822.01
822.01
Purposes; construction of provisions. 822.01(1)
(1) The general purposes of this chapter are to:
822.01(1)(a)
(a) Avoid jurisdictional competition and conflict with courts of other states in matters of child custody which have in the past resulted in the shifting of children from state to state with harmful effects on their well-being;
822.01(1)(b)
(b) Promote cooperation with the courts of other states to the end that a custody decree is rendered in that state which can best decide the case in the interest of the child;
822.01(1)(c)
(c) Assure that litigation concerning the custody of a child takes place ordinarily in the state with which the child and family have the closest connection and where significant evidence concerning the child's care, protection, training, and personal relationships is most readily available, and that courts of this state decline the exercise of jurisdiction when the child and family have a closer connection with another state;
822.01(1)(d)
(d) Discourage continuing controversies over child custody in the interest of greater stability of home environment and of secure family relationships for the child;
822.01(1)(e)
(e) Deter abductions and other unilateral removals of children undertaken to obtain custody awards;
822.01(1)(f)
(f) Avoid relitigation of custody decisions of other states in this state insofar as feasible;
822.01(1)(g)
(g) Facilitate the enforcement of custody decrees of other states;
822.01(1)(h)
(h) Promote and expand the exchange of information and other forms of mutual assistance between the courts of this state and those of other states concerned with the same child; and
822.01(1)(i)
(i) Make uniform the law of those states which enact it.
822.01(2)
(2) This chapter shall be construed to promote the general purposes stated in this section.
822.01 History
History: 1975 c. 283,
421;
1979 c. 89.
822.01 Annotation
Wisconsin and the uniform child custody jurisdiction act. In whose hand Solomon's sword. 61 MLR 79.
822.015
822.015
Custody of Indian children. The Indian child welfare act,
25 USC 1911 to
1963, supersedes the provisions of this chapter in any child custody proceeding governed by that act.
822.015 History
History: 1981 c. 81.
822.02
822.02
Definitions. As used in this chapter:
822.02(1)
(1) "Contestant" means a person, including a parent, who claims a right to legal custody, physical placement or visitation with respect to a child.
822.02(2)
(2) "Custody determination" means a court decision and court orders and instructions providing for legal custody, physical placement or visitation rights. It does not include a decision relating to child support or any other monetary obligation of any person.
822.02(3)
(3) "Custody proceeding" includes proceedings in which a custody determination is one of several issues, such as an action for divorce or separation, and includes child neglect and dependency proceedings.
822.02(4)
(4) "Decree" or "custody decree" means a custody determination contained in a judicial decree or order made in a custody proceeding, and includes an initial decree and a modification decree.
822.02(5)
(5) "Home state" means the state in which the child immediately preceding the time involved lived with the child's parents, a parent, or a person acting as parent, for at least 6 consecutive months, and in the case of a child less than 6 months old the state in which the child lived from birth with any of the persons mentioned. Periods of temporary absence of any of the named persons are counted as part of the 6-month or other period.
822.02(6)
(6) "Initial decree" means the first custody decree concerning a particular child.
822.02(7)
(7) "Modification decree" means a custody decree which modifies or replaces a prior decree, whether made by the court which rendered the prior decree or by another court.
822.02(8)
(8) "Person acting as parent" means a person, other than a parent, who has physical custody of a child and who has either been awarded custody by a court or claims a right to custody.
822.02(9)
(9) "Physical custody" means actual possession and control of a child.
822.02(10)
(10) "State" means any state, territory, or possession of the United States, the commonwealth of Puerto Rico, and the District of Columbia.
822.03(1)(1) A court of this state which is competent to decide child custody matters has jurisdiction to make a child custody determination by initial or modification decree if:
822.03(1)(a)
(a) This state is the home state of the child at the time of commencement of the proceeding, or had been the child's home state within 6 months before commencement of the proceeding and the child is absent from this state because of the child's removal or retention by a person claiming custody or for other reasons, and a parent or person acting as parent continues to live in this state; or
822.03(1)(b)
(b) It is in the best interest of the child that a court of this state assume jurisdiction because the child and the child's parents, or the child and at least one contestant, have a significant connection with this state, and there is available in this state substantial evidence concerning the child's present or future care, protection, training, and personal relationships; or
822.03(1)(c)
(c) The child is physically present in this state, and the child has been abandoned or it is necessary in an emergency to protect the child because the child has been subjected to or threatened with mistreatment or abuse or is otherwise neglected or dependent; or
822.03(1)(d)
(d) It appears that no other state would have jurisdiction under prerequisites substantially in accordance with
par. (a),
(b) or
(c), or another state has declined to exercise jurisdiction on the ground that this state is the more appropriate forum to determine the custody of the child, and it is in the best interest of the child that this court assume jurisdiction.
