Chapter 822

822.02 Annotation A grandparent who had physical custody of a child for a period of six consecutive months within one year of the commencement of the proceedings, but had never been awarded legal custody and did not claim a right to legal custody, no longer cared for the child, and had no plans to resume caring for the child was not a “person acting as a parent” under sub. (13). Stephen R. v. Ilana C. 2011 WI App 13, 331 Wis. 2d 108, 794 N.W.2d 533, 10-0363.

822.03 822.03 Proceedings governed by other law. This chapter does not govern a proceeding pertaining to the authorization of emergency medical care for a child.

822.03 History History: 2005 a. 130.

822.04 822.04 Application to Indian tribes.

822.04(1) (1) A child custody proceeding that pertains to an Indian child as defined in the Indian Child Welfare Act, 25 USC 1901 et seq., is not subject to this chapter to the extent that it is governed by the Indian Child Welfare Act.

822.04(2) (2) A court of this state shall treat a tribe as if it were a state for the purpose of applying subchs. I and II.

822.04(3) (3) A child custody determination made by a tribe under factual circumstances in substantial conformity with the jurisdictional standards of this chapter shall be recognized and enforced under subch. III.

822.04 History History: 2005 a. 130.

822.05 822.05 International application.

822.05(1) (1) A court of this state shall treat a foreign country as if it were a state for the purpose of applying this subchapter and subch. II.

822.05(2) (2) Except as provided in sub. (3), a child custody determination made in a foreign country under factual circumstances in substantial conformity with the jurisdictional standards of this chapter shall be recognized and enforced under subch. III.

822.05(3) (3) A court of this state need not apply this chapter if the child custody law of a foreign country violates fundamental principles of human rights.

822.05 History History: 2005 a. 130.

822.06 822.06 Effect of child custody determination. A child custody determination made by a court of this state that had jurisdiction under this chapter binds all persons who have been served in accordance with the laws of this state or notified in accordance with s. 822.08 or who have submitted to the jurisdiction of the court, and who have been given an opportunity to be heard. As to those persons, the determination is conclusive as to all decided issues of law and fact except to the extent that the determination is modified.

822.06 History History: 2005 a. 130.

822.07 822.07 Priority. If a question of existence or exercise of jurisdiction under this chapter is raised in a child custody proceeding, the question, upon request of a party, shall be given priority on the calendar and handled expeditiously.

822.07 History History: 2005 a. 130.

822.08 822.08 Notice to persons outside state.

822.08(1) (1) Notice required for the exercise of jurisdiction when a person is outside this state may be given in a manner prescribed by the law of this state for service of process or by the law of the state in which the service is made. Notice shall be given in a manner reasonably calculated to give actual notice but may be by publication if other means are not effective.

822.08(2) (2) Proof of service may be made in the manner prescribed by law of this state or by the law of the state in which the service is made.

822.08(3) (3) Notice is not required for the exercise of jurisdiction with respect to a person who submits to the jurisdiction of the court.

822.08 History History: 2005 a. 130.

822.08 Annotation Traditional personal jurisdiction is not required in child custody proceedings. Child custody proceedings under ch. 822 are valid even in the absence of minimum contacts over an out-of-state parent. Section 801.05 (11) provides sufficient due process protection to out-of-state parents based on notice and an opportunity to be heard. Tammie J. C. v. Robert T. R. 2003 WI 61, 262 Wis. 2d 217, 663 N.W.2d 734, 01-2787.

822.08 Note NOTE: The above annotation cites to the Uniform Child Custody Jurisdiction Act, the predecessor statute to the current Uniform Child Custody Jurisdiction and Enforcement Act.

822.09 822.09 Appearance and limited immunity.

822.09(1) (1) A party to a child custody proceeding, including a modification proceeding, or a petitioner or respondent in a proceeding to enforce or register a child custody determination, is not subject to personal jurisdiction in this state for another proceeding or purpose solely by reason of having participated, or of having been physically present for the purpose of participating, in the proceeding.

822.09(2) (2) A person who is subject to personal jurisdiction in this state on a basis other than physical presence is not immune from service of process in this state. A party present in this state who is subject to the jurisdiction of another state is not immune from service of process allowable under the laws of that state.

822.09(3) (3) The immunity granted by sub. (1) does not extend to civil litigation based on acts unrelated to the participation in a proceeding under this chapter committed by an individual while present in this state.

822.09 History History: 2005 a. 130.

822.10 822.10 Communication between courts.

822.10(1) (1) In this section, “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.

822.10(2) (2) A court of this state may communicate with a court in another state concerning a proceeding arising under this chapter.

822.10(3) (3) The court may allow the parties to participate in the communication. If the parties are not able to participate in the communication, they shall be given the opportunity to present facts and legal arguments before a decision on jurisdiction is made.

