813.123 History
History: 1993 a. 445;
1995 a. 71,
306;
1997 a. 27;
2001 a. 61;
2005 a. 264,
387,
388;
2007 a. 45,
96,
124;
2009 a. 262;
2013 a. 223,
311,
321,
322;
2015 a. 109,
195,
253,
349,
353;
2017 a. 365 s.
111.
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)(am)(am) In this section, “harassment" means any of the following:
813.125(1)(am)1.
1. 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)(am)2.
2. Engaging in a course of conduct or repeatedly committing acts which harass or intimidate another person and which serve no legitimate purpose.
813.125(1)(bm)
(bm) In subs.
(3) and
(4), “household pet" means a domestic animal that is not a farm animal, as defined in s.
951.01 (3), that is kept, owned, or cared for by the petitioner or by a family member or a household member of the petitioner.
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; to refrain from removing, hiding, damaging, harming, or mistreating, or disposing of, a household pet; to allow the petitioner or a family member or household member of the petitioner acting on his or her behalf to retrieve a household pet; 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(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; to refrain from removing, hiding, damaging, harming, or mistreating, or disposing of, a household pet; to allow the petitioner or a family member or household member of the petitioner acting on his or her behalf to retrieve a household pet; 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.a.
a. Notice of the requirements and penalties under s.
941.29 and notice of any similar applicable federal laws and penalties.
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.
813.125(4)(a)3.
3. After hearing, 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(4)(aj)
(aj) 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.
813.125(4)(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(4)(b)
(b) The injunction may be entered only against the respondent named in the petition.
813.125(4)(c)
(c) An injunction under this subsection is effective according to its terms, but for not more than 4 years, except as provided in par.
(d).
813.125(4)(d)1.1. A judge or circuit court commissioner 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 is true:
813.125(4)(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 petitioner.
813.125(4)(d)2.
2. This paragraph does not prohibit a petitioner from requesting a new temporary restraining order under sub.
(3) or injunction under this subsection before or at the expiration of a previously entered order or injunction.
813.125(4g)(a)(a) Unless a condition described in par.
(b) exists, a judge or circuit court commissioner who issues an injunction under sub.
(4) may, upon request by the petitioner, order a wireless telephone service provider to transfer to the petitioner the right to continue to use a telephone number or numbers indicated by the petitioner and the financial responsibility associated with the number or numbers, as set forth in par.
(c). The petitioner may request transfer of each telephone number he or she, or a minor child in his or her custody, uses. The order shall contain all of the following:
813.125(4g)(a)1.
1. The name and billing telephone number of the account holder.
813.125(4g)(a)3.
3. A statement that the provider transfers to the petitioner all financial responsibility for and right to the use of any telephone number transferred under this subsection. In this subdivision, “financial responsibility" includes monthly service costs and costs associated with any mobile device associated with the number.
813.125(4g)(b)
(b) A wireless telephone service provider shall terminate the respondent's use of, and shall transfer to the petitioner use of, the telephone number or numbers indicated in par.
(a) unless it notifies the petitioner, within 72 hours after it receives the order, that one of the following applies:
813.125(4g)(b)1.
1. The account holder named in the order has terminated the account.
813.125(4g)(b)2.
2. A difference in network technology would prevent or impair the functionality of a device on a network if the transfer occurs.
813.125(4g)(b)3.
3. The transfer would cause a geographic or other limitation on network or service provision to the petitioner.
813.125(4g)(b)4.
4. Another technological or operational issue would prevent or impair the use of the telephone number if the transfer occurs.
813.125(4g)(c)
(c) The petitioner assumes all financial responsibility for and right to the use of any telephone number transferred under this subsection. In this paragraph, “financial responsibility" includes monthly service costs and costs associated with any mobile device associated with the number.
813.125(4g)(d)
(d) A wireless telephone service provider may apply to the petitioner its routine and customary requirements for establishing an account or transferring a number, including requiring the petitioner to provide proof of identification, financial information, and customer preferences.
813.125(4g)(e)
(e) A wireless telephone service provider is immune from civil liability for its actions taken in compliance with a court order issued under this subsection.
813.125(4m)
(4m)
Restriction on firearm possession; surrender of firearms. 813.125(4m)(a)(a) If a judge or circuit court commissioner issues an injunction under sub.
(4) 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.
813.125(4m)(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.
(4).
813.125(4m)(c)
(c) An order issued under par.
(a) that prohibits a respondent from possessing a firearm shall do all of the following:
813.125(4m)(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.
813.125(4m)(c)2.
2. Except as provided in par.
(cg), 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.
813.125(4m)(cg)
(cg) 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.
813.125(5)(a)(a) The petition shall allege facts sufficient to show the following:
813.125(5)(a)3.
3. That the respondent has engaged in harassment with intent to harass or intimidate the petitioner.
813.125(5)(a)4.
4. 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:
813.125(5)(a)4.c.
c. The type of provisions regarding contact between the petitioner and respondent.
813.125(5)(am)
(am) The petition 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.
813.125(5)(b)
(b) The clerk of circuit court shall provide simplified forms.
813.125(5g)(a)(a) 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 local law enforcement agency which is the central repository for orders and injunctions and which has jurisdiction over the petitioner's premises.
813.125(5g)(b)
(b) The sheriff or other appropriate local law enforcement agency under par.
(a) shall enter the information received under par.
(a) 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.
813.125(5g)(c)
(c) 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.
813.125(5g)(cm)1.1. The clerk of the circuit court shall forward to the sheriff any temporary restraining order, injunction, or other document or notice that must be served on the respondent under this section and the sheriff shall assist the petitioner in executing or serving the temporary restraining order, injunction, or other document or notice on the respondent. The petitioner may, at his or her expense, elect to use a private server to effect service.
813.125(5g)(cm)2.
2. If the petitioner elects service by the sheriff, the clerk of circuit court shall provide a form supplied by the sheriff to the petitioner that allows the petitioner to provide information about the respondent that may be useful to the sheriff in effecting service. The clerk shall forward the completed form to the sheriff. The clerk shall maintain the form provided under this subdivision in a confidential manner. If a service fee is required by the sheriff under s.
814.70 (1), the petitioner shall pay the fee directly to the sheriff.
813.125(5g)(d)
(d) The issuance of an order or injunction under sub.
(3) or
(4) is enforceable despite the existence of any other criminal or civil order restricting or prohibiting contact.
813.125(5g)(e)
(e) A law enforcement agency and a clerk of circuit court may use electronic transmission to facilitate the exchange of documents under this section. Any person who uses electronic transmission shall ensure that the electronic transmission does not allow unauthorized disclosure of the documents transmitted.
813.125(5m)
(5m)
Confidentiality of victim's address. The petition under sub.
(5) and the court order under sub.
(3),
(4), or
(4g) may not disclose the address of the alleged victim. The petitioner shall provide the clerk of circuit court with the petitioner's address when he or she files a petition under this section. The clerk shall maintain the petitioner's address in a confidential manner.
813.125(5r)(a)
(a) If an order prohibiting a respondent from possessing a firearm is issued under sub.
(4m), 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).
813.125(5r)(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).
813.125(5r)(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.
813.125(6)(am)(am) A law enforcement officer shall arrest and take a person into custody if all of the following occur:
813.125(6)(am)1.
1. A person named in a petition 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.
813.125(6)(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).
813.125(6)(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. that includes the information required under sub.
(4) (a) 2. a.,
b., and
c. 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.
