813.123 Note
NOTE: Par. (c) is shown as affected by
2013 Wis. Acts 321 and
322 and as merged by the legislative reference bureau under s. 13.92 (2) (i).
813.123(5)(a)(a) Unless the individual at risk, guardian, or guardian ad litem consents in writing to a contact and the judge agrees that the contact is in the best interests of the individual at risk, a judge may grant an injunction ordering the respondent as specified in
par. (ar), if all of the following occur:
813.123(5)(a)1.
1. The petitioner files a petition alleging the elements set forth under
sub. (6).
813.123(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. The notice served under this subdivision shall inform the respondent that, if the judge or circuit court commissioner issues an injunction, the judge or circuit court commissioner may also order the respondent not to possess a firearm while the injunction is in effect. The person who serves the respondent with the notice shall also provide the respondent with all of the following information:
813.123(5)(a)2.b.
b. An explanation of
s. 813.1285, including the procedures for surrendering a firearm and the circumstances listed under
s. 813.1285 under which a respondent must appear at a hearing to surrender firearms.
813.123(5)(a)3.
3. After hearing, the judge finds reasonable cause to believe any of the following:
813.123(5)(a)3.a.
a. That the respondent has interfered with or, based upon prior conduct of the respondent, may interfere with an investigation of the elder adult at risk under
s. 46.90 or the adult at risk under
s. 55.043 and that the interference complained of, if continued, would make it difficult to determine if abuse, financial exploitation, neglect, harassment, or stalking of an individual at risk or mistreatment of an animal is occurring or may recur.
813.123(5)(a)3.b.
b. That the respondent has interfered with the delivery of protective services to or a protective placement of the individual at risk under
ch. 55 after the offer of protective services or protective placement has been made and the individual at risk or his or her guardian, if any, has consented to receipt of the protective services or protective placement; or that the respondent has interfered with the delivery of services to an elder adult at risk under
s. 46.90 (5m).
813.123(5)(a)3.c.
c. That the respondent has engaged in or threatened to engage in the abuse, financial exploitation, neglect, harassment, or stalking of an individual at risk or the mistreatment of an animal.
813.123(5)(ar)
(ar) An injunction granted under
par. (a) shall order the respondent to do one or more of the following:
813.123(5)(ar)1.
1. Avoid interference with an investigation of the elder adult at risk under
s. 46.90 or the adult at risk under
s. 55.043, the delivery of protective services to or a protective placement of the individual at risk under
ch. 55, or the delivery of services to the elder adult at risk under
s. 46.90 (5m).
813.123(5)(ar)2.
2. Cease engaging in or threatening to engage in the abuse, financial exploitation, neglect, harassment, or stalking of an individual at risk or the mistreatment of an animal.
813.123(5)(ar)3.
3. Avoid the residence of the individual at risk or any other location temporarily occupied by the individual at risk, or both.
813.123(5)(ar)4.
4. Avoid contacting or causing any person other than a party's attorney or a law enforcement officer to contact the individual at risk.
813.123(5)(ar)5.
5. Any other appropriate remedy not inconsistent with the remedies requested in the petition.
813.123(5)(b)
(b) The injunction may be entered only against the respondent named in the petition.
813.123(5)(c)1.1. An injunction under this subsection is effective according to its terms, but for not more than 4 years, except as provided in
par. (d).
813.123(5)(c)2.
2. When an injunction expires, the court shall extend the injunction if the petitioner states that an extension is necessary to protect the individual at risk. This extension shall remain in effect until 6 months after the date on which the court first entered the injunction, except as provided in
par. (d).
813.123(5)(c)3.
3. If the petitioner states that an extension is necessary to protect the individual at risk, the court may extend the injunction for not more than 2 years, except as provided in
par. (d).
813.123(5)(c)4.
4. Notice need not be given to the respondent before extending an injunction under
subd. 2. or
3. The clerk of courts shall notify the respondent after the court extends an injunction under
subd. 2. or
3.
813.123(5)(d)1.1. A judge may, upon issuing an injunction or granting an extension of an injunction issued under this subsection, order that the injunction is in effect for not more than 10 years, if the court finds, by a preponderance of the evidence stated on the record, that any of the following are true:
813.123(5)(d)1.a.
a. There is a substantial risk that the respondent may commit first-degree intentional homicide under
s. 940.01, or 2nd-degree intentional homicide under
s. 940.05, against the person at risk.
813.123(5)(d)2.
