767.045(1)(c)2.
2. An application for legal services has been filed with the child support program under
s. 49.22 on behalf of the child, but the state and its delegate under
s. 49.22 (7) are barred by a statute of limitations from commencing an action under
s. 767.45 on behalf of the child.
767.045(1)(d)
(d) A guardian ad litem appointed under
par. (c) shall bring an action or motion for the determination of the child's paternity if the guardian ad litem determines that the determination of the child's paternity is in the child's best interest.
767.045(1)(e)
(e) Nothing in this subsection prohibits the court from making a temporary order under
s. 767.23 that concerns the child before a guardian ad litem is appointed or before the guardian ad litem has made a recommendation to the court, if the court determines that the temporary order is in the best interest of the child.
767.045(2)
(2) Time for appointment. The court shall appoint a guardian ad litem under
sub. (1) (a) 1. or
(b) whenever the court deems it appropriate. The court shall appoint a guardian ad litem under
sub. (1) (a) 2. at the time specified in
s. 767.11 (12) (b), unless upon motion by a party or its own motion, the court determines that earlier appointment is necessary.
767.045(3)
(3) Qualifications. The guardian ad litem shall be an attorney admitted to practice in this state. No person who is an interested party in a proceeding, appears as counsel in a proceeding on behalf of any party or is a relative or representative of an interested party may be appointed guardian ad litem in that proceeding.
767.045(4)
(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) and custody studies under
s. 767.11 (14). The guardian ad litem shall review and comment to the court on any mediation agreement and stipulation made under
s. 767.11 (12). 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). The guardian ad litem has none of the rights or duties of a general guardian.
767.045(4m)(a)(a) Subject to
par. (b), at any time after 120 days after a guardian ad litem is appointed under this section, a party may request that the court schedule a status hearing related to the actions taken and work performed by the guardian ad litem in the matter.
767.045(4m)(b)
(b) A party may, not sooner than 120 days after a status hearing under this subsection is held, request that the court schedule another status hearing on the actions taken and work performed by the guardian ad litem in the matter.
767.045(5)
(5) Termination and extension of appointment. The appointment of a guardian ad litem under
sub. (1) terminates upon the entry of the court's final order or upon the termination of any appeal in which the guardian ad litem participates. The guardian ad litem may appeal, may participate in an appeal or may do neither. If an appeal is taken by any party and the guardian ad litem chooses not to participate in that appeal, he or she shall file with the appellate court a statement of reasons for not participating. Irrespective of the guardian ad litem's decision not to participate in an appeal, the appellate court may order the guardian ad litem to participate in the appeal. At any time, the guardian ad litem, any party or the person for whom the appointment is made may request in writing that the court extend or terminate the appointment or reappointment. The court may extend that appointment, or reappoint a guardian ad litem appointed under this section, after the final order or after the termination of the appeal, but the court shall specifically state the scope of the responsibilities of the guardian ad litem during the period of that extension or reappointment.
767.045(6)
(6) Compensation. The guardian ad litem shall be compensated at a rate that the court determines is reasonable. The court shall order either or both parties to pay all or any part of the compensation of the guardian ad litem. In addition, upon motion by the guardian ad litem, the court shall order either or both parties to pay the fee for an expert witness used by the guardian ad litem, if the guardian ad litem shows that the use of the expert is necessary to assist the guardian ad litem in performing his or her functions or duties under this chapter. If both parties are indigent, the court may direct that the county of venue pay the compensation and fees. If the court orders a county to pay the compensation of the guardian ad litem, the amount ordered may not exceed the compensation paid to private attorneys under
s. 977.08 (4m) (b). The court may order a separate judgment for the amount of the reimbursement in favor of the county and against the party or parties responsible for the reimbursement. The court may enforce its orders under this subsection by means of its contempt power.
767.045 History
History: Sup. Ct. Order, 50Wis. 2d vii (1971);
1977 c. 105,
299;
1979 c. 32 ss.
50,
92 (4);
1979 c. 196;
1979 c. 352 s.
39; Stats. 1979 s. 767.045;
1987 a. 355; Sup. Ct. Order, 151 Wis. 2d xxv (1989);
1993 a. 16,
481;
1995 a. 27,
201,
289,
404;
1997 a. 105,
191;
1999 a. 9.
767.045 Note
Judicial Council Note, 1990: This section clarifies and expands s. 767.045, as it was amended by
1987 Wisconsin Act 355. It also incorporates the substance of s. 809.85 into it. Sub. (1) (a) specifies the situations in which the court is required to appoint a guardian ad litem. Sub. (1) (a) 1. reflects the desirability of broad discretion for the court to appoint a guardian ad litem. Of special note is sub. (1) (b). While the court has always had the discretion to appoint a guardian ad litem in such situations, the committee concluded that it is desirable to specifically identify these situations as requiring special attention.
