SB112: Bill Text

SB112,3,20 767.05 (2) Actions for custody of children. Subject to ch. 822, the question of a child's custody may be determined as an incident of any action affecting the family or in an independent action for custody. The effect of any determination of a child's custody shall not be binding personally against any parent or guardian unless the parent or guardian has been made personally subject to the jurisdiction of the court in the action as provided under ch. 801 or has been notified under s. 822.05 822.08 as provided in s. 822.12 822.06. Nothing in this section may be construed to foreclose a person other than a parent who has physical custody of a child from proceeding under ch. 822.

SB112, s. 6 Section 6. 801.05 (11) of the statutes is amended to read:

SB112,4,7 801.05 (11) Certain marital actions. In addition to personal jurisdiction under sub. (1) and s. 801.06, in any action affecting the family, except for actions under ch. 769, in which a personal claim is asserted against the respondent commenced in the county in which the petitioner resides at the commencement of the action when the respondent resided in this state in marital relationship with the petitioner for not less than 6 consecutive months within the 6 years next preceding the commencement of the action and the respondent is served personally under s. 801.11. The effect of any determination of a child's custody shall not be binding personally against any parent or guardian unless the parent or guardian has been made personally subject to the jurisdiction of the court in the action as provided under this chapter or has been notified under s. 822.05 822.08 as provided in s. 822.12 822.06.

SB112, s. 7 Section 7. Chapter 822 of the statutes is repealed and recreated to read:

SB112,4,12 Chapter 822 uniform child custody Jurisdiction and enforcement act

SB112,4,14 Subchapter I GENERAL PROVISIONS

SB112,4,17 822.01 Short title; purposes; construction of provisions. (1) This chapter may be cited as the "Uniform Child Custody Jurisdiction and Enforcement Act."

SB112,4,18 (2) The general purposes of this chapter are to do all of the following:

SB112,4,21 (a) Avoid jurisdictional competition and conflict with courts of other states in matters of child custody that have in the past resulted in the shifting of children from state to state with harmful effects on their well-being.

SB112,4,23 (b) Promote cooperation with the courts of other states to the end that a custody decree is rendered in the state that can best decide the case in the interest of the child.

SB112,4,25 (c) Discourage the use of the interstate system for continuing controversies over child custody.

SB112,5,1 (d) Deter abductions of children.

SB112,5,2 (e) Avoid relitigation in this state of custody decisions of other states.

SB112,5,3 (f) Facilitate the enforcement of custody decrees of other states.

SB112,5,4 822.02 Definitions. In this chapter:

SB112,5,6 (1) "Abandoned" means left without provision for reasonable and necessary care or supervision.

SB112,5,7 (2) "Child" means an individual who has not attained 18 years of age.

SB112,5,12 (3) "Child custody determination" means a judgment, decree, or other order of a court providing for legal custody, physical custody, physical placement, or visitation with respect to a child. The term includes a permanent, temporary, initial, and modification order. The term does not include an order relating to child support or other monetary obligation of an individual.

SB112,5,19 (4) "Child custody proceeding" means a proceeding in which legal custody, physical custody, physical placement, or visitation with respect to a child is an issue. The term includes a proceeding for divorce, legal separation, neglect, abuse, dependency, guardianship, paternity, termination of parental rights, and protection from domestic violence, in which the issue may appear. "Child custody proceeding" does not include a proceeding involving juvenile delinquency, contractual emancipation, or enforcement under subch. III.

SB112,5,20 (5) "Commencement" means the filing of the first pleading in a proceeding.

SB112,5,22 (6) "Court" means an entity authorized under the law of a state to establish, enforce, or modify a child custody determination.

SB112,6,3 (7) "Home state" means the state in which a child lived with a parent or a person acting as a parent for at least 6 consecutive months immediately before the commencement of a child custody proceeding. In the case of a child less than 6 months of age, the term means the state in which the child lived from birth with any of the persons mentioned in this subsection. A period of temporary absence of any of the persons mentioned in this subsection is part of the period.

SB112,6,5 (8) "Initial determination" means the first child custody determination concerning a particular child.

SB112,6,7 (9) "Issuing court" means the court that makes a child custody determination for which enforcement is sought under this chapter.

SB112,6,9 (10) "Issuing state" means the state in which a child custody determination is made.

SB112,6,13 (11) "Modification" means a child custody determination that changes, replaces, supersedes, or is otherwise made after a previous determination concerning the same child, whether or not it is made by the court that made the previous determination.

SB112,6,17 (12) "Person" means an individual, corporation, business trust, estate, trust, partnership, limited liability company, association, joint venture, or government; governmental subdivision, agency, or instrumentality; public corporation; or any other legal or commercial entity.

SB112,6,19 (13) "Person acting as a parent" means a person, other than a parent, to whom all of the following apply:

SB112,6,22 (a) He or she has physical custody of the child or has had physical custody for a period of 6 consecutive months, including any temporary absence, within one year immediately before the commencement of a child custody proceeding.

SB112,6,24 (b) He or she has been awarded legal custody by a court or claims a right to legal custody under the law of this state.

SB112,6,25 (14) "Physical custody" means the physical care and supervision of a child.

SB112,7,3 (15) "State" means a state of the United States, the District of Columbia, Puerto Rico, the U.S. Virgin Islands, or any territory or insular possession subject to the jurisdiction of the United States.

SB112,7,5 (16) "Tribe" means an American Indian tribe or band, or Alaskan Native village, that is recognized by federal law or formally acknowledged by a state.

SB112,7,7 (17) "Warrant" means an order issued by a court authorizing law enforcement officers to take physical custody of a child.

SB112,7,10 822.03 Proceedings governed by other law. This chapter does not govern an adoption proceeding or a proceeding pertaining to the authorization of emergency medical care for a child.

SB112,7,14 822.04 Application to Indian tribes. (1) A child custody proceeding that pertains to an Indian child as defined in the Indian Child Welfare Act, 25 USC 1901 et seq., is not subject to this chapter to the extent that it is governed by the Indian Child Welfare Act.

SB112,7,16 (2) A court of this state shall treat a tribe as if it were a state for the purpose of applying subchs. I and II.

SB112,7,19 (3) A child custody determination made by a tribe under factual circumstances in substantial conformity with the jurisdictional standards of this chapter shall be recognized and enforced under subch. III.

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.