2. This paragraph does not prohibit a petitioner from requesting a new temporary restraining order under
sub. (4) or injunction under this subsection before or at the expiration of a previously entered order or injunction.
813.123(5g)
(5g) Confidentiality of addresses. The petition under
sub. (6) and the court order under
sub. (4) or
(5) may not disclose the address of the petitioner or of the individual at risk. The petitioner shall provide the clerk of circuit court with the address of the petitioner and of the individual at risk when he or she files a petition under this section. The clerk shall maintain the addresses in a confidential manner.
813.123(5m)
(5m) Restriction on firearm possession; surrender of firearms. 813.123(5m)(a)(a) If a judge or circuit court commissioner issues an injunction under
sub. (5) and the judge or circuit court commissioner determines, based on clear and convincing evidence presented at the hearing on the issuance of the injunction, that the respondent may use a firearm to cause physical harm to another or to endanger public safety, the judge or circuit court commissioner may prohibit the respondent from possessing a firearm.
813.123(5m)(b)
(b) An order prohibiting a respondent from possessing a firearm issued under
par. (a) remains in effect until the expiration of the injunction issued under
sub. (5).
813.123(5m)(c)
(c) An order issued under
par. (a) that prohibits a respondent from possessing a firearm shall do all of the following:
813.123(5m)(c)1.
1. Inform the respondent named in the petition of the requirements and penalties under
s. 941.29 and any similar applicable federal laws and penalties.
813.123(5m)(c)2.
2. Except as provided in
par. (d), require in writing 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, in accordance with
s. 813.1285.
813.123(5m)(d)
(d) If the respondent is a peace officer, an order issued under
par. (a) 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.
813.123(6)
(6) Petition. The petition shall allege facts sufficient to show the following:
813.123(6)(a)
(a) The name of the petitioner and the individual at risk.
813.123(6)(b)
(b) The name of the respondent and that the respondent is an adult.
813.123(6)(c)
(c) That the respondent interfered with or, based on prior conduct of the respondent, may interfere with an investigation of the elder adult at risk under
s. 46.90 (5), an investigation of the adult at risk under
s. 55.043, the delivery of protective services to or a protective placement of the individual at risk under
ch. 55, or the delivery of services to the elder adult at risk under
s. 46.90 (5m); or that the respondent engaged in, or threatened to engage in, the abuse, financial exploitation, neglect, stalking, or harassment of an individual at risk or mistreatment of an animal.
813.123(6)(d)
(d) If the petitioner knows of any other court proceeding in which the petitioner is a person affected by a court order or judgment that includes provisions regarding contact with the respondent, any of the following that are known by the petitioner:
813.123(6)(d)3.
3. The type of provisions regarding contact between the petitioner and respondent.
813.123(7)
(7) Interference order. Any order under
sub. (4) (ar) 1. or
2. or
(5) (ar) 1. or
2. also shall prohibit the respondent from intentionally preventing a representative or employee of the county protective services agency from meeting, communicating, or being in visual or audio contact with the adult at risk, except as provided in the order.
813.123(8)(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 assist in executing or serving the temporary restraining order or injunction.
813.123(8)(b)
(b) Within one business day after an order or injunction is issued, extended, modified or vacated under this section, the clerk of 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 vulnerable adult's premises.
813.123(8)(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.
813.123(8m)(a)(a) If an order prohibiting a respondent from possessing a firearm is issued under
sub. (5m), the clerk of the circuit court shall notify the department of justice of the existence of the order prohibiting a respondent from possessing a firearm and shall provide the department of justice with information concerning the period during which the order is in effect and information necessary to identify the respondent for purposes of responding to a request under
s. 165.63 or for purposes of a firearms restrictions record search under
s. 175.35 (2g) (c) or a background check under
s. 175.60 (9g) (a).
813.123(8m)(b)
(b) Except as provided in
par. (c), the department of justice may disclose information that it receives under
par. (a) only to respond to a request under
s. 165.63 or as part of a firearms restrictions record search under
s. 175.35 (2g) (c) or a background check under
s. 175.60 (9g) (a).
813.123(8m)(c)
(c) The department of justice shall disclose any information that it receives under
par. (a) to a law enforcement agency when the information is needed for law enforcement purposes.
813.123(9)(am)(am) A law enforcement officer shall arrest and take a person into custody if all of the following occur:
813.123(9)(am)1.
1. A petitioner presents the law enforcement officer with a copy of an order issued under
sub. (4) or an injunction issued under
sub. (5), or the law enforcement officer determines that such an order exists through communication with appropriate authorities.
813.123(9)(am)2.
2. The law enforcement officer has probable cause to believe that the person has violated the order issued under
sub. (4) or the injunction issued under
sub. (5).
813.123(9)(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. that includes the information required under
sub. (5) (a) 2. a.,
b., and
c. has constructive knowledge of the existence of the injunction and may be arrested for violation of the injunction regardless of whether he or she has been served with a copy of the injunction.
813.123(10)
(10) Penalty. Whoever intentionally 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.
813.123(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.
813.123 Annotation
The First 30 Months: Wisconsin's Individual-at -Risk Restraining Order. Abramson, Mansfield, & Raymond. Wis. Law. Nov. 2010.
813.125
813.125
Harassment restraining orders and injunctions. 813.125(1)(1)
Definition. In this section, "harassment" means any of the following:
813.125(1)(a)
(a) Striking, shoving, kicking or otherwise subjecting another person to physical contact; engaging in an act that would constitute abuse under
s. 48.02 (1), sexual assault under
s. 940.225, or stalking under
s. 940.32; or attempting or threatening to do the same.
813.125(1)(b)
(b) Engaging in a course of conduct or repeatedly committing acts which harass or intimidate another person and which serve no legitimate purpose.
813.125(2)(a)(a) An action under this section may be commenced by filing a petition described under
sub. (5) (a). No action under this section may be commenced by service of summons. 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. The court shall inform the petitioner in writing that, if the petitioner chooses to have the documents in the action served by the sheriff, the petitioner should contact the sheriff to verify the proof of service of the petition.
Section 813.06 does not apply to an action under this section.
813.125(2g)
(2g) Appointment of guardian ad litem. The court or circuit court commissioner, on its or his or her own motion, or on the motion of any party, may appoint a guardian ad litem for a child who is a party under this section when justice so requires.
813.125(2m)
(2m) Two-part procedure. If the fee under
s. 814.61 (1) for filing a petition under this section is waived under
s. 814.61 (1) (e), the 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.
813.125(3)(a)(a) A judge or circuit court commissioner may issue a temporary restraining order ordering the respondent to avoid contacting or causing any person other than a party's attorney or a law enforcement officer to contact the petitioner without the petitioner's written consent; to cease or avoid the harassment of another person; to avoid the petitioner's residence, except as provided in
par. (am), or any premises temporarily occupied by the petitioner or both; or any combination of these remedies requested in the petition, if all of the following occur:
813.125(3)(a)2.
2. The judge or circuit court commissioner finds reasonable grounds to believe that the respondent has engaged in harassment with intent to harass or intimidate the petitioner.
813.125(3)(am)
(am) If the petitioner and the respondent are not married, and 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.
813.125(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.
813.125(3)(c)
(c) The temporary restraining order is in effect until a hearing is held on issuance of an injunction under
sub. (4), except that the court may extend the temporary restraining order under
s. 813.1285. 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, extended under
s. 801.58 (2m), 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. A judge or court commissioner may not extend the temporary restraining order in lieu of ruling on the issuance of an injunction.
813.125 Note
NOTE: Par. (c) is shown as affected by
2013 Wis. Acts 321 and
322 and as merged by the legislative reference bureau under s. 13.92 (2) (i).
813.125(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.
813.125(3)(e)
(e) 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.
813.125(4)(a)(a) A judge or circuit court commissioner may grant an injunction ordering the respondent to avoid contacting or causing any person other than a party's attorney or a law enforcement officer to contact the petitioner without the petitioner's written consent; to cease or avoid the harassment of another person; to avoid the petitioner's residence, except as provided in
par. (am), or any premises temporarily occupied by the petitioner or both; or any combination of these remedies requested in the petition, if all of the following occur:
813.125(4)(a)2.
2. The petitioner serves upon the respondent a copy of a restraining order obtained under
sub. (3) and notice of the time for the hearing on the issuance of the injunction under
sub. (3) (c). The restraining order or notice of hearing served under this subdivision shall inform the respondent that, if the judge or circuit court commissioner issues an injunction, the judge or circuit court commissioner may also order the respondent not to possess a firearm while the injunction is in effect. The person who serves the respondent with the order or notice shall also provide the respondent with all of the following information:
813.125(4)(a)2.b.
b. An explanation of
s. 813.1285, including the procedures for surrendering a firearm and the circumstances listed under
s. 813.1285 under which a respondent must appear at a hearing to surrender firearms.
