813.12(1)(d)
(d) "Tribal court" means a court established by any federally recognized Wisconsin Indian tribe or band, except the Menominee Indian tribe of Wisconsin.
813.12(1)(e)
(e) "Tribal order or injunction" means a temporary restraining order or injunction issued by a tribal court under a tribal domestic abuse ordinance adopted in conformity with this section.
813.12(2)
(2) Commencement of action and response. 813.12(2)(a)(a) No action under this section may be commenced by complaint and summons. An action under this section may be commenced only by a petition described under
sub. (5) (a). The action commences with service of the petition upon the respondent if a copy of the petition is filed before service or promptly after service. If the judge or a circuit court commissioner extends the time for a hearing under
sub. (3) (c) and the petitioner files an affidavit with the court stating that personal service by the sheriff or a private server under
s. 801.11 (1) (a) or
(b) was unsuccessful because the respondent is avoiding service by concealment or otherwise, the judge or circuit court commissioner shall inform the petitioner that he or she may serve the respondent by publication of a summary of the petition as a class 1 notice, under
ch. 985, and by mailing or sending a facsimile if the respondent's post-office address or facsimile number is known or can with due diligence be ascertained. The mailing or sending of a facsimile may be omitted if the post-office address or facsimile number cannot be ascertained with due diligence. A summary of the petition published as a class 1 notice shall include the name of the respondent and of the petitioner, notice of the temporary restraining order, and notice of the date, time, and place of the hearing regarding the injunction.
813.12(2)(b)
(b) A petition may be filed in conjunction with an action affecting the family commenced under
ch. 767, but commencement of an action affecting the family or any other action is not necessary for the filing of a petition or the issuance of a temporary restraining order or an injunction. A judge or circuit court commissioner may not make findings or issue orders under
s. 767.225 or
767.41 while granting relief requested only under this section.
Section 813.06 does not apply to an action under this section. The respondent may respond to the petition either in writing before or at the hearing on the issuance of the injunction or orally at that hearing.
813.12(2m)
(2m) Two-part procedure. Procedure for an action under this section is in 2 parts. First, if the petitioner requests a temporary restraining order the court shall issue or refuse to issue that order. Second, the court shall hold a hearing under
sub. (4) on whether to issue an injunction, which is the final relief. If the court issues a temporary restraining order, the order shall set forth the date for the hearing on an injunction. If the court does not issue a temporary restraining order, the date for the hearing shall be set upon motion by either party.
813.12(3)(a)(a) A judge or circuit court commissioner shall issue a temporary restraining order ordering the respondent to refrain from committing acts of domestic abuse against the petitioner, to avoid the petitioner's residence, except as provided in
par. (am), or any other location temporarily occupied by the petitioner or both, or to avoid contacting or causing any person other than a party's attorney or a law enforcement officer to contact the petitioner unless the petitioner consents in writing, or any combination of these remedies requested in the petition, or any other appropriate remedy not inconsistent with the remedies requested in the petition, if all of the following occur:
813.12(3)(a)1.
1. The petitioner submits to the judge or circuit court commissioner a petition alleging the elements set forth under
sub. (5) (a).
813.12(3)(a)2.
2. The judge or circuit court commissioner finds reasonable grounds to believe that the respondent has engaged in, or based on prior conduct of the petitioner and the respondent may engage in, domestic abuse of the petitioner.
813.12(3)(aj)
(aj) In determining whether to issue a temporary restraining order, the judge or circuit court commissioner shall consider the potential danger posed to the petitioner and the pattern of abusive conduct of the respondent but may not base his or her decision solely on the length of time since the last domestic abuse or the length of time since the relationship ended. The judge or circuit court commissioner may grant only the remedies requested or approved by the petitioner. The judge or circuit court commissioner may not dismiss or deny granting a temporary restraining order because of the existence of a pending action or of any other court order that bars contact between the parties, nor due to the necessity of verifying the terms of an existing court order.
