LRB-0112/2
GMM:kmg:jf
2003 - 2004 LEGISLATURE
August 22, 2003 - Introduced by Representatives Jeskewitz, Hahn, Taylor,
Albers, Ladwig, Krawczyk, Lothian, Freese, Ott, Hundertmark, Kestell,
Suder, Wieckert, Gunderson, Gronemus, J. Wood, Vrakas, McCormick,
Weber and Van Roy, cosponsored by Senators Plale, Darling, Stepp, Breske
and Roessler. Referred to Committee on Family Law.
AB476,1,10
1An Act to repeal 48.42 (2) (b) 2.;
to renumber 48.025 (3);
to renumber and
2amend 48.025 (2), 48.42 (2m) and 48.423;
to amend 46.03 (7) (bm), 48.025 (1),
348.27 (3) (b) 1. a., 48.27 (5), 48.42 (2) (b) 1., 48.42 (2) (b) 3., 48.422 (6) (a), 48.43
4(6), 48.837 (4) (e), 48.91 (2), 938.27 (3) (b) 1. a. and 938.27 (5); and
to create
548.025 (2) (b), 48.025 (2) (d), 48.025 (3) (a), 48.025 (3) (c), 48.025 (3) (d), 48.025
6(5), 48.025 (6), 48.42 (2) (b) 4., 48.42 (2m) (b) and 48.423 (2) of the statutes;
7relating to: declarations of paternal interest by persons who may be the father
8of a nonmarital child, notice to those persons of a termination of parental rights
9proceeding involving the child, the finality of a termination of parental rights
10order, and providing a penalty.
Analysis by the Legislative Reference Bureau
Under current law, any person claiming to be the father of a nonmarital child
whose paternity has not been established may file with the Department of Health
and Family Services (DHFS) a declaration of paternal interest in matters affecting
the child. The declaration may be filed at any time before a termination of the
father's parental rights (TPR) and must be in writing and signed by the person filing
the declaration. DHFS must send a copy of the declaration to the mother, who may
file a written response to the declaration. Filing a declaration does not extend
parental rights to the person filing the declaration, but it does entitle that person to
notice of a child in need of protection or services (CHIPS), a juvenile in need of
protection or services (JIPS), or a TPR proceeding. Current law requires DHFS to
release a declaration of paternal interest to the Department of Workforce
Development or a county child support agency upon request or to any other person
with a direct and tangible interest in the declaration and permits DHFS to release
a declaration to any other person only upon court order.
This bill makes various changes relating to declarations of paternal interest.
The bill requires a declaration to be filed before the child's birth or within 14 days
after the child's birth and permits a declaration to be revoked at any time. The bill
also requires a declaration or revocation to be verified upon oath or affirmation and,
in the case of a minor, to also be signed by the parent or guardian of the minor. The
bill requires DHFS to keep declarations confidential, except that DHFS must, on the
request of a court assigned to exercise jurisdiction under the Children's Code and the
Juvenile Justice Code (juvenile court) in a CHIPS, JIPS, TPR, or adoption proceeding
or of a person authorized to file a CHIPS, JIPS, TPR, or adoption petition, search its
files to determine whether a person who may be the father of the child who is the
subject of the proceeding or action has filed a declaration. If DHFS has a declaration
on file, it must issue to the requester a certified copy of the declaration. If DHFS does
not have a declaration on file, it must issue to the requester a certified statement that
no declaration could be located. A TPR petitioner then must file with the juvenile
court, prior to the plea hearing, the certified copy of the declaration or the certified
statement that no declaration could be located.
Under current law, certain persons who may be the father of a nonmarital child
whose paternity has not been established must be served with a summons and
petition notifying the person of a TPR proceeding involving the child. Those persons
include, in addition to a person who files a declaration of paternal interest, a person
who is alleged to be the father of the child or who, based on statements made by the
mother or other information, may be the father of the child, and a person who has
lived in a familial relationship with the child and who may be the father of the child.
A person who receives a summons and petition in a TPR proceeding has standing to
appear and contest the TPR petition and, if grounds for TPR are found, may present
evidence relevant to the disposition of the case and make alternative dispositional
recommendations.
This bill makes certain changes relating to notice to a person who may be the
father of a nonmarital child whose paternity has not been established of a TPR
proceeding concerning the child. Specifically, the bill eliminates the requirement
that notice be provided to a person who is alleged to be the father of the child or who,
based on statements made by the mother or other information, may be the father of
the child and instead requires notice to be provided to all of the following:
1. A person who has filed an unrevoked declaration of paternal interest, within
14 days after the birth of the child.
