948.22(4)(b)
(b) For a person not subject to a court order requiring child, grandchild or spousal support payments, when the person knows or reasonably should have known that he or she has a dependent, failure to provide support equal to at least the amount established by rule by the department of workforce development under
s. 49.22 (9) or causing a spouse, grandchild or child to become a dependent person, or continue to be a dependent person, as defined in
s. 49.01 (2).
948.22(5)
(5) Under this section, it is not a defense that child, grandchild or spousal support is provided wholly or partially by any other person or entity.
948.22(6)
(6) Under this section, affirmative defenses include but are not limited to inability to provide child, grandchild or spousal support. A person may not demonstrate inability to provide child, grandchild or spousal support if the person is employable but, without reasonable excuse, either fails to diligently seek employment, terminates employment or reduces his or her earnings or assets. A person who raises an affirmative defense has the burden of proving the defense by a preponderance of the evidence.
948.22(7)(a)(a) Before trial, upon petition by the complainant and notice to the defendant, the court may enter a temporary order requiring payment of child, grandchild or spousal support.
948.22(7)(b)
(b) In addition to or instead of imposing a penalty authorized for a Class E felony or a Class A misdemeanor, whichever is appropriate, the court shall:
948.22(7)(b)1.
1. If a court order requiring the defendant to pay child, grandchild or spousal support exists, order the defendant to pay the amount required including any amount necessary to meet a past legal obligation for support.
948.22(7)(b)2.
2. If no court order described under
subd. 1. exists, enter such an order. For orders for child or spousal support, the court shall determine the amount of support in the manner required under
s. 767.25 or
767.51, regardless of the fact that the action is not one for a determination of paternity or an action specified in
s. 767.25 (1)
948.22(7)(bm)
(bm) Upon request, the court may modify the amount of child or spousal support payments determined under
par. (b) 2. if, after considering the factors listed in
s. 767.25 (1m), regardless of the fact that the action is not one for a determination of paternity or an action specified in
s. 767.25 (1), the court finds, by the greater weight of the credible evidence, that the use of the percentage standard is unfair to the child or to either of the child's parents.
948.22(7)(c)
(c) An order under
par. (a) or
(b), other than an order for grandchild support, constitutes an income assignment under
s. 767.265 and may be enforced under
s. 767.30. Any payment ordered under
par. (a) or
(b), other than a payment for grandchild support, shall be made in the manner provided under
s. 767.29.
948.22 Annotation
Under s. 940.27 (2) [now 948.22 (2], the state must prove that the defendant had an obligation to provide support and failed to do so for 120 days; the state need not prove that the defendant was required to pay a specific amount. Sub. (6) does not unconstitutionally shift the burden of proof. State v. Duprey,
149 Wis. 2d 655,
439 N.W.2d 837 (Ct. App. 1989).
948.22 Annotation
Multiple prosecutions for a continuous failure to pay child support are allowed. State v. Grayson,
172 Wis. 2d 156,
493 N.W.2d 23 (1992).
948.22 Annotation
Jurisdiction in a criminal nonsupport action under s. 948.22 does not require that the child to be supported be a resident of Wisconsin during the charged period. State v. Gantt,
201 Wis. 2d 206,
548 N.W.2d 134 (Ct. App. 1996).
948.22 Annotation
Evidence of incarceration to prove inability to pay is not excluded under sub. (6), and there was no basis to find the evidence irrelevant. State v. Stutesman,
221 Wis. 2d 178,
585 N.W.2d 181 (Ct. App. 1998).
948.22 Annotation
This section does not distinguish between support and arrearages. It criminalizes failure to pay arrearages even after the child for whom support is ordered attains majority. Incarceration for violation of this section is not unconstitutional imprisonment for a debt. State v. Lenz,
230 Wis. 2d 529,
602 N.W.2d 172 (Ct. App. 1999).
948.22 Annotation
If nonsupport is charged as a continuing offense, the statute of limitations runs from the last date the defendant intentionally fails to provide support. If charges are brought for each 120 day period that a person does not pay, the statute of limitations bars charging for those 120 periods that are more than 6 years old. The running of the statute of limitations does not prevent inclusion of all unpaid amounts in a later arrearage order. State v. Monarch,
