LRB-2532/2
PK/TD/SW/ES/MS:emw
2015 - 2016 LEGISLATURE
January 27, 2016 - Introduced by Representatives Spreitzer, Zamarripa, C.
Taylor, Berceau, Billings, Brostoff, Considine, Danou, Genrich, Goyke,
Hebl, Hesselbein, Hintz, Johnson, Jorgensen, Kahl, Kolste, Mason,
Ohnstad, Pope, Riemer, Sargent, Shankland, Sinicki, Subeck and Zepnick,
cosponsored by Senators Carpenter, Harris Dodd, C. Larson, Miller,
Ringhand, Risser, L. Taylor and Vinehout. Referred to Committee on Family
Law.
AB816,2,19
1An Act to repeal 49.141 (1) (j) 2., 102.51 (1) (a) 2., 115.76 (12) (a) 2. and 115.76
2(12) (a) 3.;
to renumber and amend 891.40 (1) and 891.41 (1) (b);
to amend
329.219 (4), 29.228 (5), 29.228 (6), 29.229 (2) (i), 29.2295 (2) (i), 29.563 (3) (a) 3.,
429.607 (3), 45.01 (6) (c), 45.51 (3) (c) 2., 45.51 (5) (a) 1. b., 45.51 (5) (a) 1. c., 45.55,
546.10 (2), 48.02 (13), 48.396 (2) (dm), 48.422 (7) (bm), 48.422 (7) (br), 48.432 (1)
6(am) 2. b., 48.63 (3) (b) 4., 48.63 (3) (b) 5., 48.82 (1) (a), 48.837 (1r) (d), 48.837
7(1r) (e), 48.837 (6) (b), 48.837 (6) (br), 48.913 (1) (a), 48.913 (1) (b), 48.913 (1) (h),
848.913 (2) (intro.), 48.913 (2) (b), 48.913 (2) (c) (intro.), 48.913 (3), 48.913 (4),
948.913 (7), 49.141 (1) (j) 1., 49.155 (1m) (c) 1g., 49.155 (1m) (c) 1h., 49.163 (2)
10(am) 2., 49.19 (1) (a) 2. a., 49.19 (4) (d) (intro.), 49.19 (4) (d) 1., 49.19 (4) (d) 2.,
1149.19 (4) (d) 3., 49.19 (4) (d) 4., 49.19 (4) (d) 5., 49.345 (2), 49.43 (12), 49.471 (1)
12(b) 2., 49.90 (4), 54.01 (36) (a), 54.960 (1), 69.03 (15), 69.05 (3m) (intro.), (a) and
13(b), 69.11 (4) (b), 69.12 (5), 69.13 (2) (b) 4., 69.14 (1) (c) 4., 69.14 (1) (e) (title) and
141., 69.14 (1) (f) 1., 69.14 (1) (g), 69.14 (2) (b) 2. d., 69.15 (1), 69.15 (3) (b) 3., 71.03
1(2) (d) (title), 71.03 (2) (d) 1., 71.03 (2) (d) 2., 71.03 (2) (d) 3., 71.03 (2) (g), 71.03
2(2) (m) 2., 71.03 (4) (a), 71.05 (22) (a) (title), 71.07 (5m) (a) 3., 71.07 (9e) (b), 71.09
3(13) (a) 2., 71.52 (4), 71.83 (1) (a) 8., 71.83 (1) (b) 5., 77.25 (8m), 77.54 (7) (b) 1.,
4101.91 (5m), 102.07 (5) (b), 102.07 (5) (c), 102.51 (1) (a) 1., 103.10 (1) (h), 103.165
5(3) (a) 3., 111.32 (12), 115.76 (12) (a) 1., 115.76 (13), 146.34 (1) (f), 157.05, 157.10,
6182.004 (6), 250.04 (3) (a), 301.12 (2), 301.50 (1), 700.19 (2), 705.01 (4), 705.01
7(4m), 706.09 (1) (e), 765.001 (2), 765.01, 765.03 (1), 765.16 (1m) (intro.), 765.16
8(1m) (c), 765.23, 765.24, 765.30 (3) (a), 766.587 (7) (form) 9., 766.588 (9) (form)
913., 766.589 (10) (form) 14., 767.215 (2) (b), 767.215 (5) (a) 2., 767.323, 767.80
10(1) (intro.), 767.80 (1) (c), 767.80 (2), 767.855, 767.863 (1m), 767.87 (1m) (intro.),
11767.87 (8), 767.87 (9), 767.883 (1), 769.316 (9), 769.401 (2) (a), 769.401 (2) (g),
12815.20 (1), 822.40 (4), 851.30 (2) (a), 852.01 (1) (f) 1., 852.01 (1) (f) 2., 852.01 (1)
13(f) 3., 854.03 (3), 891.39 (title), 891.39 (1) (a), 891.39 (1) (b), 891.39 (3), 891.40
14(2), 891.41 (title), 891.41 (1) (intro.), 891.41 (1) (a), 891.41 (2), 905.05 (title),
15938.02 (13), 938.396 (2g) (g), 943.20 (2) (c), 943.201 (1) (b) 8. and 943.205 (2) (b);
16and
to create 69.15 (3) (b) 3m., 765.02 (3), 891.40 (1) (b), 891.40 (3), 891.41 (3),
17990.01 (22m), 990.01 (39) and 990.01 (40m) of the statutes;
relating to:
18marriage between persons of the same sex and extending parentage rights to
19married couples of the same sex.
