SB123: Bill Text

2005 - 2006 LEGISLATURE

2005 Senate BILL 123

March 18, 2005 - Introduced by Joint Legislative Council. Referred to Committee on Health, Children, Families, Aging and Long Term Care.

SB123,4,4 An Act to repeal 767.02 (title), 767.05 (title) and (1), 767.05 (2) (title), 767.078 (title), 767.09 (title), 767.11 (15), 767.14, 767.145 (title) and (1), 767.19 (title), 767.23 (1g), 767.24 (9), 767.253 (title), 767.265 (title), 767.29 (1) (f), 767.293, 767.295 (title), 767.325 (9), 767.327 (7), 767.39 (title), 767.39 (2), 767.42, 767.455 (5g), 767.455 (5r), 767.455 (5w), 767.457 (title), 767.457 (2), 767.458 (1) (a) to (e) and 767.465 (2m) (b); to renumber 767.001 (3) and (4), 767.025 (2) and (4), 767.03 (title), 767.05 (7), 767.07 (title), 767.085 (4), 767.19 (2), 767.20, 767.23 (1m), 767.24 (title), 767.24 (1) (title), 767.266, 767.305 (title), 767.32 (2r), 767.455 (title) and (1) to (4), 767.456, 767.458 (title), 767.465 (2m) (c), (3) and (4), 767.466 and 767.48 (title); to renumber and amend 767.01 (3), 767.015, 767.02 (1), 767.02 (2), 767.025 (title), 767.025 (intro.), 767.025 (1), 767.027, 767.03, 767.04, 767.045, 767.05 (1m), 767.05 (2), 767.05 (3), 767.05 (4), 767.05 (5), 767.05 (6), 767.07, 767.075, 767.077, 767.078 (1), 767.078 (2), 767.08, 767.081, 767.082, 767.083, 767.085 (title), 767.085 (1), 767.085 (2), 767.085 (2m) and (3), 767.087, 767.09 (1) and (2), 767.10, 767.11 (title) and (1), 767.11 (2) to (14), 767.115 (title), 767.115 (1) (a), 767.115 (1) (b), 767.115 (1m), (2) and (3), 767.115 (4), 767.12 (title) and (1), 767.12 (2) and (3), 767.125, 767.145 (2), 767.15, 767.19 (1), 767.21, 767.22, 767.23 (title) and (1), 767.23 (1n), 767.23 (2), 767.23 (3), 767.24 (1), 767.24 (1m) to (8), 767.242, 767.245, 767.247, 767.25 (title) and (1) to (4), 767.25 (4m), 767.25 (5) to (7), 767.253, 767.254, 767.255, 767.26, 767.261, 767.262, 767.263, 767.265 (1), 767.265 (1m) to (7m), 767.265 (8), 767.267, 767.27 (title), (1), (1m) and (2), 767.27 (2m), 767.27 (3), (4) and (5), 767.275, 767.28, 767.29 (title), 767.29 (1) (a), (b) and (c), 767.29 (1) (d) and (dm), 767.29 (1) (e), 767.29 (1m) to (4), 767.295 (1) and (2) (a), 767.295 (2) (b) and (c), 767.30, 767.303 (title), 767.303 (1), 767.303 (2) to (5), 767.305, 767.31, 767.32 (title), 767.32 (1) (a), 767.32 (1) (b), (c) and (d), 767.32 (1m), 767.32 (1r), 767.32 (2), 767.32 (2m), 767.32 (2s), 767.32 (2w), 767.32 (3), 767.32 (4), 767.32 (5), 767.325 (intro.) and (1) to (5), 767.325 (5m), 767.325 (6) to (8), 767.327 (title) and (1) to (6), 767.329, 767.33, 767.37 (title), 767.37 (1) (a), 767.37 (1) (c), 767.37 (2), 767.37 (3), 767.38, 767.39 (1), 767.40, 767.45, 767.455 (5), 767.455 (6), 767.457 (1), 767.458 (1) (intro.), 767.458 (1m) to (3), 767.459 (title), 767.459, 767.46, 767.463, 767.465 (title), (1), (1m), (2) and (2m) (title) and (a), 767.47, 767.475, 767.477, 767.48 (1) (a), 767.48 (1) (b) and (1m) to (7), 767.50, 767.51, 767.52, 767.53, 767.60 and 767.62; to