767.045 Annotation
Sub. (2) is the present law which takes into account the need for mediation.
767.045 Annotation
Sub. (4) defines the role of the guardian ad litem. It clarifies that the responsibility is as an advocate for the best interests of the child. It emphasizes the need for the guardian ad litem to function independently, while giving broad consideration to the views of others, including the children, social workers and the like. It also specifies that the guardian ad litem shall function in the same manner as the lawyer for a party. Among other things, this means that the guardian ad litem communicates with the court and other lawyers in the same manner as a lawyer for a party, presents information on relevant issues through the presentation of evidence or in other appropriate ways and generally functions as the lawyer for a party. In this case the "party" is the best interests of the children. Sub. (4) also enumerates specific duties to emphasize their particular importance.
767.045 Annotation
The discretion for the guardian ad litem to communicate the wishes of the child in sub. (4) was added in
1987 Wisconsin Act 355, as was much of sub. (6). These are unchanged.
767.045 Annotation
Sub. (5) specifies that the appointment terminates at the final order or the conclusion of the appeal unless the court otherwise directs. The court may reappoint or continue the appointment of the guardian ad litem after this but is required to state the scope of the responsibilities for such period. [Re Order effective Jan. 1, 1990]
767.045 Annotation
The trial court's direction to the husband to pay the entire fee of the guardian ad litem is was an abuse of discretion, requiring modification to charge the wife with 50%. Tesch v. Tesch,
63 Wis. 2d 320,
217 N.W.2d 647.
767.045 Annotation
Where the guardian ad litem's report was timely disclosed to both parties, the trial court did not err in failing to introduce the report during a custody hearing. Allen v. Allen,
78 Wis. 2d 263,
254 N.W.2d 244.
767.045 Annotation
An increase of visitation rights from 24 days to 75 days per year had sufficient impact upon the welfare of the children so as to require the appointment of a guardian ad litem. Bahr v. Galonski,
80 Wis. 2d 72,
257 N.W.2d 869.
767.045 Annotation
Discussion of the requirement of the appointment of a guardian ad litem pursuant to sub. (1) and s. 891.39 (1) (a). Johnson v. Johnson,
157 Wis. 2d 490,
460 N.W.2d 166 (Ct. App. 1990).
767.045 Annotation
A guardian ad litem may not be called as a witness in a custody proceeding. The G.A.L. is to communicate with the court as a lawyer for a party and to present information by presenting evidence. Hollister v. Hollister,
173 Wis. 2d 413,
496 N.W.2d 642 (Ct. App. 1992).
767.045 Annotation
A guardian ad litem may act in a separate action involving the child outside the court of original appointment even though another guardian ad litem has been appointed by the court where the separate action was brought. Interest of Brandon S.S.
179 Wis. 2d 114,
507 N.W.2d 94 (1993).
767.045 Annotation
The courts' power to appropriate compensation for court-appointed counsel is necessary for the effective operation of the judicial system. In ordering compensation for court ordered attorneys, a court should abide by the s. 977.08 (4m) rate when it can retain qualified and effective counsel at that rate, but should order compensation at the rate under
SCR 81.01 or 81.02 or a higher rate when necessary to secure effective counsel. Friedrich v. Dane County Circuit Ct.
192 Wis. 2d 1,
531 N.W.2d 32 (1995).
767.045 Annotation
The denial of a child's request to intervene in a divorce action was correct. The guardian-ad-litem fulfills the requirement that a child is entitled to representation. Joshua K. v. Nancy K.
201 Wis. 2d 655,
549 N.W.2d 494 (Ct. App. 1996).
767.045 Annotation
Quasi-judicial immunity extends to a guardian ad litem's negligent performance in a divorce proceeding. Paige K. B. v. Molepske,
219 Wis. 2d 418,
580 N.W.2d 289 (1998).
767.045 Annotation
The "why" behind appointing guardians ad litem for children in divorce proceedings. Podell, 57 MLR 103.
767.05(1)(1)
Jurisdiction. A court of this state having jurisdiction to hear actions affecting the family may exercise jurisdiction as provided under
ch. 769 or
801.
767.05(1m)
(1m) Residence. No action under
s. 767.02 (1) (a) or
(b) may be brought unless at least one of the parties has been a bona fide resident of the county in which the action is brought for not less than 30 days next preceding the commencement of the action, or unless the marriage has been contracted within this state within one year prior to the commencement of the action. No action under
s. 767.02 (1) (c) or
(d) may be brought unless at least one of the parties has been a bona fide resident of the county in which the action is brought for not less than 30 days next preceding the commencement of the action. No action under
s. 767.02 (1) (c) may be brought unless at least one of the parties has been a bona fide resident of this state for not less than 6 months next preceding the commencement of the action.
767.05(2)
(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 as provided in
s. 822.12. 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.
