Ch. 822: Uniform Child Custody Jurisdiction and Enforcement Act · Last amended 2005 · Last verified July 15, 2026
In one sentenceSection 822.40 directs a Wisconsin court, after an enforcement hearing, to order that the petitioner may take immediate physical custody of the child unless the respondent proves specific defenses, and it awards costs, bars certain testimonial privileges, and allows an adverse inference from a refusal to testify.
(1)Unless the court issues a temporary emergency order under s. 822.24, upon a finding that a petitioner is entitled to immediate physical custody of the child, the court shall order that the petitioner may take immediate physical custody of the child unless the respondent establishes one of the following:
(a)The child custody determination has not been registered and confirmed under s. 822.35 and any of the following: 1. The issuing court did not have jurisdiction under subch. II. 2. The child custody determination for which enforcement is sought has been vacated, stayed, or modified by a court of a state having jurisdiction to do so under subch. II. 3. The respondent was entitled to notice, but notice was not given in accordance with the standards of s. 822.08 in the proceedings before the court that issued the order for which enforcement is sought.
(b)The child custody determination for which enforcement is sought was registered and confirmed under s. 822.35, but has been vacated, stayed, or modified by a court of a state having jurisdiction to do so under subch. II.
(2)The court shall award the costs, fees, and expenses authorized under s. 822.42 and may grant additional relief, including a request for the assistance of law enforcement officials, and may set a further hearing to determine whether additional relief is appropriate.
(3)If a party called to testify refuses to answer on the ground that the testimony may be self-incriminating, the court may draw an adverse inference from the refusal.
(4)A privilege against disclosure of communications between spouses and a defense of immunity based on the relationship of husband and wife or parent and child may not be invoked in a proceeding under this subchapter.
Plain-English Summary
Section 822.40 is the heart of the enforcement hearing itself. Unless the court has already issued a temporary emergency order under s. 822.24, the default outcome once the court finds the petitioner entitled to immediate physical custody is an order letting the petitioner take the child immediately. The respondent can head that off only by establishing one of two things: that the determination has not been registered and confirmed under s. 822.35 and that the issuing court lacked jurisdiction under subch. II, that the determination has since been vacated, stayed, or modified by a court with jurisdiction to do so, or that the respondent did not receive notice meeting the standards of s. 822.08; or that the determination was registered and confirmed under s. 822.35 but has since been vacated, stayed, or modified.
Beyond the custody order itself, the court must award the costs, fees, and expenses described in s. 822.42, and it may grant additional relief, including law enforcement assistance, and set a further hearing on whether more relief is warranted.
Two evidentiary rules round out the section. If a witness refuses to testify on self-incrimination grounds, the court may draw an adverse inference from that refusal. And the ordinary privilege against disclosing spousal communications, along with any immunity defense based on the spousal or parent-child relationship, cannot be invoked to block testimony in one of these proceedings.
Frequently Asked Questions
When will a Wisconsin court order that I can take immediate physical custody of my child?
Under Section 822.40, once the court finds the petitioner entitled to immediate physical custody, it orders the transfer unless the respondent establishes one of the defenses the section lists, such as lack of jurisdiction, later vacatur or modification of the determination, or lack of proper notice.
What defenses can stop the court from ordering immediate custody to the petitioner?
The respondent can show the determination was never registered and confirmed and the issuing court lacked jurisdiction, was vacated, stayed, or modified by a court with jurisdiction to do so, or that notice did not meet the standards of s. 822.08; or, if it was registered and confirmed, that it has since been vacated, stayed, or modified.
Will the court award costs and fees at this hearing?
Yes. Section 822.40 requires the court to award the costs, fees, and expenses authorized under s. 822.42.
Can a witness refuse to testify to avoid self-incrimination in this kind of hearing?
A witness can still refuse, but Section 822.40 allows the court to draw an adverse inference from that refusal.
Can a spouse refuse to testify by invoking marital privilege in an enforcement hearing?
No. Section 822.40 bars invoking a privilege against disclosure of spousal communications, or an immunity defense based on the spousal or parent-child relationship, in these proceedings.
Amendment History
History: 2005 a. 130.
Source & verification. Section text and official notes are
reproduced verbatim from the Wisconsin Statutes, published by the
Wisconsin Legislature (Legislative Reference Bureau). Last verified July 15, 2026.
· Official source
Also known as:immediate physical custody hearing wisconsindefenses to custody enforcement wisconsinadverse inference custody hearing wisconsinspousal privilege custody enforcement wisconsinchild custody enforcement hearing outcome