AB93: Bill Text

LRB-0409/1

EAW&SWB:emw

2019 - 2020 LEGISLATURE

2019 Assembly BILL 93

March 22, 2019 - Introduced by Joint Legislative Council. Referred to Committee on Family Law.

AB93,1,3 An Act to amend 767.41 (2) (e) 1., 767.41 (2) (e) 2., 767.41 (5) (c) and 767.451 (3m); and to create chapter 324 of the statutes; relating to: a Uniform Deployed Parents Custody and Visitation Act.

Analysis by the Legislative Reference Bureau

This bill is explained in the Notes provided by the Joint Legislative Council in the bill.

The people of the state of Wisconsin, represented in senate and assembly, do enact as follows:

Joint Legislative Council prefatory note: This bill was prepared for the Joint Legislative Council's Study Committee on Child Placement and Support. The bill adopts the Uniform Deployed Parents Custody and Visitation Act (UDPCVA), by the Uniform Law Commission, to provide a process and standards for a temporary delegation of custodial responsibilities when a parent is deployed in military or other national service. A description of current law and a summary of the bill's key provisions are provided below.

Under current law, in a legal custody determination, a court is prohibited from considering whether a service member has been or will be absent from the home for a call to active duty. In a physical placement determination, a court may allocate a service member's physical placement periods to the other parent for the service member's call to active duty, if the order requires immediate reinstatement of the prior physical placement schedule upon the service member's return.

Additionally, under current law, parents may together sign a power of attorney for a temporary delegation of parental powers for the care and custody of a child to another person. However, as stated in a Wisconsin Court of Appeals decision, a court has no authority to delegate a service member's allocation of physical placement periods to another person without the other parent's agreement. [Lubinski v. Lubinski, 2008 WI App 151.]

This bill maintains the current law provisions relating to determining or revising a legal custody or physical placement order between the parents but creates a new standard for temporary arrangements with another person during a parent's deployment. Specifically, the bill provides two methods for creating a temporary delegation of custodial responsibilities during deployment: a temporary agreement between the parents or a temporary court order following a hearing.

Agreement

Under a temporary agreement entered into by the parents, custodial responsibilities or visitation may be shared with any agreed-upon person. The agreement must identify the specific arrangements for custodial responsibility or visitation, a process to resolve any dispute that may arise, and arrangements for the deploying parent's contact with the child during the deployment and while on leave.

The temporary agreement must be signed by both parents and any other person with whom custodial responsibility is shared, and, if the child is the subject of an underlying action affecting the family, the agreement must be filed with the court that has jurisdiction in that action.

Court Order

Under proceedings for a temporary court order, unless a proceeding is prohibited by the Servicemembers Civil Relief Act, custodial responsibilities or visitation may be granted upon a deploying parent's request to a stepparent, grandparent, or great-grandparent or to an adult who has a parent-like relationship with the child. The arrangements must be found to be in the best interests of the child, using the best-interest factors identified in current state law for legal custody and physical placement determinations, placing particular emphasis on maintaining sibling relationships.

Under the bill, a delegation of physical placement periods cannot be greater than a child's habitual or court-ordered physical placement with the deploying parent unless otherwise agreed to by the other parent or as needed to add any unusual travel time. Additionally, a delegation of custodial responsibilities or visitation cannot be granted to a person who was previously denied those rights.

Similar to a temporary agreement, a temporary court order must identify the specific arrangements for custodial responsibility or visitation, a process to resolve any dispute that may arise, and arrangements for the deploying parent's contact with the child during the deployment and while on leave. If a court issues a temporary order, or a temporary agreement has been filed, a court may enter a temporary order for child support.

When a court receives a motion for a temporary delegation of custodial responsibilities during deployment, the court must conduct a hearing within 30 days and must allow a parent or other person to appear by electronic means if the person is not available to personally appear, unless there is good cause to require a personal appearance.

