Chapter 948

948.22(6) (6) Under this section, affirmative defenses include but are not limited to inability to provide child, grandchild or spousal support. A person may not demonstrate inability to provide child, grandchild or spousal support if the person is employable but, without reasonable excuse, either fails to diligently seek employment, terminates employment or reduces his or her earnings or assets. A person who raises an affirmative defense has the burden of proving the defense by a preponderance of the evidence.

948.22(7) (7) 

948.22(7)(a) (a) Before trial, upon petition by the complainant and notice to the defendant, the court may enter a temporary order requiring payment of child, grandchild or spousal support.

948.22(7)(b) (b) In addition to or instead of imposing a penalty authorized for a Class I felony or a Class A misdemeanor, whichever is appropriate, the court shall:

948.22(7)(b)1. 1. If a court order requiring the defendant to pay child, grandchild or spousal support exists, order the defendant to pay the amount required including any amount necessary to meet a past legal obligation for support.

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 History History: 1985 a. 29, 56; 1987 a. 332 s. 33; Stats. 1987 s. 948.22; 1989 a. 31, 212; 1993 a. 274, 481; 1995 a. 289; 1997 a. 35, 191, 252; 1999 a. 9; 2001 a. 109; 2003 a. 321; 2005 a. 443 s. 265; 2007 a. 20.

948.22 Annotation Under s. 940.27 (2) [now sub. (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 this section 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 173 (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 day periods that are more than six 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 did not identify a historical fact inconsistent with an incident of the Maine court’s jurisdiction, whether a court of competent jurisdiction ordered the defendant 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 or not reporting death of a child; not reporting disappearance of a child.

948.23(1) (1) Whoever does any of the following is guilty of a Class I felony:

948.23(1)(a) (a) 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.

948.23(1)(b) (b) Unless a physician or an authority of a hospital, sanatorium, public or private institution, convalescent home, or any institution of a like nature is required to report the death under s. 979.01 (1) or unless a report conflicts with religious tenets or practices, fails to report to law enforcement the death of a child immediately after discovering the death, or as soon as practically possible if immediate reporting is impossible, if the actor is the parent, stepparent, guardian, or legal custodian of the child and if any of the following applies:

948.23(1)(b)1. 1. The death involves unexplained, unusual, or suspicious circumstances.

948.23(1)(b)2. 2. The death is or appears to be a homicide or a suicide.

948.23(1)(b)3. 3. The death is due to poisoning.

948.23(1)(b)4. 4. The death follows an accident, whether the injury is or is not the primary cause of the death.

948.23(2) (2) Whoever, without authorization under s. 69.18 or other legal authority to move a corpse, hides or buries the corpse of a child is guilty of a Class F felony.

948.23(3) (3) 

948.23(3)(ag) (ag) In this subsection, “missing” means absent without a reasonable explanation if the absence would raise concern in a reasonable person for the child’s well-being.

948.23(3)(am) (am) Within the period under par. (b), an individual must report to law enforcement a child as missing if the individual is the parent, stepparent, guardian, or legal custodian of the child.

948.23(3)(b) (b)

948.23(3)(b)1. 1. The report under par. (am) must be made within 24 hours after the child is discovered to be missing if the child is under 13 years of age when the discovery is made.

948.23(3)(b)2. 2. The report under par. (am) must be made within 48 hours after the child is discovered to be missing if the child is at least 13 years of age but under 16 years of age when the discovery is made.

948.23(3)(b)3. 3. The report under par. (am) must be made within 72 hours after the child is discovered to be missing if the child is at least 16 years of age when the discovery is made.

948.23(3)(c) (c) Whoever violates par. (am) is guilty of the following:

948.23(3)(c)1. 1. Except as provided in subds. 2. to 4., a Class A misdemeanor.

948.23(3)(c)2. 2. If the child suffers bodily harm or substantial bodily harm while he or she is missing, a Class H felony.

948.23(3)(c)3. 3. If the child suffers great bodily harm while he or she is missing, a Class F felony.

948.23(3)(c)4. 4. If the child dies while he or she is missing or as a result of an injury he or she suffered while missing, a Class D felony.

948.23 History History: 1977 c. 173; 1987 a. 332 s. 47; Stats. 1987 s. 948.23; 2001 a. 109; 2011 a. 268; 2013 a. 168 s. 21.

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(2) (2) This section does not apply to placements under s. 48.839.

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.

948.25 948.25 Unauthorized interstate placements of children.

948.25(1) (1) Any person who sends a child out of this state, brings a child into this state, or causes a child to be sent out of this state or brought into this state for the purpose of permanently transferring physical custody of the child to a person who is not a relative, as defined in s. 48.02 (15), of the child is guilty of a Class A misdemeanor.

948.25(2) (2) Subsection (1) does not apply to any of the following:

948.25(2)(a) (a) A placement of a child that is authorized under s. 48.98, 48.988, or 48.99.

948.25(2)(b) (b) A placement of a child that is approved by a court of competent jurisdiction of the sending state or receiving state.

948.25 History History: 2013 a. 314.

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) (1) 

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) (4) 

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)(a)4. 4. Is otherwise authorized by law.

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(5) (5) The venue of an action under this section is prescribed in s. 971.19 (8).

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 History History: 1987 a. 332; 1989 a. 31, 56, 107; 1993 a. 302; 1995 a. 27 ss. 7237, 9126 (19); 1995 a. 77; 1997 a. 290; 2001 a. 109; 2005 a. 130; 2005 a. 443 s. 265; 2007 a. 20.

948.31 Annotation Discussing “imminent physical harm” under sub. (4). State v. McCoy, 143 Wis. 2d 274, 421 N.W.2d 107 (1988).

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 suggests 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.

948.31 Annotation 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 the defendant’s allegations that it was obtained by fraud. State v. Campbell, 2006 WI 99, 294 Wis. 2d 100, 718 N.W.2d 649, 04-0803.