Chapter 822

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.

822.24(2) (2) If there is no previous child custody determination that is entitled to be enforced under this chapter and a child custody proceeding has not been commenced in a court of a state having jurisdiction under ss. 822.21 to 822.23, a child custody determination made under this section remains in effect until an order is obtained from a court of a state having jurisdiction under ss. 822.21 to 822.23. If a child custody proceeding has not been or is not commenced in a court of a state having jurisdiction under ss. 822.21 to 822.23, a child custody determination made under this section becomes a final determination, if it so provides and this state becomes the home state of the child.

822.24(3) (3) If a previous child custody determination is entitled to be enforced under this chapter, or a child custody proceeding has been commenced in a court of a state having jurisdiction under ss. 822.21 to 822.23, any order issued by a court of this state under this section shall specify in the order a period that the court considers adequate to allow the person seeking an order to obtain an order from the state having jurisdiction under ss. 822.21 to 822.23. The order issued in this state remains in effect until an order is obtained from the other state within the period specified or until the period expires.

822.24(4) (4) A court of this state that has been asked to make a child custody determination under this section, upon being informed that a child custody proceeding has been commenced in, or that a child custody determination has been made by, a court of a state having jurisdiction under ss. 822.21 to 822.23, shall immediately communicate with the other court. A court of this state that is exercising jurisdiction under ss. 822.21 to 822.23, upon being informed that a child custody proceeding has been commenced in, or that a child custody determination has been made by, a court of another state under a statute similar to this section, shall immediately communicate with the court of that state to resolve the emergency, protect the safety of the parties and the child, and determine a period for the duration of the temporary order.

822.24 History History: 2005 a. 130.

822.25 822.25 Notice; opportunity to be heard; joinder.

822.25(1) (1) Before a child custody determination is made under this chapter, notice and an opportunity to be heard in accordance with the standards of s. 822.08 shall be given to all persons entitled to notice under the law of this state as in child custody proceedings between residents of this state, any parent whose parental rights have not been previously terminated, and any person having physical custody of the child.

822.25(2) (2) This chapter does not govern the enforceability of a child custody determination made without notice or an opportunity to be heard.

822.25(3) (3) The obligation to join a party and the right to intervene as a party in a child custody proceeding under this chapter are governed by the law of this state as in child custody proceedings between residents of this state.

822.25 History History: 2005 a. 130.

822.26 822.26 Simultaneous proceedings.

822.26(1) (1) Except as provided in s. 822.24, a court of this state may not exercise its jurisdiction under this subchapter if, at the time of the commencement of the proceeding, a proceeding concerning the custody of the child has been commenced in a court of another state having jurisdiction substantially in conformity with this chapter, unless the proceeding has been terminated or is stayed by the court of the other state because a court of this state is a more convenient forum under s. 822.27.

822.26(2) (2) Except as provided in s. 822.24, a court of this state, before hearing a child custody proceeding, shall examine the court documents and other information supplied by the parties under s. 822.29. If the court determines that a child custody proceeding has been commenced in a court in another state having jurisdiction substantially in accordance with this chapter, the court of this state shall stay its proceeding and communicate with the court of the other state. If the court of the state having jurisdiction substantially in accordance with this chapter does not determine that the court of this state is a more appropriate forum, the court of this state shall dismiss the proceeding.

822.26(3) (3) In a proceeding to modify a child custody determination, a court of this state shall determine whether a proceeding to enforce the determination has been commenced in another state. If a proceeding to enforce a child custody determination has been commenced in another state, the court may do any of the following:

822.26(3)(a) (a) Stay the proceeding for modification pending the entry of an order of a court of the other state enforcing, staying, denying, or dismissing the proceeding for enforcement.

822.26(3)(b) (b) Enjoin the parties from continuing with the proceeding for enforcement.

822.26(3)(c) (c) Proceed with the modification under conditions it considers appropriate.

822.26 History History: 2005 a. 130.

822.26 Annotation An Indian tribal court custody order is given full force and effect under the doctrine of comity. Custody of Sengstock, 165 Wis. 2d 86, 477 N.W.2d 310 (Ct. App. 1991).

822.26 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.

822.27 822.27 Inconvenient forum.

822.27(1) (1) A court of this state that has jurisdiction under this chapter to make a child custody determination may decline to exercise its jurisdiction at any time if it determines that it is an inconvenient forum under the circumstances and that a court of another state is a more appropriate forum. The issue of inconvenient forum may be raised upon the motion of a party, the court’s own motion, or the request of another court.

822.27(2) (2) Before determining whether it is an inconvenient forum, a court of this state shall consider whether it is appropriate for a court of another state to exercise jurisdiction. For this purpose, the court shall allow the parties to submit information and shall consider all relevant factors, including all of the following:

822.27(2)(a) (a) Whether domestic violence has occurred and is likely to continue in the future and which state could best protect the parties and the child.

822.27(2)(b) (b) The length of time that the child has resided outside this state.

822.27(2)(c) (c) The distance between the court in this state and the court in the state that would assume jurisdiction.

822.27(2)(d) (d) The relative financial circumstances of the parties.

822.27(2)(e) (e) Any agreement of the parties as to which state should assume jurisdiction.

822.27(2)(f) (f) The nature and location of the evidence required to resolve the pending litigation, including testimony of the child.

822.27(2)(g) (g) The ability of the court of each state to decide the issue expeditiously and the procedures necessary to present the evidence.