230 Wis. 2d 542,
602 N.W.2d 179 (Ct. App. 1999).
948.22 Annotation
A father, who intentionally refused to pay child support could, as a condition of probation, be required to avoid having another child unless he showed that he could support that child and his current children. In light of the the defendant's ongoing victimization of his children and record manifesting his disregard for the law, the condition was not overly broad and was reasonably related to the defendant's rehabilitation. State v. Oakley, 2001 WI 103,
245 Wis. 2d 447,
629 N.W.2d 200.
948.23
948.23
Concealing death of child. Any person who conceals the corpse of any issue of a woman's body with intent to prevent a determination of whether it was born dead or alive is guilty of a Class I felony.
Effective date note
NOTE: This section is shown as amended eff. 2-1-03 by
2001 Wis. Act 109. Prior to 2-1-03 it reads:
Effective date text
948.23 Concealing death of child. Any person who conceals the corpse of any issue of a woman's body with intent to prevent a determination of whether it was born dead or alive is guilty of a Class E felony.
948.23 History
History: 1977 c. 173;
1987 a. 332 s.
47; Stats. 1987 s. 948.23;
2001 a. 109.
948.24
948.24
Unauthorized placement for adoption. 948.24(1)(1) Whoever does any of the following is guilty of a Class H felony:
Effective date note
NOTE: Sub. (1) (intro.) is shown as amended eff. 2-1-03 by
2001 Wis. Act 109. Prior to 2-1-03 it reads:
Effective date text
(1) Whoever does any of the following is guilty of a Class D felony:
948.24(1)(a)
(a) Places or agrees to place his or her child for adoption for anything exceeding the actual cost of the items listed in
s. 48.913 (1) (a) to
(m) and the payments authorized under
s. 48.913 (2).
948.24(1)(b)
(b) For anything of value, solicits, negotiates or arranges the placement of a child for adoption except under
s. 48.833.
948.24(1)(c)
(c) In order to receive a child for adoption, gives anything exceeding the actual cost of the legal and other services rendered in connection with the adoption and the items listed in
s. 48.913 (1) (a) to
(m) and the payments authorized under
s. 48.913 (2).
948.24 History
History: 1981 c. 81;
1987 a. 332 s.
50; Stats. 1987 s. 948.24;
1989 a. 161;
1997 a. 104;
2001 a. 109.
948.30
948.30
Abduction of another's child; constructive custody. 948.30(1)(1) Any person who, for any unlawful purpose, does any of the following is guilty of a Class E felony:
Effective date note
NOTE: Sub. (1) (intro.) is shown as amended eff. 2-1-03 by
2001 Wis. Act 109. Prior to 2-1-03 it reads:
Effective date text
(1) Any person who, for any unlawful purpose, does any of the following is guilty of a Class C felony:
948.30(1)(a)
(a) Takes a child who is not his or her own by birth or adoption from the child's home or the custody of his or her parent, guardian or legal custodian.
948.30(1)(b)
(b) Detains a child who is not his or her own by birth or adoption when the child is away from home or the custody of his or her parent, guardian or legal custodian.
948.30(2)
(2) Any person who, for any unlawful purpose, does any of the following is guilty of a Class C felony:
Effective date note
NOTE: Sub. (2) (intro.) is shown as amended eff. 2-1-03 by
2001 Wis. Act 109. Prior to 2-1-03 it reads:
Effective date text
(2) Any person who, for any unlawful purpose, does any of the following is guilty of a Class B felony:
948.30(2)(a)
(a) By force or threat of imminent force, takes a child who is not his or her own by birth or adoption from the child's home or the custody of his or her parent, guardian or legal custodian.
948.30(2)(b)
(b) By force or threat of imminent force, detains a child who is not his or her own by birth or adoption when the child is away from home or the custody of his or her parent, guardian or legal custodian.
948.30(3)
(3) For purposes of
subs. (1) (a) and
(2) (a), a child is in the custody of his or her parent, guardian or legal custodian if:
948.30(3)(a)
(a) The child is in the actual physical custody of the parent, guardian or legal custodian; or
948.30(3)(b)
(b) The child is not in the actual physical custody of his or her parent, guardian or legal custodian, but the parent, guardian or legal custodian continues to have control of the child.
