LRB-5454/1
EAW:klm
2017 - 2018 LEGISLATURE
February 21, 2018 - Introduced by Senator Testin, cosponsored by Representatives
Krug, Jacque, Kitchens, Mursau, Spiros, Summerfield, Tusler,
Weatherston, Zepnick, Kulp, Horlacher, VanderMeer and Zimmerman.
Referred to Committee on Judiciary and Public Safety.
SB830,2,2
1An Act to renumber and amend 49.141 (1) (i) and 767.84 (1) (a);
to amend
248.02 (13), 48.27 (5), 48.396 (2) (dm), 48.42 (4) (b) 2., 48.837 (4) (e), 48.91 (2),
349.225 (2) (a), 49.855 (3), 49.855 (4m) (b), 69.15 (3) (a) (intro.), 69.15 (3) (a) 3.,
4565.30 (5m) (a), 767.407 (1) (c) (intro.), 767.41 (1) (b), 767.41 (1m) (intro.),
5767.44 (1), 767.511 (1) (intro.), 767.511 (5), 767.513 (2), 767.55 (1), 767.55 (2)
6(am) (intro.), 767.55 (3) (a) 1., 767.55 (3) (d), 767.55 (4) (b) (intro.), 767.59 (2s),
7767.73 (1) (a), 767.75 (1) (b), 767.77 (1), 767.78 (1), 767.80 (1) (intro.), 767.80 (1)
8(c), 767.80 (5m), 767.80 (6m), 767.82 (2), 767.82 (2m), 767.855, 767.87 (8),
9802.12 (3) (d) 1., 802.12 (3) (d) 3., 808.075 (4) (d) 9., 808.075 (4) (d) 10., 852.05
10(2), 938.02 (13), 938.27 (5) and 938.396 (2g) (g); and
to create 49.141 (1) (i) 3.,
1149.141 (1) (j) 6., 767.80 (1) (hm), 767.804, 767.84 (1) (a) 1., 767.84 (1) (a) 2.,
12767.84 (1) (a) 3., 769.201 (1m) (gm) and 891.407 of the statutes;
relating to:
1presumption and conclusive determination of paternity on the basis of genetic
2test results and orders that may be granted on the basis of genetic test results.
Analysis by the Legislative Reference Bureau
This bill creates a new presumption of paternity and a new way to conclusively
determine paternity under the law using genetic testing. The bill also generally
requires the court in a paternity action to order genetic testing. Also, if the court
determines that a judicial determination of whether a man is the father of the child
is not in the best interest of the child, the court may dismiss the action with respect
to that man under the bill, regardless of whether genetic tests have already been
performed or what the results of those genetic tests were.
Under current law, a court may adjudicate a man to be a child's father in a
paternity action, or a man and a child's mother may sign and file a statement
acknowledging paternity with the state registrar. Both cases result in a conclusive
determination that the man is the child's father, and the state registrar may change
the child's birth certificate to show the man as the child's father and a court may enter
orders for child support, legal custody, and physical placement rights with respect
to the man.
Under the bill, a man is conclusively determined to be a child's father if all of
the following are satisfied: 1) genetic tests are performed with respect to the child,
the child's mother, and the man in response to a subpoena issued by a county child
support agency requiring the parties to submit to the tests; 2) the test results show
that the man is not excluded as the father and the statistical probability that he is
the father is 99 percent or higher; 3) both the mother and the man are at least 18
years old; and 4) there is no marriage or statement acknowledging paternity
presumption. If all of those requirements are satisfied, the child support agency
must send notice to the parties advising of the test results, that an action may be
commenced for orders related to child support, legal custody, and physical
placement, and that either party may submit to the child support agency a written
objection to the test results. If either party submits an objection, the child support
agency must commence a paternity action on behalf of the state and the test results
are admissible in the action. If neither party submits an objection by the time
specified in the notice, the child support agency must file with the state registrar a
report of the test results, showing a conclusive determination of paternity. On the
basis of the report, the state registrar must insert the name of the father on the child's
original birth certificate if the father's name was omitted.
Under the bill, if genetic test results conclusively determine a man to be a child's
father and neither the mother nor the man submits an objection after receiving
notice, an action may be brought for child support, legal custody, and physical
placement. The court may also require the man to pay or contribute to the reasonable
expenses of the mother's pregnancy, require either the man or mother to pay or
contribute to the other party's attorney fees, and change the child's name upon the
request of one or both of the parties.
