813.12(2)(c)3. 3. A firearm possession form developed under s. 813.1285 (5) (a), with instructions for completing and returning the form.
813.12(2m) (2m)Two-part procedure. 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.
813.12(3) (3)Temporary restraining order.
813.12(3)(a)(a) A judge or circuit court commissioner shall issue a temporary restraining order ordering the respondent to refrain from committing acts of domestic abuse against the petitioner, to avoid the petitioner's residence, except as provided in par. (am), or any other location temporarily occupied by the petitioner or both, or to avoid contacting or causing any person other than a party's attorney or a law enforcement officer to contact the petitioner unless the petitioner consents in writing, or any combination of these remedies requested in the petition, or any other appropriate remedy not inconsistent with the remedies requested in the petition, if all of the following occur:
813.12(3)(a)1. 1. The petitioner submits to the judge or circuit court commissioner a petition alleging the elements set forth under sub. (5) (a).
813.12(3)(a)2. 2. The judge or circuit court commissioner finds reasonable grounds to believe that the respondent has engaged in, or based on prior conduct of the petitioner and the respondent may engage in, domestic abuse of the petitioner.
813.12(3)(aj) (aj) In determining whether to issue a temporary restraining order, the judge or circuit court commissioner shall consider the potential danger posed to the petitioner and the pattern of abusive conduct of the respondent but may not base his or her decision solely on the length of time since the last domestic abuse or the length of time since the relationship ended. The judge or circuit court commissioner may grant only the remedies requested or approved by the petitioner. 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.
813.12(3)(am) (am) If the petitioner and the respondent are not married, 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.
813.12(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.
813.12(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. The temporary restraining order is not voided if the respondent is admitted into a dwelling that the order directs him or her to avoid. 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.
813.12 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).
813.12(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.
813.12(4) (4)Injunction.
813.12(4)(a)(a) A judge or circuit court commissioner may grant an injunction ordering the respondent to refrain from committing acts of domestic abuse against the petitioner, to avoid the petitioner's residence, except as provided in par. (am), or any other location temporarily occupied by the petitioner or both, or to avoid contacting or causing any person other than a party's attorney or a law enforcement officer to contact the petitioner unless the petitioner consents to that contact in writing, or any combination of these remedies requested in the petition, or any other appropriate remedy not inconsistent with the remedies requested in the petition, if all of the following occur:
813.12(4)(a)1. 1. The petitioner files a petition alleging the elements set forth under sub. (5) (a).
813.12(4)(a)2. 2. The petitioner serves upon the respondent a copy or summary 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.
813.12(4)(a)3. 3. After hearing, the judge or circuit court commissioner finds reasonable grounds to believe that the respondent has engaged in, or based upon prior conduct of the petitioner and the respondent may engage in, domestic abuse of the petitioner.
813.12(4)(aj) (aj) In determining whether to issue an injunction, the judge or circuit court commissioner shall consider the potential danger posed to the petitioner and the pattern of abusive conduct of the respondent but may not base his or her decision solely on the length of time since the last domestic abuse or the length of time since the relationship ended. The judge or circuit court commissioner may grant only the remedies requested by the petitioner. 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.
813.12(4)(am) (am) If the petitioner and the respondent are not married, 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.
813.12(4)(b) (b) The judge or circuit court commissioner may enter an injunction only against the respondent named in the petition. No injunction may be issued under this subsection under the same case number against the person petitioning for the injunction. The judge or circuit court commissioner may not modify an order restraining the respondent based solely on the request of the respondent.
813.12(4)(c)1.1. An injunction under this subsection is effective according to its terms, for the period of time that the petitioner requests, but not more than 4 years, except as provided in par. (d). An injunction granted under this subsection is not voided if the petitioner allows or initiates contact with the respondent or by the admittance of the respondent into a dwelling that the injunction directs him or her to avoid.
813.12(4)(c)2. 2. When an injunction expires, the court shall extend the injunction if the petitioner states that an extension is necessary to protect him or her. This extension shall remain in effect until 4 years after the date the court first entered the injunction, except as provided in par. (d).
813.12(4)(c)4. 4. Notice need not be given to the respondent before extending an injunction under subd. 2. The clerk of courts shall notify the respondent after the court extends an injunction under subd. 2.
813.12(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 are true:
813.12(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.
813.12(4)(d)1.b. b. There is a substantial risk that the respondent may commit sexual assault under s. 940.225 (1), (2), or (3), or under s. 948.02 (1) or (2), against the petitioner.
813.12(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.
813.12(4m) (4m)Notice of restriction on firearm possession; surrender of firearms.