822.03(2)
(2) Except under
sub. (1) (c) and
(d), physical presence in this state of the child, or of the child and one of the contestants, is not alone sufficient to confer jurisdiction on a court of this state to make a child custody determination.
822.03(3)
(3) Physical presence of the child, while desirable, is not a prerequisite for jurisdiction to determine custody.
822.03 History
History: 1975 c. 283,
421.
822.03 Annotation
When children were abducted from their home state to Wisconsin, the trial court properly assumed emergency jurisdiction but erred in failing to stay the proceedings under s. 822.07 (5). Vorpahl v. Lee,
99 Wis. 2d 7,
298 N.W.2d 222 (Ct. App. 1980).
822.03 Annotation
The court did not abuse its discretion in refusing to decline jurisdiction when a mother violated a foreign decree by transporting children to Wisconsin. In Matter of Custody of R. J. G.
107 Wis. 2d 704,
321 N.W.2d 354 (Ct. App. 1982).
822.03 Annotation
Guardianship and TPR proceedings are custody proceedings, guardianship and TPR determinations are custody determinations, and guardianship and TPR decrees are custody decrees, all governed by UCCJA. In Interest of A.E.H.
161 Wis. 2d 277,
468 N.W.2d 190 (1991).
822.03 Annotation
UCCJA jurisdictional requirements must be met only at the commencement of proceedings in this state. A TPR action commenced after the entry of a guardianship decree constituted a request for modification of custody that required reexamination of jurisdiction. In Interest of A.E.H.
161 Wis. 2d 277,
468 N.W.2d 190 (1991).
822.03 Annotation
The determination of jurisdiction when two states have asserted jurisdiction is discussed. A child whose sole connection with Wisconsin was summer visitation did not have a significant connection with the state under sub. (1) (b). In Interest of J.T.
168 Wis. 2d 646,
485 N.W.2d 70 (Ct. App. 1992).
822.03 Annotation
The Federal Parental Kidnapping Prevention Act preempts conflicting provisions of the UCCJA. Michalik v. Michalik,
172 Wis. 2d 640,
494 N.W.2d 391 (1992).
822.03 Annotation
Ch. 822 does not, in and of itself, establish a sufficient statutory basis for personal jurisdiction over a nonresident defendant in a paternity proceeding. Paula M.S. v. Neal A. R.
226 Wis. 2d 79,
593 N.W.2d 486 (Ct. App. 1999).
822.04
822.04
Notice and opportunity to be heard. Before making a decree under this chapter, reasonable notice and opportunity to be heard shall be given to the contestants, any parent whose parental rights have not been previously terminated, and any person who has physical custody of the child. If any of these persons is outside this state, notice and opportunity to be heard shall be given under
s. 822.05.
822.04 History
History: 1975 c. 283;
1979 c. 89.
822.05
822.05
Notice to persons outside this state; submission to jurisdiction. 822.05(1)
(1) Notice required for the exercise of jurisdiction over a person outside this state shall be given in a manner reasonably calculated to give actual notice, and may be:
822.05(1)(a)
(a) By personal delivery outside this state in the manner prescribed for service of process within this state;
822.05(1)(b)
(b) In the manner prescribed by the law of the place in which the service is made for service of process in that place in an action in any of its courts of general jurisdiction;
822.05(1)(c)
(c) By any form of mail addressed to the person to be served and requesting a receipt; or
822.05(1)(d)
(d) As directed by the court, including publication, if other means of notification are ineffective.
822.05(2)
(2) Notice under this section shall be served, mailed, delivered or last published at least 10 days before any hearing in this state.
822.05(3)
(3) Proof of service outside this state may be made by affidavit of the individual who made the service, or in the manner prescribed by the law of this state, the order pursuant to which the service is made, or the law of the place in which the service is made. If service is made by mail, proof may be a receipt signed by the addressee or other evidence of delivery to the addressee.
822.05(4)
(4) Notice is not required if a person submits to the jurisdiction of the court.
822.05 History
History: 1975 c. 283.
822.05 Annotation
Traditional personal jurisdiction is not required in child custody proceedings. Child custody proceedings under ch. 822 are valid even in the absence of minimum contacts over an out-of-state parent. Section 801.05 (11) provides sufficient due process protection to out-of-state parents based on notice and an opportunity to be heard. Tammie J. C. v. Robert T. R. 2003 WI 61,
262 Wis. 2d 217,
663 N.W.2d 734,
01-2787.
822.06
822.06
Simultaneous proceedings in other states. 822.06(1)(1) A court of this state shall not exercise its jurisdiction under this chapter if at the time of filing the petition a proceeding concerning the custody of the child was pending in a court of another state exercising jurisdiction substantially in conformity with this chapter, unless the proceeding is stayed by the court of the other state because this state is a more appropriate forum or for other reasons.