General Procedures

The bill applies to a service member who is deployed between 30 days and 18 months in accordance with service orders that are designated as unaccompanied, do not authorize dependent travel, or otherwise do not permit movement of a child to the location. As applied in the bill, service may include service in: the U.S. armed forces, including any reserve component; the national guard of any state; the merchant marine; the commissioned corps of the U.S. Public Health Service; or the commissioned corps of the National Oceanic and Atmospheric Administration.

To begin the process, if a parent receives a deployment order, the parent must provide notice of the deployment to the other parent within seven days or as soon as reasonably possible if prevented from giving notice within seven days by the circumstances of the deployment. As soon as reasonably possible after providing the notice, the parents must provide each other with a plan for fulfilling their respective shares of custodial responsibility during the deployment. If a parent's address is confidential, under a court order, the documents must be submitted to the court for forwarding.

The bill specifies that temporary arrangements under either an agreement or court order terminate immediately upon the return of a deploying parent, if the deployment is for less than six months, 30 days after the return of a deploying parent, if the deployment is for six months or more, or on a date that is specified by stipulation by the parties or a court order.

If a parent has acted in bad faith or intentionally failed to comply with a temporary court order or other requirement under these provisions, the bill specifies that a court may assess reasonable attorney fees and costs and may order other appropriate relief.

Court Forms

The bill asks the Wisconsin Court Records Management Committee to develop a form that parents may use to enter into an agreement, and a form to file a motion with a court, for a temporary delegation of custodial responsibilities for a child during a parent's deployment.

AB93,1 Section 1. Chapter 324 of the statutes is created to read:

AB93,3,2 chapter 324

AB93,3,3 deployed parents

AB93,3,4 custody and visitation

AB93,3,5 subchapter I

AB93,3,6 general provisions

AB93,3,8 324.01 Short title. This chapter may be cited as the Uniform Deployed Parents Custody and Visitation Act.

AB93,3,9 324.02 Definitions. In this chapter:

AB93,3,11 (1) “Adult" means an individual who has attained 18 years of age or who is an emancipated minor.

AB93,4,1 (2) “Child" means any of the following:

AB93,4,3 (a) An individual who has not attained 18 years of age and who is not an emancipated minor.

AB93,4,6 (b) An adult son or daughter by birth or adoption, or under the law of this state other than this chapter, who is the subject of a court order concerning custodial responsibility.

AB93,4,9 (3) “Court" means a tribunal, including an administrative agency, that is authorized under the law of this state other than this chapter to make, enforce, or modify a decision regarding custodial responsibility.

AB93,4,11 (4) “Custodial responsibility" includes physical placement, legal custody, and visitation.

AB93,4,12 (5) “Deployed" means subject to a deployment.

AB93,4,14 (6) “Deploying parent" means a service member who is deployed, or who has been notified of impending deployment, and who is any of the following:

AB93,4,15 (a) A parent of a child under the law of this state other than this chapter.

AB93,4,17 (b) An individual who has custodial responsibility for a child under the law of this state other than this chapter.

AB93,4,22 (7) “Deployment" means the movement or mobilization of a service member for more than 30 days but less than 18 months in accordance with service orders that are designated as unaccompanied, do not authorize dependent travel, or otherwise do not permit the movement of a child to the location to which the service member is deployed.

AB93,4,23 (8) “Emancipated minor" has the meaning given in s. 48.375 (2) (e).

AB93,4,24 (9) “Family member" means a grandparent, great-grandparent, or stepparent.

AB93,4,25 (10) “Legal custody” has the meaning given in s. 767.001 (2).

AB93,5,2 (11) “Nonparent" means an individual other than a deploying parent or other parent.

AB93,5,4 (12) “Other parent" means an individual who, in common with a deploying parent, is any of the following:

AB93,5,5 (a) A parent of a child under the law of this state other than this chapter.

AB93,5,7 (b) An individual who has custodial responsibility for a child under the law of this state other than this chapter.