813.12(3)(am)
(am) If the petitioner and the respondent are not married, the respondent owns the premises where the petitioner resides and the petitioner has no legal interest in the premises, in lieu of ordering the respondent to avoid the petitioner's residence under
par. (a) the judge or circuit court commissioner may order the respondent to avoid the premises for a reasonable time until the petitioner relocates and shall order the respondent to avoid the new residence for the duration of the order.
813.12(3)(b)
(b) Notice need not be given to the respondent before issuing a temporary restraining order under this subsection. A temporary restraining order may be entered only against the respondent named in the petition.
813.12(3)(c)
(c) The temporary restraining order is in effect until a hearing is held on issuance of an injunction under
sub. (4). The temporary restraining order is not voided if the respondent is admitted into a dwelling that the order directs him or her to avoid. A judge or circuit court commissioner shall hold a hearing on issuance of an injunction within 14 days after the temporary restraining order is issued, unless the time is extended upon the written consent of the parties or extended once for 14 days upon a finding that the respondent has not been served with a copy of the temporary restraining order although the petitioner has exercised due diligence.
813.12(3)(d)
(d) The judge or circuit court commissioner shall advise the petitioner of the right to serve the respondent the petition by published notice if with due diligence the respondent cannot be served as provided under
s. 801.11 (1) (a) or
(b). The clerk of circuit court shall assist the petitioner with the preparation of the notice and filing of the affidavit of printing.
813.12(4)(a)(a) A judge or circuit court commissioner may grant an injunction ordering the respondent to refrain from committing acts of domestic abuse against the petitioner, to avoid the petitioner's residence, except as provided in
par. (am), or any other location temporarily occupied by the petitioner or both, or to avoid contacting or causing any person other than a party's attorney or a law enforcement officer to contact the petitioner unless the petitioner consents to that contact in writing, or any combination of these remedies requested in the petition, or any other appropriate remedy not inconsistent with the remedies requested in the petition, if all of the following occur:
813.12(4)(a)2.
2. The petitioner serves upon the respondent a copy or summary of the petition and notice of the time for hearing on the issuance of the injunction, or the respondent serves upon the petitioner notice of the time for hearing on the issuance of the injunction.
813.12(4)(a)3.
3. After hearing, the judge or circuit court commissioner finds reasonable grounds to believe that the respondent has engaged in, or based upon prior conduct of the petitioner and the respondent may engage in, domestic abuse of the petitioner.
813.12(4)(aj)
(aj) In determining whether to issue an injunction, the judge or circuit court commissioner shall consider the potential danger posed to the petitioner and the pattern of abusive conduct of the respondent but may not base his or her decision solely on the length of time since the last domestic abuse or the length of time since the relationship ended. The judge or circuit court commissioner may grant only the remedies requested by the petitioner. The judge or circuit court commissioner may not dismiss or deny granting an injunction because of the existence of a pending action or of any other court order that bars contact between the parties, nor due to the necessity of verifying the terms of an existing court order.
813.12(4)(am)
(am) If the petitioner and the respondent are not married, the respondent owns the premises where the petitioner resides and the petitioner has no legal interest in the premises, in lieu of ordering the respondent to avoid the petitioner's residence under
par. (a) the judge or circuit court commissioner may order the respondent to avoid the premises for a reasonable time until the petitioner relocates and shall order the respondent to avoid the new residence for the duration of the order.
813.12(4)(b)
(b) The judge or circuit court commissioner may enter an injunction only against the respondent named in the petition. No injunction may be issued under this subsection under the same case number against the person petitioning for the injunction. The judge or circuit court commissioner may not modify an order restraining the respondent based solely on the request of the respondent.
813.12(4)(c)1.1. An injunction under this subsection is effective according to its terms, for the period of time that the petitioner requests, but not more than 4 years. An injunction granted under this subsection is not voided if the petitioner allows or initiates contact with the respondent or by the admittance of the respondent into a dwelling that the injunction directs him or her to avoid.
813.12(4)(c)2.
2. When an injunction granted for less than 4 years expires, the court shall extend the injunction if the petitioner states that an extension is necessary to protect him or her. This extension shall remain in effect until 4 years after the date the court first entered the injunction.
813.12(4)(c)4.
