In re the Paternity of A. B.
C. D. (Nonparent-Petitioner)
City, State Zip Code File No. ...
vs. S U M M O N S
Address .... (Case Classification Type):.... (Code No.)
City, State Zip Code
THE STATE OF WISCONSIN, To the Respondent
You have been sued. The petitioner .... claims that .... is the mother and .... may be the father of the child, .... born on .... (date), in .... (city) (county) (state). You must appear to answer this claim of paternity. Your court appearance is:
Judge or Circuit Court Commissioner:
If you do not appear, the court may enter a default judgment finding .... to be the father. If you plan to be represented by an attorney, you should contact the attorney prior to the court appearance listed above. If you are alleged to be the father and you are unable to afford an attorney, the court will appoint one for you only upon genetic tests showing that you are not excluded as the father and the probability of your being the father is less than 99.0 percent.
The .... County Clerk of Circuit Court is an equal opportunity service provider. If you need assistance to access services in the court or need material in an alternate format, please call .... .
Dated: ...., .... (year)
G. H., Clerk of Circuit Court
State Bar No.: ....
City, State Zip Code: ....
Phone No.: ....
The notice to parties shall be attached to the summons. The notice shall be in boldface type and in substantially the following form:
NOTICE TO PARTIES
1. You are a party to a petition for paternity. A judgment of paternity legally designates the child in the case to be a child of the man found to be the father. It creates a legally recognized parent-child relationship between the man and the child. It creates the right of inheritance for the child, and obligates the man to support the child until the child reaches the age of 18, or the age of 19 if the child is enrolled full-time in high school or its equivalent. The failure by either parent to pay court-ordered support is punishable by imprisonment as a contempt of court or as a criminal violation.
2. A party to a paternity case has the right to be represented by an attorney. If you are unable to afford an attorney and you are a man who is named as the possible father of a child in a paternity case, the court will appoint an attorney for you only if the results of one or more genetic tests show that you are not excluded as the father and that the statistical probability of your being the father is less than 99.0 percent. In order to determine whether you are entitled to have an attorney appointed for you, you may call the following telephone number .... .
3. The petitioner in this case has the burden of proving by a clear and satisfactory preponderance of the evidence whether the man named as the possible father is the father. However, if genetic tests show that the man named is not excluded as the father, and show that the statistical probability that the man is the father is 99.0 percent or higher, that man is rebuttably presumed to be the father.
4. You may request genetic tests which will indicate the probability that the man named as the possible father is or is not the father of the child. The court will order genetic tests on a request by you, the state, or any other party. Any person who refuses to take court-ordered genetic tests may be punished for contempt of court.
5. The following defenses are available in a paternity case:
The man named as a possible father of the child may claim that he was sterile or impotent at the time of conception.
The mother may claim that she, or the man named as a possible father may claim that he, did not have sexual intercourse with the other party during the conceptive period (generally the period 8 to 10 months before the birth of the child).
The mother or the man named as a possible father may claim that another man had sexual intercourse with the mother during the conceptive period.
You have the right to request a jury trial on the issue of whether the named man is the father.
If you fail to appear at any stage of the proceeding, including a scheduled court-ordered genetic test, the court may enter a default judgment finding the man claimed to be the father as the father.
You must keep the clerk of court and child support agency informed of your current address at all times.
The summons served on the respondent shall be accompanied by a document, provided without charge by the clerk of court, setting forth the percentage standard established by the department under s. 49.22 (9)
and listing the factors that a court may consider under s. 767.511 (1m)
History: 1979 c. 352
; 1981 c. 314
; 1983 a. 447
; 1985 a. 29
; 1987 a. 27
; Sup. Ct. Order, 171 Wis. 2d xix (1992); 1993 a. 16
; 1995 a. 27
, 9126 (19)
; 1995 a. 100
; 1997 a. 35
; 1999 a. 9
; 2001 a. 61
; 2005 a. 443
; Stats. 2005 s. 767.813; 2013 a. 170
Names on pleadings after paternity determined.
After paternity is determined by the court in an action or proceeding under this subchapter, any papers filed in, and any records of, the court relating to the action or proceeding may identify the parties by name instead of by initials.
