Wis. Stat. § 822.21

Current through Acts 2023-2024, ch. 272

Section 822.21 - Initial child custody jurisdiction

(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:

(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.

(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:

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.

2. Substantial evidence is available in this state concerning the child's care, protection, training, and personal relationships.

(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 .

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

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

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

Wis. Stat. § 822.21

2005 a. 130.

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

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). 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). 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). 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). 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). 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). 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. 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. 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.