4. Notice need not be given to the respondent before extending an injunction under
subd. 2. The petitioner shall notify the respondent after the court extends an injunction under
subd. 2.
813.12(4m)
(4m) Notice of restriction on firearm possession; surrender of firearms. 813.12(4m)(a)(a) An injunction issued under
sub. (4) shall do all of the following:
813.12(4m)(a)1.
1. Inform the respondent named in the petition of the requirements and penalties under
s. 941.29.
813.12(4m)(a)2.
2. Except as provided in
par. (ag), require the respondent to surrender any firearms that he or she owns or has in his or her possession to the sheriff of the county in which the action under this section was commenced, to the sheriff of the county in which the respondent resides or to another person designated by the respondent and approved by the judge or circuit court commissioner. The judge or circuit court commissioner shall approve the person designated by the respondent unless the judge or circuit court commissioner finds that the person is inappropriate and places the reasons for the finding on the record. If a firearm is surrendered to a person designated by the respondent and approved by the judge or circuit court commissioner, the judge or circuit court commissioner shall inform the person to whom the firearm is surrendered of the requirements and penalties under
s. 941.29 (4).
813.12(4m)(ag)
(ag) If the respondent is a peace officer, an injunction issued under
sub. (4) may not require the respondent to surrender a firearm that he or she is required, as a condition of employment, to possess whether or not he or she is on duty.
813.12(4m)(am)1.1. When a respondent surrenders a firearm under
par. (a) 2. to a sheriff, the sheriff who is receiving the firearm shall prepare a receipt for each firearm surrendered to him or her. The receipt shall include the manufacturer, model and serial number of the firearm surrendered to the sheriff and shall be signed by the respondent and by the sheriff to whom the firearm is surrendered.
813.12(4m)(am)2.
2. The sheriff shall keep the original of a receipt prepared under
subd. 1. and shall provide an exact copy of the receipt to the respondent. When the firearm covered by the receipt is returned to the respondent under
par. (b), the sheriff shall surrender to the respondent the original receipt and all of his or her copies of the receipt.
813.12(4m)(am)3.
3. A receipt prepared under
subd. 1. is conclusive proof that the respondent owns the firearm for purposes of returning the firearm covered by the receipt to the respondent under
par. (b).
813.12(4m)(am)4.
4. The sheriff may not enter any information contained on a receipt prepared under
subd. 1. into any computerized or direct electronic data transfer system in order to store the information or disseminate or provide access to the information.
813.12(4m)(aw)
(aw) A sheriff may store a firearm surrendered to him or her under
par. (a) 2. in a warehouse that is operated by a public warehouse keeper licensed under
ch. 99. If a sheriff stores a firearm at a warehouse under this paragraph, the respondent shall pay the costs charged by the warehouse for storing that firearm.
813.12(4m)(b)
(b) A firearm surrendered under
par. (a) 2. may not be returned to the respondent until a judge or circuit court commissioner determines all of the following:
813.12(4m)(b)1.
1. That the injunction issued under
sub. (4) has been vacated or has expired and not been extended.
813.12(4m)(b)2.
2. That the person is not prohibited from possessing a firearm under any state or federal law or by the order of any federal court or state court, other than an order from which the judge or circuit court commissioner is competent to grant relief.
813.12(4m)(c)
(c) If a respondent surrenders a firearm under
par. (a) 2. that is owned by a person other than the respondent, the person who owns the firearm may apply for its return to the circuit court for the county in which the person to whom the firearm was surrendered is located. The court shall order such notice as it considers adequate to be given to all persons who have or may have an interest in the firearm and shall hold a hearing to hear all claims to its true ownership. If the right to possession is proved to the court's satisfaction, it shall order the firearm returned. If the court returns a firearm under this paragraph, the court shall inform the person to whom the firearm is returned of the requirements and penalties under
s. 941.29 (4).
813.12(5)(a)(a) The petition shall allege facts sufficient to show the following:
813.12(5)(a)1.
1. The name of the petitioner and that the petitioner is the alleged victim.
813.12(5)(a)2.
2. The name of the respondent and that the respondent is an adult.
813.12(5)(a)3.
