Child Abuse and Elder Abuse Injunctions in Wisconsin

Wisconsin courts can issue restraining orders and injunctions to protect children from abuse and eligible adults from abuse, neglect, financial exploitation, and related conduct. These civil proceedings can provide protection without waiting for a criminal conviction. The appropriate petition depends on the person needing protection and the conduct involved. Wis. Stat. §§ 813.122 and 813.123.

If someone is in immediate danger, call 911. A court order is one part of a safety plan; emergency help and protective services may also be necessary.

Child abuse injunctions

Who can seek protection

A child abuse injunction protects a person under age 18. The child, a parent, a stepparent, or the child’s legal guardian may petition. The respondent is the person accused of abuse. Protection is not limited to abuse by a parent or household member. Wis. Stat. § 813.122(1)(b), (2)(a).

What qualifies as child abuse

The injunction statute incorporates specified forms of abuse under the Children’s Code and also covers threats of qualifying abuse. Examples include nonaccidental physical injury, sexual abuse and exploitation, certain methamphetamine-related exposure, and qualifying emotional damage. Wis. Stat. §§ 813.122(1)(a); 48.02(1)(a), (b)–(gm).

Emotional harm has a specific legal definition. It must affect the child’s psychological or intellectual functioning and be evidenced by severe anxiety, depression, withdrawal, outward aggression, or a substantial and observable change outside the normal range for the child’s age and development. The emotional-damage ground also requires that a parent, guardian, or legal custodian neglected, refused, or was unable for reasons other than poverty to obtain necessary treatment or take steps to improve the symptoms. Wis. Stat. § 48.02(1)(gm), (5j).

For example, an accidental playground bruise does not by itself establish nonaccidental injury. Conversely, a bruise need not look dramatic for the surrounding circumstances to matter. The Wisconsin Supreme Court explained that evaluating severe bruising can include the child’s age, the injury’s location, and how it was inflicted. Kristi L.M. v. Dennis E.M., 2007 WI 85, ¶¶ 30–35, 302 Wis. 2d 185, 734 N.W.2d 375.

What the court must find

After a hearing, the judge must find reasonable grounds to believe that the respondent has abused the child or, based on prior conduct of the child and respondent, may abuse the child. In practical terms, the petition needs evidence connecting the respondent’s conduct to statutory abuse or a supported risk of abuse. A general concern about someone’s character is not enough by itself. Wis. Stat. § 813.122(5)(a)3.; Kristi L.M., 2007 WI 85, ¶¶ 21–24, 27.

In emotional-damage cases, the timing and effect of treatment matter. In S.O. v. T.R., the Court of Appeals held that grounds for the injunction are assessed using pre-petition evidence; treatment begun after filing may instead inform the terms of parental visitation. A parent’s own treatment or parenting efforts must actually benefit the child to establish improvement of the child’s symptoms. S.O. v. T.R., 2016 WI App 24, ¶¶ 39–44, 367 Wis. 2d 669, 877 N.W.2d 408.

What protection can the court order

The court can order the respondent to avoid the child’s residence and other premises the child temporarily occupies and to avoid direct or indirect contact, subject to authorized exceptions. The statute also permits protection and retrieval of household pets and, when appropriate, an order for child support. Wis. Stat. § 813.122(5)(a), (e), (7).

If the respondent is a parent, the court must provide reasonable visitation unless visitation would endanger the child’s physical, mental, or emotional health. The court may require supervision. A guardian ad litem must be appointed when the respondent is the child’s parent and may be appointed in other cases. Wis. Stat. § 813.122(3)(b), (5)(b).

An injunction can affect an existing custody or placement arrangement. Scott M.H. v. Kathleen M.H. recognized that the statute implicitly envisions custody and placement changes when protection is needed from a custodial parent. Existing family and juvenile orders should therefore be disclosed and addressed with the court. Scott M.H. v. Kathleen M.H., 218 Wis. 2d 605, 611–15, 581 N.W.2d 564 (Ct. App. 1998).

Elder abuse and individual at risk injunctions

Who qualifies

Wisconsin’s individual-at-risk injunction statute covers elder adults at risk and adults at risk. An elder adult at risk is a person age 60 or older who has experienced, is experiencing, or is at risk of abuse, neglect, self-neglect, or financial exploitation. Age alone does not establish every requirement for an injunction, but an elder adult need not first be declared incompetent. Wis. Stat. §§ 813.123(1)(cg), (ep); 46.90(1)(br).

An adult at risk can be younger than 60. The person must have a physical or mental condition that substantially impairs the ability to care for personal needs and must have experienced, be experiencing, or be at risk of abuse, neglect, self-neglect, or financial exploitation. A disability or diagnosis alone does not establish eligibility. Wis. Stat. §§ 813.123(1)(ae), (ep); 55.01(1e).

What conduct can support an injunction

The court may act on abuse, financial exploitation, neglect, harassment, stalking, threats of those acts, or mistreatment of an animal. Qualifying interference with investigations, protective services, protective placement, or services to an elder adult can also support relief. At the injunction hearing, the statute requires reasonable cause to believe that at least one listed ground exists. Wis. Stat. § 813.123(5)(a)3.

Abuse includes physical abuse, emotional abuse, sexual abuse, treatment without consent, and unreasonable confinement or restraint. Emotional abuse includes conduct or language that serves no legitimate purpose, is intended to intimidate, humiliate, threaten, frighten, or harass, and does or reasonably could have that effect. Financial exploitation includes coercive or deceptive taking of property, theft, and substantial failure by a fiscal agent to fulfill responsibilities. Wis. Stat. § 46.90(1)(a), (cm), (ed).

For example, threats used to force an older adult to transfer money, intimidation that isolates the person, or obstruction of a qualifying protective-services investigation may warrant review. A family disagreement about spending or living arrangements does not automatically establish abuse. Self-neglect can establish at-risk status, but an injunction against another person still requires a statutory ground involving that respondent. Wis. Stat. §§ 46.90(1)(br), (g); 813.123(5)(a)3.

Who may file and what the court can order

The individual, someone acting on the individual’s behalf, or an adult-at-risk or elder-adult-at-risk agency may file. If another person files, the individual must receive a copy of the petition, and the court must appoint a guardian ad litem. The statute also allows proceedings despite an objection by the individual or guardian when the individual has been adjudicated incompetent. These rules require attention to the person’s wishes, legal status, and circumstances. Wis. Stat. § 813.123(2), (3)(b).

The court can prohibit abusive or exploitative conduct, restrict contact, exclude the respondent from the person’s residence, protect household pets, and prevent interference with investigations or services. It may order other appropriate remedies consistent with those requested in the petition. An injunction does not itself appoint a guardian or transfer general decision-making authority over the protected adult. Wis. Stat. § 813.123(5)(ar).

The process and duration

A temporary restraining order can be issued without advance notice to the respondent when the statutory requirements are met. If a TRO is issued, an injunction hearing generally must occur within 14 days, subject to statutory extensions. The respondent must receive the petition and hearing notice before an injunction is granted. A TRO denial does not necessarily end the request for an injunction. Wis. Stat. §§ 813.122(3)(a), (4), (5)(a); 813.123(3)(a), (4), (5)(a).

A child abuse injunction generally lasts no more than two years or until the child turns 18, whichever occurs first. An individual-at-risk injunction generally lasts no more than four years. Special findings of substantial risk of specified homicide or sexual assault offenses can support terms up to five years for a child or ten years for an individual at risk. Permanent injunctions may be available on request after specified sexual-assault convictions involving the protected victim. Extensions have separate statutory requirements. Wis. Stat. §§ 813.122(5)(d)–(dm); 813.123(5)(c)–(d).

Preparing for the hearing

Organize a dated account of events identifying who did what, what was said, and who witnessed it. Preserve relevant messages, photographs, financial records, medical information, and existing court orders. Distinguish personal knowledge from information reported by others. An attorney can help determine which witnesses and records are needed and how the evidence can be presented lawfully.

Child abuse proceedings have statutory confidentiality protections. In individual-at-risk cases, addresses are confidential, and the court may restrict access to hearings and records. Tell the clerk or your attorney about safety concerns before filing sensitive information. Wis. Stat. §§ 813.122(3)(bp)–(bq), (5g); 813.123(3)(c), (5g).

Report suspected violations promptly to law enforcement and preserve the evidence. Knowingly violating either type of order can result in criminal penalties. Child abuse injunctions also carry firearm restrictions; individual-at-risk injunctions may include firearm restrictions when the required findings are made. Wis. Stat. §§ 813.122(5m), (10)–(11); 813.123(5m), (9)–(10).

Forms and help

Current statewide forms are available through the Wisconsin Court System. Look for CV-412 for child abuse petitions and CV-428 for individual-at-risk petitions. The clerk can explain filing procedures; juvenile-court filing may be required in some child cases. Suspected child abuse can also be reported to county child protective services, and suspected elder or adult abuse to the county’s adult protective services agency.

Wisconsin Court System forms: https://www.wicourts.gov/forms1/circuit/index.htm

Guth Law of South Central Wisconsin can help evaluate the appropriate petition, prepare evidence, and address related family-law concerns. Contact the firm to discuss your circumstances.

This guide provides general Wisconsin legal information. The available relief depends on the facts, evidence, and applicable law.

Statutes and published decisions

Wis. Stat. § 813.122 — Child abuse restraining orders and injunctions
https://docs.legis.wisconsin.gov/statutes/statutes/813/122

Wis. Stat. § 813.123 — Restraining orders and injunctions for individuals at risk
https://docs.legis.wisconsin.gov/statutes/statutes/813/123

Wis. Stat. §§ 48.02, 46.90, and 55.01 — Relevant definitions
https://docs.legis.wisconsin.gov/statutes/statutes/48/i/02
https://docs.legis.wisconsin.gov/statutes/statutes/46/90
https://docs.legis.wisconsin.gov/statutes/statutes/55/01

Kristi L.M. v. Dennis E.M., 2007 WI 85, 302 Wis. 2d 185, 734 N.W.2d 375
https://www.wicourts.gov/sc/opinion/DisplayDocument.html?content=html&seqNo=29560

S.O. v. T.R., 2016 WI App 24, 367 Wis. 2d 669, 877 N.W.2d 408
https://www.wicourts.gov/ca/opinion/DisplayDocument.pdf?content=pdf&seqNo=161509

Scott M.H. v. Kathleen M.H., 218 Wis. 2d 605, 581 N.W.2d 564 (Ct. App. 1998)
https://www.wicourts.gov/ca/opinion/DisplayDocument.pdf?content=pdf&seqNo=12243