amend 46.21 (5) (b), 48.988 (11), 48.989 (2), 69.15 (3) (b) 1., 69.15 (3) (b) 3., 767.01 (1), 767.16, 808.075 (4) (d) 13. and 814.615 (1) (a) (intro.) and (2); and to create subchapter I (title) of chapter 767 [precedes 767.001], 767.001 (1b), 767.005, 767.01 (2) (title), subchapter II (title) of chapter 767 [precedes 767.105], 767.117 (1) (title) and (3) (title), 767.127 (3) (title), 767.17, subchapter III (title) of chapter 767 [precedes 767.201], 767.201, 767.205 (title), 767.215 (4) (title), 767.215 (5), 767.225 (3m) (title), 767.235 (3) (title), 767.241 (1) (title), (2) (title), (3) (title) and (4) (title), 767.264 (title), 767.281 (2) (title) and (4) (title), subchapter IV (title) of chapter 767 [precedes 767.301], 767.313 (2), 767.315 (title), 767.34 (2) (title), subchapter V (title) of chapter 767 [precedes 767.401], 767.401 (1) (title) and (2) (title), 767.405 (1) (intro.), 767.43 (1) (title), (1m) (title), (2) (title), (2m) (title), (3) (title), (3c) (title), (3m) (title), (5) (title) and (6) (title), 767.481 (8), subchapter VI (title) of chapter 767 [precedes 767.501], 767.501 (1) (title) and (2) (title), 767.501 (4), 767.511 (1) (c), (1g) (title), (1j) (title), (1m) (title), (1n) (title), (2) (title), (3) (title) and (4) (title), 767.513 (title), (4) (title) and (5) (title), 767.55 (title), (2) (title) and (3) (title), 767.553 (1) (title), (4) (title) and (5) (title), 767.57 (1) (title), (1e) (title) and (4) (title), 767.58 (2) (title), 767.59 (1k), 767.59 (2) (title), subchapter VII (title) of chapter 767 [precedes 767.61], 767.61 (2) (title) and (3) (title), 767.61 (4), (5) and (6), subchapter VIII (title) of chapter 767 [precedes 767.70], 767.71, 767.73 (1) (title), (4) (title) and (5) (title), 767.75 (title), (2m) (title), (3m) (title), (6m) (title), (7) (title) and (7m) (title), 767.76 (2) (title), (3) (title), (4) (title) and (6) (title), 767.77 (4) (title), subchapter IX of chapter 767 [precedes 767.80], 767.80 (2) (title), (3) (title), (4) (title), (5) (title), (6) (title) and (6r) (title), 767.805 (1m), 767.813 (5) (b) and (c), 767.813 (5g), 767.814, 767.815 (1) (title) and (2) (title), 767.82 (1) (title), (2) (title), (3) (title), (4) (title), (5) (title), (6) (title), (7) (title) and (8) (title), 767.83 (2) (title), 767.84 (1) (title), 767.84 (1) (a) 2., 767.84 (1m) (title), (2) (title), (3) (title), (5) (title), (6) (title) and (7) (title), 767.85 (1) (title), 767.853 (1) (title) and (2) (title), 767.863 (3) (title), 767.865 (1) (title), 767.865 (1) (b), 767.865 (2), 767.87 (1) (title), (1m) (title), (2) (title), (2m) (title), (4) (title), (5) (title), (6) (title), (7) (title), (8) (title), (9) (title), (10) (title) and (11) (title), 767.88 (2) (title), (3) (title), (4) (title), (5) (title) and (6) (title), 767.883 (2) (title), 767.89 (1) (title), (3) (title), (3m) (title), (4) (title) and (7) (title) and 767.893 (2) (b) 2. of the statutes; relating to: reorganizing and revising chapter 767 of the statutes.

Analysis by the Legislative Reference Bureau

This bill is explained in the Notes provided by the Joint Legislative Council in the bill.

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

Joint Legislative Council prefatory note: This bill was developed by the Joint Legislative Council's Special Committee on Recodification of Ch. 767, Actions Affecting the Family. The special committee was directed to recodify ch. 767, stats., including possible reorganization of the chapter in a logical manner, renumbering and retitling sections, consolidating related provisions, modernizing language, resolving ambiguities in language, codifying court decisions, and making minor substantive changes.

General topics covered by ch. 767 include: annulment, divorce, and legal separation; child custody, physical placement, and visitation; support, including child support; spousal maintenance; property division; and paternity. The chapter was last recodified in the 1959 legislative session. See ch. 595, laws of 1959. Since that recodification, the chapter has expanded considerably, both in the number of individual provisions and the length of the chapter. The expansion of the chapter has resulted in a disorganized chapter, which can be difficult to use.

This bill:

(1) Reorganizes ch. 767 by:

a. Creating 9 subchapters and relocating provisions within the chapter.

b. Reorganizing individual sections, or portions of sections, by combining them with other sections, dividing single sections into 2 or more sections, and internally reorganizing single sections.

(2) Makes nonsubstantive editorial changes to modernize language and for consistency with current drafting style.

(3) Revises section titles, where appropriate, and provides subsection titles throughout the chapter.

(4) Repeals several provisions considered no longer necessary.

(5) Makes substantive changes the special committee concluded are relatively noncontroversial.

The special committee explicitly intends that, unless expressly noted, this bill makes no substantive changes in the statutory provisions treated by the bill. Substantive changes in the bill are identified in notes to the provisions substantively affected. If a question arises about the effect of any modification made by this bill, the special committee intends that the revisions in this bill be construed to have the same effect as the prior statutes.

Some of the notes to paternity-related provisions treated by the bill include references to the "paternity reform committee." That committee was established by the family law section of the State Bar of Wisconsin. The committee's report to the family law section board was approved by the board in May 2000. Several of the committee's recommendations are included in this bill.

For convenience, a table of contents listing all section numbers of reorganized ch. 767 and the newly created subchapters is included in this prefatory note. Also, a finding aid is included at the end of this bill identifying the treatment by this bill of current statutory provisions within ch. 767.

The remainder of this note consists of the table of contents for reorganized ch. 767: - See PDF for table

SB123, s. 1 Section 1. 46.21 (5) (b) of the statutes is amended to read:

SB123,8,3 46.21 (5) (b) Sections 46.10, 49.08, 49.90, and 301.12 and 767.42 govern the support and maintenance of persons in any of the institutions specified in sub. (2) (a).

Note: Reflects the repeal of s. 767.42 by Sec. 182 of this bill.

SB123, s. 2 Section 2. 48.988 (11) of the statutes is amended to read:

SB123,8,10 48.988 (11) Financial responsibility for any child placed under the interstate compact on the placement of children shall be determined in accordance with sub. (5) in the first instance. However, in the event of partial or complete default of performance thereunder, the provisions of s. 49.90 or 767.42, ch. 769, or any other applicable state law fixing responsibility for the support of children also may be invoked.

Note: Reflects the repeal of s. 767.42 by Sec. 182 of this bill.

SB123, s. 3 Section 3. 48.989 (2) of the statutes is amended to read:

SB123,8,17 48.989 (2) Financial responsibility. Financial responsibility for any child placed under the provisions of the interstate compact on the placement of children shall be determined in accordance with ss. 48.60 (4) (b) and 48.988 (5). In the event of partial or complete default of performance under the compact, the provisions of s. 49.90 or 767.42, ch. 769, or any other applicable state law fixing responsibility for the support of children may also be invoked.

Note: Reflects the repeal of s. 767.42 by Sec. 182 of this bill.

SB123, s. 4 Section 4. 69.15 (3) (b) 1. of the statutes is amended to read:

SB123,9,7 69.15 (3) (b) 1. Except as provided under par. (c), if the state registrar receives a statement acknowledging paternity on a form prescribed by the state registrar and signed by both of the birth parents of a child determined to be a marital child under s. 767.60 767.803, a certified copy of the parents' marriage certificate, and the fee required under s. 69.22 (5) (b) 1., the state registrar shall insert the name of the husband from the marriage certificate as the father if the name of the father was omitted on the original birth certificate. The state registrar shall include on the form for the acknowledgment a notice of the information in s. 767.458 (1) (a) to (e) the items in s. 767.813 (5g).

SB123, s. 5 Section 5. 69.15 (3) (b) 3. of the statutes is amended to read:

SB123,9,19 69.15 (3) (b) 3. Except as provided under par. (c), if the state registrar receives a statement acknowledging paternity on a form prescribed by the state registrar and signed by both parents, and by a parent or legal guardian of any parent who is under the age of 18 years, along with the fee under s. 69.22, the state registrar shall insert the name of the father under subd. 1. The state registrar shall mark the certificate to show that the form is on file. The form shall be available to the department of workforce development or a county child support agency under s. 59.53 (5) pursuant to the program responsibilities under s. 49.22 or to any other person with a direct and tangible interest in the record. The state registrar shall include on the form for the acknowledgment a notice of the information in ss. 767.458 (1) (a) to (e) and 767.62 s. 767.805 and the items in s. 767.813 (5g).

SB123, s. 6 Section 6. Subchapter I (title) of chapter 767 [precedes 767.001] of the statutes is created to read:

SB123,9,22 chapter 767

SB123,9,25 subchapter i definitions, scope, jurisdiction, and recognition of judgments

SB123, s. 7 Section 7. 767.001 (1b) of the statutes is created to read:

SB123,10,4 767.001 (1b) "Court" includes the circuit court commissioner when the circuit court commissioner has been authorized by law to exercise the authority of the court or has been delegated that authority as authorized by law.

Note: Permits substitution of "court" for "court or circuit court commissioner" or "judge or circuit court commissioner" as the latter appears in ch. 767. Separate references to "supplemental court commissioner" in ch. 767 are retained.

SB123, s. 8 Section 8. 767.001 (3) and (4) of the statutes are renumbered 767.405 (1) (a) and (b).

Note: Relocates definitions of "mediation" and "mediator" in the current general definitions section of ch. 767 to the section in the chapter relating to family court services. With the exception of 2 cross-references to the terms in other sections in this chapter, this is the only section in the chapter in which those terms appear.

SB123, s. 9 Section 9. 767.005 of the statutes is created to read:

SB123,10,8 767.005 Scope. This chapter applies to actions affecting the family.

Note: Explicitly states what is implicit in current ch. 767. Note that the term "action affecting the family" is now a defined term in the definitions section. See Sec. 15 of this bill.

SB123, s. 10 Section 10 . 767.01 (1) of the statutes is amended to read:

SB123,10,17 767.01 (1) Generally. The circuit courts have jurisdiction of all actions affecting the family and have authority to do all acts and things necessary and proper in such those actions and to carry their orders and judgments into execution as prescribed in this chapter. All actions affecting the family shall be commenced and conducted and the orders and judgments enforced according to these statutes in respect to actions in circuit court, as far as applicable, except as provided in this chapter Except as provided in subs. (2) and (2m), jurisdiction may be exercised as provided under ch. 801.

Note: 1. The substance of the stricken sentence is relocated to s. 767.201, in subch. III, general procedure.

2. The underscored sentence restates part of current s. 767.05 (1), stats., which is repealed by Sec. 26 of this bill. Current s. 767.05 (1) provides: "A court of this state having jurisdiction to hear actions affecting the family may exercise jurisdiction as provided under ch. 769 or 801.". Reference to ch. 769 is already included in current s. 767.01 (2), stats.

SB123, s. 11 Section 11. 767.01 (2) (title) of the statutes is created to read:

SB123,11,2 767.01 (2) (title) Paternity and child support.

SB123, s. 12 Section 12. 767.01 (3) of the statutes is renumbered 767.80 (1m) and amended to read:

SB123,11,8 767.80 (1m) Venue. An action under s. 767.45 this section may be brought in the county in which the child or the alleged father resides or is found or, if the father is deceased, in which proceedings for probate of his estate have been or could be commenced.

SB123, s. 13 Section 13. 767.015 of the statutes is renumbered 767.01 (2m), and 767.01 (2m) (title), as renumbered, is amended to read:

SB123,11,11 767.01 (2m) (title) Child custody jurisdiction.

Note: Combines s. 767.015 with s. 767.01, which currently and under this bill contains jurisdiction provisions.

SB123, s. 14 Section 14 . 767.02 (title) of the statutes is repealed.

SB123, s. 15 Section 15 . 767.02 (1) of the statutes is renumbered 767.001 (1), and 767.001 (1) (intro.) and (k), as renumbered, are amended to read:

SB123,11,16 767.001 (1) (intro.) Actions " Action affecting the family are" means any of the following actions:

SB123,11,19 (k) Concerning periods of physical placement or visitation rights to children, including an action to prohibit a move with or the removal of a child under s. 767.327 767.481 (3) (c).

Note: Relocates s. 767.02 (1), which currently delineates those actions comprising "actions affecting the family," into the general definitions section for ch. 767.

SB123, s. 16 Section 16. 767.02 (2) of the statutes is renumbered 767.001 (1f) and amended to read:

SB123,12,2 767.001 (1f) "Divorce" means divorce from the bonds of matrimony or absolute divorce, when used in this chapter dissolution of the marriage relationship.

Note: Modernizes the definition of "divorce" and relocates the definition into the general definitions section for ch. 767.

SB123, s. 17 Section 17. 767.025 (title) of the statutes is renumbered 767.281 (title) and amended to read:

SB123,12,6 767.281 (title) Filing procedures and orders for enforcement or modification of judgments or orders in actions affecting the family.

SB123, s. 18 Section 18. 767.025 (intro.) of the statutes is renumbered 767.281 (1) and amended to read:

SB123,12,11 767.281 (1) Applicability. The following filing procedures shall apply This section applies to all enforcement or modification petitions, motions or orders to show cause filed for actions affecting the family under s. 767.02 767.001 (1) (i):.

SB123, s. 19 Section 19. 767.025 (1) of the statutes is renumbered 767.281 (1m) and amended to read:

SB123,13,2 767.281 (1m) Generally. Except as provided in sub. (2), if a petition, motion, or order to show cause requesting enforcement or modification of a judgment or order in an action affecting the family which that was granted by a court of this state is filed in a county other than the county in which the judgment or order was rendered, the petitioner or party bringing the motion or order to show cause shall send a copy of the petition, motion, or order to show cause and summons to the clerk of the court in which the judgment or order was rendered. If a question arises as to which court should exercise jurisdiction, a conference involving both judges, all counsel, and guardians ad litem may be convened under s. 807.13 (3) to resolve the question. The petitioner shall send a copy of any order rendered pursuant to this the petition, motion, or order to show cause to the clerk of the court in which the original judgment or order was rendered.

SB123, s. 20 Section 20. 767.025 (2) and (4) of the statutes are renumbered 767.281 (2) and (4).

SB123, s. 21 Section 21. 767.027 of the statutes is renumbered 767.70, and 767.70 (title), (1) (intro.) and (b) and (2), as renumbered, are amended to read:

SB123,13,11 767.70 (title) Notice Child support enforcement: notice and service of process requirements. (1) When satisfied. (intro.) In any an action under s. 767.02 767.001 (1) (i) to enforce or modify a judgment or order with respect to child support, due process requirements related to notice and service of process are satisfied to the extent that if the court finds all of the following:

Note: Clarifies that the provision applies to actions to modify child support orders and judgments.

SB123,13,14 (b) That written notice of the action to the respondent has been delivered to the most recent residential address or employer address provided by the respondent under s. 767.263 767.58 (2) to the county child support agency under s. 59.53 (5).

SB123,13,20 (2) Rules on locating respondent. The department shall promulgate rules that specify specifying the process that the department will use under sub. (1) (a) to ascertain the location of the respondent. Notwithstanding sub. (1) (b), the process specified in the rules shall utilize all reasonable means to which the department has access, including electronic means, interfaces with other programs , and information provided by the postmaster, for determining the current address of the respondent.

SB123, s. 22 Section 22. 767.03 (title) of the statutes is renumbered 767.313 (title).

SB123, s. 23 Section 23 . 767.03 of the statutes is renumbered 767.313 (1), and 767.313 (1) (intro.), as renumbered, is amended to read:

SB123,14,4 767.313 (1) Grounds; when suit may be brought. (intro.) No marriage may be annulled or held void except pursuant to judicial proceedings. No marriage may be annulled after the death of either party to the marriage. A court may annul a marriage entered into under upon any of the following circumstances grounds:

Note: The stricken sentences are relocated to new s. 767.313 (2), created by Sec. 145 of this bill.

SB123, s. 24 Section 24. 767.04 of the statutes is renumbered 767.18 and amended to read:

SB123,14,10 767.18 Actions to affirm marriage. When If the validity of any a marriage shall be is denied or doubted by either of the parties the other party may commence an action to affirm the marriage, and the. The judgment in such an action to affirm marriage shall declare such the marriage valid or annul the same marriage, and be is conclusive upon all persons concerned.