3. That the respondent engaged in, or based on prior conduct of the petitioner and the respondent may engage in, domestic abuse of the petitioner.
813.12(5)(am)
(am) The petition shall request that the respondent be restrained from committing acts of domestic abuse against the petitioner, that the respondent be ordered to avoid the petitioner's residence, or that the respondent be ordered to avoid contacting the petitioner or causing any person other than the respondent's attorney to contact the petitioner unless the petitioner consents to the contact in writing, or any combination of these requests.
813.12(5)(b)
(b) The clerk of circuit court shall provide the simplified forms provided under
s. 49.165 (3) (c) to help a person file a petition.
813.12(5)(c)
(c) A judge or circuit court commissioner shall accept any legible petition for a temporary restraining order or injunction.
813.12(5)(d)
(d) A petition may be prepared and filed by the person who alleges that he or she has been the subject of domestic abuse or by the guardian of an individual adjudicated incompetent in this state who has been the subject of domestic abuse.
813.12(5m)
(5m) Confidentiality of victim's address. The petition under
sub. (5) and the court order under
sub. (3) or
(4) shall not disclose the address of the alleged victim.
813.12(6)(a)(a) If an order is issued under this section, upon request by the petitioner the court or circuit court commissioner shall order the sheriff to accompany the petitioner and assist in placing him or her in physical possession of his or her residence or to otherwise assist in executing or serving the temporary restraining order or injunction. The petitioner may, at the petitioner's expense, use a private process server to serve papers on the respondent.
813.12(6)(am)1.1. If an injunction is issued or extended under
sub. (4) or if a tribal injunction is filed under
s. 806.247 (3), the clerk of the circuit court shall notify the department of justice of the injunction and shall provide the department of justice with information concerning the period during which the injunction is in effect and information necessary to identify the respondent for purposes of a firearms restrictions record search under
s. 175.35 (2g) (c).
813.12(6)(am)2.
2. Except as provided in
subd. 3., the department of justice may disclose information that it receives under
subd. 1. only as part of a firearms restrictions record search under
s. 175.35 (2g) (c).
813.12(6)(am)3.
3. The department of justice shall disclose any information that it receives under
subd. 1. to a law enforcement agency when the information is needed for law enforcement purposes.
813.12(6)(b)
(b) Within one business day after an order or injunction is issued, extended, modified or vacated under this section, the clerk of the circuit court shall send a copy of the order or injunction, or of the order extending, modifying or vacating an order or injunction, to the sheriff or to any other local law enforcement agency which is the central repository for orders and injunctions and which has jurisdiction over the petitioner's premises.
813.12(6)(c)
(c) No later than 24 hours after receiving the information under
par. (b), the sheriff or other appropriate local law enforcement agency under
par. (b) shall enter the information concerning an order or injunction issued, extended, modified or vacated under this section into the transaction information for management of enforcement system. The sheriff or other appropriate local law enforcement agency shall also make available to other law enforcement agencies, through a verification system, information on the existence and status of any order or injunction issued under this section. The information need not be maintained after the order or injunction is no longer in effect.
813.12(6)(d)
(d) The issuance of an order under
s. 813.12 (3) or
(4) is enforceable despite the existence of any other criminal or civil order restricting or prohibiting contact.
813.12(7)(am)(am) A law enforcement officer shall arrest and take a person into custody if all of the following occur:
813.12(7)(am)1.
1. A petitioner under
sub. (5) presents the law enforcement officer with a copy of a court order issued under
sub. (3) or
(4), or the law enforcement officer determines that such an order exists through communication with appropriate authorities.
813.12(7)(am)2.
2. The law enforcement officer has probable cause to believe that the person has violated the court order issued under
sub. (3) or
(4) by any circuit court in this state.
813.12(7)(c)
(c) A respondent who does not appear at a hearing at which the court orders an injunction under
sub. (4) but who has been served with a copy of the petition and notice of the time for hearing under
sub. (4) (a) 2. has constructive knowledge of the existence of the injunction and shall be arrested for violation of the injunction regardless of whether he or she has been served with a copy of the injunction.