2. A person who is openly living with the child and is holding himself out to be
the father of the child at the time that the petition is filed or at the time that the child
was removed from the home.
3. A person who has established a substantial parental relationship with the
child. "Substantial parental relationship" is defined under current law to mean the
acceptance and exercise of significant responsibility for the daily supervision,
education, protection, and care of a child.
In addition, the bill creates a presumption, in the case of a child who is six
months of age or older, that a person has established a substantial parental
relationship with the child if the person has openly lived with the child and held
himself out to be the father of the child for a period of six months within the one-year
period immediately preceding the date on which the petition is filed or the date on
which the child was removed from the home.
The bill also specifies that a person who may be the father of a nonmarital child
whose paternity has not been established, by virtue of the fact that the person had
sexual intercourse with the mother of the child, is considered to be on notice that a
pregnancy and a TPR proceeding might result, has the duty to protect his own rights
and interests, and, therefore, is entitled to actual notice of the TPR proceeding only
as provided in the bill. In addition, the bill specifies that a person who is not entitled
to actual notice of a TPR proceeding under the bill does not have standing to appear
and contest the petition, present evidence relevant to the issue of disposition, or
make alternative dispositional recommendations unless the person appears at the
hearing, establishes paternity, and proves all of the following:
1. That the person resides and has resided in another state where the mother
of the child resided or was located at the time of or after the conception of the child.
2. That the mother left that state without notifying or informing that person
that she could be located in this state.
3. That the person attempted to locate the mother through every reasonable
means, but did not know or have reason to know that the mother was residing or
located in this state.
4. That the person has complied with the requirements of the state where the
mother previously resided or was located to protect and preserve his paternal
interests in matters affecting the child.
Finally, under current law, a person whose parental rights have been
terminated may petition for a rehearing on the grounds that new evidence has been
discovered affecting the advisability of the court's adjudication no later than one year
after the date on which the TPR judgment was entered, except that a parent who has
consented to the TPR or who did not contest the TPR petition may move for relief from
the judgment no later than 30 days after entry of the TPR judgment. This bill
prohibits any person, for any reason, from collaterally attacking a TPR judgment
more than one year after its entry.
For further information see the state and local 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:
AB476, s. 1
1Section
1. 46.03 (7) (bm) of the statutes is amended to read:
AB476,4,142
46.03
(7) (bm) Maintain a file containing records of artificial inseminations
3under s. 891.40
and records of, declarations of paternal interest under s. 48.025
, and
4of statements acknowledging paternity under s. 69.15 (3) (b). The department
shall 5may release
these those records
, declarations, and statements only upon an order of
6the court except that the department may use nonidentifying information
7concerning artificial inseminations for the purpose of compiling statistics
and except
8that records relating to, declarations of paternal interest
shall be released as
9provided in s. 48.025 (3) (b) and (c), and statements acknowledging paternity shall
10be released
without a court order to the department of workforce development or a
11county child support agency under s. 59.53 (5)
without a court order upon the request
12of
the that department
of workforce development or a or county child support agency
13under s. 59.53 (5) pursuant to the program responsibilities under s. 49.22 or
by to any
14other person with a direct and tangible interest in the
record statement.
AB476, s. 2
15Section
2. 48.025 (1) of the statutes is amended to read:
AB476,4,2116
48.025
(1) Any person claiming to be the father of a nonmarital child who is not
17adopted or whose parents do not subsequently intermarry under s. 767.60
and whose
18paternity has not been established may, in accordance with procedures under this
19section, file with the department a declaration of his interest in matters affecting
20such the child.
The department may not charge a fee for filing a declaration under
21this section.
AB476, s. 3
1Section
3. 48.025 (2) of the statutes is renumbered 48.025 (2) (a) and amended
2to read:
AB476,5,63
48.025
(2) (a)
The A declaration
provided in under sub. (1) may be filed at any
4time
except after before a termination of the father's
parental rights under subch.
5VIII.
This paragraph does not apply to a declaration that is filed on or after the
6effective date of this paragraph .... [revisor inserts date].
AB476,5,13
7(c) The declaration shall be in writing,
shall be signed
and verified upon oath
8or affirmation by the person filing the declaration
, and shall contain the person's
9name and address, the name and last-known address of the mother, the month and
10year of the birth or expected birth of the child
, and a statement that
he the person
11filing the declaration has reason to believe that he may be the father of the child.
