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 children and families 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;
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),
97-3091.
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,
99-2587. Reversed on other grounds, 2002 WI 34,
252 Wis. 2d 26,
643 N.W.2d 423,
99-2587.
948.31 Annotation
The common law affirmative defense of fraud is not applicable to this section. The circuit court properly prevented the defendant from collaterally attacking the underlying custody order despite his allegations that it was obtained by fraud. State v. Campbell, 2006 WI 99,
294 Wis. 2d 100,
718 N.W.2d 649,
04-0803.
948.40
948.40
Contributing to the delinquency of a child. 948.40(1)(1) No person may intentionally encourage or contribute to the delinquency of a child. This subsection includes intentionally encouraging or contributing to an act by a child under the age of 10 which would be a delinquent act if committed by a child 10 years of age or older.
948.40(2)
(2) No person responsible for the child's welfare may, by disregard of the welfare of the child, contribute to the delinquency of the child. This subsection includes disregard that contributes to an act by a child under the age of 10 that would be a delinquent act if committed by a child 10 years of age or older.
948.40(3)
(3) Under this section, a person encourages or contributes to the delinquency of a child although the child does not actually become delinquent if the natural and probable consequences of the person's actions or failure to take action would be to cause the child to become delinquent.
948.40(4)
(4) A person who violates this section is guilty of a Class A misdemeanor, except:
948.40(4)(a)
(a) If death is a consequence, the person is guilty of a Class D felony; or
948.40(4)(b)
(b) If the child's act which is encouraged or contributed to is a violation of a state or federal criminal law which is punishable as a felony, the person is guilty of a Class H felony.
948.40 Annotation
Sections 940.02 (2) (a) and 948.40 (4) (a) address 2 different categories of proscribed conduct that differ markedly in their essential nature. That the defendant's particular conduct happens to fall within a relatively limited area covered by both statutes does not show that the legislature intended only one punishment. State v. Patterson, 2009 WI App 161,
321 Wis. 2d 752,
776 N.W.2d 602,
08-1968.
948.40 Annotation
Assuming that the definition of juvenile in s. 938.02 applies for purposes of defining delinquency in this section, a 17-year-old is only excepted from the definition of juvenile for the single purpose of investigating or prosecuting a person who is less than 18 years of age. When the question instead was whether the 17-year-old was a juvenile for purposes of prosecuting another person for contributing to the delinquency of the 17-year-old with death as a consequence, the 17-year-old is a juvenile. State v. Patterson, 2009 WI App 161,
321 Wis. 2d 752,
776 N.W.2d 602,
08-1968.
948.45
948.45
Contributing to truancy. 948.45(1)
(1) Except as provided in
sub. (2), any person 17 years of age or older who, by any act or omission, knowingly encourages or contributes to the truancy, as defined under
s. 118.16 (1) (c), of a person 17 years of age or under is guilty of a Class C misdemeanor.
948.45(2)
(2) Subsection (1) does not apply to a person who has under his or her control a child who has been sanctioned under
s. 49.26 (1) (h).
948.45(3)
(3) An act or omission contributes to the truancy of a child, whether or not the child is adjudged to be in need of protection or services, if the natural and probable consequences of that act or omission would be to cause the child to be truant.
948.45 History
History: 1987 a. 285;
1989 a. 31 s.
2835m; Stats. 1989 s. 948.45;
1995 a. 27.
948.50
948.50
Strip search by school employee. 948.50(1)
(1) The legislature intends, by enacting this section, to protect pupils from being strip searched. By limiting the coverage of this section, the legislature is not condoning the use of strip searches under other circumstances.
948.50(2)(a)
(a) "School" means a public school, parochial or private school, or tribal school, as defined in
s. 115.001 (15m), which provides an educational program for one or more grades between kindergarten and grade 12 and which is commonly known as a kindergarten, elementary school, middle school, junior high school, senior high school, or high school.
948.50(2)(b)
(b) "Strip search" means a search in which a person's genitals, pubic area, buttock or anus, or a female person's breast, is uncovered and either is exposed to view or is touched by a person conducting the search.
948.50(3)
(3) Any official, employee or agent of any school or school district who conducts a strip search of any pupil is guilty of a Class B misdemeanor.
948.50(4)
(4) This section does not apply to a search of any person who:
948.50(4)(a)
(a) Is serving a sentence, pursuant to a conviction, in a jail, state prison or house of correction.
948.50(4)(b)
(b) Is placed in or transferred to a juvenile correctional facility, as defined in
s. 938.02 (10p), or a secured residential care center for children and youth, as defined in
s. 938.02 (15g).
948.50(5)
(5) This section does not apply to any law enforcement officer conducting a strip search under
s. 968.255.
948.50 History
History: 1983 a. 489;
1987 a. 332 s.
38; Stats. 1987 s. 948.50;
1995 a. 77;
2005 a. 344;
2009 a. 302.
948.51(1)(1) In this section "forced activity" means any activity which is a condition of initiation or admission into or affiliation with an organization, regardless of a student's willingness to participate in the activity.
948.51(2)
(2) No person may intentionally or recklessly engage in acts which endanger the physical health or safety of a student for the purpose of initiation or admission into or affiliation with any organization operating in connection with a school, college or university. Under those circumstances, prohibited acts may include any brutality of a physical nature, such as whipping, beating, branding, forced consumption of any food, liquor, drug or other substance, forced confinement or any other forced activity which endangers the physical health or safety of the student.
948.51(3)(a)
(a) A Class A misdemeanor if the act results in or is likely to result in bodily harm to another.
