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.
813.122(2)
(2) Commencement of action and response. 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. (6) (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. The child victim or a parent, stepparent or legal guardian of the child victim may be a petitioner 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.
813.122(3)(a)(a) Procedure for an action under this section is in 2 parts. First, if the petitioner requests a temporary restraining order, the court or circuit court commissioner shall issue or refuse to issue that order. Second, the court shall hold a hearing under
sub. (5) on whether to issue an injunction, which is the final relief. If the court or circuit court commissioner issues a temporary restraining order, the order shall set forth the date for the hearing on an injunction. If the court or circuit court commissioner does not issue a temporary restraining order, the date for the hearing shall be set upon motion by either party.
813.122(3)(b)
(b) The court or circuit court commissioner, on its or his or her own motion or the motion of any party, may order one or more of the following:
813.122(3)(b)1.
1. That a guardian ad litem be appointed for the child victim in accordance with
s. 48.235.
813.122(3)(b)2.
2. That all persons, other than the parties, their attorneys, witnesses, child victim advocates, service representatives, as defined in
s. 895.45 (1) (c), court personnel and any guardian ad litem, be excluded from any hearing under this section.
813.122(3)(b)3.
3. That access to any record of an action under this section be available only to the parties, their attorneys, any guardian ad litem, court personnel and any applicable court upon appeal.
813.122(3)(bm)
(bm) The court or circuit court commissioner shall appoint a guardian ad litem if the respondent is a parent of the child.
813.122(3)(c)
(c) An action under this section may pertain to more than one child victim.
813.122(4)(a)(a) A judge or circuit court commissioner shall issue a temporary restraining order ordering the respondent to avoid the child victim's residence or any premises temporarily occupied by the child victim or both, and to avoid contacting or causing any person other than a party's attorney to contact the child victim unless the petitioner consents in writing and the judge or circuit court commissioner agrees that the contact is in the best interests of the child victim, if all of the following occur:
813.122(4)(a)1.
1. The petitioner submits to the judge or circuit court commissioner a petition alleging the elements set forth under
sub. (6) (a).
813.122(4)(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 child victim and the respondent may engage in, abuse of the child victim.
813.122(4)(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.
813.122(4)(c)
(c) The temporary restraining order is in effect until a hearing is held on issuance of an injunction under
sub. (5). A judge 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.
813.122(5)(a)(a) A judge may grant an injunction ordering the respondent to avoid the child victim's residence or any premises temporarily occupied by the child victim or both, and to avoid contacting or causing any person other than a party's attorney to contact the child victim unless the petitioner consents to that contact in writing and the judge agrees that the contact is in the best interests of the child victim, if all of the following occur:
813.122(5)(a)2.
2. The petitioner serves upon the respondent a copy 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.
813.122(5)(a)3.
3. After hearing, the judge finds reasonable grounds to believe that the respondent has engaged in, or based upon prior conduct of the child victim and the respondent may engage in, abuse of the child victim.
813.122(5)(b)
(b) If the respondent is the parent of the child victim, the judge shall modify the order under
par. (a) to provide the parent reasonable visitation rights, unless the judge finds that visitation would endanger the child's physical, mental or emotional health. The judge may provide that any authorized visitation be supervised.
813.122(5)(c)
(c) The injunction may be entered only against the respondent named in the petition.
813.122(5)(d)1.1. An injunction under this subsection is effective according to its terms, but for not more than 2 years or until the child victim attains 18 years of age, whichever occurs first.
813.122(5)(d)2.
2. When an injunction in effect for less than 6 months expires, the court shall extend the injunction if the petitioner states that an extension is necessary to protect the child victim. This extension shall remain in effect until 6 months after the date the court first entered the injunction or until the child attains 18 years of age, whichever occurs first.
813.122(5)(d)3.
3. If the petitioner states that an extension is necessary to protect the child victim, the court may extend the injunction for not more than 2 years or until the child attains 18 years of age, whichever occurs first.
813.122(5)(d)4.
