of hearings, evaluations, and other pertinent records with respect to a child custody proceeding until the child attains 18 years of age. Upon appropriate request by a court or law enforcement official of another state, the court shall forward a certified copy of those records.

SB112,11,16 Subchapter II Jurisdiction

SB112,11,19 822.21 Initial child custody jurisdiction. (1) Except as provided in s. 822.24, a court of this state has jurisdiction to make an initial determination only if any of the following applies:

SB112,11,23 (a) This state is the home state of the child on the date of the commencement of the proceeding, or was the home state of the child within 6 months before the commencement of the proceeding and the child is absent from this state but a parent or person acting as a parent continues to live in this state.

SB112,12,2 (b) A court of another state does not have jurisdiction under par. (a), or a court of the home state of the child has declined to exercise jurisdiction on the ground that this state is the more appropriate forum under s. 822.27 or 822.28, and all of the following apply:

SB112,12,5 1. The child and the child's parents, or the child and at least one parent or a person acting as a parent, have a significant connection with this state other than mere physical presence.

SB112,12,7 2. Substantial evidence is available in this state concerning the child's care, protection, training, and personal relationships.

SB112,12,10 (c) All courts having jurisdiction under par. (a) or (b) have declined to exercise jurisdiction on the ground that a court of this state is the more appropriate forum to determine the custody of the child under s. 822.27 or 822.28.

SB112,12,12 (d) No court of any other state would have jurisdiction under the criteria specified in par. (a), (b), or (c).

SB112,12,14 (2) Subsection (1) is the exclusive jurisdictional basis for making a child custody determination by a court of this state.

SB112,12,16 (3) Physical presence of, or personal jurisdiction over, a party or a child is not necessary or sufficient to make a child custody determination.

SB112,12,20 822.22 Exclusive, continuing jurisdiction. (1) Except as provided in s. 822.24, a court of this state that has made a child custody determination consistent with s. 822.21 or 822.23 has exclusive, continuing jurisdiction over the determination until any of the following occurs:

SB112,12,24 (a) A court of this state determines that neither the child, nor the child and one parent, nor the child and a person acting as a parent have a significant connection with this state and that substantial evidence is no longer available in this state concerning the child's care, protection, training, and personal relationships.

SB112,13,3 (b) A court of this state or a court of another state determines that the child, the child's parents, and all persons acting as parents do not presently reside in this state.

SB112,13,7 (2) A court of this state that has made a child custody determination and that does not have exclusive, continuing jurisdiction under this section may modify that determination only if it has jurisdiction to make an initial determination under s. 822.21.

SB112,13,11 822.23 Jurisdiction to modify determination. Except as provided in s. 822.24, a court of this state may not modify a child custody determination made by a court of another state unless a court of this state has jurisdiction to make an initial determination under s. 822.21 (1) (a) or (b) and one of the following applies:

SB112,13,14 (1) The court of the other state determines that it no longer has exclusive, continuing jurisdiction under s. 822.22 or that a court of this state would be a more convenient forum under s. 822.27.

SB112,13,17 (2) A court of this state or a court of the other state determines that the child, the child's parents, and all persons acting as parents do not presently reside in the other state.

SB112,13,22 822.24 Temporary emergency jurisdiction. (1) A court of this state has temporary emergency jurisdiction if the child is present in this state and the child has been abandoned or it is necessary in an emergency to protect the child because the child, or a sibling or parent of the child, is subjected to or threatened with mistreatment or abuse.

SB112,14,6 (2) If there is no previous child custody determination that is entitled to be enforced under this chapter and a child custody proceeding has not been commenced in a court of a state having jurisdiction under ss. 822.21 to 822.23, a child custody determination made under this section remains in effect until an order is obtained from a court of a state having jurisdiction under ss. 822.21 to 822.23. If a child custody proceeding has not been or is not commenced in a court of a state having jurisdiction under ss. 822.21 to 822.23, a child custody determination made under this section becomes a final determination, if it so provides and this state becomes the home state of the child.

SB112,14,14 (3) If a previous child custody determination is entitled to be enforced under this chapter, or a child custody proceeding has been commenced in a court of a state having jurisdiction under ss. 822.21 to 822.23, any order issued by a court of this state under this section shall specify in the order a period that the court considers adequate to allow the person seeking an order to obtain an order from the state having jurisdiction under ss. 822.21 to 822.23. The order issued in this state remains in effect until an order is obtained from the other state within the period specified or until the period expires.

