N & L Blawg

In Wisconsin there are three main types of restraining orders: 1) Domestic Abuse Restraining Orders; 2) Child Abuse Restraining Orders; and 3) Harassment Restraining Orders.  Although they are used as a collective term, they are very distinguishable orders, requiring very different elements of proof.  Due to the rise in reported case of domestic abuse, here in St. Croix County as well as elsewhere in the Country, the courts have tried to initiate a system to assist victims in getting the protection they need swiftly.  In this article I will explore the domestic abuse restraining orders and the necessary elements you need to prove before a court can issue an order and exactly what the order prevents the respondent from doing.

Governed under Wisconsin Statute §813.12 , a Domestic Abuse Restraining Order is an action that may be brought against a family member, a household member, a former spouse, someone with whom you have a child in common, someone with whom you have had a dating relationship or a caregiver.  The statute is very explicit that the respondent must be someone over 18 years in age, in other words an adult.  The respondent must be inflicting or threatening abuse against you, the petitioner,  as specifically defined as: intentional physical pain or injury, intentional impairment of physical condition, violation of 1^st, 2^nd or 3^rd degree sexual assault, intentional damage to physical property belonging to the petitioner or a threat to engage in any of the above stated conduct.

The petition can be filed in the County where the petitioner lives, the respondent lives, the abuse happened or the petitioner is temporarily staying .  There is no fee for filing a domestic abuse restraining petition and the court will review the petition the same day as it is filed to give the petitioner an immediate answer.  If the court finds that that the petitioner is in imminent harm from the respondent and that they meet the elements stated above, the court may issue a Temporary Restraining Order (TRO).   A TRO prohibits further contact between the parties until the court can hold a hearing on all the issues stated by the petitioner in the petition, within 14 days, unless extended by consent of both parties.  The respondent will then be served with a copy of the TRO, along with the return court date on the injunction itself.

An injunction hearing is held before the court, where both parties and witnesses are allowed to testify and present evidence regarding the petitioner’s allegation of abuse.  Before an injunction is granted the court must find the elements stated above and find that it is reasonable to believe that the respondent has committed domestic abuse or based on prior conduct, will commit domestic abuse against the petitioner in the future.  The court must find the petitioner to be in potential danger and that there is a pattern of domestic abuse.  The court may not consider existing court orders that bars contact in lieu of dismissing or denying the injunction.

When a court issues an injunction they are ordering the respondent from committing any acts of domestic abuse against the petitioner.  They can further require the respondent to avoid anywhere that the petitioner works, lives or regularly goes.  In some instances the court will put a certain distance in these orders like 100 feet to 2 blocks, depending on the court, thereby making it very easy for the respondent to be arrested on any violation.  The court can require the respondent not contact the petitioner through any means, even the use third parties, therefore only allowing contact through law enforcement or attorneys.   This can be a difficult provision especially if the parties have children in common that they are co-parenting, however sometimes necessary given the circumstances.  The court may put into place any other order that it feels necessary to help protect the petitioner from the respondent.   Any violation of these orders is a criminal offense.

A requirement of a domestic abuse restraining order is the surrender of all firearms from the respondent since April 1, 1996.  The firearms can be held at the Sheriff’s Department, as they do here in Hudson or surrendered to someone approved by the court.  A respondent cannot possess or use a firearm then for the entire length of the order, which can be up to four years and then extended if the Court feels it is warranted.  There are limited exceptions for law enforcement officers, member of the military or it is required as a term of employment to keep use their firearms.

The rise in Domestic Abuse throughout this country has required the courts to adopted statues like Wis. Stat. §813.12 to govern how they handle domestic abuse restraining orders.  If you have any questions about this process, from either the petitioner or the respondent’s point of view, feel free to give us a call at Nelson & Lindquist to discuss your options.

In drink driving cases in Wisconsin, a person charged with their 2^nd or subsequent offense has the opportunity to challenge the validity of prior convictions in their current matter.  The only situation a defendant can challenge a previous conviction is when they were not represented by an attorney on the previous matter.  If a defendant was not represented on a previous matter, then a defendant can challenge, or collaterally attack, the validity of their plea.  This right to counsel guaranteed by the US and Wisconsin state constitution only applies in criminal offenses.  That means a defendant is out of luck if they pled to a first offense drunk driving in Wisconsin, as that is not a criminal matter.  However, every other state makes a first offense a crime, even if all the defendant had to do was pay a fine.

If records of the previous proceedings exist, then the court will look to the record to determine whether or not the judge in the previous case made the defendant aware of their right to an attorney, the advantages and disadvantages of proceeding with or without and attorney, the range of penalties, the seriousness of the offense and there needs to be a finding that the defendant knowingly, intelligently and voluntarily made their pleas and waived the right to an attorney.

Many times, records are destroyed after 5-10 years, depending on the jurisdiction.  If no record exists after diligent inquiry, then the defendant submits an affidavit setting forth what they recall from the previous hearing as it pertains to their right to an attorney.  Once the claim is made, it is up to the prosecutor to call the defendant to the stand and attempt to determine what the defendant knew at the time the previous hearing occurred, which could have been many years ago.  In short, it is very, very difficult for the state to prove a valid waiver occurred without adequate court records.

A successful collateral attack can mean the difference of litigating a felony case versus a misdemeanor, or even amending a misdemeanor case to a civil forfeiture.  It could mean the difference between serving 90 days in jail versus 10 days, over a couple of weekends.  If you or someone you know is facing this type of situation, please contact Attorney Andrew Nelson at 715-381-8270 for a free initial consultation.  Always remember: be safe, don’t drink and drive.

Working here on the border, we often have questions come up as to where a case can/should be heard, Wisconsin vs. Minnesota.  There are some attorneys here in Hudson that work on both sides of the border, but at Nelson & Lindquist, S.C. we only handle cases in Wisconsin.   You have to be a resident of the State of Wisconsin for more than 6 months and the county in which you want to file for more than 30 days before you can commence a family law action here.  However, if you previously had a family law action involving the same parties and/or child in another state or county, that is where you need to file for a change in the current order.

Because of how mobile we as a nation have become, the Courts have determined that where the child resides or where an initial action began is the child’s home state and will remain so until the parties all agree and another court will take on the action.  This is helpful for the parent who remains in WI if the other party moves away with the child, because any further action involving the child will always have to be heard in the same Court here in WI as long as one party is here or until all parties agree to move it elsewhere.  This is important because all matters involving children are fluid and can be heard by the Court to change current Orders every two years and because of that the Courts want to be consistent with the Orders they have in place.  By keeping the matter in the same Court, with the same judge in most cases, you are able to have some consistency with your Orders and do not have to keep going over the history of your case at every filing, thereby expediting the process a little.

If you are currently in transition and don’t know where to file, give us a call and we can help you figure that out.  If you have options available to you because of where the other party lives or where you plan to move to, it is best to consult with an attorney before filing anything.  Sometimes where you are located can be of great advantage to you and when you are talking about the future of your children, you should use every advantage you have.  Give us a call today.