822.06(2)
(2) Before hearing the petition in a custody proceeding the court shall examine the pleadings and other information supplied by the parties under
s. 822.09 and shall consult the child custody registry established under
s. 822.16 concerning the pendency of proceedings with respect to the child in other states. If the court has reason to believe that proceedings may be pending in another state it shall direct an inquiry to the state court administrator or other appropriate official of the other state.
822.06(3)
(3) If the court is informed during the course of the proceeding that a proceeding concerning the custody of the child was pending in another state before the court assumed jurisdiction it shall stay the proceeding and communicate with the court in which the other proceeding is pending to the end that the issue may be litigated in the more appropriate forum and that information be exchanged in accordance with
ss. 822.19 to
822.22. If a court of this state has made a custody decree before being informed of a pending proceeding in a court of another state it shall immediately inform that court of the fact. If the court is informed that a proceeding was commenced in another state after it assumed jurisdiction it shall likewise inform the other court to the end that the issues may be litigated in the more appropriate forum.
822.06(4)
(4) The communication between courts called for by
sub. (3) or
s. 822.07 (4) may be conducted on the record by telephone conference to which the courts and all counsel are parties.
822.06 History
History: 1975 c. 283;
1979 c. 89; Sup. Ct. Order, 141 Wis. 2d xiii (1982).
822.06 Note
Judicial Council Note, 1988: Sub. (4) [created] allows jurisdictional conferences among the courts and parties to be conducted on the record by telephone conference. [Re Order effective Jan. 1, 1988]
822.06 Annotation
An Indian tribal court custody order is given full force and effect under the doctrine of comity. Custody of Sengstock,
165 Wis. 2d 86,
477 N.W.2d 310 (Ct. App. 1991).
822.07
822.07
Inconvenient forum. 822.07(1)(1) A court which has jurisdiction under this chapter to make an initial or modification decree may decline to exercise its jurisdiction any time before making a decree if it finds that it is an inconvenient forum to make a custody determination under the circumstances of the case and that a court of another state is a more appropriate forum.
822.07(2)
(2) A finding of inconvenient forum may be made upon the court's own motion or upon motion of a party or a guardian ad litem or other representative of the child. Motions under this subsection may be heard on the record as prescribed in
s. 807.13.
822.07(3)
(3) In determining if it is an inconvenient forum, the court shall consider if it is in the interest of the child that another state assume jurisdiction. For this purpose it may take into account the following factors, among others:
822.07(3)(a)
(a) If another state is or recently was the child's home state;
822.07(3)(b)
(b) If another state has a closer connection with the child and family or with the child and one or more of the contestants;
822.07(3)(c)
(c) If substantial evidence concerning the child's present or future care, protection, training, and personal relationships is more readily available in another state:
822.07(3)(d)
(d) If the parties have agreed on another forum which is no less appropriate; and
822.07(3)(e)
(e) If the exercise of jurisdiction by a court of this state would contravene any of the purposes stated in
s. 822.01.
822.07(4)
(4) Before determining whether to decline or retain jurisdiction the court may communicate with a court of another state and exchange information pertinent to the assumption of jurisdiction by either court with a view to assuring that jurisdiction will be exercised by the more appropriate court and that a forum will be available to the parties.
822.07(5)
(5) If the court finds that it is an inconvenient forum and that a court of another state is a more appropriate forum, it may dismiss the proceedings, or it may stay the proceedings upon condition that a custody proceeding be promptly commenced in another named state or upon any other conditions which may be just and proper, including the condition that a moving party stipulate consent and submission to the jurisdiction of the other forum.
822.07(6)
(6) The court may decline to exercise its jurisdiction under this chapter if a custody determination is incidental to an action for divorce or another proceeding while retaining jurisdiction over the divorce or other proceeding.
822.07(7)
(7) If it appears to the court that it is clearly an inappropriate forum it may require the party who commenced the proceedings to pay, in addition to the costs of the proceedings in this state, necessary travel and other expenses, including attorneys' fees, incurred by other parties or their witnesses. Payment is to be made to the clerk of the court for remittance to the proper party.
822.07(8)
(8) Upon dismissal or stay of proceedings under this section the court shall inform the court found to be the more appropriate forum of this fact, or if the court which would have jurisdiction in the other state is not certainly known, shall transmit the information to the court administrator or other appropriate official for forwarding to the appropriate court.
822.07(9)
(9) Any communication received from another state informing this state of a finding of inconvenient forum because a court of this state is the more appropriate forum shall be filed in the custody registry of the appropriate court. Upon assuming jurisdiction the court of this state shall inform the original court of this fact.
822.07 History
History: 1975 c. 283,
421;
1979 c. 89; Sup. Ct. Order, 141 Wis. 2d xiii (1982).
822.07 Note
Judicial Council Note, 1988: Sub. (2) is amended to allow motions to dismiss or stay because of inconvenient forum be heard on the record by telephone conference. [Re Order effective Jan. 1, 1988]