4. Notice need not be given to the respondent before extending an injunction under
subd. 2. or
3. The petitioner shall notify the respondent after the court extends an injunction under
subd. 2. or
3.
813.122(5)(e)
(e) An injunction under this section may direct the payment of child support using a method of calculation authorized under
s. 767.511.
813.122(5m)
(5m) Notice of restriction on firearm possession; surrender of firearms. 813.122(5m)(a)1.
1. Inform the respondent named in the petition of the requirements and penalties under
s. 941.29.
813.122(5m)(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).
813.122(5m)(ag)
(ag) If the respondent is a peace officer, an injunction issued under
sub. (5) 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.
813.122(5m)(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.
813.122(5m)(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.
813.122(5m)(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).
813.122(5m)(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.
813.122(5m)(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.
813.122(5m)(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:
813.122(5m)(b)1.
1. That the injunction issued under
sub. (5) has been vacated or has expired and not been extended.
813.122(5m)(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.
813.122(5m)(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).
813.122(6)(a)(a) The petition shall allege facts sufficient to show the following:
813.122(6)(a)3.
3. That the respondent engaged in, or based on prior conduct of the respondent and the child victim may engage in, abuse of the child victim.
813.122(6)(a)4.
4. If the payment of child support is requested, that the payment of child support is reasonable or necessary based on criteria provided under
s. 767.511.
813.122(6)(b)
(b) Upon request, the clerk of circuit court shall provide, without cost, the simplified forms obtained under
s. 48.47 (7) (d) to a petitioner.
813.122(7)
(7) Contact. Any order under this section directing a person to avoid contact with a child victim prohibits the person from knowingly touching, meeting, communicating or being in visual or audio contact with the child victim, except as provided in any modifications of the order under
sub. (5) (b).
813.122(9)(a)(a) If an order is issued under this section, upon request by the petitioner, the court or circuit court commissioner, as applicable, shall order the sheriff to assist in executing or serving the temporary restraining order or injunction.
813.122(9)(am)1.1. If an injunction is issued or extended under
sub. (5), 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).
813.122(9)(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).
813.122(9)(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.
813.122(9)(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 child victim's premises.
813.122(9)(c)
(c) The sheriff or other appropriate local law enforcement agency under
par. (b) shall enter the information received under
par. (b) concerning an order or injunction issued, extended, modified or vacated under this section into the transaction information for management of enforcement system no later than 24 hours after receiving the information and shall 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.
813.122(10)(am)(am) A law enforcement officer shall arrest and take a person into custody if all of the following occur:
813.122(10)(am)1.
1. A petitioner under
sub. (6) (a) presents the law enforcement officer with a copy of an order issued under
sub. (4) or
(5), or the law enforcement officer determines that such an order exists through communication with appropriate authorities.
813.122(10)(am)2.
2. The law enforcement officer has probable cause to believe that the person has violated the order issued under
sub. (4) or
(5).
813.122(10)(c)
(c) A respondent who does not appear at a hearing at which the court orders an injunction under
sub. (5) but who has been served with a copy of the petition and notice of the time for hearing under
sub. (5) (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.
813.122(11)
(11) Penalty. Whoever knowingly violates a temporary restraining order or injunction issued under this section shall be fined not more than $1,000 or imprisoned for not more than 9 months or both.
813.122(12)
(12) Notice of full faith and credit. An order or injunction issued under
sub. (4) or
(5) 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.
813.122 Annotation
This section implicitly envisions a change of placement and custody if the trial court issues a child abuse injunction against a parent who has custody or placement of a child under a divorce order or judgment. Scott M.H. v. Kathleen M.H.
218 Wis. 2d 605,
581 N.W.2d 564 (Ct. App. 1998),
97-0814.
813.123
813.123
Restraining orders and injunctions for individuals at risk. 813.123(1)(d)
(d) "False representation" includes a promise that is made with the intent not to fulfill the promise.
813.123(1)(ep)
(ep) "Individual at risk" means an elder adult at risk or an adult at risk.
