948.13(2m)(f)
(f) The person who filed the petition under
par. (a) has the burden of proving by clear and convincing evidence that he or she satisfies the criteria specified in
par. (a) 1.,
1m. and
2. In deciding whether the person has satisfied the criterion specified in
par. (a) 2., the court may consider any of the following:
948.13(2m)(f)1.
1. The ages, at the time of the violation, of the person who filed the petition and the victim of the crime that is the subject of the petition.
948.13(2m)(f)2.
2. The relationship between the person who filed the petition and the victim of the crime that is the subject of the petition.
948.13(2m)(f)3.
3. Whether the crime that is the subject of the petition resulted in bodily harm to the victim.
948.13(2m)(f)4.
4. Whether the victim of the crime that is the subject of the petition suffered from a mental illness or mental deficiency that rendered him or her temporarily or permanently incapable of understanding or evaluating the consequences of his or her actions.
948.13(2m)(f)5.
5. The probability that the person who filed the petition will commit other serious child sex offenses in the future.
948.13(2m)(f)7.
7. Any other factor that the court determines may be relevant to the particular case.
948.13(3)
(3) Evidence that a person engages in an occupation or participates in a volunteer position relating to any of the following is prima facie evidence that the occupation or position requires him or her to work or interact primarily and directly with children under 16 years of age: teaching children, child care, youth counseling, youth organization, coaching children, parks or playground recreation or school bus driving.
948.14
948.14
Registered sex offender and photographing minors. 948.14(1)(b)
(b) "Minor" means an individual who is under 17 years of age.
948.14(1)(d)
(d) "Sex offender" means a person who is required to register under
s. 301.45.
948.14(2)(a)(a) A sex offender may not intentionally capture a representation of any minor without the written consent of the minor's parent, legal custodian, or guardian. The written consent required under this paragraph shall state that the person seeking the consent is required to register as a sex offender with the department of corrections.
948.14(2)(b)
(b) Paragraph (a) does not apply to a sex offender who is capturing a representation of a minor if the sex offender is the minor's parent, legal custodian, or guardian.
948.14(3)
(3) Penalty. Whoever violates
sub. (2) is guilty of a Class I felony.
948.14 History
History: 2005 a. 432.
948.20
948.20
Abandonment of a child. Whoever, with intent to abandon the child, leaves any child in a place where the child may suffer because of neglect is guilty of a Class G felony.
948.20 History
History: 1977 c. 173;
1987 a. 332 s.
35; Stats. 1987 s. 948.20;
2001 a. 109.
948.21
948.21
Neglecting a child. 948.21(1)(1) Any person who is responsible for a child's welfare who, through his or her actions or failure to take action, intentionally contributes to the neglect of the child is guilty of a Class A misdemeanor or, if death is a consequence, a Class D felony.
948.21(2)
(2) Under
sub. (1), a person responsible for the child's welfare contributes to the neglect of the child although the child does not actually become neglected if the natural and probable consequences of the person's actions or failure to take action would be to cause the child to become neglected.
948.21 History
History: 1987 a. 332;
2001 a. 109.
948.22
948.22
Failure to support. 948.22(1)(a)
(a) "Child support" means an amount which a person is ordered to provide for support of a child by a court of competent jurisdiction in this state or in another state, territory or possession of the United States, or, if not ordered, an amount that a person is legally obligated to provide under
s. 49.90.
948.22(1)(c)
(c) "Spousal support" means an amount which a person is ordered to provide for support of a spouse or former spouse by a court of competent jurisdiction in this state or in another state, territory or possession of the United States, or, if not ordered, an amount that a person is legally obligated to provide under
s. 49.90.
948.22(2)
(2) Any person who intentionally fails for 120 or more consecutive days to provide spousal, grandchild or child support which the person knows or reasonably should know the person is legally obligated to provide is guilty of a Class I felony. A prosecutor may charge a person with multiple counts for a violation under this subsection if each count covers a period of at least 120 consecutive days and there is no overlap between periods.
948.22(3)
(3) Any person who intentionally fails for less than 120 consecutive days to provide spousal, grandchild or child support which the person knows or reasonably should know the person is legally obligated to provide is guilty of a Class A misdemeanor.
948.22(4)
(4) Under this section, the following is prima facie evidence of intentional failure to provide child, grandchild or spousal support:
948.22(4)(a)
(a) For a person 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 is required to pay support under an order, failure to pay the child, grandchild or spousal support payment required under the order.
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 I 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. 767.511 or
767.89, regardless of the fact that the action is not one for a determination of paternity or an action specified in
s. 767.511 (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. 767.511 (1m), regardless of the fact that the action is not one for a determination of paternity or an action specified in
s. 767.511 (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. 767.75 and may be enforced under
s. 767.77. Any payment ordered under
par. (a) or
(b), other than a payment for grandchild support, shall be made in the manner provided under
s. 767.57.
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),
95-2469.
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),
97-2991.
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),
99-0860.
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),
99-1054.
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 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,
99-3328.
948.22 Annotation
Whether a court of competent jurisdiction ordered a defendant to pay child support is not an element of failure to pay child support. A question in that regard need not be submitted to the jury. Because the defendant father did not identify a historical fact inconsistent with an incident of the Maine court's jurisdiction, whether a court of competent jurisdiction ordered him to pay child support was a purely legal question for the court to determine. State v. Smith, 2005 WI 104,
283 Wis. 2d 57,
699 N.W.2d 508,
03-1698.
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.
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:
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:
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:
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.
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. 767.803, 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.
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:
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 (14).
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;