AB93,5,8 (13) “Physical placement” has the meaning given in s. 767.001 (5).

AB93,5,10 (14) “Record" means information that is inscribed on a tangible medium or that is stored in an electronic or other medium and is retrievable in perceivable form.

AB93,5,12 (15) “Return from deployment" means the conclusion of a service member's deployment as specified in service orders.

AB93,5,13 (16) “Service member" means a member of any of the following:

AB93,5,14 (a) The U.S. armed forces, including any reserve component.

AB93,5,15 (b) The merchant marine.

AB93,5,16 (c) The commissioned corps of the U.S. public health service.

AB93,5,18 (d) The commissioned corps of the national oceanic and atmospheric administration.

AB93,5,19 (e) The national guard of any state.

AB93,5,21 (17) “Sign" means to do any of the following with present intent to authenticate or adopt a record:

AB93,5,22 (a) Execute or adopt a tangible symbol.

AB93,5,24 (b) Attach to or logically associate with the record an electronic symbol, sound, or process.

AB93,6,3 (18) “State" means a state of the United States, the District of Columbia, the commonwealth of Puerto Rico, the United States Virgin Islands, or any territory or possession of the United States.

AB93,6,5 (19) “Visitation” means rights conferred to an individual to reasonable visitation with a child in accordance with s. 767.43.

AB93,6,11 324.03 Remedies for noncompliance. In addition to other remedies under the law of this state other than this chapter, if a court finds that a party to a proceeding under this chapter has acted in bad faith or intentionally failed to comply with this chapter or a court order issued under this chapter, the court may assess reasonable attorney fees and costs against the party and order other appropriate relief.

AB93,6,13 324.04 Jurisdiction. (1) A court may issue an order regarding custodial responsibility under this chapter only if the court has jurisdiction under ch. 822.

AB93,6,16 (2) If a court has issued a temporary order regarding custodial responsibility under subch. III, the residence of the deploying parent is not changed by reason of the deployment for purposes of ch. 822 during the deployment.

AB93,6,20 (3) If a court has issued a permanent order regarding custodial responsibility before notice of deployment and the parents modify that order temporarily by agreement under subch. II, the residence of the deploying parent is not changed by reason of the deployment for purposes of ch. 822.

AB93,6,23 (4) If a court in another state has issued a temporary order regarding custodial responsibility as a result of impending or current deployment, the residence of the deploying parent is not changed by reason of the deployment for purposes of ch. 822.

AB93,6,25 (5) This section does not prevent a court from exercising temporary emergency jurisdiction under s. 822.24.

AB93,7,7 324.05 Notification required by deploying parent. (1) Except as provided in sub. (4) and subject to sub. (3), a deploying parent shall, in a record, notify the other parent of a pending deployment not later than 7 days after the deploying parent receives notice of deployment unless reasonably prevented from doing so by the circumstances of deployment. If the circumstances of deployment prevent giving notification within the 7 days, the deploying parent shall give the notification as soon as reasonably possible.

AB93,7,12 (2) Except as provided in sub. (4) and subject to sub. (3), the deploying parent and the other parent shall, in a record, provide each other with a plan for fulfilling their respective shares of custodial responsibility during deployment. Each parent shall provide the plan as soon as reasonably possible after the deploying parent gives notification of deployment under sub. (1).

AB93,7,19 (3) If a court order currently in effect prohibits disclosure of the address or contact information of the other parent, notification of deployment under sub. (1) or notification by the deploying parent of a plan for custodial responsibility during deployment under sub. (2) may be made only to the issuing court. If the address of the other parent is available to the issuing court, the court shall forward the notification to the other parent. The court shall keep confidential the address or contact information of the other parent.

AB93,7,22 (4) Notification in a record under sub. (1) or (2) is not required if the parents are living in the same residence and both parents have actual notice of the deployment or plan.

AB93,7,24 (5) In a proceeding regarding custodial responsibility, a court may consider the reasonableness of a parent's efforts to comply with this section.