SB112,14,25 (4) A court of this state that has been asked to make a child custody determination under this section, upon being informed that a child custody proceeding has been commenced in, or that a child custody determination has been made by, a court of a state having jurisdiction under ss. 822.21 to 822.23, shall immediately communicate with the other court. A court of this state that is exercising jurisdiction under ss. 822.21 to 822.23, upon being informed that a child custody proceeding has been commenced in, or that a child custody determination has been made by, a court of another state under a statute similar to this section, shall immediately communicate with the court of that state to resolve the emergency, protect the safety of the parties and the child, and determine a period for the duration of the temporary order.

SB112,15,6 822.25 Notice; opportunity to be heard; joinder. (1) Before a child custody determination is made under this chapter, notice and an opportunity to be heard in accordance with the standards of s. 822.08 shall be given to all persons entitled to notice under the law of this state as in child custody proceedings between residents of this state, any parent whose parental rights have not been previously terminated, and any person having physical custody of the child.

SB112,15,8 (2) This chapter does not govern the enforceability of a child custody determination made without notice or an opportunity to be heard.

SB112,15,11 (3) The obligation to join a party and the right to intervene as a party in a child custody proceeding under this chapter are governed by the law of this state as in child custody proceedings between residents of this state.

SB112,15,18 822.26 Simultaneous proceedings. (1) Except as provided in s. 822.24, a court of this state may not exercise its jurisdiction under this subchapter if, at the time of the commencement of the proceeding, a proceeding concerning the custody of the child has been commenced in a court of another state having jurisdiction substantially in conformity with this chapter, unless the proceeding has been terminated or is stayed by the court of the other state because a court of this state is a more convenient forum under s. 822.27.

SB112,16,2 (2) Except as provided in s. 822.24, a court of this state, before hearing a child custody proceeding, shall examine the court documents and other information supplied by the parties under s. 822.29. If the court determines that a child custody proceeding has been commenced in a court in another state having jurisdiction substantially in accordance with this chapter, the court of this state shall stay its proceeding and communicate with the court of the other state. If the court of the state having jurisdiction substantially in accordance with this chapter does not determine that the court of this state is a more appropriate forum, the court of this state shall dismiss the proceeding.

SB112,16,6 (3) In a proceeding to modify a child custody determination, a court of this state shall determine whether a proceeding to enforce the determination has been commenced in another state. If a proceeding to enforce a child custody determination has been commenced in another state, the court may do any of the following:

SB112,16,9 (a) Stay the proceeding for modification pending the entry of an order of a court of the other state enforcing, staying, denying, or dismissing the proceeding for enforcement.

SB112,16,10 (b) Enjoin the parties from continuing with the proceeding for enforcement.

SB112,16,11 (c) Proceed with the modification under conditions it considers appropriate.

SB112,16,17 822.27 Inconvenient forum. (1) A court of this state that has jurisdiction under this chapter to make a child custody determination may decline to exercise its jurisdiction at any time if it determines that it is an inconvenient forum under the circumstances and that a court of another state is a more appropriate forum. The issue of inconvenient forum may be raised upon the motion of a party, the court's own motion, or the request of another court.

SB112,16,21 (2) Before determining whether it is an inconvenient forum, a court of this state shall consider whether it is appropriate for a court of another state to exercise jurisdiction. For this purpose, the court shall allow the parties to submit information and shall consider all relevant factors, including all of the following:

SB112,16,23 (a) Whether domestic violence has occurred and is likely to continue in the future and which state could best protect the parties and the child.

SB112,16,24 (b) The length of time that the child has resided outside this state.

SB112,17,2 (c) The distance between the court in this state and the court in the state that would assume jurisdiction.

SB112,17,3 (d) The relative financial circumstances of the parties.

SB112,17,4 (e) Any agreement of the parties as to which state should assume jurisdiction.

SB112,17,6 (f) The nature and location of the evidence required to resolve the pending litigation, including testimony of the child.

SB112,17,8 (g) The ability of the court of each state to decide the issue expeditiously and the procedures necessary to present the evidence.

SB112,17,10 (h) The familiarity of the court of each state with the facts and issues in the pending litigation.

SB112,17,15 (3) If a court of this state determines that it is an inconvenient forum and that a court of another state is a more appropriate forum, the court shall stay the proceedings upon condition that a child custody proceeding be promptly commenced in another designated state and may impose any other condition that the court considers just and proper.

SB112,17,19 (4) A court of this state may decline to exercise its jurisdiction under this chapter if a child custody determination is incidental to an action for divorce or another proceeding while still retaining jurisdiction over the divorce or other proceeding.

