A trust under sub. (7) is not restricted to where the custodial parent is a spendthrift. Paternity of Tukker M.O., 189 W (2d) 440, 525 NW (2d) 793 (Ct. App. 1994). See also Paternity of Tukker M.O., 199 W (2d) 186, 544 NW (2d) 417 (1996).
Genetic tests in paternity actions. 767.48(1)(a)(a)
The court may, and upon request of a party shall, require the child, mother, any male for whom there is probable cause to believe that he had sexual intercourse with the mother during a possible time of the child's conception, or any male witness who testifies or will testify about his sexual relations with the mother at a possible time of conception to submit to genetic tests. Probable cause of sexual intercourse during a possible time of conception may be established by a sufficient petition or affidavit of the child's mother filed with the court, or after an examination under oath of a complainant or witness, when the court determines such an examination is necessary.
The genetic tests shall be performed by an expert qualified as an examiner of genetic markers present on the cells of the specific body material to be used for the tests, appointed by the court. A report completed and certified by the court-appointed expert stating genetic test results and the statistical probability of the alleged father's paternity based upon the genetic tests is admissible as evidence without expert testimony and may be entered into the record at the trial or pretrial hearing if, at least 10 days before the trial or pretrial hearing, the party offering the report files it with the court and notifies all other parties of that filing.
Under sub. (1)
, if the genetic tests show that the alleged father is not excluded and that the statistical probability of the alleged father's parentage is 99.0% or higher, the alleged father shall be rebuttably presumed to be the child's parent.
The court, upon request by a party, shall order that independent tests be performed by other experts qualified as examiners of genetic markers present on the cells of the specific body material to be used for the tests. Additional tests performed by other experts of the same qualifications may be ordered by the court at the request of any party.
In all cases, the court shall determine the number and qualifications of the experts.
Whenever the results of the genetic tests exclude the alleged father as the father of the child, this evidence shall be conclusive evidence of nonpaternity and the court shall dismiss the action. Whenever the results of the tests exclude any male witness from possible paternity, the tests shall be conclusive evidence of nonpaternity of the male witness. Testimony relating to sexual intercourse or possible sexual intercourse of the mother with any person excluded as a possible father, as a result of a genetic test, is inadmissible as evidence. If any party refuses to submit to a genetic test, this fact shall be disclosed to the fact finder. This refusal is a contempt of the court for failure to produce evidence under s. 767.47 (5)
. If the action was brought by the child's mother but she refuses to submit herself or the child to genetic tests, the action shall be dismissed.
The fees and costs for genetic tests performed upon any person listed under sub. (1)
shall be paid for by the county except as follows:
At the close of the proceeding the court may order either or both parties to reimburse the county if the court finds that they have sufficient resources to pay the costs of the genetic tests.
If 2 or more identical series of genetic tests are performed upon the same person, the court may require the person requesting the 2nd or subsequent series of tests to pay for it in advance.
Any party calling a male witness for the purpose of testifying that he had sexual intercourse with the mother at any possible time of conception shall provide all other parties with the name and address of the witness 20 days before the trial or pretrial hearing. If a male witness is produced at the hearing for the purpose stated in this subsection but the party calling the witness failed to provide the 20-day notice, the court may adjourn the proceeding for the purpose of taking a genetic test of the witness prior to hearing the testimony of the witness if the court finds that the party calling the witness acted in good faith.
The court shall ensure that all parties are aware of their right to request genetic tests under this section.
Where initial blood tests excluded alleged father and state moved for additional tests under (2), court erred in denying motion and dismissing action under (4). In re Paternity of S. J. K. 132 W (2d) 262, 392 NW (2d) 97 (Ct. App. 1986).
Chain of custody, or authentication, must be established prior to admission of evidence under (1) (b). In re Paternity of J. S. C. 135 W (2d) 820, 400 NW (2d) 48 (Ct. App. 1986).
Where respondent failed to introduce evidence regarding test, trial court properly barred respondent from attacking test during closing argument. In re Paternity of M. J. B. 144 W (2d) 638, 425 NW (2d) 404 (1988).
See note to 904.01, citing State v. Hartman, 145 W (2d) 1, 426 NW (2d) 320 (1988).
DNA test results are admissible when procedures meet requirements for blood tests under (1) (b). In re Paternity of J.L.K. 151 W (2d) 566, 445 NW (2d) 673 (Ct. App. 1989).
Where more than one set of blood test results are presented, sub. (1m) presumption is inapplicable where only one reached 99%. In re Paternity of J.M.K. 160 W (2d) 429, 465 NW (2d) 833 (Ct. App. 1991).
