822.28.Jurisdiction declined by reason of conduct.

Section 822.28 addresses jurisdiction obtained through wrongdoing, such as concealing or wrongfully removing a child to create a jurisdictional foothold in Wisconsin. Subsection (1) sets the default: if Wisconsin has jurisdiction under chapter 822 because the person invoking it engaged in unjustifiable conduct, the court must decline to exercise that jurisdiction, subject to the emergency-jurisdiction exception in section 822.24. Three exceptions let the court keep the case anyway: the parents and all persons acting as parents have acquiesced in the exercise of jurisdiction; a court in the state that would otherwise have jurisdiction under sections 822.21 through 822.23 determines Wisconsin is the more appropriate forum under section 822.27; or no court of any other state would have jurisdiction under those same criteria.

Subsection (2) gives the court room to protect the child even while declining jurisdiction. It may fashion an appropriate remedy to ensure the child’s safety and prevent a repetition of the unjustifiable conduct, including staying the proceeding until a custody proceeding is commenced in a court that does have jurisdiction under sections 822.21 through 822.23.

Subsection (3) addresses cost-shifting. If the court dismisses a petition or stays a proceeding under this section, it must assess necessary and reasonable expenses, including costs, communication expenses, attorney fees, investigative fees, witness expenses, travel expenses, and child care expenses, against the party who sought to invoke the wrongfully obtained jurisdiction, unless that party shows the assessment would be clearly inappropriate. The court may not assess fees, costs, or expenses against the state of Wisconsin itself unless some other law authorizes it.