Chapter 948

948.23(3)(am) (am) Within the period under par. (b), an individual must report to law enforcement a child as missing if the individual is the parent, stepparent, guardian, or legal custodian of the child.

948.23(3)(b) (b)

948.23(3)(b)1. 1. The report under par. (am) must be made within 24 hours after the child is discovered to be missing if the child is under 13 years of age when the discovery is made.

948.23(3)(b)2. 2. The report under par. (am) must be made within 48 hours after the child is discovered to be missing if the child is at least 13 years of age but under 16 years of age when the discovery is made.

948.23(3)(b)3. 3. The report under par. (am) must be made within 72 hours after the child is discovered to be missing if the child is at least 16 years of age when the discovery is made.

948.23(3)(c) (c) Whoever violates par. (am) is guilty of the following:

948.23(3)(c)1. 1. Except as provided in subds. 2. to 4., a Class A misdemeanor.

948.23(3)(c)2. 2. If the child suffers bodily harm or substantial bodily harm while he or she is missing, a Class H felony.

948.23(3)(c)3. 3. If the child suffers great bodily harm while he or she is missing, a Class F felony.

948.23(3)(c)4. 4. If the child dies while he or she is missing or as a result of an injury he or she suffered while missing, a Class D felony.

948.23 History History: 1977 c. 173; 1987 a. 332 s. 47; Stats. 1987 s. 948.23; 2001 a. 109; 2011 a. 268; 2013 a. 168 s. 21.

948.24 948.24 Unauthorized placement for adoption.

948.24(1) (1) Whoever does any of the following is guilty of a Class H felony:

948.24(1)(a) (a) Places or agrees to place his or her child for adoption for anything exceeding the actual cost of the items listed in s. 48.913 (1) (a) to (m) and the payments authorized under s. 48.913 (2).

948.24(1)(b) (b) For anything of value, solicits, negotiates or arranges the placement of a child for adoption except under s. 48.833.

948.24(1)(c) (c) In order to receive a child for adoption, gives anything exceeding the actual cost of the legal and other services rendered in connection with the adoption and the items listed in s. 48.913 (1) (a) to (m) and the payments authorized under s. 48.913 (2).

948.24(2) (2) This section does not apply to placements under s. 48.839.

948.24 History History: 1981 c. 81; 1987 a. 332 s. 50; Stats. 1987 s. 948.24; 1989 a. 161; 1997 a. 104; 2001 a. 109.

948.25 948.25 Unauthorized interstate placements of children.

948.25(1) (1) Any person who sends a child out of this state, brings a child into this state, or causes a child to be sent out of this state or brought into this state for the purpose of permanently transferring physical custody of the child to a person who is not a relative, as defined in s. 48.02 (15), of the child is guilty of a Class A misdemeanor.

948.25(2) (2) Subsection (1) does not apply to any of the following:

948.25(2)(a) (a) A placement of a child that is authorized under s. 48.98, 48.988, or 48.99.

948.25(2)(b) (b) A placement of a child that is approved by a court of competent jurisdiction of the sending state or receiving state.

948.25 History History: 2013 a. 314.

948.30 948.30 Abduction of another’s child; constructive custody.

948.30(1) (1) Any person who, for any unlawful purpose, does any of the following is guilty of a Class E felony:

948.30(1)(a) (a) Takes a child who is not his or her own by birth or adoption from the child’s home or the custody of his or her parent, guardian or legal custodian.

948.30(1)(b) (b) Detains a child who is not his or her own by birth or adoption when the child is away from home or the custody of his or her parent, guardian or legal custodian.

948.30(2) (2) Any person who, for any unlawful purpose, does any of the following is guilty of a Class C felony:

948.30(2)(a) (a) By force or threat of imminent force, takes a child who is not his or her own by birth or adoption from the child’s home or the custody of his or her parent, guardian or legal custodian.

948.30(2)(b) (b) By force or threat of imminent force, detains a child who is not his or her own by birth or adoption when the child is away from home or the custody of his or her parent, guardian or legal custodian.

948.30(3) (3) For purposes of subs. (1) (a) and (2) (a), a child is in the custody of his or her parent, guardian or legal custodian if:

948.30(3)(a) (a) The child is in the actual physical custody of the parent, guardian or legal custodian; or

948.30(3)(b) (b) The child is not in the actual physical custody of his or her parent, guardian or legal custodian, but the parent, guardian or legal custodian continues to have control of the child.

948.30 History History: 1987 a. 332; 2001 a. 109.

948.31 948.31 Interference with custody by parent or others.

948.31(1) (1) 

948.31(1)(a) (a) In this subsection, “legal custodian of a child” means:

948.31(1)(a)1. 1. A parent or other person having legal custody of the child under an order or judgment in an action for divorce, legal separation, annulment, child custody, paternity, guardianship or habeas corpus.