History: 2005 a. 443
Enlargement of time in a paternity proceeding.
The time for service of summons and petition under s. 801.02 (1)
in a paternity proceeding may be extended as provided in either sub. (1)
(1) Good cause.
Upon the petitioner's demonstration of good cause, the court may without notice order one additional 60-day extension for service of the summons and petition.
(2) Reasonable grounds; due diligence.
The time for service may be extended until the date the summons and petition are actually served, if both of the following apply:
There are reasonable grounds to believe that before the time for service under s. 801.02 (1)
or sub. (1)
expired the respondent knew that the mother was pregnant and that the respondent may be the father.
Due diligence was exercised in attempting to serve the respondent, before he was actually served.
History: 1983 a. 447
; 2005 a. 443
; Stats. 2005 s. 767.815.
Paternity procedures. 767.82(1)(1)
Appointment of guardian ad litem. 767.82(1)(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. 767.407 (1) (a)
applies or if the court has concern that the child's best interest is not being represented.
(2m) Custody pending court order.
If there is no presumption of paternity under s. 891.41 (1)
or if paternity is acknowledged under s. 767.805 (1)
, the mother shall have sole legal custody of the child until the court orders otherwise.
(3) Time of conception; evidence.
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.
(5) Statute of limitations.
The statute of limitations for commencing actions concerning paternity is as provided in s. 893.88
The respondent in a paternity action may be arrested as provided in s. 818.02 (6)
(7) Appointment of trustee or guardian.
The court may appoint a trustee or guardian to receive and manage money paid for the support of a minor child.
(8) Procedures applicable to other matters in action.
In all other matters, paternity proceedings shall be governed by the procedures applicable to other actions affecting the family.
Right to counsel. 767.83(1)(1)
At the pretrial hearing, at the trial, and in any other proceedings in any paternity action, any party may be represented by counsel. If the male respondent is indigent and the state is the petitioner under s. 767.80 (1) (g)
, the petitioner is represented by a government attorney as provided in s. 767.80 (6)
, or the action is commenced on behalf of the child by an attorney appointed under s. 767.407 (1) (c)
, counsel shall be appointed for the respondent as provided in ch. 977
, subject to the limitations under sub. (2m)
, unless the respondent knowingly and voluntarily waives the appointment of counsel.
(2) Extent of appointed attorney's representation.
An attorney appointed under sub. (1)
who is appearing on behalf of a party in a paternity action shall represent that party, subject to the limitations under sub. (2m)
, in all issues and proceedings relating to the paternity determination. The appointed attorney may not represent the party in any proceeding relating to child support, legal custody, periods of physical placement or related issues.
(2m) When appointed representation provided.
Representation by an attorney appointed under sub. (1)
shall be provided only after the results of any genetic tests have been completed and only if all of the results fail to show that the alleged father is excluded and fail to give rise to the rebuttable presumption under s. 767.84 (1m)
that the alleged father is the father of the child.
(3) Appearance by state's attorney not affected.
This section does not prevent an attorney responsible for support enforcement under s. 59.53 (6) (a)
or any other attorney employed under s. 49.22
or 59.53 (5)
from appearing in any paternity action as provided under s. 767.80 (6)
A paternity respondent does not have a constitutional right to effective assistance of counsel. A paternity action is not a criminal prosecution. Paternity of P.L.S. 158 Wis. 2d 712
, 463 N.W.2d 403
(Ct. App. 1990).
Genetic tests in paternity actions. 767.84(1)(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 that 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.
(1m) Rebuttable presumption.
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 percent or higher, the alleged father shall be rebuttably presumed to be the child's parent.
(2) Independent tests.
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.
(3) Number and qualifications of experts.
In all cases, the court shall determine the number and qualifications of the experts.
(4) Tests excluding paternity; refusal to submit to test.
Genetic test results excluding an alleged father as the father of the child are conclusive evidence of nonpaternity and the court shall dismiss any paternity action with respect to that alleged father. Genetic test results excluding any male witness from possible paternity are 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. Refusal of a party to submit to a genetic test 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. 767.87 (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.
(5) Fees and costs.
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.