813.12(4m)(a)(a) An injunction issued under sub. (4) shall do all of the following:
813.12(4m)(a)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.
813.12(4m)(a)2. 2. Except as provided in par. (ag), 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.
813.12(4m)(ag) (ag) If the respondent is a peace officer, an injunction issued under sub. (4) 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.
813.12(5) (5)Petition.
813.12(5)(a)(a) The petition shall allege facts sufficient to show the following:
813.12(5)(a)1. 1. The name of the petitioner and that the petitioner is the alleged victim.
813.12(5)(a)2. 2. The name of the respondent and that the respondent is an adult.
813.12(5)(a)3. 3. That the respondent engaged in, or based on prior conduct of the petitioner and the respondent may engage in, domestic abuse of the petitioner.
813.12(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:
813.12(5)(a)4.a. a. The name or type of the court proceeding.
813.12(5)(a)4.b. b. The date of the court proceeding.
813.12(5)(a)4.c. c. The types of provisions regarding contact between the petitioner and respondent.
813.12(5)(am) (am) The petition shall request that the respondent be restrained from committing acts of domestic abuse against the petitioner, that the respondent be ordered to avoid the petitioner's residence, or that the respondent be ordered to avoid contacting the petitioner or causing any person other than the respondent's attorney to contact the petitioner unless the petitioner consents to the contact in writing, or any combination of these requests.
813.12(5)(b) (b) The clerk of circuit court shall provide the simplified forms provided under s. 49.165 (3) (c) to help a person file a petition.
813.12(5)(c) (c) A judge or circuit court commissioner shall accept any legible petition for a temporary restraining order or injunction.
813.12(5)(d) (d) A petition may be prepared and filed by the person who alleges that he or she has been the subject of domestic abuse or by the guardian of an individual adjudicated incompetent in this state who has been the subject of domestic abuse.
813.12(5g) (5g)Stipulation. If the parties enter into a stipulation to convert a petition under this section to a petition for a temporary restraining order or injunction under s. 813.125, the court may not approve that stipulation unless all of the following occur:
813.12(5g)(a) (a) Either or both parties submit an oral request on the record for the conversion explaining why the conversion of the petition is requested.
813.12(5g)(b) (b) The court addresses the petitioner personally and determines that the petitioner entered into the stipulation voluntarily and with an understanding of the differences between the orders issued under subs. (4) and (4m) and s. 813.125 (4) and (4m).
813.12(5m) (5m)Confidentiality of victim's address. The petition under sub. (5) and the court order under sub. (3) or (4) 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.
813.12(6) (6)Enforcement assistance.
813.12(6)(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 accompany the petitioner and assist in placing him or her in physical possession of his or her residence or to otherwise assist in executing or serving the temporary restraining order or injunction. The petitioner may, at the petitioner's expense, use a private process server to serve papers on the respondent.
813.12(6)(am)1.1. If an injunction is issued or extended under sub. (4) or if a tribal injunction is filed under s. 806.247 (3), the clerk of the circuit court shall notify the department of justice of the injunction and shall provide the department of justice with information concerning the period during which the injunction 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).
813.12(6)(am)2. 2. Except as provided in subd. 3., the department of justice may disclose information that it receives under subd. 1. 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).
813.12(6)(am)3. 3. The department of justice shall disclose any information that it receives under subd. 1. to a law enforcement agency when the information is needed for law enforcement purposes.
813.12(6)(b) (b) 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 other local law enforcement agency which is the central repository for orders and injunctions and which has jurisdiction over the petitioner's premises.
813.12(6)(c) (c) No later than 24 hours after receiving the information under par. (b), the sheriff or other appropriate local law enforcement agency under par. (b) shall enter the information concerning an order or injunction issued, extended, modified or vacated under this section into the transaction information for management of enforcement system. The sheriff or other appropriate local law enforcement agency shall also 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.
813.12(6)(d) (d) The issuance of an order under s. 813.12 (3) or (4) is enforceable despite the existence of any other criminal or civil order restricting or prohibiting contact.
813.12(7) (7)Arrest.
813.12(7)(am)(am) A law enforcement officer shall arrest and take a person into custody if all of the following occur:
813.12(7)(am)1. 1. A petitioner 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.
813.12(7)(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) by any circuit court in this state.
813.12(7)(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. 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.
813.12(7m) (7m)Transcripts. The judge or circuit court commissioner shall record the temporary restraining order or injunction hearing upon the request of the petitioner.
813.12(8) (8)Penalty.
813.12(8)(a)(a) Whoever knowingly violates a temporary restraining order or injunction issued under sub. (3) or (4) shall be fined not more than $10,000 or imprisoned for not more than 9 months or both.