Analysis by the Legislative Reference Bureau
Summary
This bill recognizes same-sex marriage by making references in the statutes
to spouses gender neutral. The bill also recognizes legal parentage for same-sex
couples under certain circumstances.
Same-sex marriage
This bill provides that marriage may be contracted between persons of the same
sex and confers the same rights and responsibilities on married persons of the same
sex that married persons of the opposite sex have under current law. The bill defines
"spouse" as a person who is legally married to another person of the same or opposite
sex and replaces every reference to "husband" or "wife" in current law with "spouse."
The bill makes applicable to married persons of the same sex all provisions under
current law that apply to married persons of the opposite sex. These provisions
relate to such diverse areas of the law as income tax, marital property, inheritance
rights, divorce, child and spousal support, insurance coverage, family and spousal
recreational licenses, consent to conduct an autopsy, domestic abuse, and eligibility
for various types of benefits, such as retirement or death benefits and medical
assistance.
Same-sex parents
In addition to making statutory references to spouses gender neutral, the bill
specifies ways in which married couples of the same sex may be the legal parents of
a child and, with some exceptions, makes current references in the statutes to
"mother" and "father," and related terms, gender neutral.
Under current law, all of the following may adopt a child: a husband and wife
jointly, a husband or wife whose spouse is the parent of the child, and an unmarried
adult. Because the bill makes references in the statutes to spouses gender neutral,
same-sex spouses jointly may adopt a child and become the legal parents of the child,
and a same-sex spouse of a person who is the parent of a minor child may adopt the
child and become the legal parent of his or her spouse's child.
Under current law, if a woman is artificially inseminated under the supervision
of a physician with semen donated by a man who is not her husband and the husband
consents in writing to the artificial insemination of his wife, the husband is the
natural father of any child conceived. Under this bill, a same-sex spouse may also
consent to the artificial insemination of her spouse with donated semen and is the
natural parent of the child conceived. The artificial insemination is not required to
take place under the supervision of a physician, but, if it does not, the semen used
for the insemination must have been obtained from a sperm bank.
Under current law, there is a paternity presumption whereby a man is
presumed to be the father of a child if he and the child's natural mother 1) were
married to each other when the child was conceived or born or 2) married each other
after the child was born but had a relationship with each other when the child was
conceived and no other man has been adjudicated to be the father or is presumed to
be the father because the man was married to the mother when the child was
conceived or born. The paternity presumption may be rebutted in a legal action or
proceeding by the results of a genetic test showing that the statistical probability of
another man's parentage is 99.0 percent or higher. The bill expands this
presumption into a parentage presumption, so that a person is presumed to be the
natural parent of a child if he or she 1) was married to the child's mother when the
child was conceived or born or 2) married the child's mother after the child was born
but had a relationship with the mother when the child was conceived and no man has
been adjudicated to be the father and no other person is presumed to be the child's
parent because he or she was married to the mother when the child was conceived
or born. The parentage presumption may still be rebutted by the results of a genetic
test showing that the statistical probability of another person's parentage is 99.0
percent or higher.
The bill does not change the paternity statutes or the statutes relating to
statements acknowledging paternity or declarations of paternal interest with
respect to their application only to a male who may be adjudicated to be the father
of a child or who may sign a statement or declaration that he is the father of a child.
Expanding on current law, however, the bill allows for a paternity action to be
brought for the purpose of rebutting the parentage presumption, regardless of
whether that presumption applies to a male or female spouse of the mother of the
child.