767.05(3)
(3) Parties. The party initiating an action affecting the family shall be denominated the petitioner. The party responding to the action shall be denominated the respondent. All references to "plaintiff" in
chs. 801 to
807 shall apply to the petitioner, and all references to "defendant" in
chs. 801 to
807 shall apply to the respondent. Both parties together may initiate the petition by signing and filing a joint petition. The parties to a joint petition shall be called joint petitioners. The parties to a joint petition shall state within the joint petition that both parties consent to personal jurisdiction and waive service of summons.
767.05(4)
(4) Petition. All references to a "complaint" in
chs. 801 to
807 shall apply to petitions under
s. 767.085.
767.05(5)
(5) Title of actions. An action affecting the family under
s. 767.02 (1) (a) to
(d) or
(g) to
(k) shall be entitled "In re the marriage of A.B. and C.D.", except that an independent action for visitation under s.767.245 (3) shall be entitled "In re visitation with A. B.". An action affecting the family under
s. 767.02 (1) (f) or
(m) shall be entitled "In re the support of A.B.". A child custody action shall be entitled "In re the custody of A.B.". In all other respects, the general provisions of
chs. 801 and
802 respecting the content and form of the summons and pleadings shall apply.
767.05(6)
(6) Dismissal. An action affecting the family may not be dismissed under
s. 805.04 (1) unless all the parties who have appeared in the action have been served with a copy of the notice of dismissal and have had an opportunity to file a responsive pleading or motion.
767.05(7)
(7) Actions for certain interspousal remedies. If a spouse has begun an action against the other spouse under
s. 766.70 and either or both spouses subsequently bring an action under this chapter for divorce, annulment or legal separation, the actions may be consolidated by the court exercising jurisdiction under this chapter. If the actions are consolidated, to the extent the procedural and substantive requirements of this chapter conflict with the requirements under
s. 766.70, this chapter controls. No action under
s. 766.70 may be brought by a spouse against the other spouse while an action for divorce, annulment or legal separation is pending under this chapter.
767.05 Annotation
In a child custody dispute between the children's father, who was divorced by his wife, and the wife's parents, subsequent to her death, the trial court erred in concluding that it had no choice but to award custody to the surviving natural parent unless it found him unfit or unable to care for the children. LaChapell v. Mawhinney,
66 Wis. 2d 679,
225 N.W.2d 501.
767.05 Annotation
Where a divorce action was brought before the residency requirement was met, an action was never commenced and the petition could not be amended after the requirement was met. Siemering v. Siemering,
95 Wis. 2d 111,
288 N.W.2d 881 (Ct. App. 1980).
767.05 Annotation
The prohibition under sub. (7) of commencing an action under s. 766.70 while a divorce, annulment or legal separation action is pending is constitutional. Haack v. Haack,
149 Wis. 2d 243,
440 N.W.2d 794 (Ct. App. 1989).
767.05 Annotation
A cause of action under s.766.70 requires that the complained of conduct arise as a result of the marital relationship and a breach of the good faith duty between spouses. Once a divorce is commenced, the claim must be resolved in divorce court. A cause of action between spouses arising outside the marital relationship, such as a stockbroker-client relationship, does not fall within s. 766.70 and may be maintained independent of the divorce. Knafelc v. Dain Bosworth, Inc.
224 Wis. 2d 346,
591 N.W.2d 611 (Ct. App. 1999).
767.07
767.07
Judgment of divorce or legal separation. A court of competent jurisdiction shall grant a judgment of divorce or legal separation if:
767.07(1)
(1) The requirements of this chapter as to residence and marriage assessment counseling have been complied with;
767.07(2)(a)(a) In connection with a judgment of divorce or legal separation, the court finds that the marriage is irretrievably broken under
s. 767.12 (2), unless
par. (b) applies.
767.07(2)(b)
(b) In connection with a judgment of legal separation, the court finds that the marital relationship is broken under
s. 767.12 (3); and
767.07(3)
(3) To the extent it has jurisdiction to do so, the court has considered, approved or made provision for legal custody, the support of any child of the marriage entitled to support, the maintenance of either spouse, the support of the family under
s. 767.261 and the disposition of property.
767.07 History
History: 1971 c. 220;
1977 c. 105;
1979 c. 32 ss.
50,
92 (4); Stats. 1979 s. 767.07;
1987 a. 355;
1989 a. 132.
767.07 Annotation
A divorce judgment did not bar a wife's action against her former husband for torts allegedly committed during the marriage. Stuart v. Stuart,
143 Wis. 2d 347,
421 N.W.2d 505 (1988).
767.075
767.075
State is real party in interest. 767.075(1)
(1) The state is a real party in interest within the meaning of
s. 803.01 for purposes of establishing paternity, securing reimbursement of aid paid, future support and costs as appropriate in an action affecting the family in any of the following circumstances:
767.075(1)(a)
(a) An action to establish paternity whenever there is a completed application for legal services filed with the child support program under
s. 49.22 or whenever
s. 767.45 (6m) or
(6r) applies.