948.30 History
History: 1987 a. 332;
2001 a. 109.
948.31
948.31
Interference with custody by parent or others. 948.31(1)(a)(a) In this subsection, "legal custodian of a child" means:
948.31(1)(a)1.
1. A parent or other person having legal custody of the child under an order or judgment in an action for divorce, legal separation, annulment, child custody, paternity, guardianship or habeas corpus.
948.31(1)(a)2.
2. The department of health and family services or the department of corrections or any person, county department under
s. 46.215,
46.22 or
46.23 or licensed child welfare agency, if custody or supervision of the child has been transferred under
ch. 48 or
938 to that department, person or agency.
948.31(1)(b)
(b) Except as provided under
chs. 48 and
938, whoever intentionally causes a child to leave, takes a child away or withholds a child for more than 12 hours beyond the court-approved period of physical placement or visitation period from a legal custodian with intent to deprive the custodian of his or her custody rights without the consent of the custodian is guilty of a Class F felony. This paragraph is not applicable if the court has entered an order authorizing the person to so take or withhold the child. The fact that joint legal custody has been awarded to both parents by a court does not preclude a court from finding that one parent has committed a violation of this paragraph.
Effective date note
NOTE: Par. (b) is shown as amended eff. 2-1-03 by
2001 Wis. Act 109. Prior to 2-1-03 it reads:
Effective date text
(b) Except as provided under chs. 48 and 938, whoever intentionally causes a child to leave, takes a child away or withholds a child for more than 12 hours beyond the court-approved period of physical placement or visitation period from a legal custodian with intent to deprive the custodian of his or her custody rights without the consent of the custodian is guilty of a Class C felony. This paragraph is not applicable if the court has entered an order authorizing the person to so take or withhold the child. The fact that joint legal custody has been awarded to both parents by a court does not preclude a court from finding that one parent has committed a violation of this paragraph.
948.31(2)
(2) Whoever causes a child to leave, takes a child away or withholds a child for more than 12 hours from the child's parents or, in the case of a nonmarital child whose parents do not subsequently intermarry under
s. 767.60, from the child's mother or, if he has been granted legal custody, the child's father, without the consent of the parents, the mother or the father with legal custody, is guilty of a Class I felony. This subsection is not applicable if legal custody has been granted by court order to the person taking or withholding the child.
Effective date note
NOTE: Sub. (2) is shown as amended eff. 2-1-03 by
2001 Wis. Act 109. Prior to 2-1-03 it reads:
Effective date text
(2) Whoever causes a child to leave, takes a child away or withholds a child for more than 12 hours from the child's parents or, in the case of a nonmarital child whose parents do not subsequently intermarry under s. 767.60, from the child's mother or, if he has been granted legal custody, the child's father, without the consent of the parents, the mother or the father with legal custody, is guilty of a Class E felony. This subsection is not applicable if legal custody has been granted by court order to the person taking or withholding the child.
948.31(3)
(3) Any parent, or any person acting pursuant to directions from the parent, who does any of the following is guilty of a Class F felony:
Effective date note
NOTE: Sub. (3) (intro.) is shown as amended eff. 2-1-03 by
2001 Wis. Act 109. Prior to 2-1-03 it reads:
Effective date text
(3) Any parent, or any person acting pursuant to directions from the parent, who does any of the following is guilty of a Class C felony:
948.31(3)(a)
(a) Intentionally conceals a child from the child's other parent.
948.31(3)(b)
(b) After being served with process in an action affecting the family but prior to the issuance of a temporary or final order determining child custody rights, takes the child or causes the child to leave with intent to deprive the other parent of physical custody as defined in
s. 822.02 (9).
948.31(3)(c)
(c) After issuance of a temporary or final order specifying joint legal custody rights and periods of physical placement, takes a child from or causes a child to leave the other parent in violation of the order or withholds a child for more than 12 hours beyond the court-approved period of physical placement or visitation period.