813.12(7m)
(7m) Transcripts. The judge or circuit court commissioner shall record the temporary restraining order or injunction hearing upon the request of the petitioner.
813.12(8)(a)(a) Whoever knowingly violates a temporary restraining order or injunction issued under
sub. (3) or
(4) shall be fined not more than $1,000 or imprisoned for not more than 9 months or both.
813.12(8)(b)
(b) The petitioner does not violate the court order under
sub. (3) or
(4) if he or she admits into his or her residence a person ordered under
sub. (3) or
(4) to avoid that residence.
813.12(9)
(9) Notice of full faith and credit. An order or injunction issued under
sub. (3) or
(4) shall include a statement that the order or injunction may be accorded full faith and credit in every civil or criminal court of the United States, civil or criminal courts of any other state and Indian tribal courts to the extent that such courts may have personal jurisdiction over nontribal members.
813.12 Annotation
Sub. (3) (am) provides for a limited-term injunction as an alternative to a restraining order under sub. (3) (a) when 3 stated conditions are met. Johnson v. Miller,
157 Wis. 2d 482,
459 N.W.2d 886 (Ct. App. 1990).
813.12 Annotation
A person convicted of violating a harassment injunction may not collaterally attack the validity of the injunction in a criminal prosecution to enforce the injunction. State v. Bouzel,
168 Wis. 2d 642,
484 N.W.2d 362 (Ct. App. 1992).
813.12 Annotation
This section does not authorize granting an injunction without filing a formal petition, thus precluding an injunction against the petitioner. Laluzerne v. Stange,
200 Wis. 2d 179,
546 N.W.2d 182 (Ct. App. 1996),
95-1718.
813.12 Annotation
The definition of "household member" requires a continuous residential living arrangement between the parties. They need not reside in only one place, but must reside together on a continuous basis. Petrowsky v. Krause,
223 Wis. 2d 32,
588 N.W.2d 318 (Ct. App. 1998),
97-2205.
813.12 Annotation
It is error to grant an injunction under this section for other than the length of time requested or to refuse to order the sheriff to place the petitioner in possession of his or her residence. The requirement that the injunction granted be for the length of time requested is constitutional. Hayen v. Hayen, 2000 WI App 29,
232 Wis. 2d 447,
606 N.W.2d 606,
99-1361.
813.12 Annotation
Only a true threat is constitutionally punishable under statutes criminalizing threats. The constitutional boundaries for a true threat apply in domestic abuse injunction cases under this section. Acts underlying an earlier vacated domestic abuse injunction were relevant to a prediction of what the defendant would do if the domestic abuse injunction were not granted, and whether recent threats were true threats. Wittig v. Hoffart, 2005 WI App 198,
287 Wis. 2d 353,
704 N.W.2d 415,
04-1653.
813.12 Annotation
If the initial injunction was for less than 4 years, but expired, and the petitioner states that an extension is necessary to protect him or her, sub. (4) (c) 2. requires the court to extend the injunction for up to 4 years from the date the injunction was first granted. Because the court is required to extend an injunction under the proper circumstances, even after it has expired, it follows that a court has the authority and jurisdiction to grant the extension request after the injunction has expired. Switzer v. Switzer, 2006 WI App 10,
289 Wis. 2d 83,
709 N.W.2d 871,
04-2943.
813.12 Annotation
Construing this section to include a requirement of showing imminent danger, it is constitutional. Blazel v. Bradley,
698 F. Supp. 756 (1988).
813.12 Annotation
Using Restraining Orders to Protect Elder Victims. Meuer. Wis. Law. Sept. 2000.
813.12 Annotation
Trouble Ahead: Wisconsin's New Domestic Abuse Laws. Birdsall. Wis. Law. Feb. 2004.
813.122
813.122
Child abuse restraining orders and injunctions. 813.122(1)(b)
(b) "Child" means any person under 18 years of age.
813.122(1)(c)
(c) "Child victim" means the child who is the victim or the alleged victim of abuse.
813.122(1)(d)
(d) "Child victim advocate" means any person who counsels child victims, assists child victims in coping with the impact of the crime or otherwise acts in support of child victims.
