LRB-1715/1
EAW:amn
2021 - 2022 LEGISLATURE
February 18, 2021 - Introduced by Representatives Brooks, Armstrong,
Brandtjen, Dittrich, Kuglitsch, Murphy, Mursau, Skowronski, Tusler and
Wichgers, cosponsored by Senators Jacque and Ballweg. Referred to
Committee on Veterans and Military Affairs.
AB103,1,3
1An Act to amend 767.41 (2) (e) 1., 767.41 (2) (e) 2., 767.41 (5) (c) and 767.451
2(3m); and
to create chapter 324 of the statutes;
relating to: a Uniform
3Deployed Parents Custody and Visitation Act.
Analysis by the Legislative Reference Bureau
uniform deployed parents custody and visitation act
Overview
This 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.
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 duration of
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, the Wisconsin Court of Appeals held in Lubinski v.
Lubinski, 2008 WI App 151, 314 Wis. 2d 395, 761 N.W.2d 676, that 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.
The bill maintains current law relating to determining or revising a legal
custody or physical placement order between parents, but provides two new methods
for creating a temporary delegation of custodial responsibilities to another person
during a parent's deployment: a temporary agreement between the parents or a
temporary court order following a hearing.
Temporary 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.
Temporary 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 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.
Initiation
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. 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.
Termination
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.
Failure to comply; penalties
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.
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.
The people of the state of Wisconsin, represented in senate and assembly, do
enact as follows:
AB103,1
1Section 1
. Chapter 324 of the statutes is created to read:
AB103,3,33
deployed parents
AB103,3,44
custody and visitation
AB103,3,66
general provisions
AB103,3,8
7324.01 Short title. This chapter may be cited as the Uniform Deployed
8Parents Custody and Visitation Act.
AB103,3,9
9324.02 Definitions. In this chapter:
AB103,4,2
1(1) “Adult" means an individual who has attained 18 years of age or who is an
2emancipated minor.
AB103,4,3
3(2) “Child" means any of the following:
AB103,4,54
(a) An individual who has not attained 18 years of age and who is not an
5emancipated minor.
AB103,4,86
(b) An adult son or daughter by birth or adoption, or under the law of this state
7other than this chapter, who is the subject of a court order concerning custodial
8responsibility.
AB103,4,11
9(3) “Court" means a tribunal, including an administrative agency, that is
10authorized under the law of this state other than this chapter to make, enforce, or
11modify a decision regarding custodial responsibility.
AB103,4,13
12(4) “Custodial responsibility" includes physical placement, legal custody, and
13visitation.
AB103,4,14
14(5) “Deployed" means subject to a deployment.
AB103,4,16
15(6) “Deploying parent" means a service member who is deployed, or who has
16been notified of impending deployment, and who is any of the following:
AB103,4,1717
(a) A parent of a child under the law of this state other than this chapter.
AB103,4,1918
(b) An individual who has custodial responsibility for a child under the law of
19this state other than this chapter.
AB103,4,24
20(7) “Deployment" means the movement or mobilization of a service member for
21more than 30 days but less than 18 months in accordance with service orders that
22are designated as unaccompanied, do not authorize dependent travel, or otherwise
23do not permit the movement of a child to the location to which the service member
24is deployed.
AB103,4,25
25(8) “Emancipated minor" has the meaning given in s. 48.375 (2) (e).
AB103,5,1
1(9) “Family member" means a grandparent, great-grandparent, or stepparent.
AB103,5,2
2(10) “Legal custody” has the meaning given in s. 767.001 (2).
AB103,5,4
3(11) “Nonparent" means an individual other than a deploying parent or other
4parent.
AB103,5,6
5(12) “Other parent" means an individual who, in common with a deploying
6parent, is any of the following:
AB103,5,77
(a) A parent of a child under the law of this state other than this chapter.