Where only one potential father named by the mother is not excluded by blood tests, sub. (4) does not prevent showing that the mother on several occasions did not name him as a person with whom she had sex during the conceptual period. Paternity of Jeremy D.L. 177 W (2d) 551, 503 NW (2d) 275 (Ct. App. 1993).
From here to paternity: Using blood analysis to determine parentage. Haas. WBB July 1988.
The trial shall be divided into 2 parts. The first part shall deal with the determination of paternity. The 2nd part shall deal with child support, legal custody, periods of physical placement and related issues. At the first part of the trial, the main issue shall be whether the alleged or presumed father is or is not the father of the mother's child, but if the child was born to the mother while she was the lawful wife of a specified man there shall first be determined, as provided in s. 891.39
, the prior issue of whether the husband was not the father of the child. The first part of the trial shall be by jury only if the defendant verbally requests a jury trial either at the initial appearance or pretrial hearing or requests a jury trial in writing prior to the pretrial hearing. The court may direct, and if requested by either party, before the introduction of any testimony in the party's behalf, shall direct the jury, in cases where there is a jury, to find a special verdict as to any of the issues specified in this section except that the court shall make all the findings enumerated in s. 767.51 (2)
. If the mother is dead, becomes insane, cannot be found within the jurisdiction or fails to commence or pursue the action, the proceeding does not abate if any of the persons under s. 767.45 (1)
makes a motion to continue. The testimony of the mother taken at the pretrial hearing may in any such case be read in evidence if it is competent, relevant and material. The issues of child support, custody and visitation and related issues shall be determined by the court either immediately after the first part of the trial or at a later hearing before the court.
If a jury is requested under sub. (1)
, the jury shall consist of 6 persons. No verdict is valid or received unless agreed to by at least 5 of the jurors.
History: 1979 c. 352
; Stats. 1979 s. 767.50; 1983 a. 27
; 1987 a. 27
; 1993 a. 481
Preponderance of the evidence standard of proof in paternity actions meets due process requirement. Rivera v. Minnich, 483 US 574 (1987).
Paternity judgment. 767.51(1)(1)
The judgment or order of the court determining the existence or nonexistence of paternity is determinative for all purposes.
The clerk of court shall file with the state registrar, within 30 days after the entry of the order or judgment, a report showing the names, dates and birth places of the child and the father and the maiden name of the mother on a form designated by the state registrar, along with the fee set forth in s. 69.22 (5)
, which the clerk of court shall collect.
The judgment or order may contain any other provision directed against the appropriate party to the proceeding, concerning the duty of support, the legal custody and guardianship of the child, periods of physical placement, the furnishing of bond or other security for the payment of the judgment, or any other matter in the best interest of the child. Unless the court orders otherwise, if there is no presumption of paternity under s. 891.41
the mother shall have sole legal custody of the child. The court shall order either party or both to pay for the support of any child of the parties who is less than 19 years old and is pursuing an accredited course of instruction leading to the acquisition of a high school diploma or its equivalent. The judgment or order may direct the father to pay or contribute to the reasonable expenses of the mother's pregnancy and confinement during pregnancy and may direct either party to pay or contribute to the costs of genetic tests, attorney fees and other costs. Contributions to the costs of genetic tests shall be paid to the county which paid for the genetic tests.
In this subsection, "health insurance" does not include medical assistance provided under subch. IV of ch. 49
In addition to ordering child support for a child under sub. (3)
, the court shall specifically assign responsibility for and direct the manner of payment of the child's health care expenses. In assigning responsibility for a child's health care expenses, the court shall consider whether a child is covered under a parent's health insurance policy or plan at the time the court enters a paternity judgment under this subsection, the availability of health insurance to each parent through an employer or other organization, the extent of coverage available to a child and the costs to the parent for the coverage of the child. A parent may be required to initiate or continue health care insurance coverage for a child under this paragraph. If a parent is required to do so, he or she shall provide copies of necessary program or policy identification to the custodial parent and is liable for any health care costs for which he or she receives direct payment from an insurer. This subsection shall not be construed to limit the authority of the court to enter or modify support orders containing provisions for payment of medical expenses, medical costs, or insurance premiums which are in addition to and not inconsistent with this subsection.
In directing the manner of payment of a child's health care expenses, the court may order that payment, including payment for health insurance premiums, be withheld from income and sent to the appropriate health care insurer, provider or plan, as provided in s. 767.265 (3h)
, or sent to the clerk of court or support collection designee, whichever is appropriate, for disbursement to the person for whom the payment has been awarded if that person is not a health care insurer, provider or plan. If the court orders income withholding and assignment for the payment of health care expenses, the court shall send notice of assignment in the manner provided under s. 767.265 (2r)
and may include the notice of assignment under this subdivision with a notice of assignment under s. 767.265
. The clerk of court shall keep a record of all moneys received and disbursed by the clerk for health care expenses that are directed to be paid to the clerk and the support collection designee shall keep a record of all moneys received and disbursed by the support collection designee for health care expenses that are directed to be paid to the support collection designee.
If the court orders a parent to initiate or continue health insurance coverage for a child under a health insurance policy that is available to the parent through an employer or other organization but the court does not specify the manner in which payment of the health insurance premiums shall be made, the clerk of court may provide notice of assignment in the manner provided under s. 767.265 (2r)
for the withholding from income of the amount necessary to pay the health insurance premiums. The notice of assignment under this subdivision may be sent with or included as part of any other notice of assignment under s. 767.265
, if appropriate. A person who receives notice of assignment under this subdivision shall send the withheld health insurance premiums to the appropriate health care insurer, provider or plan, as provided in s. 767.265 (3h)
If the court orders a parent to provide coverage of the health care expenses of the parent's child and the parent is eligible for family coverage of health care expenses under a health benefit plan that is provided by an employer on an insured or on a self-insured basis, the employer shall do all of the following:
Permit the parent to obtain family coverage of health care expenses for the child, if eligible for coverage, without regard to any enrollment period or waiting period restrictions that may apply.
Provide family coverage of health care expenses for the child, if eligible for coverage, upon application by the parent, the child's other parent, the department or the county designee under s. 59.53 (5)
NOTE: Subd. 2. is shown as affected by two acts of the 1995 legislature and as merged by the revisor under s. 13.93 (2) (c).
After the child has coverage under the employer's health benefit plan, and as long as the parent is eligible for family coverage under the employer's health benefit plan, continue to provide coverage for the child unless the employer receives satisfactory written evidence that the court order is no longer in effect or that the child has coverage of health care expenses under another health insurance policy or health benefit plan that provides comparable coverage of health care expenses.
If a parent who has been ordered by a court to provide coverage of the health care expenses of a child who is eligible for medical assistance under subch. IV of ch. 49
receives payment from a 3rd party for the cost of services provided to the child but does not pay the health care provider for the services or reimburse the department or any other person who paid for the services on behalf of the child, the department may obtain a judgment against the parent for the amount of the 3rd party payment.
In making an order of legal custody under sub. (3)
, the court shall require a parent who is not granted legal custody to provide to the court medical and medical history information that is known to the parent. If the court orders joint legal custody, the court shall require each parent to provide to the court medical and medical history information that is known to the parent. The court shall keep the information confidential and may release it only as provided in this subsection. The information provided shall include all of the following:
The known medical history of the parent providing the information, including specific information about stillbirths or congenital anomalies in the parent's family, and the medical histories, if known, of the parents and siblings of the parent and any sibling of the child who is a child of the parent, except that medical history information need not be provided for a sibling of the child if the parent or other person who is granted legal custody of the child also has legal custody, including joint legal custody, of that sibling.
A report of any medical examination that the parent providing the information had within one year before the date of the judgment or order.
Upon the joint written request of a physician and a parent or other person with legal custody of the child, the court shall release the information provided under par. (a)
to a physician designated in the request. The physician joining in the request need not be the same physician designated in the request. The physician to whom the information is released shall keep the information confidential, but may release to the parent or other person with legal custody who made the request under this paragraph only that portion of the information that the physician determines is relevant to the child's medical condition.
Support judgments or orders ordinarily shall be for periodic payments which may vary in amount if appropriate. The payment amount may be expressed as a percentage of the parent's income or as a fixed sum, or as a combination of both in the alternative by requiring payment of the greater or lesser of either a percentage of the parent's income or a fixed sum. The father's liability for past support of the child shall be limited to support for the period after the birth of the child.
In determining child support payments, the court may consider all relevant financial information or other information relevant to the parent's earning capacity, including information reported to the department, or the county child and spousal support agency, under s. 49.22 (2m)
Except as provided in sub. (5)
, the court shall determine child support payments by using the percentage standard established by the department under s. 49.22 (9)
Upon request by a party, the court may modify the amount of child support payments determined under sub. (4m)
if, after considering the following factors, the court finds by the greater weight of the credible evidence that use of the percentage standard is unfair to the child or to the requesting party:
The physical, mental and emotional health needs of the child, including any costs for health insurance as provided for under sub. (3m)
The standard of living and circumstances of the parents, including whether a parent receives maintenance payments under s. 767.26
and the needs of each party in order to support himself or herself at a level equal to or greater than that established under 42 USC 9902
The relative financial means of the parents.
The earning capacity of each parent, based on each parent's education, training and work experience and based on the availability of work in or near the parent's community.
The need and capacity of the child for education, including higher education.
The financial resources and the earning ability of the child.
Any physical custody arrangement ordered or decided upon.
Extraordinary travel expenses incurred in exercising the right to periods of physical placement.
The responsibility of the parents for the support of others.
The value of services contributed by the custodial parent.
Any other factors which the court in each case determines are relevant to the best interests of the child.
If the court finds under sub. (5)
that use of the percentage standard is unfair to the child or the requesting party, the court shall state in writing or on the record the amount of support that would be required by using the percentage standard, the amount by which the court's order deviates from that amount, its reasons for finding that use of the percentage standard is unfair to the child or the party, its reasons for the amount of the modification and the basis for the modification.
A party ordered to pay child support under this section shall pay simple interest at the rate of 1.5% per month on any amount unpaid, commencing the first day of the 2nd month after the month in which the amount was due. Interest under this subsection is in lieu of interest computed under s. 807.01 (4)
, 814.04 (4)
or 815.05 (8)
and is paid to the clerk of court or support collection designee under s. 767.29
. Except as provided in s. 767.29 (1m)
, the clerk of court or support collection designee, whichever is appropriate, shall apply all payments received for child support as follows:
First, to payment of child support due within the calendar month during which the payment is withheld from income under s. 767.265
or under similar laws of another state. If payment is not made through income withholding, the clerk or support collection designee, whichever is appropriate, shall first apply child support payments received to payment of child support due within the calendar month during which the payment is received.
Second, to payment of unpaid child support due before the payment is received.
Third, to payment of interest accruing on unpaid child support.
(6) Sections 767.24
, where applicable, shall apply to a judgment or order under this section.
The court may order the attorney for the prevailing party to prepare findings of fact, conclusions of law and a judgment for the approval of the court.
History: 1979 c. 352
; 1983 a. 27
; 1985 a. 29
; 1985 a. 315
; 1987 a. 27
; 1989 a. 212
; 1991 a. 39
; 1993 a. 481
; 1995 a. 27
, 9126 (19)
; 1995 a. 100
; s. 13.93 (2) (c).
Determining father's support obligation by applying percentage standards is inappropriate where children live in several households. In re Paternity of B. W. S., 131 W (2d) 301, 388 NW (2d) 615 (1986).
Regardless of whether fifteen-year-old boy's parenthood resulted from sexual assault as defined in criminal law, court could find intercourse and parenthood voluntary for purposes of child support. In re Paternity of J.L.H. 149 W (2d) 349, 411 NW (2d) 273 (Ct. App. 1989).
Is no statutory authority for order requiring mother to repay lying-in expenses paid by medical assistance. In re Paternity of N.L.M. 166 W (2d) 306, 479 NW (2d) 237 (Ct. App. 1991).
An order for payment of expert witness fees under sub. (3) is not limited to $100 by s. 814.04 (2). In re Paternity of Tiffany B. 173 W (2d) 864, 496 NW (2d) 711 (Ct. App. 1993).
Sub. (4m) applies to back and future support, subject to the court's discretion. A discount in back support based on the father's assertion of paternity and lack of contact with the child was improper. Paternity of Ashleigh N.H. 178 W (2d) 478, 504 NW (2d) 422 (Ct. App. 1993).
The assignment to the state of child support by AFDC recipients under s. 49.19 (5) does not prevent a trial court acting under s. 767.51 (5) from giving the father credit for amounts actually contributed for support prior to the entry of an order even though the credit results in there being no payments owing from the father from which AFDC payments can be recovered. Paternity of Cheyenne D.L. 181 W (2d) 868, 112 NW (2d) 522 (Ct. App. 1994).
Money may be set aside in trust under sub. (5) during a child's minority for future support including higher education expenses which may be incurred after the child's majority. The percentage standards may be used to generate future support. Paternity of Tukker M.O., 199 W (2d) 186, 544 NW (2d) 417 (1996).
Summary judgment is inappropriate when the presumptive conception period under s. 891.395 does not apply and there is no evidence establishing the period or when there is an untested male whom a reasonable factfinder could conclude had intercourse with the mother during the possible conceptive period. Paternity of Taylor R.T. 199 W (2d) 500, 544 NW (2d) 926 (Ct. App. 1996).
HSS 80: New Rules for Child Support Obligations. Hickey. Wis. Law. April, 1995.
Which Came First? The Serial Family Payer Formula. Stansbury. Wis. Law. April, 1995.
See also Wisconsin Administrative Code Citations published in the Wisconsin Administrative Code for a list of citations to cases citing ch. HSS 80, the percentage standards developed by the Department of Health and Social Services.