Chapter 767

767.84   Genetic tests in paternity actions.

767.85   Temporary orders.

767.853   Paternity hearings and records; confidentiality.

767.855   Dismissal if adjudication not in child’s best interest.

767.86   Time of first appearance.

767.863   First appearance.

767.865   Deceased respondent.

767.87   Testimony and evidence relating to paternity.

767.88   Pretrial paternity proceedings.

767.883   Trial.

767.89   Paternity judgment.

767.893   Default and stipulated judgments.

767.895   Motion to reopen judgment based on statement acknowledging paternity.

Ch. 767 Note NOTE: This chapter was substantially renumbered and revised by 2005 Wis. Act 443. Explanatory notes are contained in the Act.

subch. I of ch. 767 SUBCHAPTER I

DEFINITIONS, SCOPE, JURISDICTION, AND
RECOGNITION OF JUDGMENTS

767.001 767.001 Definitions. In this chapter:

767.001(1) (1) “Action affecting the family” means any of the following actions:

767.001(1)(a) (a) To affirm marriage.

767.001(1)(b) (b) Annulment.

767.001(1)(c) (c) Divorce.

767.001(1)(d) (d) Legal separation (formerly divorce from bed and board).

767.001(1)(e) (e) Custody.

767.001(1)(f) (f) For child support.

767.001(1)(g) (g) For maintenance payments.

767.001(1)(h) (h) For property division.

767.001(1)(i) (i) To enforce or modify a judgment or order in an action affecting the family granted in this state or elsewhere or an order granted under s. 48.355 (4g) (a) or 938.355 (4g) (a).

767.001(1)(j) (j) For periodic family support payments.

767.001(1)(k) (k) Concerning periods of physical placement or visitation rights to children, including an action to relocate and reside with a child under s. 767.481.

767.001(1)(L) (L) To determine paternity.

767.001(1)(m) (m) To enforce or revise an order for support entered under s. 48.355 (2) (b) 4. or (4g) (a), 48.357 (5m) (a), 48.363 (2), 938.183 (4), 938.355 (2) (b) 4. or (4g) (a), 938.357 (5m) (a), or 938.363 (2).

767.001(1b) (1b) “Court” includes the circuit court commissioner when the circuit court commissioner has been authorized by law to exercise the authority of the court or has been delegated that authority as authorized by law.

767.001(1d) (1d) “Department” means the department of children and families.

767.001(1f) (1f) “Divorce” means dissolution of the marriage relationship.

767.001(1g) (1g) “Electronic communication” means time during which a parent and his or her child communicate by using communication tools such as the telephone, electronic mail, instant messaging, video conferencing or other wired or wireless technologies via the Internet, or another medium of communication.

767.001(1m) (1m) “Genetic test” means a test that examines genetic markers present on blood cells, skin cells, tissue cells, bodily fluid cells or cells of another body material for the purpose of determining the statistical probability of an alleged father’s paternity.

767.001(1s) (1s) “Joint legal custody” means the condition under which both parties share legal custody and neither party’s legal custody rights are superior, except with respect to specified decisions as set forth by the court or the parties in the final judgment or order.

767.001(2) (2) “Legal custody” means:

767.001(2)(a) (a) With respect to any person granted legal custody of a child, other than a county agency or a licensed child welfare agency under par. (b), the right and responsibility to make major decisions concerning the child, except with respect to specified decisions as set forth by the court or the parties in the final judgment or order.

767.001(2)(b) (b) With respect to the department or a county agency specified in s. 48.56 (1) or a licensed child welfare agency granted legal custody of a child, the rights and responsibilities specified under s. 48.02 (12).

767.001(2m) (2m) “Major decisions” includes, but is not limited to, decisions regarding consent to marry, consent to enter military service, consent to obtain a motor vehicle operator’s license, authorization for nonemergency health care and choice of school and religion.

767.001(5) (5) “Physical placement” means the condition under which a party has the right to have a child physically placed with that party and has the right and responsibility to make, during that placement, routine daily decisions regarding the child’s care, consistent with major decisions made by a person having legal custody.

767.001(6) (6) “Sole legal custody” means the condition under which one party has legal custody.

767.001 History History: 1987 a. 355; 1995 a. 100, 279, 404; 1997 a. 3, 27, 35; 2005 a. 174; 2005 a. 443 ss. 7, 8, 15, 16; 2007 a. 20; 2015 a. 373; 2017 a. 203.

767.001 Note NOTE: 1987 Wis. Act 355 and 2005 Wis. Act 443, contain explanatory notes.

767.001 Annotation Sub. (2m) confers the right to choose a child’s religion on the custodial parent. Lange v. Lange, 175 Wis. 2d 373, 502 N.W.2d 143 (Ct. App. 1993).

767.001 Annotation A custodial parent’s right to make major decisions for the children does not give that parent the right to decide whether the actions of the noncustodial parent are consistent with those decisions. Wood v. DeHahn, 214 Wis. 2d 221, 571 N.W.2d 186 (Ct. App. 1997), 96-3642.

767.001 Annotation Sub. (1) (i) allows all actions to modify a judgment in an action affecting marriage to be commenced in any court having jurisdiction under s. 767.01. 68 Atty. Gen. 106.

767.001 Annotation Family Court or Not? Raising Child Abuse Allegations Against a Parent. Kornblum & Pollack. Wis. Law. Mar. 2020.

767.005 767.005 Scope. This chapter applies to actions affecting the family.

767.005 History History: 2005 a. 443.

767.005 Note NOTE: 2005 Wis. Act 443 contains explanatory notes.

767.01 767.01 Jurisdiction.

767.01(1) (1) Generally. The circuit courts have jurisdiction of all actions affecting the family and have authority to do all acts and things necessary and proper in those actions and to carry their orders and judgments into execution as prescribed in this chapter. Except as provided in subs. (2) and (2m), jurisdiction may be exercised as provided under ch. 801.

767.01(2) (2) Paternity and child support. In an action to establish paternity or to establish or enforce a child support obligation, in regard to a child who is the subject of the action, a person is subject to the jurisdiction of the courts of this state as provided in s. 769.201 (1m) or 801.05.

767.01(2m) (2m) Child custody. All proceedings relating to the custody of children shall comply with the requirements of ch. 822.

767.01 History History: 1975 c. 39; 1977 c. 449; 1979 c. 32 s. 50; 1979 c. 196, 352; Stats. 1979 s. 767.01; 1987 a. 27; 1993 a. 326; 2005 a. 443 ss. 10 to 13; 2009 a. 321; 2015 a. 82 s. 12.

767.01 Note NOTE: 2005 Wis. Act 443 contains explanatory notes.

767.01 Cross-reference Cross-reference: See s. 765.001 for provision as to intent and construction of this chapter.

767.01 Annotation The trial court has broad authority to enforce its family court judgments and may employ any remedy customarily available to courts of equity. It was appropriate to direct the defendant to pay the plaintiff’s medical expenses when the defendant had not converted an insurance policy as ordered under a divorce decree. Rotter v. Rotter, 80 Wis. 2d 56, 257 N.W.2d 861 (1977).

767.01 Annotation When a husband complied with the original court order to make property division installment payments, the court had no authority to order the husband to pay the wife’s income tax on installments. Wright v. Wright, 92 Wis. 2d 246, 284 N.W.2d 894 (1979).

767.01 Annotation When possession of the partys’ homestead was awarded by the divorce judgment to the wife to be sold upon her death with the proceeds divided between the parties, the family court and probate court had concurrent jurisdiction. Morrissette v. Morrissette, 99 Wis. 2d 467, 299 N.W.2d 590 (Ct. App. 1980).

767.01 Annotation A circuit court does not have subject matter jurisdiction in a divorce action to determine attorney fees between an attorney and client that the attorney continues to represent in the divorce action. Stasey v. Stasey, 168 Wis. 2d 37, 483 N.W.2d 221 (1992).

767.01 Annotation The joinder of divorce and contract actions between spouses is not required. Caulfield v. Caulfield, 183 Wis. 2d 83, 515 N.W.2d 278 (Ct. App. 1994).

767.01 Annotation When one party to a divorce dies during the action, the court loses jurisdiction, including jurisdiction to enforce prior orders. Socha v. Socha, 183 Wis. 2d 390, 515 N.W.2d 337 (Ct. App. 1994).

767.01 Annotation An injunction against a man, whose petition to establish himself as father of two children had been denied, to stay away from the children until they reach age 18 was within the court’s power to enforce its judgments and orders. W.W.W. v. M.C.S., 185 Wis. 2d 468, 518 N.W.2d 285 (Ct. App. 1994).

767.01 Annotation A divorce action terminates on the death of a spouse. After the death, an order prohibiting an act in regard to marital property entered in the divorce may not be enforced under this chapter. As the parties are legally married at the time of death, the sole remedy for resolving disputes over marital property lies under s. 766.70. Socha v. Socha, 204 Wis. 2d 474, 555 N.W.2d 152 (Ct. App. 1996), 95-1641.

767.01 Annotation A family court has jurisdiction to hear equitable claims against third parties that affect the rights of parties to a divorce, such as a claim against a third-party title holder of property claimed to actually be part of the marital estate. Zabel v. Zabel, 210 Wis. 2d 336, 565 N.W.2d 240 (Ct. App. 1997), 96-3092.