948.31(4)(a)(a) It is an affirmative defense to prosecution for violation of this section if the action:
948.31(4)(a)1.
1. Is taken by a parent or by a person authorized by a parent to protect his or her child in a situation in which the parent or authorized person reasonably believes that there is a threat of physical harm or sexual assault to the child;
948.31(4)(a)2.
2. Is taken by a parent fleeing in a situation in which the parent reasonably believes that there is a threat of physical harm or sexual assault to himself or herself;
948.31(4)(a)3.
3. Is consented to by the other parent or any other person or agency having legal custody of the child; or
948.31(4)(b)
(b) A defendant who raises an affirmative defense has the burden of proving the defense by a preponderance of the evidence.
948.31(6)
(6) In addition to any other penalties provided for violation of this section, a court may order a violator to pay restitution, regardless of whether the violator is placed on probation under
s. 973.09, to provide reimbursement for any reasonable expenses incurred by any person or any governmental entity in locating and returning the child. Any such amounts paid by the violator shall be paid to the person or governmental entity which incurred the expense on a prorated basis. Upon the application of any interested party, the court shall hold an evidentiary hearing to determine the amount of reasonable expenses.
948.31 Annotation
When a mother had agreed to the father's taking their child on a camping trip, but the father actually intended to permanently take, and did abscond to Canada with, the child, the child was taken based on the mother's "mistake of fact," which under s. 939.22 (48) rendered the taking of the child "without consent." State v. Inglin,
224 Wis. 2d 764,
592 N.W.2d 666 (Ct. App. 1999).
948.31 Annotation
In sub. (2), "takes away" a child refers to the defendant removing the child from the parents' possession, which suggests physical manipulation or physical removal. "Causes to leave" in sub. (2) means being responsible for a child abandoning, departing, or leaving the parents, which suggest some sort of mental, rather than physical, manipulation. State v. Samuel, 2001 WI App 25,
240 Wis. 2d 756,
623 N.W.2d 565. Reversed on other grounds, 2002 WI 34.
948.35
948.35
Solicitation of a child to commit a felony. 948.35(1)(a)(a) Except as provided in
pars. (b) to
(d) or
s. 961.455, any person who has attained the age of 17 years and who, with the intent that a felony be committed and under circumstances that indicate unequivocally that he or she has the intent, knowingly solicits, advises, hires, directs or counsels a person 17 years of age or under to commit that felony may be fined or imprisoned or both, not to exceed the maximum penalty for the felony.
948.35(1)(b)
(b) For a solicitation to commit a Class A felony under the circumstances described under
par. (a), the person may be imprisoned not to exceed the maximum period of imprisonment for a Class B felony.
948.35(1)(c)
(c) For a solicitation to commit a Class B felony under the circumstances described under
par. (a), the person may be fined or imprisoned or both, not to exceed the maximum penalties for a Class C felony.
948.35(1)(d)
(d) For a solicitation to commit a Class C felony under the circumstances described under
par. (a), the person may be fined or imprisoned or both, not to exceed the maximum penalties for a Class D felony.
948.35(2)
(2) The knowledge requirement under
sub. (1) does not require proof of knowledge of the age of the child. A defendant does not have a defense to a prosecution under this section because he or she mistakenly believed that the person who was solicited, advised, hired, directed or counseled had attained the age of 18 years, even if the mistaken belief was reasonable.
948.36
948.36
Use of child to commit a Class A felony. 948.36(1)
(1) Any person who has attained the age of 17 years and who, with the intent that a Class A felony be committed and under circumstances that indicate unequivocally that he or she has that intent, knowingly solicits, advises, hires, directs, counsels, employs, uses or otherwise procures a person 17 years of age or under to commit that Class A felony may, if the Class A felony is committed by the child, be imprisoned for not more than 5 years in excess of the maximum period of imprisonment provided by law for that Class A felony.
948.36(2)
(2) The knowledge requirement under
sub. (1) does not require proof of knowledge of the age of the child. A defendant does not have a defense to a prosecution under this section because he or she mistakenly believed that the person who was advised, hired, directed, counseled, employed, used or procured had attained the age of 18 years, even if the mistaken belief was reasonable.
