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Common Law Defenses – Collateral Attack on Custody Order, § 948.31

State v. John W. Campbell, 2006 WI 99, on certification
For Campbell: Charles B. Vetzner, SPD, Madison Appellate

Issue/Holding: To attack a custody order as void, in defense against interference with child custody, § 948.31, “the family court would have had to lack subject matter jurisdiction or personal jurisdiction, or Campbell would have had to receive inadequate notice of the divorce proceedings,” ¶46.

Campbell argued that the custody order was procured by fraud, because the mother (who was then married to Campbell) obtained an order of adoption from a Missouri court but withholding her status at the time as a Wisconsin resident. Ultimately though, the parents were divorced in Wisconsin, where a family court entered the custody order Campbell was accused of interfering with. Because the parents were residents of Wisconsin when the divorce commenced, the family court had subject matter jurisdiction; nor is there any dispute that the family court had personal jurisdiction over Campbell, ¶48.

¶49      Even if the family court commissioner erred in granting custody and primary placement to Denise, Campbell had to abide by the terms of the custody order until he succeeded in reversing it through the applicable review process. See Orethun, 84 Wis. 2d at 490 (“Where a court has jurisdiction over the subject matter and the parties, the fact that an order or judgment is erroneously or improvidently rendered does not justify a person in failing to abide by its terms.”); Anderson v. Anderson, 82 Wis. 2d 115, 118-19, 261 N.W.2d 817 (1978); cf. Kett, 222 Wis. 2d at 128 (“A voidable judgment . . . has the same effect and force as a valid judgment until it has been set aside.”).

¶50      Since Campbell’s allegation of fraud, even if true, cannot deprive the family court of subject matter jurisdiction or personal jurisdiction, and cannot render the custody order void, evidence of Denise’s alleged fraud cannot negate an element of interference with custody.


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