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.
948.31 Annotation
For a violation of the "withholds a child for more than 12 hours" provision of sub. (2), the state must prove 3 elements: 1) on the date of the alleged offense, the child was under the age of 18 years; 2) the defendant withheld the child for more than 12 hours from the child's parents; and 3) the child's parents did not consent. There is no requirement that the state prove that the defendant had the parents' initial permission to take the child. State v. Ziegler,
2012 WI 73,
342 Wis. 2d 256,
816 N.W.2d 238,
10-2514.
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
The punishments for first-degree reckless homicide by delivery of a controlled substance under s. 940.02 (2) (a) and contributing to the delinquency of a child with death as a consequence in violation of subs. (1) and (4) (a) are not multiplicitous when both convictions arise from the same death. State v. Patterson,
2010 WI 130,
329 Wis. 2d 599,
790 N.W.2d 909,
08-1968.
948.40 Annotation
Sub. (1) proscribes contributing to the delinquency of any child under the age of eighteen. The definition of "child" in s. 948.01 (1) excludes those over seventeen only for the "purposes of prosecuting" a person charged with violating this section and not that person's victim. State v. Patterson,
2010 WI 130,
329 Wis. 2d 599,
790 N.W.2d 909,
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.
948.51(3)(b)
(b) A Class H felony if the act results in great bodily harm to another.
948.51(3)(c)
(c) A Class G felony if the act results in the death of another.
948.51 History
History: 1983 a. 356;
1987 a. 332 s.
32; Stats. 1987 s. 948.51;
2001 a. 109.
948.53
948.53
Child unattended in child care vehicle. 948.53(1)(a)
(a) "Child care provider" means a child care center that is licensed under
s. 48.65 (1), a child care provider that is certified under
s. 48.651, or a child care program that is established or contracted for under
s. 120.13 (14).
948.53(1)(b)
(b) "Child care vehicle" means a vehicle that is owned or leased by a child care provider or a contractor of a child care provider and that is used to transport children to and from the child care provider.
948.53(2)(a)(a) No person responsible for a child's welfare while the child is being transported in a child care vehicle may leave the child unattended at any time from the time the child is placed in the care of that person to the time the child is placed in the care of another person responsible for the child's welfare.
948.53(2)(b)
(b) Any person who violates
par. (a) is guilty of one of the following:
948.53(2)(b)3.
3. A Class H felony if great bodily harm is a consequence.
948.55
948.55
Leaving or storing a loaded firearm within the reach or easy access of a child. 948.55(1)
(1) In this section, "child" means a person who has not attained the age of 14 years.
948.55(2)
(2) Whoever recklessly stores or leaves a loaded firearm within the reach or easy access of a child is guilty of a Class A misdemeanor if all of the following occur:
948.55(2)(a)
(a) A child obtains the firearm without the lawful permission of his or her parent or guardian or the person having charge of the child.
948.55(2)(b)
(b) The child under
par. (a) discharges the firearm and the discharge causes bodily harm or death to himself, herself or another.
948.55(3)
(3) Whoever recklessly stores or leaves a loaded firearm within the reach or easy access of a child is guilty of a Class C misdemeanor if all of the following occur:
948.55(3)(a)
(a) A child obtains the firearm without the lawful permission of his or her parent or guardian or the person having charge of the child.
948.55(3)(b)
(b) The child under
par. (a) possesses or exhibits the firearm in a public place or in violation of
s. 941.20.
948.55(4)
(4) Subsections (2) and
(3) do not apply under any of the following circumstances:
948.55(4)(a)
(a) The firearm is stored or left in a securely locked box or container or in a location that a reasonable person would believe to be secure.
948.55(4)(b)
(b) The firearm is securely locked with a trigger lock.
948.55(4)(c)
(c) The firearm is left on the person's body or in such proximity to the person's body that he or she could retrieve it as easily and quickly as if carried on his or her body.
948.55(4)(d)
(d) The person is a peace officer or a member of the armed forces or national guard and the child obtains the firearm during or incidental to the performance of the person's duties. Notwithstanding
s. 939.22 (22), for purposes of this paragraph, peace officer does not include a commission warden who is not a state-certified commission warden.