Current law also contains presumptions of paternity. There is a presumption
(marriage presumption) that a man is the father of a child if: 1) he and the child's
mother were married when the child was conceived or born; or 2) he and child's
mother married after the child was born but had a relationship during the time
within which the child was conceived and no other man has been adjudicated to be
the father or is presumed to be the father because he was married to the child's
mother when the child was conceived or born. There is also a presumption
(statement acknowledging paternity presumption) that a man is a child's father if he
and the child's mother signed and filed a statement acknowledging paternity with
the state registrar and no other man is presumed to be the child's father under the
marriage presumption. The bill creates a presumption that a man is a child's father
if all of the requirements under the bill are satisfied for conclusively determining a
man to be a child's father on the basis of genetic test results and no other man is
presumed to be the child's father under the marriage or statement acknowledging
paternity presumption.
The bill also makes other modifications related to genetic testing and paternity
adjudications. Under current law, in a paternity action the court may require, and
upon the request of a party must require, the child, the child's mother, and any male
for whom there is probable cause to believe that he had sexual relations with the
mother during the possible time of the child's conception to submit to genetic tests.
Under the bill, the court in a paternity action must require the child, the child's
mother, and any male for whom there is probable cause to believe that he had sexual
relations with the mother during the possible time of the child's conception to submit
to genetic tests with the following exceptions:
1. Genetic tests are not required if the action will be dismissed or a default
judgment will be entered because of the failure of a party to appear.
2. The court is not required to require any of the following persons to submit
to genetic tests:
a. A person who was required by a child support agency to submit to a genetic
test and who has done so.
b. The respondent in the action if he or she is deceased and genetic material
is not available without undue hardship.
c. A male respondent who fails to appear if genetic test results with respect to
another male show that the other male is not excluded as the father and that the
statistical probability that the other male is the father is 99 percent or higher.
Current law includes an exception to the requirement to order genetic tests in
a paternity action. If the court determines, upon the motion of a party or guardian
ad litem, that a judicial determination of whether a male is the father of the child is
not in the best interest of the child, the court may, with respect to the male, refuse
to order genetic tests, if they haven't already been performed, and dismiss the action.
The Wisconsin Supreme Court, in Randy A.J. v. Norma I.J., 2004 WI 41, 270 Wis.
2d 384, 677 N.W. 2d 630, determined that a court may not dismiss the paternity
action if genetic tests have already been performed, even if the court finds that a
judicial determination of paternity is not in the child's best interest. The bill provides
that if the court determines that a judicial determination of whether a male is the
father of the child is not in the best interest of the child, the court may dismiss the
action with respect to that male, regardless of whether genetic tests have been
performed or what the results of those genetic tests were. The bill also provides that
if, in fact, genetic tests have not yet been performed with respect to that male, the
court is not required to order them.
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:
SB830,1
1Section 1
. 48.02 (13) of the statutes is amended to read:
SB830,5,22
48.02
(13) “Parent" means a biological parent, a husband who has consented
3to the artificial insemination of his wife under s. 891.40, or a parent by adoption. If
4the child is a nonmarital child who is not adopted or whose parents do not
5subsequently intermarry under s. 767.803, “parent" includes a
person conclusively
6determined from genetic test results to be the father under s. 767.804 or a person
7acknowledged under s. 767.805 or a substantially similar law of another state or
8adjudicated to be the biological father. “Parent" does not include any person whose
9parental rights have been terminated. For purposes of the application of s. 48.028
10and the federal Indian Child Welfare Act,
25 USC 1901 to
1963, “parent" means a
11biological parent, an Indian husband who has consented to the artificial
12insemination of his wife under s. 891.40, or an Indian person who has lawfully
13adopted an Indian child, including an adoption under tribal law or custom, and
14includes, in the case of a nonmarital child who is not adopted or whose parents do
15not subsequently intermarry under s. 767.803,
a person conclusively determined
16from genetic test results to be the father under s. 767.804, a person acknowledged
17under s. 767.805, a substantially similar law of another state, or tribal law or custom
1to be the biological father
, or a person adjudicated to be the biological father, but does
2not include any person whose parental rights have been terminated.
SB830,2
3Section 2
. 48.27 (5) of the statutes is amended to read:
SB830,5,104
48.27
(5) Subject to sub. (3) (b), the court shall make every reasonable effort
5to identify and notify any person who has filed a declaration of paternal interest
6under s. 48.025,
any person conclusively determined from genetic test results to be
7the father under s. 767.804 (1), any person who has acknowledged paternity of the
8child under s. 767.805 (1), and any person who has been adjudged to be the father
9of the child in a judicial proceeding unless the person's parental rights have been
10terminated.
SB830,3
11Section 3
. 48.396 (2) (dm) of the statutes is amended to read:
SB830,5,2212
48.396
(2) (dm) Upon request of a court having jurisdiction over actions
13affecting the family, an attorney responsible for support enforcement under s. 59.53
14(6) (a) or a party to a paternity proceeding under subch. IX of ch. 767, the party's
15attorney or the guardian ad litem for the child who is the subject of that proceeding
16to review or be provided with information from the records of the court assigned to
17exercise jurisdiction under this chapter and ch. 938 relating to the paternity of a child
18for the purpose of determining the paternity of the child or for the purpose of
19rebutting the presumption of paternity under s. 891.405
, 891.407, or 891.41 (1), the
20court assigned to exercise jurisdiction under this chapter and ch. 938 shall open for
21inspection by the requester its records relating to the paternity of the child or disclose
22to the requester those records.
SB830,4
23Section 4
. 48.42 (4) (b) 2. of the statutes is amended to read:
SB830,6,424
48.42
(4) (b) 2. If the child is a nonmarital child who is not adopted or whose
25parents do not subsequently intermarry under s. 767.803 and paternity has not been
1conclusively determined from genetic test results under s. 767.804, acknowledged
2under s. 767.805 or a substantially similar law of another state
, or adjudicated, the
3court may, as provided in s. 48.422 (6) (b), order publication of a notice under subd.
44.
SB830,5
5Section 5
. 48.837 (4) (e) of the statutes is amended to read:
SB830,6,166
48.837
(4) (e) Shall, before hearing the petitions under subs. (2) and (3),
7ascertain whether the paternity of a nonmarital child who is not adopted or whose
8parents do not subsequently intermarry under s. 767.803 has been
conclusively
9determined from genetic test results under s. 767.804, acknowledged under s.
10767.805 or a substantially similar law of another state
, or adjudicated in this state
11or another jurisdiction. If the child's paternity has not been
conclusively determined
12from genetic test results, acknowledged
, or adjudicated, the court shall attempt to
13ascertain the paternity of the child and shall determine the rights of any person who
14may be the father of the child as provided under s. 48.423. The court may not proceed
15with the hearing on the petitions under this section unless the parental rights of the
16nonpetitioning parent, whether known or unknown, have been terminated.
SB830,6
17Section 6
. 48.91 (2) of the statutes is amended to read:
SB830,7,318
48.91
(2) In an adoption proceeding for a nonmarital child who is not adopted
19or whose parents do not subsequently intermarry under s. 767.803, the court shall
20establish whether the child's paternity has been
conclusively determined from
21genetic test results under s. 767.804, acknowledged under s. 767.805 or a
22substantially similar law of another state
, or adjudicated in this state or in another
23jurisdiction. If the child's paternity has not been
conclusively determined from
24genetic test results, acknowledged
, or adjudicated, the court shall attempt to
25ascertain the paternity of the child and shall determine the rights of any person who
1may be the father of the child as provided under s. 48.423. The court may not proceed
2with the hearing on the petition for adoption unless the parental rights of the
3nonpetitioning parent, whether known or unknown, have been terminated.
SB830,7
4Section 7
. 49.141 (1) (i) of the statutes is renumbered 49.141(1) (i) (intro.) and
5amended to read:
SB830,7,86
49.141
(1) (i) (intro.) “Nonmarital coparent" means, with respect to an
7individual and a dependent child, a parent who is not married to the individual,
who 8resides with the dependent child
, and
who is
either an one of the following:
SB830,7,9
91. An adjudicated parent
or a
.
SB830,7,11
102. A parent who has signed and filed with the state registrar under s. 69.15 (3)
11(b) 3. a statement acknowledging paternity.
SB830,8
12Section 8
. 49.141 (1) (i) 3. of the statutes is created to read:
SB830,7,1413
49.141
(1) (i) 3. A parent who has been conclusively determined from genetic
14test results to be the father under s. 767.804.
SB830,9
15Section 9
. 49.141 (1) (j) 6. of the statutes is created to read:
SB830,7,1716
49.141
(1) (j) 6. A man who has been conclusively determined from genetic test
17results to be the father under s. 767.804.
SB830,10
18Section 10
. 49.225 (2) (a) of the statutes is amended to read:
SB830,8,219
49.225
(2) (a) A county child support agency under s. 59.53 (5) may require, by
20subpoena in substantially the form authorized under s. 885.02 or by other means, a
21child, the child's mother
, and a male alleged, or alleging himself, to be the child's
22father to submit to genetic tests if there is probable cause to believe that the male
23had sexual intercourse with the child's mother during a possible time of the child's
24conception. Probable cause of sexual intercourse during a possible time of conception
25may be established by a sufficient affidavit of the child's mother
or, the male alleged,
1or alleging himself, to be the child's father
, or the county child support agency under
2s. 59.53 (5) based on information provided by the child's mother.
SB830,11
3Section
11. 49.855 (3) of the statutes is amended to read:
SB830,9,24
49.855
(3) Receipt of a certification by the department of revenue shall
5constitute a lien, equal to the amount certified, on any state tax refunds or credits
6owed to the obligor. The lien shall be foreclosed by the department of revenue as a
7setoff under s. 71.93 (3), (6), and (7). When the department of revenue determines
8that the obligor is otherwise entitled to a state tax refund or credit, it shall notify the
9obligor that the state intends to reduce any state tax refund or credit due the obligor
10by the amount the obligor is delinquent under the support, maintenance, or receiving
11and disbursing fee order or obligation, by the outstanding amount for past support,
12medical expenses, or birth expenses under the court order, or by the amount due
13under s. 46.10 (4), 49.345 (4), or 301.12 (4). The notice shall provide that within 20
14days the obligor may request a hearing before the circuit court rendering the order
15under which the obligation arose. Within 10 days after receiving a request for
16hearing under this subsection, the court shall set the matter for hearing. Pending
17further order by the court or a circuit court commissioner, the department of children
18and families or its designee, whichever is appropriate, is prohibited from disbursing
19the obligor's state tax refund or credit. A circuit court commissioner may conduct the
20hearing. The sole issues at that hearing shall be whether the obligor owes the
21amount certified and, if not and it is a support or maintenance order, whether the
22money withheld from a tax refund or credit shall be paid to the obligor or held for
23future support or maintenance, except that the obligor's ability to pay shall also be
24an issue at the hearing if the obligation relates to an order under s.
767.804 (3) (d)
251., 767.805 (4) (d) 1.
, or 767.89 (3) (e) 1. and the order specifies that the court found
1that the obligor's income was at or below the poverty line established under
42 USC
29902 (2).
SB830,12
3Section 12
. 49.855 (4m) (b) of the statutes is amended to read:
SB830,9,254
49.855
(4m) (b) The department of revenue may provide a certification that it
5receives under sub. (1), (2m), (2p), or (2r) to the department of administration. Upon
6receipt of the certification, the department of administration shall determine
7whether the obligor is a vendor or is receiving any other payments from this state,
8except for wages, retirement benefits, or assistance under s. 45.352, 1971 stats., s.
945.40 (1m), this chapter, or ch. 46, 108, or 301. If the department of administration
10determines that the obligor is a vendor or is receiving payments from this state,
11except for wages, retirement benefits, or assistance under s. 45.352, 1971 stats., s.
1245.40 (1m), this chapter, or ch. 46, 108, or 301, it shall begin to withhold the amount
13certified from those payments and shall notify the obligor that the state intends to
14reduce any payments due the obligor by the amount the obligor is delinquent under
15the support, maintenance, or receiving and disbursing fee order or obligation, by the
16outstanding amount for past support, medical expenses, or birth expenses under the
17court order, or by the amount due under s. 46.10 (4), 49.345 (4), or 301.12 (4). The
18notice shall provide that within 20 days after receipt of the notice the obligor may
19request a hearing before the circuit court rendering the order under which the
20obligation arose. An obligor may, within 20 days after receiving notice, request a
21hearing under this paragraph. Within 10 days after receiving a request for hearing
22under this paragraph, the court shall set the matter for hearing. A circuit court
23commissioner may conduct the hearing. Pending further order by the court or circuit
24court commissioner, the department of children and families or its designee,
25whichever is appropriate, may not disburse the payments withheld from the obligor.
1The sole issues at the hearing are whether the obligor owes the amount certified and,
2if not and it is a support or maintenance order, whether the money withheld shall be
3paid to the obligor or held for future support or maintenance, except that the obligor's
4ability to pay is also an issue at the hearing if the obligation relates to an order under
5s.
767.804 (3) (d) 1., 767.805 (4) (d) 1.
, or 767.89 (3) (e) 1. and the order specifies that
6the court found that the obligor's income was at or below the poverty line established
7under
42 USC 9902 (2).
SB830,13
8Section 13
. 69.15 (3) (a) (intro.) of the statutes is amended to read:
SB830,10,139
69.15
(3) (a) (intro.) If the state registrar receives an order under sub. (1)
which 10that establishes paternity or determines that the man whose name appears on a
11registrant's birth certificate is not the father of the registrant,
or a report under s.