The bill defines "natural parent" as a parent of a child who is not an adoptive
parent, whether the parent is biologically related to the child or not. Thus, a person
who is a biological parent, a parent by consenting to the artificial insemination of his
or her spouse, or a parent under the parentage presumption is a natural parent of
a child. The definition applies throughout the statutes wherever the term "natural
parent" is used. In addition, the bill expands some references in the statutes to
"biological parent" by changing the reference to "natural parent."
Birth certificates
Generally, the bill substitutes the term "spouse" for "husband" in the birth
certificate statutes and enters the spouse, instead of the husband, of a birth mother
on the birth certificate at times when a husband would currently be entered on a
birth certificate. A birth mother's name is entered on a birth certificate when she
gives birth to a child and current law specifies when the husband, father, or no
additional name should be entered on the birth certificate. Current law requires that
if a birth mother is married at any time from the conception to the birth of a child,
then her husband's name is entered on the birth certificate as the legal father of the
child. Under the bill, if a birth mother is married at any time from the conception
to the birth of the child, then her spouse's name is entered as a legal parent of the
child. The bill also specifies that, in the instance that a second parent's name is
initially omitted from the birth certificate, if the state registrar receives a signed
acknowledgement of parentage by people presumed to be parents because the two
people married after the birth of the child, the two people had a relationship during
the time the child was conceived, no man is adjudicated to be the father, and no other
person is presumed to be the parent, then the state registrar must enter the name
of the birth mother's spouse as a parent on the birth certificate.
This bill will be referred to the joint survey committee on tax exemptions for a
detailed analysis, which will be printed as an appendix to this bill.
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:
AB816,1
1Section
1. 29.219 (4) of the statutes is amended to read:
AB816,5,4
129.219
(4) Husband and wife Spouses resident licenses. A combined
husband
2and wife spouses resident fishing license shall be issued subject to s. 29.024 by the
3department to residents applying for this license. This license confers upon both
4husband and wife spouses the privileges of resident fishing licenses.
AB816,2
5Section
2. 29.228 (5) of the statutes is amended to read:
AB816,5,96
29.228
(5) Annual family fishing license. The department shall issue a
7nonresident annual family fishing license, subject to s. 29.024, to any nonresident
8who applies for this license. This license entitles the
husband, wife spouses and any
9minor children to fish under this license.
AB816,3
10Section
3. 29.228 (6) of the statutes is amended to read:
AB816,5,1411
29.228
(6) Fifteen-day family fishing license. The department shall issue a
12nonresident 15-day family fishing license, subject to s. 29.024, to any nonresident
13who applies for this license. This license entitles the
husband, wife spouses and any
14minor children to fish under this license.
AB816,4
15Section
4. 29.229 (2) (i) of the statutes is amended to read:
AB816,5,1616
29.229
(2) (i)
Husband and wife Spouses fishing licenses.
AB816,5
17Section
5. 29.2295 (2) (i) of the statutes is amended to read:
AB816,5,1818
29.2295
(2) (i)
Husband and wife
Spouses fishing licenses.
AB816,6
19Section
6. 29.563 (3) (a) 3. of the statutes is amended to read:
AB816,5,2020
29.563
(3) (a) 3.
Husband and wife
Spouses: $30.25.
AB816,7
21Section
7. 29.607 (3) of the statutes is amended to read:
AB816,6,622
29.607
(3) License required; exceptions; wild rice identification card. Every
23person over the age of 16 and under the age of 65 shall obtain the appropriate wild
24rice license to harvest or deal in wild rice but no license to harvest is required of the
25members of the immediate family of a licensee or of a recipient of old-age assistance
1or members of their immediate families. The department, subject to s. 29.024 (2g)
2and (2r), shall issue a wild rice identification card to each member of a licensee's
3immediate family, to a recipient of old-age assistance and to each member of the
4recipient's family. The term "immediate family" includes
husband and wife spouses 5and minor children having their abode and domicile with the parent or legal
6guardian.
AB816,8
7Section
8. 45.01 (6) (c) of the statutes is amended to read:
AB816,6,108
45.01
(6) (c) The
biological natural or adoptive parent or a person who acts in
9the place of a parent and who has so acted for not less than 12 months prior to the
10veteran's entrance into active service.
AB816,9
11Section
9. 45.51 (3) (c) 2. of the statutes is amended to read:
AB816,6,1312
45.51
(3) (c) 2. The department may deviate from this sequence upon order of
13the board to prevent the separation of
a husband and wife spouses.
AB816,10
14Section
10. 45.51 (5) (a) 1. b. of the statutes is amended to read:
AB816,6,1815
45.51
(5) (a) 1. b. Was married to the person under sub. (2) (a) 1. or 2. at the time
16the person entered the service and who became a
widow or widower surviving spouse 17by the death of the person while in the service or as a result of physical disability of
18the person incurred during the service.
AB816,11
19Section
11. 45.51 (5) (a) 1. c. of the statutes is amended to read:
AB816,6,2320
45.51
(5) (a) 1. c. The period during which the surviving spouse was married
21to and lived with the deceased person under sub. (2) (a) 1. or 2. plus the period
of
22widowhood or widowerhood after the death of the deceased person is 6 months or
23more.
AB816,12
24Section
12. 45.55 of the statutes is amended to read:
AB816,7,15
145.55 Notes and mortgages of minor veterans. Notwithstanding any
2provision of this chapter or any other law to the contrary, any minor who served in
3the active armed forces of the United States at any time after August 27,
1940, and
4the
husband or wife spouse of such a minor may execute, in his or her own right, notes
5or mortgages, as defined in s. 851.15, the payment of which is guaranteed or insured
6by the U.S. department of veterans affairs or the federal housing administrator
7under the servicemen's readjustment act of 1944, the national housing act, or any
8acts supplementing or amending these acts. In connection with these transactions,
9the minors may sell, release
, or convey the mortgaged property and litigate or settle
10controversies arising therefrom, including the execution of releases, deeds, and other
11necessary papers or instruments. The notes, mortgages, releases, deeds
, and other
12necessary papers or instruments when so executed are not subject to avoidance by
13the minor or the
husband or wife spouse of the minor upon either or both of them
14attaining the age of 18 because of the minority of either or both of them at the time
15of the execution thereof.
AB816,13
16Section
13. 46.10 (2) of the statutes is amended to read:
AB816,8,2017
46.10
(2) Except as provided in subs. (2m) and (14) (b) and (c), any person,
18including but not limited to a person admitted, committed, protected, or placed under
19s. 975.01, 1977 stats., s. 975.02, 1977 stats., s. 975.17, 1977 stats., s. 55.05 (5), 2003
20stats., and 55.06, 2003 stats., and ss. 51.10, 51.13, 51.15, 51.20, 51.35 (3), 51.37 (5),
2151.45 (10), (11), (12) and (13), 55.05, 55.055, 55.12, 55.13, 55.135, 971.14 (2) and (5),
22971.17 (1), 975.06 and 980.06, receiving care, maintenance, services
, and supplies
23provided by any institution in this state including University of Wisconsin Hospitals
24and Clinics, in which the state is chargeable with all or part of the person's care,
25maintenance, services
, and supplies, any person receiving care and services from a
1county department established under s. 51.42 or 51.437 or from a facility established
2under s. 49.73, and any person receiving treatment and services from a public or
3private agency under s. 980.06 (2) (c), 1997 stats., s. 980.08 (5), 2003 stats., or s.
4971.17 (3) (d) or (4) (e) or 980.08 (4) (g) and the person's property and estate, including
5the homestead, and the spouse of the person, and the spouse's property and estate,
6including the homestead, and, in the case of a minor child, the parents of the person,
7and their property and estates, including their homestead, and, in the case of a
8foreign child described in s. 48.839 (1) who became dependent on public funds for his
9or her primary support before an order granting his or her adoption, the resident of
10this state appointed guardian of the child by a foreign court who brought the child
11into this state for the purpose of adoption, and his or her property and estate,
12including his or her homestead, shall be liable for the cost of the care, maintenance,
13services
, and supplies in accordance with the fee schedule established by the
14department under s. 46.03 (18). If a spouse,
widow
surviving spouse, or minor, or an
15incapacitated person may be lawfully dependent upon the property for their support,
16the court shall release all or such part of the property and estate from the charges
17that may be necessary to provide for those persons. The department shall make
18every reasonable effort to notify the liable persons as soon as possible after the
19beginning of the maintenance, but the notice or the receipt thereof is not a condition
20of liability.
AB816,14
21Section
14. 48.02 (13) of the statutes is amended to read:
AB816,9,1322
48.02
(13) "Parent" means a
biological natural parent
, a husband who has
23consented to the artificial insemination of his wife under s. 891.40, or a parent by
24adoption. If the child is a nonmarital child who is not adopted or whose parents do
25not subsequently intermarry under s. 767.803, "parent" includes a person
1acknowledged under s. 767.805 or a substantially similar law of another state or
2adjudicated to be the biological father. "Parent" does not include any person whose
3parental rights have been terminated. For purposes of the application of s. 48.028
4and the federal Indian Child Welfare Act,
25 USC 1901 to
1963, "parent" means a
5biological natural parent
of an Indian child, an Indian
husband spouse who has
6consented to the artificial insemination of his
wife
or her spouse under s. 891.40, or
7an Indian person who has lawfully adopted an Indian child, including an adoption
8under tribal law or custom, and includes, in the case of a nonmarital
Indian child who
9is not adopted or whose parents do not subsequently intermarry under s. 767.803,
10a person acknowledged under s. 767.805, a substantially similar law of another state,
11or tribal law or custom to be the biological father or a person adjudicated to be the
12biological father, but does not include any person whose parental rights have been
13terminated.
AB816,15
14Section
15. 48.396 (2) (dm) of the statutes is amended to read:
AB816,9,2515
48.396
(2) (dm) Upon request of a court having jurisdiction over actions
16affecting the family, an attorney responsible for support enforcement under s. 59.53
17(6) (a) or a party to a paternity proceeding under subch. IX of ch. 767, the party's
18attorney or the guardian ad litem for the child who is the subject of that proceeding
19to review or be provided with information from the records of the court assigned to
20exercise jurisdiction under this chapter and ch. 938 relating to the paternity of a child
21for the purpose of determining the paternity of the child or for the purpose of
22rebutting the presumption of paternity under s. 891.405 or
the presumption of
23parentage under s. 891.41 (1), the court assigned to exercise jurisdiction under this
24chapter and ch. 938 shall open for inspection by the requester its records relating to
25the paternity of the child or disclose to the requester those records.
AB816,16
1Section
16. 48.422 (7) (bm) of the statutes is amended to read:
AB816,10,192
48.422
(7) (bm) Establish whether a proposed adoptive parent of the child has
3been identified. If a proposed adoptive parent of the child has been identified and
4the proposed adoptive parent is not a relative of the child, the court shall order the
5petitioner to submit a report to the court containing the information specified in s.
648.913 (7). The court shall review the report to determine whether any payments or
7agreement to make payments set forth in the report are coercive to the birth parent
8of the child or to an alleged
to or presumed father of the child or are impermissible
9under s. 48.913 (4). Making any payment to or on behalf of
the any birth parent
of
10the child, an, alleged
father, or presumed
father parent of the child or the child
11conditional in any part upon transfer or surrender of the child or the termination of
12parental rights or the finalization of the adoption creates a rebuttable presumption
13of coercion. Upon a finding of coercion, the court shall dismiss the petition or amend
14the agreement to delete any coercive conditions, if the parties agree to the
15amendment. Upon a finding that payments
which that are impermissible under s.
1648.913 (4) have been made, the court may dismiss the petition and may refer the
17matter to the district attorney for prosecution under s. 948.24 (1). This paragraph
18does not apply if the petition was filed with a petition for adoptive placement under
19s. 48.837 (2).
AB816,17
20Section
17. 48.422 (7) (br) of the statutes is amended to read:
AB816,10,2321
48.422
(7) (br) Establish whether any person has coerced a birth parent
or any, 22alleged
father, or presumed
father
parent of the child in violation of s. 48.63 (3) (b)
235. Upon a finding of coercion, the court shall dismiss the petition.
AB816,18
24Section
18. 48.432 (1) (am) 2. b. of the statutes is amended to read:
AB816,11,3
148.432
(1) (am) 2. b. If there is no adjudicated father, the
husband spouse of the
2mother at the time the individual or adoptee is conceived or born, or when the parents
3intermarry under s. 767.803.
AB816,19
4Section
19. 48.63 (3) (b) 4. of the statutes is amended to read:
AB816,11,135
48.63
(3) (b) 4. Before a child may be placed under subd. 1., the department,
6county department, or child welfare agency making the placement and the proposed
7adoptive parent or parents shall enter into a written agreement that specifies who
8is financially responsible for the cost of providing care for the child prior to the
9finalization of the adoption and for the cost of returning the child to the parent who
10has custody of the child if the adoption is not finalized. Under the agreement, the
11department, county department, or child welfare agency or the proposed adoptive
12parent or parents, but not
the any birth parent
of the child or any, alleged
father, or
13presumed
father parent of the child, shall be financially responsible for those costs.