SB112,17,24 822.28 Jurisdiction declined by reason of conduct. (1) Except as provided in s. 822.24, if a court of this state has jurisdiction under this chapter because a person seeking to invoke its jurisdiction has engaged in unjustifiable conduct, the court shall decline to exercise its jurisdiction unless any of the following occurs:

SB112,18,2 (a) The parents and all persons acting as parents have acquiesced in the exercise of jurisdiction.

SB112,18,4 (b) A court of the state otherwise having jurisdiction under ss. 822.21 to 822.23 determines that this state is a more appropriate forum under s. 822.27.

SB112,18,6 (c) No court of any other state would have jurisdiction under the criteria specified in ss. 822.21 to 822.23.

SB112,18,11 (2) If a court of this state declines to exercise its jurisdiction under sub. (1), it may fashion an appropriate remedy to ensure the safety of the child and prevent a repetition of the unjustifiable conduct, including staying the proceeding until a child custody proceeding is commenced in a court having jurisdiction under ss. 822.21 to 822.23.

SB112,18,19 (3) If a court dismisses a petition or stays a proceeding because it declines to exercise its jurisdiction under sub. (1), it shall assess against the party seeking to invoke its jurisdiction necessary and reasonable expenses including costs, communication expenses, attorney fees, investigative fees, expenses for witnesses, travel expenses, and expenses for child care during the course of the proceedings, unless the party from whom fees are sought establishes that the assessment would be clearly inappropriate. The court may not assess fees, costs, or expenses against this state unless authorized by law other than this chapter.

SB112,18,25 822.29 Information to be submitted to court. (1) In a child custody proceeding, each party, in its first pleading or in an attached affidavit, shall give information, if reasonably ascertainable, under oath as to the child's present address or whereabouts, the places where the child has lived during the last 5 years, and the names and present addresses of the persons with whom the child has lived during that period. The pleading or affidavit shall state whether the party:

SB112,19,4 (a) Has participated, as a party or witness or in any other capacity, in any other proceeding concerning the custody of or physical placement or visitation with the child and, if so, shall identify the court, the case number, and the date of the child custody determination, if any.

SB112,19,8 (b) Knows of any proceeding that could affect the current proceeding, including proceedings for enforcement and proceedings relating to domestic violence, protective orders, termination of parental rights, and adoptions and, if so, shall identify the court, the case number, and the nature of the proceeding.

SB112,19,12 (c) Knows the names and addresses of any person not a party to the proceeding who has physical custody of the child or claims rights of legal custody or physical custody of, or physical placement or visitation with, the child and, if so, the names and addresses of those persons.

SB112,19,15 (2) If the information required by sub. (1) is not furnished, the court, upon motion of a party or its own motion, may stay the proceeding until the information is furnished.

SB112,19,20 (3) If the declaration as to any of the items described in sub. (1) (a) to (c) is in the affirmative, the declarant shall give additional information under oath as required by the court. The court may examine the parties under oath as to details of the information furnished and other matters pertinent to the court's jurisdiction and the disposition of the case.

SB112,19,22 (4) Each party has a continuing duty to inform the court of any proceeding in this or any other state that could affect the current proceeding.

SB112,20,3 (5) If a party alleges in an affidavit or a pleading under oath that the health, safety, or liberty of a party or child would be jeopardized by disclosure of identifying information, the information shall be sealed and may not be disclosed to the other party or the public unless the court orders the disclosure to be made after a hearing in which the court takes into consideration the health, safety, or liberty of the party or child and determines that the disclosure is in the interest of justice.

SB112,20,8 822.295 Appearance of parties and child. (1) In a child custody proceeding in this state, the court may order a party to the proceeding who is in this state to appear before the court in person with or without the child. The court may order any person who is in this state and who has physical custody or control of the child to appear in person with the child.

SB112,20,13 (2) If a party to a child custody proceeding whose presence is desired by the court is outside this state, the court may order that a notice given under s. 822.08 include a statement directing the party to appear in person with or without the child and informing the party that failure to appear may result in a decision adverse to the party.

SB112,20,15 (3) The court may enter any orders necessary to ensure the safety of the child and of any person ordered to appear under this section.

SB112,20,19 (4) If a party to a child custody proceeding who is outside this state is directed to appear under sub. (2) or desires to appear personally before the court with or without the child, the court may require another party to pay reasonable and necessary travel and other expenses of the party so appearing and of the child.

SB112,20,21 Subchapter III enforcement