If
12the person filing the declaration is under 18 years of age, the declaration shall also
13be signed by a parent or guardian of the person.
AB476, s. 4
14Section
4. 48.025 (2) (b) of the statutes is created to read:
AB476,5,1815
48.025
(2) (b) A declaration under sub. (1) may be filed at any time before the
16birth of the child or within 14 days after the birth of the child. This paragraph does
17not apply to a declaration filed before the effective date of this paragraph .... [revisor
18inserts date].
AB476, s. 5
19Section
5. 48.025 (2) (d) of the statutes is created to read:
AB476,5,2520
48.025
(2) (d) A person who has filed a declaration under sub. (1) may revoke
21the declaration at any time by filing with the department a statement, signed and
22verified upon oath or affirmation, that the person, to the best of his knowledge and
23belief, is not the father of the child or that another person has been adjudicated as
24the father of the child. If the person filing the revocation is under 18 years of age,
25the revocation shall also be signed by a parent or guardian of the person.
AB476, s. 6
1Section
6. 48.025 (3) of the statutes is renumbered 48.025 (3) (b).
AB476, s. 7
2Section
7. 48.025 (3) (a) of the statutes is created to read:
AB476,6,63
48.025
(3) (a) The department shall keep confidential and may not open to
4public inspection or disclose the contents of any declaration, revocation of a
5declaration, or response to a declaration filed under this section, except as provided
6under pars. (b) and (c) or by order of the court for good cause shown.
AB476, s. 8
7Section
8. 48.025 (3) (c) of the statutes is created to read:
AB476,6,208
48.025
(3) (c) A court in a proceeding under s. 48.13, 48.133, 48.14, or 938.13
9or under a substantially similar law of another state or a person authorized to file
10a petition under s. 48.42, 48.837, or 938.25 or under a substantially similar law of
11another state may request the department to search its files to determine whether
12a person who may be the father of the child who is the subject of the proceeding has
13filed a declaration under this section. If the department has on file a declaration of
14paternal interest in matters affecting the child, the department shall issue to the
15requester a certified copy of the declaration. If the department does not have on file
16a declaration of paternal interest in matters affecting the child, the department shall
17issue to the requester a certified statement that no declaration could be located. The
18department may require a person who requests a search under this paragraph to pay
19a reasonable fee that is sufficient to defray the costs to the department of
20maintaining its file of declarations under this section.
AB476, s. 9
21Section
9. 48.025 (3) (d) of the statutes is created to read:
AB476,7,222
48.025
(3) (d) Any person who obtains any information under this subsection
23may use or disclose that information only for the purposes of a proceeding under s.
2448.13, 48.133, 48.14, or 938.13 or under a substantially similar law of another state
1and may not use or disclose that information for any other purpose except by order
2of the court for good cause shown.
AB476, s. 10
3Section
10. 48.025 (5) of the statutes is created to read:
AB476,7,64
48.025
(5) The department shall publicize, in a manner calculated to provide
5maximum notice to all persons who might claim to be the father of a nonmarital child,
6all of the following information:
AB476,7,87
(a) That a person claiming to be the father of a nonmarital child may file a
8declaration of interest under this section.
AB476,7,99
(b) The procedures for filing a declaration of interest.
AB476,7,1010
(c) The consequences of filing a declaration of interest.
AB476,7,1111
(d) The consequences of not filing a declaration of interest.
AB476, s. 11
12Section
11. 48.025 (6) of the statutes is created to read:
AB476,7,1613
48.025
(6) (a) Any person who makes a false statement in a declaration,
14revocation of a declaration, or response to a declaration filed under this section that
15the person does not believe is true is subject to prosecution for false swearing under
16s. 946.32 (2).
AB476,7,1917
(b) Except as permitted under sub. (3), any person who intentionally obtains,
18uses, or discloses information that is confidential under this section may be fined
19$1,000 or imprisoned for 90 days or both.
AB476, s. 12
20Section
12. 48.27 (3) (b) 1. a. of the statutes is amended to read:
AB476,7,2221
48.27
(3) (b) 1. a. A person who has filed a declaration of
paternal interest under
22s. 48.025.
AB476, s. 13
23Section
13. 48.27 (5) of the statutes is amended to read:
AB476,8,424
48.27
(5) Subject to sub. (3) (b), the court shall make every reasonable effort
25to identify and notify any person who has filed a declaration of
paternal interest
1under s. 48.025
, any person who has acknowledged paternity of the child under s.