822.10(4) (4) Communication between courts on schedules, calendars, court records, and similar matters may occur without informing the parties. A record need not be made of the communication.

822.10(5) (5) Except as provided in sub. (4), a record shall be made of a communication under this section. The parties shall be informed promptly of the communication and granted access to the record.

822.10 History History: 2005 a. 130.

822.11 822.11 Taking testimony in another state.

822.11(1) (1) In addition to other procedures available to a party, a party to a child custody proceeding may offer testimony of witnesses who are located in another state, including testimony of the parties and the child, by deposition or other means allowable in this state for testimony taken in another state. The court on its own motion may order that the testimony of a person be taken in another state and may prescribe the manner in which and the terms upon which the testimony is taken.

822.11(2) (2) A court of this state may permit an individual residing in another state to be deposed or to testify by telephone, audiovisual means, or other electronic means before a designated court or at another location in that state. A court of this state shall cooperate with courts of other states in designating an appropriate location for the deposition or testimony.

822.11(3) (3) Documentary evidence transmitted from another state to a court of this state by technological means that do not produce an original writing may not be excluded from evidence on an objection based on the means of transmission.

822.11 History History: 2005 a. 130.

822.12 822.12 Cooperation between courts; preservation of records.

822.12(1) (1) A court of this state may request the appropriate court of another state to do any of the following:

822.12(1)(a) (a) Hold an evidentiary hearing.

822.12(1)(b) (b) Order a person to produce or give evidence under procedures of that state.

822.12(1)(c) (c) Order that an evaluation be made with respect to the custody of a child involved in a pending proceeding.

822.12(1)(d) (d) Forward to the court of this state a certified copy of the transcript of the record of the hearing, the evidence otherwise presented, and any evaluation prepared in compliance with the request.

822.12(1)(e) (e) Order a party to a child custody proceeding or any person having physical custody of the child to appear in the proceeding with or without the child.

822.12(2) (2) Upon request of a court of another state, a court of this state may hold a hearing or enter an order described in sub. (1).

822.12(3) (3) Travel and other necessary and reasonable expenses incurred under subs. (1) and (2) may be assessed against the parties according to the law of this state.

822.12(4) (4) A court of this state shall preserve the pleadings, orders, decrees, records of hearings, evaluations, and other pertinent records with respect to a child custody proceeding until the child attains 18 years of age. Upon appropriate request by a court or law enforcement official of another state, the court shall forward a certified copy of those records.

822.12 History History: 2005 a. 130.

subch. II of ch. 822 SUBCHAPTER II

JURISDICTION

822.21 822.21 Initial child custody jurisdiction.

822.21(1) (1) Except as provided in s. 822.24, a court of this state has jurisdiction to make an initial determination only if any of the following applies:

822.21(1)(a) (a) This state is the home state of the child on the date of the commencement of the proceeding, or was the home state of the child within 6 months before the commencement of the proceeding and the child is absent from this state but a parent or person acting as a parent continues to live in this state.

822.21(1)(b) (b) A court of another state does not have jurisdiction under par. (a), or a court of the home state of the child has declined to exercise jurisdiction on the ground that this state is the more appropriate forum under s. 822.27 or 822.28, and all of the following apply:

822.21(1)(b)1. 1. The child and the child’s parents, or the child and at least one parent or a person acting as a parent, have a significant connection with this state other than mere physical presence.

822.21(1)(b)2. 2. Substantial evidence is available in this state concerning the child’s care, protection, training, and personal relationships.

822.21(1)(c) (c) All courts having jurisdiction under par. (a) or (b) have declined to exercise jurisdiction on the ground that a court of this state is the more appropriate forum to determine the custody of the child under s. 822.27 or 822.28.

822.21(1)(d) (d) No court of any other state would have jurisdiction under the criteria specified in par. (a), (b), or (c).

822.21(2) (2) Subsection (1) is the exclusive jurisdictional basis for making a child custody determination by a court of this state.

822.21(3) (3) Physical presence of, or personal jurisdiction over, a party or a child is not necessary or sufficient to make a child custody determination.

822.21 History History: 2005 a. 130.

822.21 Annotation When children were abducted from their home state to Wisconsin, the trial court properly assumed emergency jurisdiction but erred in failing to stay the proceedings under s. 822.07 (5). Vorpahl v. Lee, 99 Wis. 2d 7, 298 N.W.2d 222 (Ct. App. 1980).

822.21 Annotation The court did not abuse its discretion in refusing to decline jurisdiction when a mother violated a foreign decree by transporting children to Wisconsin. In Matter of Custody of R. J. G. 107 Wis. 2d 704, 321 N.W.2d 354 (Ct. App. 1982).

