2005 Wisconsin Act 443

(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.

Note: Creates language specifying that if paternity is acknowledged under s. 767.805 (1) [renumbered from s. 767.62 (1)], the mother has sole legal custody of the child until the court orders otherwise. Current law is silent on legal custody where paternity is acknowledged and the court has not ordered otherwise.

(7m) When action has priority. The court shall give priority to an action brought under s. 767.45 whenever 767.80 if the petition under s. 767.45 767.80 (5) indicates that the matter was referred under s. 48.299 (6) (a) or 938.299 (6) (a) by a court assigned to exercise jurisdiction under chs. 48 and 938.

443,209 Section 209. 767.477 of the statutes is renumbered 767.85, and 767.85 (2), as renumbered, is amended to read:

767.85 (2) Considerations. Before making any temporary order under sub. (1), the court shall consider those factors that the court is required 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. 767.25 767.511 (1n).

443,210 Section 210. 767.48 (title) of the statutes is renumbered 767.84 (title).

443,211c Section 211c. 767.48 (1) (a) of the statutes is renumbered 767.84 (1) (a) and amended to read:

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 such 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).

443,212c Section 212c. 767.48 (1) (b) and (1m) to (7) of the statutes are renumbered 767.84 (1) (b) and (1m) to (7), and 767.84 (4) and (5) (b), as renumbered, are amended to read:

767.84 (4) Tests excluding paternity; refusal to submit to test. Whenever the results of genetic tests exclude Genetic test results excluding an alleged father as the father of the child, this evidence shall be are 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 Genetic test results excluding any male witness from possible paternity, the tests shall be 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. If any party refuses Refusal of a party 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. 767.47 767.87 (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) (b) 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 767.458 767.863 (2), the court shall require the person requesting the 2nd or subsequent series of tests to pay for it the series in advance, unless the court finds that the person is indigent.

443,214m Section 214m. 767.50 of the statutes is renumbered 767.883, and 767.883 (1), as renumbered, is amended to read:

767.883 (1) Two parts. The trial shall be divided into 2 parts. The, the first part shall deal dealing with the determination of paternity. The and the 2nd part shall deal dealing with child support, legal custody, periods of physical placement, and related issues. At the first part of the trial, the The main issue at the first part 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, male the prior issue of whether the husband was not the father of the child shall be determined first, as provided under s. 891.39. 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 of the findings enumerated in s. 767.51 767.89 (2) to (4). 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. 767.45 767.80 (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.

443,215 Section 215. Subchapter VI (title) of chapter 767 [precedes 767.501] of the statutes is created to read:

Chapter 767

Subchapter vi
support and maintenance

443,216 Section 216. 767.501 (1) (title) and (2) (title) of the statutes are created to read:

767.501 (1) (title) Definitions.

(2) (title) Who may commence; support determination.

443,217 Section 217 . 767.501 (4) of the statutes is created to read:

767.501 (4) Legal custody and physical placement. Upon request of a party to an action under this section, the court may make orders concerning the legal custody and physical placement of any minor child of the parties in accordance with s. 767.41.

Note: Expressly authorizes a request for and determination of legal custody and physical placement in conjunction with an action to compel support and maintenance under renumbered s. 767.501 (former s. 767.08). See, also, Sec. 96 of this bill.

443,218 Section 218. 767.51 of the statutes is renumbered 767.89, and 767.89 (2), (3) (b), (c) and (f), (4) (a) (intro.) and (6), as renumbered, are amended to read:

767.89 (2) Report to state registrar. The clerk of court or county child support agency under s. 59.53 (5) shall file with the state registrar, within 30 days after the entry of a judgment or order determining paternity, a report showing the names, dates, and birth places of the child and the father, the social security numbers of the mother, father, and child, 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 or county child support agency shall collect.

Note: This is a technical change. 2001 Wisconsin Act 16 amended s. 69.15 (1) (b), stats., to permit the state registrar to change information on a birth certificate if, among other things, for a paternity action, a clerk of court or county child support agency sends certain information to the state registrar. Prior law referred only to a clerk of court providing such information. The bill amends s. 767.89 (2) [renumbered from s. 767.51 (2), stats.] to incorporate that change, which was inadvertently not made in Act 16.

(3) (b) Orders for the legal custody of and periods of physical placement with the child, determined in accordance with s. 767.24 767.41.

(c) An order requiring either or both of the parents to contribute to the support of any child of the parties who is less than 18 years old, or any child of the parties who is less than 19 years old if the child is pursuing an accredited course of instruction leading to the acquisition of a high school diploma or its equivalent, determined in accordance with s. 767.25 767.511.

(f) An order requiring either or both parties to pay or contribute to the costs of the guardian ad litem fees, genetic tests as provided in s. 767.48 767.84 (5), and other costs.

(4) (a) (intro.) Subject to par. (b), liability for past support of the child shall be is limited to support for the period after the day on which the petition in the action under s. 767.45 767.80 is filed, unless a party shows, to the satisfaction of the court, all of the following:

(6) Other applicable provisions. Sections 767.24, 767.245, 767.263, 767.265, 767.267, 767.29, 767.293, 767.30, 767.305, 767.31, 767.32 and 767.325 767.41, 767.43, 767.451, 767.57, 767.58, 767.59, 767.71, 767.75, 767.76, 767.77, and 767.78, where applicable, shall apply to a judgment or order under this section.

443,219 Section 219 . 767.511 (1) (c), (1g) (title), (1j) (title), (1m) (title), (1n) (title), (2) (title), (3) (title) and (4) (title) of the statutes are created to read:

767.511 (1) (c) In addition to ordering child support for a child under par. (a), assign as a support obligation responsibility for, and direct the manner of payment of, the child's health care expenses under s. 767.513.

Note: Health care expenses for a child are now dealt with in a section separate from the general child support section. (This bill renumbers current s. 767.25 (4m) and makes it a separate section; see Sec. 104 of the bill.) The above provision, which is located in the general child support section (renumbered s. 767.511), is intended to clarify that an order regarding health care expenses is to be considered a support obligation. In addition, it is intended to clarify that statutory cross-references to child support under s. 767.511 include a child's health care expenses under s. 767.513.

(1g) (title) Consideration of financial information.

(1j) (title) Percentage standard generally required.

(1m) (title) Deviation from standard; factors.

(1n) (title) Deviation from standard; record.

(2) (title) Separate fund or trust.

(3) (title) Effect of physical placement violation.

(4) (title) Age of child eligible for support.

443,220 Section 220. 767.513 (title), (4) (title) and (5) (title) of the statutes are created to read:

767.513 (title) Child health care expenses.

(4) (title) Health benefit plan; employer obligation.

(5) (title) Recovery by state of 3rd party payments.

443,221 Section 221. 767.52 of the statutes is renumbered 767.83, and 767.83 (1), (2m) and (3), as renumbered, are amended to read:

767.83 (1) Generally. At the pretrial hearing, at the trial, and in any further 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. 767.45 767.80 (1) (g), the petitioner is represented by a government attorney as provided in s. 767.45 767.80 (6), or the action is commenced on behalf of the child by an attorney appointed under s. 767.045 767.407 (1) (c), counsel shall be appointed for the respondent as provided in ch. 977, and subject to the limitations under sub. (2m), unless the respondent knowingly and voluntarily waives the appointment of counsel.

(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. 767.48 767.84 (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. 767.45 767.80 (6).

443,222 Section 222. 767.53 of the statutes is renumbered 767.853, and 767.853 (3) (intro.), as renumbered, is amended to read:

767.853 (3) Past proceedings. (intro.) Subject to s. 767.19 767.13, a record of a past proceeding is open to public inspection if all of the following apply:

443,223 Section 223. 767.55 (title), (2) (title) and (3) (title) of the statutes are created to read:

767.55 (title) Child support: employment-related orders.

(2) (title) Noncustodial parent.

(3) (title) Absent parent.

443,224 Section 224. 767.553 (1) (title), (4) (title) and (5) (title) of the statutes are created to read:

767.553 (1) (title) When adjustment may be ordered.

(4) (title) Implementation; when effective.

(5) (title) Revision or remedial sanctions.

443,225 Section 225. 767.57 (1) (title), (1e) (title) and (4) (title) of the statutes are created to read:

767.57 (1) (title) Payment to department.

(1e) (title) Receiving and disbursing fee.

(4) (title) Procedure for certain child recipients.

443,226 Section 226. 767.58 (2) (title) of the statutes is created to read:

767.58 (2) (title) Information for child support agency.

443,227 Section 227 . 767.59 (1k) of the statutes is created to read:

767.59 (1k) Maintenance: change in cost of living. In an action under this section to revise maintenance payments, a substantial change in the cost of living for either party or as measured by the federal bureau of labor statistics may be sufficient to support a revision of the amount of maintenance, except that a change in an obligor's cost of living is not by itself sufficient if payments are expressed as a percentage of income.

Note: Restates the last sentence of current s. 767.32 (1) (a).

443,228 Section 228. 767.59 (2) (title) of the statutes is created to read:

767.59 (2) (title) Percentage standard required; exceptions.

443,229 Section 229. 767.60 of the statutes is renumbered 767.803 and amended to read:

767.803 Determination of marital children. In any case where If the father and mother of any a nonmarital child shall enter into a lawful marriage or a marriage which appears and they believe is lawful, except where the parental rights of the mother were terminated prior thereto, that before either of these circumstances, the child shall thereby become becomes a marital child, shall be is entitled to a change in birth certificate under s. 69.15 (3) (b), and shall enjoy all of the rights and privileges of a marital child as if he or she had been born during the marriage of the parents; and this. This section shall be taken to apply applies to all cases prior to before, on, or after its effective date, as well as those subsequent thereto but no estate already vested shall be divested by this section and ss. 765.05 to 765.24 and 852.05. The issue children of all marriages declared void under the law shall, nevertheless, be are nevertheless marital issue children.

443,230 Section 230. Subchapter VII (title) of chapter 767 [precedes 767.61] of the statutes is created to read:

chapter 767

subchapter viI
property division

443,231 Section 231. 767.61 (2) (title) and (3) (title) of the statutes are created to read:

767.61 (2) (title) Property subject to division.

(3) (title) Presumption of equal division.

443,232 Section 232 . 767.61 (4), (5) and (6) of the statutes are created to read:

767.61 (4) Separate fund or trust option. In dividing the property of the parties under this section, the court may protect and promote the best interests of a child of the parties described under s. 767.511 (4) by setting aside a portion of the property in a separate fund or trust for the support, maintenance, education, and general welfare of the child.

(5) Related provisions of judgment. In a judgment described under sub. (1), the court shall do all of the following:

(a) Direct that title to the property of the parties be transferred as necessary, in accordance with the division of property set forth in the judgment.

(b) Include all of the following in the judgment:

1. Notification that it may be necessary for the parties to take additional actions in order to transfer interests in their property in accordance with the division of property set forth in the judgment, including such interests as interests in real property, interests in retirement benefits, and contractual interests.

2. Notification that the judgment does not necessarily affect the ability of a creditor to proceed against a party or against that party's property even though the party is not responsible for the debt under the terms of the judgment.

3. Notification that an instrument executed by a party before the judgment naming the other party as a beneficiary is not necessarily affected by the judgment and it may be necessary to revise the instrument if a change in beneficiary is desired.

(6) Recording judgment affecting real property sufficient. A certified copy of the portion of the judgment affecting title to real property, or a deed consistent with the judgment, shall be recorded in the office of the register of deeds of the county in which the real property is located.

Note: 1. Subsection (4) restates the last sentence of current s. 767.255 (1), stats. See Sec. 109 of this bill. The current provision only refers to a "minor child". However, the obligation for child support extends to 18 year olds who are in high school or its equivalent (current s. 767.25 (4), stats.). Therefore, the separate trust or fund option is extended to cover that situation as well as minor children.

2. Subsection (5) (a) is intended to replace current language in s. 767.255 (1), stats., requiring the court when dividing property to "divest and transfer the title of any such property accordingly". The revised language, more accurately reflecting current practice, requires the court to direct that title to be transferred as necessary, in accordance with the property division.

3. Subsection (5) (b) is new. It is intended to alert parties that additional action on their part may be necessary in order to implement the provisions of the judgment, that a property division judgment generally is not binding on creditors, and that additional action may be necessary to change prior beneficiary designations.