767.01 Annotation There is no authority in this chapter to allow a name change for children in a divorce action. Jocius v. Jocius, 218 Wis. 2d 103, 580 N.W.2d 708 (Ct. App. 1998), 96-2746.

767.01 Annotation A cause of action under s. 766.70 requires that the complained of conduct arise as a result of the marital relationship and a breach of the good faith duty between spouses. Once a divorce is commenced, the claim must be resolved in divorce court. A cause of action between spouses arising outside the marital relationship, such as a stockbroker-client relationship, does not fall within s. 766.70 and may be maintained independent of the divorce. Knafelc v. Dain Bosworth, Inc., 224 Wis. 2d 346, 591 N.W.2d 611 (Ct. App. 1999), 98-0067.

767.01 Annotation Ch. 822, the Uniform Child Custody Jurisdiction Act, does not, in and of itself, establish a sufficient statutory basis for personal jurisdiction over a nonresident defendant in a paternity proceeding. Paula M.S. v. Neal A.R., 226 Wis. 2d 79, 593 N.W.2d 486 (Ct. App. 1999), 98-1158.

767.01 Annotation A common law action for unjust enrichment cannot be litigated in a divorce action. Dahlke v. Dahlke, 2002 WI App 282, 258 Wis. 2d 764, 654 N.W.2d 73, 02-0194.

767.041 767.041 Full faith and credit; comity.

767.041(1) (1) Actions in courts of other states.

767.041(1)(a) (a) Full faith and credit shall be given in all courts of this state to a judgment in any action affecting the family, except an action relating to child custody, by a court of competent jurisdiction in another state, territory, or possession of the United States, when both spouses personally appear or when the respondent has been personally served. Full faith and credit shall also be given in all courts of this state to the amount of arrearages owed for nonpayment or late payment of a child support, family support, or maintenance payment under an order issued by a court of competent jurisdiction in another state, territory, or possession of the United States. A court in this state may not adjust the amount of arrearages owed except as provided in s. 767.59 (1m).

767.041(1)(b) (b) Full faith and credit shall be given in all courts of this state to a determination of paternity made by any other state, whether established through voluntary acknowledgment or an administrative or judicial process.

767.041(2) (2) Actions in courts of foreign countries. Any court of this state may recognize a judgment in any action affecting the family involving Wisconsin domiciliaries, except an action relating to child custody, by a court of competent jurisdiction in a foreign country, in accordance with the principles of international comity.

767.041(3) (3) Child custody actions. All matters relating to the effect of the judgment of another court concerning child custody are governed by ch. 822.

767.041 History History: 1977 c. 105; 1979 c. 32 s. 50; 1979 c. 352 s. 39; Stats. 1979 s. 767.21; 1989 a. 212; 1993 a. 481; 2005 a. 443 s. 82; Stats. 2005 s. 767.041.

767.041 Annotation Full faith and credit is not applicable when a decree or judgment is obtained in a jurisdiction outside of the United States. Wisconsin Valley Trust Co. v. DOR, 65 Wis. 2d 199, 222 N.W.2d 628 (1974).

767.041 Annotation A Wisconsin court has equitable jurisdiction to decide issues of maintenance and property division when an out-of-state divorce judgment fails to address those issues. Haeuser v. Haeuser, 200 Wis. 2d 750, 548 N.W.2d 535 (Ct. App. 1996), 95-1087.

767.055 767.055 Uniform Divorce Recognition Act.

767.055(1) (1) Effect of foreign divorce by state domiciliary. A divorce obtained in another jurisdiction is of no force or effect in this state if the court in the other jurisdiction lacks subject matter jurisdiction to hear the case because both parties to the marriage were domiciled in this state at the time the proceeding for the divorce was commenced.

767.055(2) (2) Proof. Proof that a person obtaining a divorce in another jurisdiction was domiciled in this state within 12 months prior to the commencement of the divorce proceeding and resumed residence in this state within 18 months after the date of the person’s departure from this state, or that at all times after the person’s departure from this state and until the person’s return the person maintained a place of residence within this state, is prima facie evidence that the person was domiciled in this state when the divorce proceeding was commenced.

767.055(3) (3) Construction. This section shall be interpreted and construed so as to effectuate its general purpose to make uniform the law of those states that enact it.

767.055(4) (4) Title. This section may be cited as the Uniform Divorce Recognition Act.

767.055 History History: 1977 c. 105; 1979 c. 32 s. 50; Stats. 1979 s. 767.22; 1993 a. 486; 2005 a. 443 s. 85; Stats. 2005 s. 767.055.

767.055 Annotation Comity cannot be accorded a Mexican decree if no domicile existed in that foreign jurisdiction. Wisconsin Valley Trust Co. v. DOR, 65 Wis. 2d 199, 222 N.W.2d 628 (1974).