948.31(1)(a)2. 2. The department of children and families or the department of corrections or any person, county department under s. 46.215, 46.22, or 46.23, or licensed child welfare agency, if custody or supervision of the child has been transferred under ch. 48 or 938 to that department, person, or agency.

948.31(1)(b) (b) Except as provided under chs. 48 and 938, whoever intentionally causes a child to leave, takes a child away or withholds a child for more than 12 hours beyond the court-approved period of physical placement or visitation period from a legal custodian with intent to deprive the custodian of his or her custody rights without the consent of the custodian is guilty of a Class F felony. This paragraph is not applicable if the court has entered an order authorizing the person to so take or withhold the child. The fact that joint legal custody has been awarded to both parents by a court does not preclude a court from finding that one parent has committed a violation of this paragraph.

948.31(2) (2) Whoever causes a child to leave, takes a child away or withholds a child for more than 12 hours from the child’s parents or, in the case of a nonmarital child whose parents do not subsequently intermarry under s. 767.803, from the child’s mother or, if he has been granted legal custody, the child’s father, without the consent of the parents, the mother or the father with legal custody, is guilty of a Class I felony. This subsection is not applicable if legal custody has been granted by court order to the person taking or withholding the child.

948.31(3) (3) Any parent, or any person acting pursuant to directions from the parent, who does any of the following is guilty of a Class F felony:

948.31(3)(a) (a) Intentionally conceals a child from the child’s other parent.

948.31(3)(b) (b) After being served with process in an action affecting the family but prior to the issuance of a temporary or final order determining child custody rights, takes the child or causes the child to leave with intent to deprive the other parent of physical custody as defined in s. 822.02 (14).

948.31(3)(c) (c) After issuance of a temporary or final order specifying joint legal custody rights and periods of physical placement, takes a child from or causes a child to leave the other parent in violation of the order or withholds a child for more than 12 hours beyond the court-approved period of physical placement or visitation period.

948.31(4) (4) 

948.31(4)(a) (a) It is an affirmative defense to prosecution for violation of this section if the action:

948.31(4)(a)1. 1. Is taken by a parent or by a person authorized by a parent to protect his or her child in a situation in which the parent or authorized person reasonably believes that there is a threat of physical harm or sexual assault to the child;

948.31(4)(a)2. 2. Is taken by a parent fleeing in a situation in which the parent reasonably believes that there is a threat of physical harm or sexual assault to himself or herself;

948.31(4)(a)3. 3. Is consented to by the other parent or any other person or agency having legal custody of the child; or

948.31(4)(a)4. 4. Is otherwise authorized by law.

948.31(4)(b) (b) A defendant who raises an affirmative defense has the burden of proving the defense by a preponderance of the evidence.

948.31(5) (5) The venue of an action under this section is prescribed in s. 971.19 (8).

948.31(6) (6) In addition to any other penalties provided for violation of this section, a court may order a violator to pay restitution, regardless of whether the violator is placed on probation under s. 973.09, to provide reimbursement for any reasonable expenses incurred by any person or any governmental entity in locating and returning the child. Any such amounts paid by the violator shall be paid to the person or governmental entity which incurred the expense on a prorated basis. Upon the application of any interested party, the court shall hold an evidentiary hearing to determine the amount of reasonable expenses.

948.31 History History: 1987 a. 332; 1989 a. 31, 56, 107; 1993 a. 302; 1995 a. 27 ss. 7237, 9126 (19); 1995 a. 77; 1997 a. 290; 2001 a. 109; 2005 a. 130; 2005 a. 443 s. 265; 2007 a. 20.

948.31 Annotation Discussing “imminent physical harm” under sub. (4). State v. McCoy, 143 Wis. 2d 274, 421 N.W.2d 107 (1988).

948.31 Annotation When a mother had agreed to the father’s taking their child on a camping trip, but the father actually intended to permanently take, and did abscond to Canada with, the child, the child was taken based on the mother’s “mistake of fact,” which under s. 939.22 (48) rendered the taking of the child “without consent.” State v. Inglin, 224 Wis. 2d 764, 592 N.W.2d 666 (Ct. App. 1999), 97-3091.

948.31 Annotation In sub. (2), “takes away” a child refers to the defendant removing the child from the parents’ possession, which suggests physical manipulation or physical removal. “Causes to leave” in sub. (2) means being responsible for a child abandoning, departing, or leaving the parents, which suggests some sort of mental, rather than physical, manipulation. State v. Samuel, 2001 WI App 25, 240 Wis. 2d 756, 623 N.W.2d 565, 99-2587.

948.31 Annotation Reversed on other grounds. 2002 WI 34, 252 Wis. 2d 26, 643 N.W.2d 423, 99-2587.

948.31 Annotation The common law affirmative defense of fraud is not applicable to this section. The circuit court properly prevented the defendant from collaterally attacking the underlying custody order despite the defendant’s allegations that it was obtained by fraud. State v. Campbell, 2006 WI 99, 294 Wis. 2d 100, 718 N.W.2d 649, 04-0803.

948.31 Annotation For a violation of the “withholds a child for more than 12 hours” provision of sub. (2), the state must prove three elements: 1) on the date of the alleged offense, the child was under the age of 18 years; 2) the defendant withheld the child for more than 12 hours from the child’s parents; and 3) the child’s parents did not consent. There is no requirement that the state prove that the defendant had the parents’ initial permission to take the child. State v. Ziegler, 2012 WI 73, 342 Wis. 2d 256, 816 N.W.2d 238, 10-2514.

948.40 948.40 Contributing to the delinquency of a child.

948.40(1) (1) No person may intentionally encourage or contribute to the delinquency of a child. This subsection includes intentionally encouraging or contributing to an act by a child under the age of 10 which would be a delinquent act if committed by a child 10 years of age or older.

948.40(2) (2) No person responsible for the child’s welfare may, by disregard of the welfare of the child, contribute to the delinquency of the child. This subsection includes disregard that contributes to an act by a child under the age of 10 that would be a delinquent act if committed by a child 10 years of age or older.

948.40(3) (3) Under this section, a person encourages or contributes to the delinquency of a child although the child does not actually become delinquent if the natural and probable consequences of the person’s actions or failure to take action would be to cause the child to become delinquent.

948.40(4) (4) A person who violates this section is guilty of a Class A misdemeanor, except:

948.40(4)(a) (a) If death is a consequence, the person is guilty of a Class D felony; or

948.40(4)(b) (b) If the child’s act which is encouraged or contributed to is a violation of a state or federal criminal law which is punishable as a felony, the person is guilty of a Class H felony.

948.40 History History: 1987 a. 332; 1989 a. 31; 1995 a. 77; 2001 a. 109.

948.40 Annotation The punishments for first-degree reckless homicide by delivery of a controlled substance under s. 940.02 (2) (a) and contributing to the delinquency of a child with death as a consequence in violation of subs. (1) and (4) (a) are not multiplicitous when both convictions arise from the same death. State v. Patterson, 2010 WI 130, 329 Wis. 2d 599, 790 N.W.2d 909, 08-1968.

948.40 Annotation Sub. (1) proscribes contributing to the delinquency of any child under the age of 18. The definition of “child” in s. 948.01 (1) excludes those over 17 only for the “purposes of prosecuting” a person charged with violating this section and not that person’s victim. State v. Patterson, 2010 WI 130, 329 Wis. 2d 599, 790 N.W.2d 909, 08-1968.

948.45 948.45 Contributing to truancy.

948.45(1) (1) Except as provided in sub. (2), any person 17 years of age or older who, by any act or omission, knowingly encourages or contributes to the truancy, as defined under s. 118.16 (1) (c), of a person 17 years of age or under is guilty of a Class C misdemeanor.

948.45(2) (2) Subsection (1) does not apply to a person who has under his or her control a child who has been sanctioned under s. 49.26 (1) (h).

948.45(3) (3) An act or omission contributes to the truancy of a child, whether or not the child is adjudged to be in need of protection or services, if the natural and probable consequences of that act or omission would be to cause the child to be truant.

948.45 History History: 1987 a. 285; 1989 a. 31 s. 2835m; Stats. 1989 s. 948.45; 1995 a. 27.

948.50 948.50 Strip search by school employee.

948.50(1) (1) The legislature intends, by enacting this section, to protect pupils from being strip searched. By limiting the coverage of this section, the legislature is not condoning the use of strip searches under other circumstances.

948.50(2) (2) In this section:

948.50(2)(am) (am) “Private area” means the naked or underwear-clad genitalia, anus, buttocks, or female areola or nipple.

948.50(2)(av) (av) “School” means a public school, parochial or private school, or tribal school, as defined in s. 115.001 (15m), which provides an educational program for one or more grades between kindergarten and grade 12 and which is commonly known as a kindergarten, elementary school, middle school, junior high school, senior high school, or high school.

948.50(2)(b) (b) “Strip search” means a search in which a person’s private area is uncovered and either is exposed to view or is touched by a person conducting the search.

948.50(3) (3) Any official, employee or agent of any school or school district who conducts a strip search of any pupil is guilty of a Class B misdemeanor.

948.50(4) (4) This section does not apply to a search of any person who:

948.50(4)(a) (a) Is serving a sentence, pursuant to a conviction, in a jail, state prison or house of correction.

948.50(4)(b) (b) Is placed in or transferred to a juvenile correctional facility, as defined in s. 938.02 (10p), or a secured residential care center for children and youth, as defined in s. 938.02 (15g).

948.50(4)(c) (c) Is committed, transferred or admitted under ch. 51, 971 or 975.

948.50(5) (5) This section does not apply to any law enforcement officer conducting a strip search under s. 968.255.