2767.62 (1), and any person who has been adjudged to be the
biological father of the
3child in a judicial proceeding unless the
biological father's person's parental rights
4have been terminated.
AB476, s. 14
5Section
14. 48.42 (2) (b) 1. of the statutes is amended to read:
AB476,8,86
48.42
(2) (b) 1. A person who has filed
a an unrevoked declaration of
paternal 7interest under s. 48.025
before the birth of the child or within 14 days after the birth
8of the child.
AB476, s. 15
9Section
15. 48.42 (2) (b) 2. of the statutes is repealed.
AB476, s. 16
10Section
16. 48.42 (2) (b) 3. of the statutes is amended to read:
AB476,8,1411
48.42
(2) (b) 3. A person who
has lived in a familial relationship is openly living 12with the child and
who may be is holding himself out to be the father of the child
at
13the time that the petition is filed or at the time that the child was removed from the
14home.
AB476, s. 17
15Section
17. 48.42 (2) (b) 4. of the statutes is created to read:
AB476,8,2216
48.42
(2) (b) 4. A person who has established a substantial parental
17relationship, as defined in s. 48.415 (6) (b), with the child. In the case of a child who
18is 6 months of age or older on the date on which the petition is filed, a person who
19openly lived with the child and held himself out to be the father of the child for a
20period of 6 months within the one-year period immediately preceding the date on
21which the petition is filed or the date on which the child was removed from the home
22is presumed to have a substantial parental relationship with the child.
AB476, s. 18
23Section
18. 48.42 (2m) of the statutes is renumbered 48.42 (2m) (a) and
24amended to read:
AB476,9,14
148.42
(2m) (a)
Parent as a result of sexual assault. Except as provided in this
2subsection paragraph, notice is not required to be given to a person who may be the
3father of a child conceived as a result of a sexual assault in violation of s. 940.225 (1),
4(2) or (3), 948.02 (1) or (2)
, or 948.025 if a physician attests to his or her belief that
5a sexual assault as specified in this
subsection
paragraph has occurred or if the
6person who may be the father of the child has been convicted of sexual assault as
7specified in this
subsection paragraph for conduct which may have led to the child's
8conception. A person who under this
subsection paragraph is not given notice does
9not have standing to appear and contest a petition for the termination of his parental
10rights
, present evidence relevant to the issue of disposition, or make alternative
11dispositional recommendations. This
subsection
paragraph does not apply to a
12person who may be the father of a child conceived as a result of a sexual assault in
13violation of s. 948.02 (1) or (2) if that person was under 18 years of age at the time
14of the sexual assault.
AB476, s. 19
15Section
19. 48.42 (2m) (b) of the statutes is created to read:
AB476,9,2416
48.42
(2m) (b)
Parent of nonmarital child. A person who may be the father of
17a nonmarital child who is not adopted or whose parents do not subsequently
18intermarry under s. 767.60 and whose paternity has not been established, by virtue
19of the fact that he has engaged in sexual intercourse with the mother of the child, is
20considered to be on notice that a pregnancy and a termination of parental rights
21proceeding concerning the child may occur, and has the duty to protect his own rights
22and interests. He is therefore entitled to actual notice of such a proceeding only as
23provided in sub. (2) (b). Except as provided in s. 48.423 (2), a person who is not
24entitled to notice under sub. (2) (b) does not have standing to appear and contest a
1petition for the termination of his parental rights, present evidence relevant to the
2issue of disposition, or make alternative dispositional recommendations.
AB476, s. 20
3Section
20. 48.422 (6) (a) of the statutes is amended to read:
AB476,10,144
48.422
(6) (a)
If the child is In the case of a nonmarital child who is not adopted
5or whose parents do not subsequently intermarry under s. 767.60 and paternity has
6not been established,
the petitioner, prior to the hearing, shall file with the court a
7certified copy of any declaration of paternal interest filed under s. 48.025 with
8respect to the child or a certified statement of the department, dated no earlier than
915 days after the date of birth of the child, that the department has searched its files
10under s. 48.025 and no declaration with respect to the child could be located. At the
11hearing, the court shall hear testimony concerning the paternity of the child. Based
12on the testimony, the court shall determine whether all interested parties who are
13known have been notified under s. 48.42 (2). If not, the court shall adjourn the
14hearing and order appropriate notice to be given.
AB476, s. 21
15Section
21. 48.423 of the statutes is renumbered 48.423 (1) and amended to
16read: