This article will deal with the three basic types of restraining orders in the state of Wisconsin (1) Domestic Violence (2) Harassment and (3) Child abuse, including the differences between the three.
Domestic Violence restraining orders and injunctions- What is domestic violence?
Under sec. 813.12 of the Wisconsin Statutes, "Domestic abuse" means any of the following engaged in by an adult family member or adult household member against another adult family member or adult household member, by an adult caregiver against an adult who is under the caregiver's care, by an adult against his or her adult former spouse, by an adult against an adult with whom the individual has had or had a dating relationship, or by an adult against an adult with whom the person has a child in common; intentional infliction of physical pain, physical injury or illness; intentional impairment of physical condition; a violation of sec. 940.225 (1), (2) or (3),; a violation of 940.32; a violation of 943.01, involving property that belongs to the individual; a threat to engage in the conduct under subd. 1., 2., 3., 4., or 5." Sec. 940.225 is criminal sexual assault, Sec. 940.32 is Stalking, and sec. 943.01 is Criminal damage to property.
How do you obtain a Domestic Abuse Restraining order?
The action is commenced by filing a petition for domestic violence with the court. The respondent must be personally served with the order to appear in court. The request for the domestic abuse restraining order is handled in a two step process; (1) the initial request is made ex parte (meaning you apply for the order on your own without the other party present). You need to have a sworn petition under oath as to the allegations of domestic violence. A court offical will usually review the petition, and if they believe there is sufficent evidence to issue the order, a temporary restraining order will be granted. This order is in effect for two weeks; A court date will be assigned and you will be required to personally serve the petition and order for the temporary restraining order on the other party. This is usually done by the sheriff of the county where the case is pending. The sheriff can assist in having the person removed from your home, if you are living together. The temporary restraining order prohibits the other party from having any contact with you whatsoever, whether in person, by phone, text messages, e mail or any other forms of communication. It even prevents the person from having a third party contact you; The temporary restraining order carries criminal sanctions if violated while in effect. You both will be required to appear in court after two weeks of the issuance of the temporary restraining order to determine, after a full blown evidentiary hearing where you will both be required to tesitfy; other witnesses may be allowed, where deemed appropriate by the court, for either side. The court will decide if an injunction should be issued following the evidentiary hearing and under the statute, it can be granted for a period of not more than four years. The respondent, should the injunction be granted is also prohibited from possessing firearms and they must be surrendered to law enforcement.
What are the penalties for violating the domestic abuse injunction?
Under sec. 813.122 (8) of the Wisconsin statutes, whether there is a violation of the temporary order or the injunction once issued, a person can be fined not more than $10,000 or imprisoned for not more than 9 months or both.
Harassment restraining orders and injunctions- What is harassment?
"Harassment" under sec. 813..125 Wisconsin Statutes, is defined as follows; "(a) striking, shoving, kicking or otherwise subjecting another person to physical contact; engaging in an act that would constitute abuse under sec. 48.02 (1), sexual assault under sec. 940.225, or stalking under sec. 940.32; or attempting or threatening to do the same. (b) engaging in a course of conduct or repeatedly committing acts which harass or intimidate another person and which serve no legitimate purpose.
How do you obtain a Harassment Restraining order?
Similarly to filing for a domestic violence action, a harassment action is commenced by filing a petition. It is done in a similar procedure to a domestic violence case, where a petition and affidavit under oath is filed, a court commissioner or other court official usually will review, and based on the ex parte initial petition, decide whether a temporary restraining order should be issued. Under the statute, the temporary restraining order for harassment is good for 14 days. Another court hearing will be scheduled, after personal service of the petition and order is made on the respondent, and at the next court hearing, there will be a full blown evidentiary hearing with both parties having to testify as to whether a more permanent injunction should be issued.. The injunction may be issued for a period of not more than 4 years, but under exigent circumstances, can be issued for a period of 10 years, if there is a substantial risk that the respondent may commit first degree intentional homicide, second degree intentional homicide, or commit a sexual assault on the victim/petitioner. The court also has discretion to have all firearms surrendered, similarly to a domestic abuse injunction.
What are the penalties for violating a harassment injunction?
If there is a violation of the temporary restraining order or injunction, a person can be fined not more than $10,000 or imprisoned not more than 9 months or both.
Child Abuse restraining orders and injunctions. What consititues "child abuse?"
"Child abuse" has the meaning given in sec. 48.02 (1) (a) and (b) go (gm), and, in addition, includes a threat to engage in any conduct under sec. 48.02 (1), other than conduct under sec. 48.02 (1) (am). Sec. 48.02 of the Children's Code defines abuse as physical injury inflicted on a child by other than accidental means, sexual intercourse or sexual contact under sec. 940.225, 948.02, 948.025 or 948.085 and includes emotional damage for which the child's parent, guardian or legal custodian has neglected, refused or been unable for reasons other than poverty to obtain the necessary treatment or to take steps to ameliorate the symptoms.
How do you obtain a child abuse injunction?
The process is similar to obtaining a harassment or domestic violence restraining order; it is done in 2 parts; a petition sworn under oath is filed with the court, a court or circuit court commissioner decides whether to deny the request or issue a temporary restraining order. If the temporary restraining order is issued, a hearing is set for purposes of having both parties testify and for determination if the temporary order should be changed to a longer injunction. The papers must be personally served on the respondent. If an injunction is issued, it can be issued for not more than 2 years, or until the child victim attains 18 years of age, whichever occurs first. There is also a requirement that firearms be surrendered under sec. 813.122 (5m) of the statute The court will also appoint a guardian ad litem if the respondent is a parent of the child..
What are the penalties for violating the order?
Under sec. 813.125 (11), Stats., whoever knowingly violates a temporary restraining order or injunction issued under this section shall be fined not more than $1,000 or imprisoned for not more than 9 months or both.
Conclusion- Restraining Orders
Most of the restraining orders we see issued in Wisconsin primarily are for Domestic Abuse between either married couples, or persons who have been dating and in a relationship with one another. The violation of a domestic abuse injunction carries criminal sanctions. We do see harassment injunctions, but not to the level that domestic violence issues arise. In regard to a child abuse injunction, in my practice, they are few and far between. There would have to be substantial evidence and serious abuse issues for the court to issue a child abuse injunction to keep the children away from a parent, as an example. We read in the newspaper and watch TV about aggravated cases of domestic violence in this country; threats of violence or actual physical violence inflicted by ay a spouse or a boyfriend/girlfriend, should be met immediately with applying for a restraining order for one's protection. It is better to be safe, than sorry! I have seen first hand human tragedies caused by domestic violence, including clients who have lost their lives at the hands of a former spouse or former dating partner.
Additional resources provided by the author
Wisconsin Statutes, sec. 813.122, 813.12, and 813.125. In Milwaukee County, contact the Task force on Domestic Violence, Room 711, Milwaukee County Courthouse 414 -278 -5079; In Waukesha County, call the Women's Center, 262- 542- 3828
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