813.12(8)(b) (b) The petitioner does not violate the court order under sub. (3) or (4) if he or she admits into his or her residence a person ordered under sub. (3) or (4) to avoid that residence.
813.12(9) (9)Notice of full faith and credit. An order or injunction issued under sub. (3) or (4) 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.
813.12 AnnotationThis section is constitutional. Schramek v. Bohren, 145 Wis. 2d 695, 429 N.W.2d 501 (Ct. App. 1988).
813.12 Annotation Sub. (3) (am) provides for a limited-term injunction as an alternative to a restraining order under sub. (3) (a) when 3 stated conditions are met. Johnson v. Miller, 157 Wis. 2d 482, 459 N.W.2d 886 (Ct. App. 1990).
813.12 Annotation A person convicted of violating a harassment injunction may not collaterally attack the validity of the injunction in a criminal prosecution to enforce the injunction. State v. Bouzel, 168 Wis. 2d 642, 484 N.W.2d 362 (Ct. App. 1992).
813.12 Annotation This section does not authorize granting an injunction without filing a formal petition, thus precluding an injunction against the petitioner. Laluzerne v. Stange, 200 Wis. 2d 179, 546 N.W.2d 182 (Ct. App. 1996), 95-1718.
813.12 Annotation The definition of "household member" requires a continuous residential living arrangement between the parties. They need not reside in only one place, but must reside together on a continuous basis. Petrowsky v. Krause, 223 Wis. 2d 32, 588 N.W.2d 318 (Ct. App. 1998), 97-2205.
813.12 Annotation It is error to grant an injunction under this section for other than the length of time requested or to refuse to order the sheriff to place the petitioner in possession of his or her residence. The requirement that the injunction granted be for the length of time requested is constitutional. Hayen v. Hayen, 2000 WI App 29, 232 Wis. 2d 447, 606 N.W.2d 606, 99-1361.
813.12 Annotation Only a true threat is constitutionally punishable under statutes criminalizing threats. The constitutional boundaries for a true threat apply in domestic abuse injunction cases under this section. Acts underlying an earlier vacated domestic abuse injunction were relevant to a prediction of what the defendant would do if the domestic abuse injunction were not granted, and whether recent threats were true threats. Wittig v. Hoffart, 2005 WI App 198, 287 Wis. 2d 353, 704 N.W.2d 415, 04-1653.
813.12 Annotation If the initial injunction was for less than 4 years, but expired, and the petitioner states that an extension is necessary to protect him or her, sub. (4) (c) 2. requires the court to extend the injunction for up to 4 years from the date the injunction was first granted. Because the court is required to extend an injunction under the proper circumstances, even after it has expired, it follows that a court has the authority and jurisdiction to grant the extension request after the injunction has expired. Switzer v. Switzer, 2006 WI App 10, 289 Wis. 2d 83, 709 N.W.2d 871, 04-2943.
813.12 Annotation Applicable law allows electronic transmission of certain confidential case information among clerks of circuit court, county sheriff's offices, and the Department of Justice through electronic interfaces involving the Department of Administration's Office of Justice Assistance, specifically including electronic data messages regarding a domestic abuse protection order issued under this section in an action that the court has ordered sealed. OAG 2-10.
813.12 Annotation Construing this section to include a requirement of showing imminent danger, it is constitutional. Blazel v. Bradley, 698 F. Supp. 756 (1988).
813.12 Annotation Using Restraining Orders to Protect Elder Victims. Meuer. Wis. Law. Sept. 2000.
813.12 Annotation Trouble Ahead: Wisconsin's New Domestic Abuse Laws. Birdsall. Wis. Law. Feb. 2004.
813.122 813.122 Child abuse restraining orders and injunctions.
813.122(1)(1) Definitions. In this section:
813.122(1)(a) (a) "Abuse" has the meaning given in s. 48.02 (1) (a) and (b) to (gm) and, in addition, includes a threat to engage in any conduct under s. 48.02 (1), other than conduct under s. 48.02 (1) (am).
813.122(1)(b) (b) "Child" means any person under 18 years of age.
813.122(1)(c) (c) "Child victim" means the child who is the victim or the alleged victim of abuse.
813.122(1)(d) (d) "Child victim advocate" means any person who counsels child victims, assists child victims in coping with the impact of the crime or otherwise acts in support of child victims.
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2013-14 Wisconsin Statutes updated through 2015 Wis. Act 3 and all Supreme Court Orders entered before March 25, 2015. Published and certified under s. 35.18. Changes effective after March 25, 2015 are designated by NOTES. (Published 3-25-15)