I recently ran across an interesting legal provision within a local paternity stipulation and order. The original stipulation was drafted by the local child support agency and offered to interested parents. The provision reads as follows: "[t]he Court may not hear any Motions regarding a modification or enforcement of the Order unless the parenting requesting the modification or enforcement has successfully participated in this class and a certificate attesting of which has been filed with the Court."
The Stipulation referenced Sec. 767.15 regarding parenting classes but this section doesn't exist in the current body of law. The current statute regarding parenting classes is Sec. 767.401which is divided in subsections (1) and (2). Subsection (1) seems to be focused on more tailored "programs" addressing specific needs of individual families while subsection (2) refers to general court approved education classes. I interpret the "Remember the Children" course to be a generic court approved course falling within the subsection (2) category of parenting classes. If I am correct, then with regards to attendance (or lack thereof) of this class, subsection (2)(b) applies. Subsection (2)(b) says that a court "may not require the parties to attend a class under this subsection as a condition to the granting of the final judgment or order in the divorce or paternity action, however the court may refuse to hear a custody or physical placement motion of a party who refuses to attend the a class ordered under this subsection."
As I understand it, a paternity Stipulation may order the parents to attend the "Remember the Children" program in lieu of a motion contesting placement and custody. The statute does not forbid the filing of a motion or even a hearing on the matter prior to completion of the Remember the Children class. In fact, it prohibits the court from requiring attendance as a condition for final judgment or order. However, if the parties are ordered to take the class and chooses to act contemptuously by actively refusing to attend, then the court may refuse the motion...not on the failure to attend but on the contemptuous act of refusing to follow court order.
Coming back to the language in the above quoted parenting stipulation, I believe that the language violates Sec. 767.401(2)(b). “The Court may not hear any Motions regarding a modification or enforcement of the Order unless the parenting requesting the modification or enforcement has successfully participated in this class and a certificate attesting of which has been filed with the Court.” Here, it conditions the Court's ability to entertain a motion and render judgment on completion of the Remember the Children requirement. Further, the stipulation and order being signed by the Court Commissioner effectively gives the Commissioner power to override the Circuit Court Judge's subject matter jurisdiction to determine for him or herself whether or not to deny the motion. Whether to accept a motion and hear testimony prior to the completition of the course is a discretion reserved for the Circuit Court Judge. It should not be denied prospectively by the Commissioner.
The harm arises in this situation when a party files a motion on a placement or custody matter. The motion is accepted by the court. A hearing is held and the opposing party invokes this specific language, arguing that the matter is not ripe for hearing. The motion is dismissed by the judge on grounds of ripeness, pending attendance of the required course. This language creates an unnecessary and unintended barrier in the general procedural. I think that Sec. 767.401(2) is meant to have a more facilitative function than to act as a gatekeeper rule. The result to the parties with this type of interpretation by the court is lost of time, extended period of injury in enforcement issues, and financial loss.
Time will tell how this issue holds out in court.