822.21 Annotation Guardianship and TPR proceedings are custody proceedings, guardianship and TPR determinations are custody determinations, and guardianship and TPR decrees are custody decrees, all governed by UCCJA. In Interest of A.E.H. 161 Wis. 2d 277, 468 N.W.2d 190 (1991).

822.21 Annotation UCCJA jurisdictional requirements must be met only at the commencement of proceedings in this state. A TPR action commenced after the entry of a guardianship decree constituted a request for modification of custody that required reexamination of jurisdiction. In Interest of A.E.H. 161 Wis. 2d 277, 468 N.W.2d 190 (1991).

822.21 Annotation The determination of jurisdiction when two states have asserted jurisdiction is discussed. A child whose sole connection with Wisconsin was summer visitation did not have a significant connection with the state under sub. (1) (b). In Interest of J.T. 168 Wis. 2d 646, 485 N.W.2d 70 (Ct. App. 1992).

822.21 Annotation The Federal Parental Kidnapping Prevention Act preempts conflicting provisions of the UCCJA. Michalik v. Michalik, 172 Wis. 2d 640, 494 N.W.2d 391 (1992).

822.21 Annotation Chapter 822 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.

822.21 Note NOTE: The above annotations cite to the Uniform Child Custody Jurisdiction Act, the predecessor statute to the current Uniform Child Custody Jurisdiction and Enforcement Act.

822.21 Annotation Under prior law, there were 4 different bases for initial jurisdiction, which conceivably could allow more than one state initial jurisdiction. The current uniform act changed this rule. Under the uniform act, home state jurisdiction always receives priority, and other jurisdictional bases are available only when there is no home state, or when the home state declines jurisdiction. Hatch v. Hatch, 2007 WI App 136, 302 Wis. 2d 215, 733 N.W.2d 648, 06-2259.

822.21 Annotation A claim must be affirmatively asserted by the caretaker in the context of a custody proceeding in order for the caretaker’s residence to drive a jurisdictional determination of the child’s home state under sub. (1). A grandparent who had physical custody of a child for a period of six consecutive months within one year of the commencement of the proceedings, but had never been awarded and did not claim legal custody, no longer cared for the child, and had no plans to resume caring for the child was not a “person acting as a parent” as defined under s. 802.02 (13). Stephen R. v. Ilana C. 2011 WI App 13, 331 Wis. 2d 108, 794 N.W.2d 533, 10-0363.

822.22 822.22 Exclusive, continuing jurisdiction.

822.22(1) (1) Except as provided in s. 822.24, a court of this state that has made a child custody determination consistent with s. 822.21 or 822.23 has exclusive, continuing jurisdiction over the determination until any of the following occurs:

822.22(1)(a) (a) A court of this state determines that neither the child, nor the child and one parent, nor the child and a person acting as a parent have a significant connection with this state and that substantial evidence is no longer available in this state concerning the child’s care, protection, training, and personal relationships.

822.22(1)(b) (b) A court of this state or a court of another state determines that the child, the child’s parents, and all persons acting as parents do not presently reside in this state.

822.22(2) (2) A court of this state that has made a child custody determination and that does not have exclusive, continuing jurisdiction under this section may modify that determination only if it has jurisdiction to make an initial determination under s. 822.21.

822.22 History History: 2005 a. 130.

822.23 822.23 Jurisdiction to modify determination. Except as provided in s. 822.24, a court of this state may not modify a child custody determination made by a court of another state unless a court of this state has jurisdiction to make an initial determination under s. 822.21 (1) (a) or (b) and one of the following applies:

822.23(1) (1) The court of the other state determines that it no longer has exclusive, continuing jurisdiction under s. 822.22 or that a court of this state would be a more convenient forum under s. 822.27.

822.23(2) (2) A court of this state or a court of the other state determines that the child, the child’s parents, and all persons acting as parents do not presently reside in the other state.

822.23 History History: 2005 a. 130.

822.23 Annotation An action for legal custody commenced in Wisconsin after entry of a custody decree in California was an action to modify the California custody decree requiring Wisconsin jurisdiction and no California jurisdiction at the time of commencement. In Interest of A.E.H., 161 Wis. 2d 277, 468 N.W.2d 190 (1991).

822.23 Note NOTE: The above annotation cites to the Uniform Child Custody Jurisdiction Act, the predecessor statute to the current Uniform Child Custody Jurisdiction and Enforcement Act.

822.24 822.24 Temporary emergency jurisdiction.

822.24(1) (1) A court of this state has temporary emergency jurisdiction if the child is present in this state and the child has been abandoned or it is necessary in an emergency to protect the child because the child, or a sibling or parent of the child, is subjected to or threatened with mistreatment or abuse.