767.075(1)(b)
(b) An action to establish or enforce a child support or maintenance obligation whenever there is a completed application for legal services filed with the child support program under
s. 49.22.
767.075(1)(cm)
(cm) Whenever aid under
s. 46.261,
48.57 (3m) or
(3n),
49.19 or
49.45 has, in the past, been provided on behalf of a dependent child, or benefits have, in the past, been provided to the child's custodial parent under
ss. 49.141 to
49.161, and the child's family is eligible for continuing child support services under
45 CFR 302.33.
767.075(2)(a)(a) Except as provided in
par. (b), in any action affecting the family under a child support enforcement program, an attorney acting under
s. 49.22 or
59.53 (5), including any district attorney or corporation counsel, represents only the state. Child support services provided by an attorney as specified in
sub. (1) do not create an attorney-client relationship with any other party.
767.075(2)(b)
(b) Paragraph (a) does not apply to an attorney who is employed by the department under
s. 49.22 or a county under
s. 59.53 (5) or
(6) (a) to act as the guardian ad litem of the minor child for the purpose of establishing paternity.
767.075 Annotation
Where parents each own a 1/2 interest in the future proceeds of real estate and the state contributes to child support, the court may not order the custodial parent to pay child support in the form of an accumulating real estate lien in favor of the state. State ex rel. v. Reible,
91 Wis. 2d 394,
283 N.W.2d 427 (Ct. App. 1979).
767.075 Annotation
A mother is a necessary party in a paternity action brought by the state. In re Paternity of Joshua E.
171 Wis. 2d 327,
491 N.W.2d 136 (Ct. App. 1992).
767.075 Annotation
A mother's and child's interests in a paternity action are not sufficiently identical to place them in privity for the purpose of res judicata. Chad M.G. v. Kenneth J.Z.
194 Wis. 2d 690,
535 N.W.2d 97 (Ct. App. 1995).
767.075 Annotation
Sub. (2) (b) allows a county corporation counsel to act as the guardian ad litem for a child in a paternity action so long as he or she only represents the child and does not represent the state in the action. Chad M.G. v. Kenneth J.Z.
194 Wis. 2d 690,
535 N.W.2d 97 (Ct. App. 1995).
767.075 Annotation
Because a child has a right to bring an independent action for paternity under s. 767.45, where the child was not a party to an earlier state instituted paternity action, it would be a violation of the child's due process rights to preclude the child from litigating the paternity issue. Mayonia M.M. v. Kieth N.
202 Wis. 2d 461,
551 N.W.2d 34 (Ct. App. 1996).
767.077(1)
(1) The child has been deprived of parental support by reason of the continued absence of a parent from the home.
767.077(2)
(2) A court has not issued an order under
s. 767.25 requiring the parent who is absent from the home to support the child.
767.078
767.078
Order in case involving dependent child. 767.078(1)(a)(a) In this subsection, "case involving a dependent child" means an action which meets all of the following criteria:
767.078(1)(a)3.
3. The child has been deprived of parental support by reason of the continued absence of a parent from the home.
767.078(1)(b)
(b) Except as provided in
par. (c), in a case involving a dependent child, if the child's parent who is absent from the home is not employed, the court shall order that parent to do one or more of the following:
767.078(1)(c)
(c) An order is not required under
par. (b) if the court makes written findings that there is good cause for not issuing the order.
767.078(2)
(2) Subsection (1) does not limit the authority of a court to issue an order, other than an order under
sub. (1), regarding employment of a parent in an action for modification of a child support order under
s. 767.32 or an action in which an order for child support is required under
s. 767.25 (1),
767.51 (3) or
767.62 (4).
767.078 Annotation
A divorce action terminates on the death of a spouse. After the death an order prohibiting an act in regard to marital property entered in the divorce may not be enforced under ch. 767. As the parties are legally married at the time of death, the sole remedy for resolving for resolving disputes over marital property lies under s. 766.70. Socha v. Socha,
204 Wis. 2d 474,
555 N.W.2d 152 (Ct. App. 1996).
767.08
767.08
Actions to compel support. 767.08(1)(a)
(a) "Nonlegally responsible relative" means a relative who assumes responsibility for the care of a child without legal custody, but is not in violation of a court order. "Nonlegally responsible relative" does not include a relative who has physical custody of a child during a court-ordered visitation period.
767.08(1)(b)
(b) "Relative" means any person connected with a child by blood, marriage or adoption.
767.08(2)(a)(a) If a person fails or refuses to provide for the support and maintenance of his or her spouse or minor child, any of the following may commence an action in any court having jurisdiction in actions affecting the family to compel the person to provide any legally required support and maintenance:
