AB557: Bill Text

LRB-3297/1

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2003 - 2004 LEGISLATURE

2003 Assembly BILL 557

October 2, 2003 - Introduced by Representatives Wasserman, Musser, Albers, M. Lehman and Stone. Referred to Committee on Family Law.

AB557,1,4 An Act to renumber 767.458 (1m); to amend 767.458 (1) (c), 767.458 (1) (d) and 891.39 (1) (a); and to create 767.458 (1m) (b) and 891.39 (4) of the statutes; relating to: ordering genetic tests when a child's mother or her husband desires to rebut the presumption of paternity.

Analysis by the Legislative Reference Bureau

Under current law, a man who was married to the mother of a child when the child was born or conceived is presumed to be the father of the child. The man may bring an action or a motion in another action, such as a divorce, to rebut that presumption. The presumption is rebutted if the results of genetic tests show that another man is not excluded as the father of the child and the probability that the other man is the father is 99 percent or higher. Current law also provides that in a paternity action brought by a man alleging that he, not the mother's husband, is the father of a child, a judge or court commissioner may refuse to order genetic tests and dismiss the action if, upon the motion of a party or guardian ad litem, the judge or court commissioner determines that it is not in the child's best interest to determine whether a man other than the mother's husband is the father.

This bill provides that a judge or court commissioner may not refuse to order genetic tests or refuse to admit the results of the tests into evidence if, before judgment is entered in an annulment, divorce, legal separation, custody, or paternity action, the child's mother or the man who is presumed to be the father of the child because he is the mother's husband desires to rebut the presumption that the husband is the father. The bill also provides that the provision under current law that sets out the bases for reopening judgments and orders applies to a motion to reopen a divorce or legal separation judgment or a judgment or order for legal custody or child or family support on the basis that a presumption of paternity is rebutted.

For further information see the state fiscal estimate, which will be printed as an appendix to this bill.

The people of the state of Wisconsin, represented in senate and assembly, do enact as follows:

AB557, s. 1 Section 1. 767.458 (1) (c) of the statutes is amended to read:

AB557,2,5 767.458 (1) (c) Except as provided under sub. (1m) (a) and s. 767.463, the respondent may request the administration of genetic tests which either demonstrate that he is not the father of the child or which demonstrate the probability that he is or is not the father of the child;

AB557, s. 2 Section 2. 767.458 (1) (d) of the statutes is amended to read:

AB557,2,8 767.458 (1) (d) Except as provided in subs. (1m) (a) and (2) and s. 767.463, the court will order genetic tests upon the request of any party; and

AB557, s. 3 Section 3. 767.458 (1m) of the statutes is renumbered 767.458 (1m) (a).

AB557, s. 4 Section 4. 767.458 (1m) (b) of the statutes is created to read:

AB557,2,15 767.458 (1m) (b) Notwithstanding par. (a), if either the woman or the husband desires to rebut the presumption under s. 891.41 (1) that the husband is the father of the child, the court or circuit or supplemental court commissioner may not refuse to order genetic tests and may not refuse to admit the results of the genetic tests into evidence.

AB557, s. 5 Section 5. 891.39 (1) (a) of the statutes is amended to read:

AB557,3,14 891.39 (1) (a) Whenever it is established in an action or proceeding that a child was born to a woman while she was the lawful wife of a specified man, any party asserting in such action or proceeding that the husband was not the father of the child shall have the burden of proving that assertion by a clear and satisfactory preponderance of the evidence. In all such actions or proceedings the husband and the wife are competent to testify as witnesses to the facts. The court or judge in such cases shall appoint a guardian ad litem to appear for and represent the child whose paternity is questioned. If either the husband or the wife desires to rebut the presumption of paternity under s. 891.41 (1) before the entry of a judgment in an action affecting the family under s. 767.02 (1) (b), (c), (d), (e), or (L), the court may not refuse to order genetic tests and may not refuse to admit the results of the genetic tests into evidence. Results of a genetic test, as defined in s. 767.001 (1m), showing that a man other than the husband is not excluded as the father of the child and that the statistical probability of the man's parentage is 99.0% or higher constitute a clear and satisfactory preponderance of the evidence of the assertion under this paragraph, even if the husband is unavailable to submit to genetic tests, as defined in s. 767.001 (1m).

AB557, s. 6 Section 6. 891.39 (4) of the statutes is created to read:

AB557,3,19 891.39 (4) Section 806.07 applies to any motion to reopen a judgment of divorce or legal separation or an order or judgment for legal custody or child or family support on the basis that the man presumed to be the father of a child under s. 891.41 (1) is not the child's father.

AB557,3,20 (End)