(3) Motion to reopen.
A default judgment, or a judgment upon stipulation unless each party appeared personally before the court at least one time during the proceeding, that is rendered under this section and that adjudicates a person to be the father of a child may be reopened:
At any time upon motion or petition for good cause shown.
Within one year after the judgment upon motion or petition, except that a respondent may not reopen more than one default judgment or more than one such stipulated judgment on a particular case under this paragraph.
An appeal of a denial of the petition or motion to reopen shall be to the court of appeals.
Respondent must appear personally under sub. (2) (a); an attorney's appearance is insufficient. In re Paternity of Tiffany B. 173 W (2d) 864, 496 NW (2d) 711 (Ct. App. 1993).
Motion to reopen judgment based on statement acknowledging paternity.
A judgment which adjudicates a person to be the father of a child and which was based upon a statement acknowledging paternity that was signed and filed before April 1, 1998, may, if no trial was conducted, be reopened under any of the following circumstances:
At any time upon motion or petition for good cause shown.
Within one year after entry of the judgment upon motion or petition.
History: 1987 a. 413
; 1997 a. 191
Testimony and evidence relating to paternity. 767.47(1)(1)
Evidence relating to paternity, whether given at the trial or the pretrial hearing, may include, but is not limited to:
Evidence of sexual intercourse between the mother and alleged father at any possible time of conception or evidence of a relationship between the mother and alleged father at any time.
An expert's opinion concerning the statistical probability of the alleged father's paternity based upon the duration of the mother's pregnancy.
The statistical probability of the alleged father's paternity based upon the genetic tests.
Medical, scientific or genetic evidence relating to the alleged father's paternity of the child based on tests performed by experts.
All other evidence relevant to the issue of paternity of the child, except as provided in subs. (2)
If the child was born in this state, the petitioner shall present a certified copy of the child's birth certificate or a printed copy of the record from the birth data base of the state registrar to the court, so that the court is aware of whether a name has been inserted on the birth certificate as the father of the child, at the earliest possible of the following:
Testimony relating to sexual relations or possible sexual relations of the mother any time other than the possible time of conception of the child is inadmissible in evidence, unless offered by the mother.
Medical and genetic information filed with the department of health and family services or the court under s. 48.425 (1) (am)
is not admissible to prove the paternity of the child.
Except as provided in s. 767.48 (4)
, in an action against an alleged father, evidence offered by him with respect to an identified man who is not subject to the jurisdiction of the court concerning that man's sexual intercourse with the mother at or about the presumptive time of conception of the child is admissible in evidence only after the alleged father has undergone genetic tests and made the results available to the court.
No person may be prosecuted or subjected to any penalty or forfeiture for or on account of any testimony or evidence given relating to the paternity of the child in any paternity proceeding, except for perjury committed in giving the testimony.
Except as provided in sub. (6)
, upon refusal of any witness, including a party, to testify under oath or produce evidence, the court may order the witness to testify under oath and produce evidence concerning all relevant facts. The refusal of a witness, including a witness who has immunity under sub. (4)
, to obey an order to testify or produce evidence is a contempt of the court.
Whenever the state brings the action to determine paternity pursuant to an assignment under s. 46.261
, 48.57 (3m) (b) 2.
or (3n) (b) 2.
, 49.19 (4) (h) 1.
or 49.45 (19)
, or receipt of benefits under s. 49.148
, the natural mother of the child may not be compelled to testify about the paternity of the child if it has been determined that the mother has good cause for refusing to cooperate in establishing paternity as provided in 42 USC 602
(a) (26) (B) and the federal regulations promulgated pursuant to this statute, as of July 1, 1981, and pursuant to any rules promulgated by the department which define good cause in accordance with the federal regulations, as authorized by 42 USC 602
(a) (26) (B) in effect on July 1, 1981.
Testimony of a physician concerning the medical circumstances of the pregnancy and the condition and characteristics of the child upon birth is not privileged.
The party bringing an action for the purpose of determining paternity or for the purpose of declaring the nonexistence of paternity presumed under s. 891.405
or 891.41 (1)
shall have the burden of proving the issues involved by clear and satisfactory preponderance of the evidence.
Where a child is conceived by artificial insemination, the husband of the mother of the child at the time of the conception of the child is the natural father of the child, as provided in s. 891.40
A record of the testimony of the child's mother relating to the child's paternity, made as provided under s. 48.299 (8)
or 938.299 (8)
, is admissible in evidence on the issue of paternity.
Bills for services or articles related to the pregnancy, childbirth or genetic testing may be admitted into evidence and are prima facie evidence of the costs incurred for such services or articles.
History: 1979 c. 352
; 1981 c. 20
s. 2202 (20) (m)
; 1981 c. 359
; 1983 a. 447
; 1987 a. 413
; 1989 a. 31
; 1993 a. 395
; 1995 a. 27
s. 9126 (19)
; 1995 a. 77
; 1997 a. 27
It is not necessary for an alleged father to produce evidence of who the real father is in order to sustain a verdict of non-paternity. State v. Michael J. W. 210 W (2d) 132, 565 NW (2d) 179 (Ct. App. 1997).
Paternity procedures. 767.475(1)(a)(a)
Except as provided in par. (b)
, the court may appoint a guardian ad litem for the child and shall appoint a guardian ad litem for a minor parent or minor who is alleged to be a parent in a paternity proceeding unless the minor parent or the minor alleged to be the parent is represented by an attorney.
The court shall appoint a guardian ad litem for the child if s. 767.045 (1) (a)
applies or if the court has concern that the child's best interest is not being represented.
Evidence as to the time of conception may be offered as provided in s. 891.395
Discovery shall be conducted as provided in ch. 804
, except that no discovery may be obtained later than 30 days before the trial. No discovery may solicit information relating to the sexual relations of the mother occurring at any time other than the probable time of conception.
The statute of limitations for commencing actions concerning paternity is as provided in s. 893.88
The court may appoint a trustee or guardian to receive and manage money paid for the support of a minor child.
In all other matters, paternity proceedings shall be governed by the procedures applicable to other actions affecting the family.
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).
At any time during the pendency of an action to establish the paternity of a child, if 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, on the motion of a party, the court shall make an appropriate temporary order for the payment of child support and may make a temporary order assigning responsibility for and directing the manner of payment of the child's health care expenses.
Before making any temporary order under sub. (1)
, the court shall consider those factors that the court is required under s. 767.51
to consider when granting a final judgment on the same subject matter. If the court makes a temporary child support order that deviates from the amount of support that would be required by using the percentage standard established by the department under s. 49.22 (9)
, the court shall comply with the requirements of s. 767.51 (5d)
History: 1997 a. 191
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 or an alleged father, filed with the court, or after an examination under oath of a party or witness, when the court determines such an examination is necessary. The court is not required to order a person who has undergone a genetic test under s. 49.225
to submit to another test under this paragraph unless a party requests additional tests under sub. (2)
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 all of the following apply:
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.
At least 10 days before the trial or pretrial hearing, the department or county child support agency under s. 59.53 (5)
notifies the alleged father of the results of the genetic tests and that he may object to the test results by submitting an objection in writing to the court no later than the day before the hearing.
The alleged father, after receiving the notice under subd. 2.
, does not object to the test results in the manner provided in the notice under subd. 2.
If genetic tests ordered under this section or s. 49.225
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 genetic tests exclude an alleged father as the father of the child, this evidence shall be conclusive evidence of nonpaternity and the court shall dismiss any paternity action with respect to that alleged father. Whenever the results of genetic 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. Refusal to submit to a genetic test ordered by the court 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:
Except as provided in par. (b)
, 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, regardless of whether the tests were ordered under this section or s. 49.225
or 767.458 (2)
, the court shall require the person requesting the 2nd or subsequent series of tests to pay for it in advance, unless the court finds that the person is indigent.
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).
That sub. (1m) applies only to children born to a woman while she is married does not violate principles of equal protection. Thomas M.P. v. Kimberly J.L. 207 W (2d) 390, 558 NW (2d) 897 (Ct. App. 1996).
A mere denial of intercourse where access during the conceptive period is established and no other potential fathers are identified is sufficient to rebut the presumption under sub. (1m) for purposes of preventing entry of a summary judgment of paternity. State v. Michael J. W. 210 W (2d) 132, 565 NW (2d) 179 (Ct. App. 1997).
The term "statistical probability" in sub. (1m) means the probability determined by combining the results of all the different types of tests performed. State v. Michael J. W. 210 W (2d) 132, 565 NW (2d) 179 (Ct. App. 1997).
From here to paternity: Using blood analysis to determine parentage. Haas. WBB July 1988.