12767.804 (1) (c) that shows a conclusive determination of paternity, the state registrar
13shall do the following, as appropriate:
SB830,14
14Section 14
. 69.15 (3) (a) 3. of the statutes is amended to read:
SB830,10,1715
69.15
(3) (a) 3. Except as provided under subd. 4., insert the name of the
16adjudicated
or conclusively determined father on the original birth certificate if the
17name of the father was omitted on the original certificate.
SB830,15
18Section
15. 565.30 (5m) (a) of the statutes is amended to read:
SB830,11,619
565.30
(5m) (a) The administrator shall report to the department of children
20and families the name, address
, and social security number of each winner of a
21lottery prize that is payable in installments and the name, address
, and social
22security number or federal income tax number of the person who has been assigned
23a lottery prize that is payable in installments. Upon receipt of the report, the
24department of children and families shall certify to the administrator whether any
25payee or assignee named in the report is obligated to provide child support, spousal
1support, maintenance
, or family support under s. 767.001 (1) (f) or (g), 767.225,
2767.34, 767.511, 767.531, 767.56,
767.804 (3), 767.805 (4), 767.85, 767.863 (3), 767.89
3(3), 767.893 (2m)
, or 948.22 (7) or ch. 769 and the amount required to be withheld
4from the lottery prize under s. 767.75. Subject to par. (b), the administrator shall
5withhold the certified amount from each payment made to the winner or assignee
6and remit the certified amount to the department of children and families.
SB830,16
7Section 16
. 767.407 (1) (c) (intro.) of the statutes is amended to read:
SB830,11,148
767.407
(1) (c) (intro.) The attorney responsible for support enforcement under
9s. 59.53 (6) (a) may request that the court appoint a guardian ad litem to bring an
10action or motion on behalf of a minor who is a nonmarital child whose paternity has
11not been
conclusively determined from genetic test results under s. 767.804, 12acknowledged under s. 767.805 (1) or a substantially similar law of another state
, or
13adjudicated for the purpose of determining the paternity of the child, and the court
14shall appoint a guardian ad litem, if any of the following applies:
SB830,17
15Section
17. 767.41 (1) (b) of the statutes is amended to read:
SB830,11,2016
767.41
(1) (b) In rendering a judgment of annulment, divorce, legal separation,
17or paternity, or in rendering a judgment in an action under s. 767.001 (1) (e), 767.501,
18767.804 (2), or 767.805 (3), the court shall make such provisions as it deems just and
19reasonable concerning the legal custody and physical placement of any minor child
20of the parties, as provided in this section.
SB830,18
21Section
18. 767.41 (1m) (intro.) of the statutes is amended to read:
SB830,12,1022
767.41
(1m) Parenting plan. (intro.) Unless the court orders otherwise, in an
23action for annulment, divorce, or legal separation, an action to determine paternity,
24or an action under s. 767.001 (1) (e), 767.501,
767.804 (2), or 767.805 (3), in which
25legal custody or physical placement is contested, a party seeking sole or joint legal
1custody or periods of physical placement shall file a parenting plan with the court if
2the court waives the requirement to attend mediation under s. 767.405 (8) (b) or if
3the parties attend mediation and the mediator notifies the court under s. 767.405
4(12) (b) that the parties have not reached an agreement. Unless the court orders
5otherwise, the parenting plan shall be filed within 60 days after the court waives the
6mediation requirement or the mediator notifies the court that no agreement has been
7reached. Except for cause shown, a party required to file a parenting plan under this
8subsection who does not timely file a parenting plan waives the right to object to the
9other party's parenting plan. A parenting plan shall provide information about the
10following questions:
SB830,19
11Section
19. 767.44 (1) of the statutes is amended to read:
SB830,12,1812
767.44
(1) When prohibited. Notwithstanding ss. 767.225 (1) (am), 767.41 (1),
13(4), and (5),
767.804 (3) (a), 767.805 (4) (a), and 767.89 (3) and except as provided in
14sub. (2), in an action under this chapter that affects a minor child, a court may not
15grant to the child's parent visitation or physical placement rights with the child if the
16parent has been convicted under s. 940.01 of the first-degree intentional homicide,
17or under s. 940.05 of the 2nd-degree intentional homicide, of the child's other parent,
18and the conviction has not been reversed, set aside, or vacated.
SB830,20
19Section
20. 767.511 (1) (intro.) of the statutes is amended to read:
SB830,12,2420
767.511
(1) When ordered. (intro.) When the court approves a stipulation for
21child support under s. 767.34, enters a judgment of annulment, divorce, or legal
22separation, or enters an order or a judgment in a paternity action or in an action
23under s. 767.001 (1) (f) or (j), 767.501,
767.804 (2), or 767.805 (3), the court shall do
24all of the following:
SB830,21
25Section
21. 767.511 (5) of the statutes is amended to read: