1997 Wisconsin Act 191

191,431 Section 431 . 767.295 (2) (c) of the statutes is amended to read:

767.295 (2) (c) If the court enters an order under par. (a), it shall order the parent to pay child support equal to the amount determined by applying the percentage standard established under s. 49.22 (9) to the income a person would earn by working 40 hours per week for the federal minimum hourly wage under 29 USC 206 (a) (1) or equal to the amount of child support that the parent was ordered to pay in the most recent determination of support under this chapter. The child support obligation ordered under this paragraph continues until the parent makes timely payment in full for 3 consecutive months or until the person participates in the program under s. 49.36 for 16 weeks, whichever comes first. The court shall provide in its order that the parent must make child support payments calculated under s. 767.25 (1j) or (1m) or, 767.51 (4m) or (5) or 767.62 (4) (d) 1. or (e) after the obligation to make payments ordered under this paragraph ceases.

191,432 Section 432 . 767.30 (1) of the statutes, as affected by 1997 Wisconsin Act 27, is amended to read:

767.30 (1) If the court orders any payment for support under s. 48.355 (2) (b) 4., 48.357 (5m), 48.363 (2), 938.183 (4), 938.355 (2) (b) 4., 938.357 (5m) or 938.363 (2), support or maintenance under s. 767.08, child support, family support or maintenance under s. 767.23, child support under s. 767.25, maintenance under s. 767.26, family support under s. 767.261, attorney fees under s. 767.262, child support or a child's health care expenses under s. 767.477, paternity obligations under s. 767.458 (3), 767.51 or 767.62 (4), support arrearages under s. 767.293 or child or spousal support under s. 948.22 (7), the court may provide that any payment be paid in the amounts and at the times that it considers expedient.

191,433 Section 433 . 767.303 (1) of the statutes is amended to read:

767.303 (1) If a person fails to pay a payment ordered for support under s. 767.077, support under s. 767.08, child support or family support under s. 767.23, child support under s. 767.25, family support under s. 767.261, revised child or family support under s. 767.32, child support under s. 767.458 (3), child support under s. 767.477, child support under s. 767.51, child support under s. 767.62 (4) (a), child support under ch. 769 or child support under s. 948.22 (7), the payment is 90 or more days past due and the court finds that the person has the ability to pay the amount ordered, the court may suspend the person's operating privilege, as defined in s. 340.01 (40), until the person pays all arrearages in full or makes payment arrangements that are satisfactory to the court, except that the suspension period may not exceed 5 years. If otherwise eligible, the person is eligible for an occupational license under s. 343.10 at any time.

191,434 Section 434 . 767.305 of the statutes, as affected by 1997 Wisconsin Act 27, is amended to read:

767.305 Enforcement; contempt proceedings. In all cases where a party has incurred a financial obligation under s. 48.355 (2) (b) 4., 48.357 (5m), 48.363 (2), 767.23, 767.25, 767.255, 767.26, 767.261, 767.262, 767.293, 767.458 (3), 767.477, 767.51, 767.62 (4), 938.183 (4), 938.355 (2) (b) 4., 938.357 (5m) or 938.363 (2) and has failed within a reasonable time or as ordered by the court to satisfy such obligation, and where the wage assignment proceeding under s. 767.265 and the account transfer under s. 767.267 are inapplicable, impractical or unfeasible, the court may on its own initiative, and shall on the application of the receiving party, issue an order requiring the payer to show cause at some reasonable time therein specified why he or she should not be punished for such misconduct as provided in ch. 785.

191,435 Section 435 . 767.32 (1) (b) 4. of the statutes is amended to read:

767.32 (1) (b) 4. A difference between the amount of child support ordered by the court to be paid by the payer and the amount that the payer would have been required to pay based on the percentage standard established by the department under s. 49.22 (9) if the court did not use the percentage standard in determining the child support payments and did not provide the information required under s. 46.10 (14) (d), 767.25 (1n) or, 767.51 (5d) or 767.62 (4) (f), whichever is appropriate.

191,436 Section 436 . 767.32 (2m) of the statutes is amended to read:

767.32 (2m) Upon request by a party, the court may modify the amount of revised child support payments determined under sub. (2) if, after considering the factors listed in s. 767.25 (1m) or, 767.51 (5) or 767.62 (4) (e), as appropriate, the court finds, by the greater weight of the credible evidence, that the use of the percentage standard is unfair to the child or to any of the parties.

191,437 Section 437 . 767.32 (2s) of the statutes is amended to read:

767.32 (2s) In an action under sub. (1), the court may not approve a stipulation for the revision of a judgment or order with respect to an amount of child support or family support unless the stipulation provides for payment of an amount of child support or family support that is determined in the manner required under s. 46.10 (14), 767.25 or, 767.51 or 767.62 (4), whichever is appropriate.

191,438 Section 438 . 767.37 (1) (a) of the statutes is amended to read:

767.37 (1) (a) In any action affecting the family, if the court orders maintenance payments or other allowances for a party or children or retains jurisdiction in such matters, the written judgment shall include a provision that disobedience of the court order with respect to the same is punishable under ch. 785 by commitment to the county jail or house of correction until such judgment is complied with and the costs and expenses of the proceedings are paid or until the party committed is otherwise discharged, according to law. The written judgment in any action affecting the family shall include the social security numbers of the parties and of any child of the parties. The findings of fact and conclusions of law and the written judgment shall be drafted by the attorney for the moving party, and shall be submitted to the court and filed with the clerk of the court within 30 days after judgment is granted; but if the respondent has been represented by counsel, the findings, conclusions and judgment shall first be submitted to respondent's counsel for approval and if the family court commissioner has appeared at the trial of the action, such papers shall also be sent to the family court commissioner for approval. After any necessary approvals are obtained, the findings of fact, conclusions of law and judgment shall be submitted to the court. Final stipulations of the parties may be appended to the judgment and incorporated by reference therein.

191,439 Section 439 . 767.45 (1) (intro.) of the statutes is amended to read:

767.45 (1) (intro.) The following persons may bring an action or motion, including an action or motion for declaratory judgment, for the purpose of determining the paternity of a child or for the purpose of rebutting the presumption of paternity under s. 891.405 or 891.41 (1):

191,440 Section 440 . 767.45 (1) (c) of the statutes is amended to read:

767.45 (1) (c) A Unless s. 767.62 (1) applies, a man presumed to be the child's father under s. 891.405 or 891.41 (1).

191,441 Section 441 . 767.45 (1) (k) of the statutes is amended to read:

767.45 (1) (k) In conjunction with the filing of a petition for visitation with respect to the child under s. 767.245 (3), a parent of a person who has filed a declaration of paternal interest under s. 48.025 or with respect to the child or a parent of a person who, before April 1, 1998, signed and filed a statement acknowledging paternity under s. 69.15 (3) (b) 3. with respect to the child.

191,442 Section 442 . 767.45 (5) (b) of the statutes is amended to read:

767.45 (5) (b) An action under this section may be joined with any other action for child support and shall be governed by the procedures specified in s. 767.05 relating to child support, except that the title of the action shall be “In re the paternity of A.B." The petition shall state the name and date of birth of the child if born or that the mother is pregnant if the child is unborn, the name of any alleged father, whether or not an action by any of the parties to determine the paternity of the child or rebut the presumption of paternity to the child has at any time been commenced, or is pending before any judge or court commissioner, in this state or elsewhere. If a paternity judgment has been rendered, or if a paternity action has been dismissed, the petition shall state the court which rendered the judgment or dismissed the action, and the date and the place the judgment was granted if known. The petition shall also give notice of a party's right to request a genetic test under s. 49.225 or 767.48.

191,443 Section 443 . 767.45 (5m) of the statutes is amended to read:

767.45 (5m) Except as provided in ss. 767.458 (3), 767.465 (2) and (2m), 767.477, 767.62 and 769.401, unless a man is either presumed the child's father under s. 891.41 or (1), is adjudicated the child's father either under s. 767.51 or by final order or judgment of a court of competent jurisdiction in another state or has acknowledged himself to be the child's father under s. 767.62 (1) or a substantially similar law of another state, no order or temporary order may be entered for child support, legal custody or physical placement until the man is adjudicated the father using the procedure set forth in ss. 767.45 to 767.60. Except as provided in ss. 767.477, 767.62 and 769.401, the exclusive procedure for establishment of child support obligations, legal custody or physical placement rights for a man who is neither not presumed the child's father under s. 891.41 nor (1), adjudicated the father or acknowledged under s. 767.62 (1) or a substantially similar law of another state to be the father is by an action under ss. 767.45 to 767.60 or under s. 769.701. No person may waive the use of this procedure. If a presumption under s. 891.41 (1) exists, a party denying paternity has the burden of rebutting the presumption.

191,444 Section 444 . 767.45 (6m) of the statutes is amended to read:

767.45 (6m) The attorney designated under sub. (6) (a) shall commence an action under this section on behalf of the state within 6 months after receiving notification under s. 69.03 (15) that no father is named on the birth certificate of a child who is a resident of the county if paternity has not been acknowledged under s. 767.62 (1) or a substantially similar law of another state or adjudicated, except in situations under s. 69.14 (1) (g) and (h) and as provided by the department by rule.

191,445 Section 445 . 767.45 (6p) of the statutes is repealed.

191,446 Section 446 . 767.455 (5g) (form) 2. of the statutes is amended to read:

767.455 (5g) (form) 2. You have the right to be represented by an attorney. If you are unable to afford an attorney, the court will appoint one for you only upon one or more of the genetic tests taken during the proceedings showing if the results of one or more genetic tests show that you are excluded as the father and that the statistical probability of your being the father is less than 99.0%. In order to determine whether you are entitled to have an attorney appointed for you, you may call the following telephone number .... .

191,447 Section 447 . 767.455 (5g) (form) 3. of the statutes is amended to read:

767.455 (5g) (form) 3. You may request genetic tests which will indicate the probability that you are or are not the father of the child. The court or county child support agency will order genetic tests on 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.

191,448 Section 448 . 767.455 (5g) (form) 7. of the statutes is amended to read:

767.455 (5g) (form) 7. If you fail to appear at any stage of the proceeding, including a scheduled court-ordered genetic test, the court will enter a default judgment finding you to be the father. A default judgment will take effect 30 days after it is served on or mailed to you at your address on file with the court, unless within those 30 days you present to the court evidence of good cause for your failure to appear or your failure to have undergone a court-ordered genetic test. You need not appear at the time and place specified in the summons if you complete the attached waiver of first appearance statement and deliver it to the court by the date specified in the waiver of first appearance statement.

191,449 Section 449 . 767.455 (5r) (form) 2. of the statutes is amended to read:

767.455 (5r) (form) 2. I understand that I will be notified by the court of all future stages in the proceeding and agree to appear at those stages. If I fail to appear at any stage, including a scheduled court-ordered genetic test, the court will enter a default judgment finding me to be the father. A default judgment will take effect 30 days after it is served on or mailed to me, unless within those 30 days I present to the court evidence of good cause for my failure to appear or my failure to have undergone a court-ordered genetic test.

191,450 Section 450 . 767.458 (1) (c) of the statutes is amended to read:

767.458 (1) (c) Except as provided under sub. (1m) and s. 767.463, the respondent may request the administration of genetic tests which either demonstrate that he is not the father of the child or which demonstrate the probability that he is or is not the father of the child;

191,451 Section 451 . 767.458 (1) (d) of the statutes is amended to read:

767.458 (1) (d) Except as provided under sub. in subs. (1m) and (2) and s. 767.463, the court will order genetic tests upon the request of any party; and

191,452 Section 452 . 767.458 (2) of the statutes is amended to read:

767.458 (2) At the first appearance, if it appears from a sufficient petition or affidavit of the child's mother or an alleged father, or from sworn testimony of the child's mother or an alleged father, that there is probable cause to believe that any of the males named has had sexual intercourse with the mother during a possible time of the child's conception, the court may, or upon the request of any party shall, order any of the named persons to submit to genetic tests. The tests shall be conducted in accordance with s. 767.48. The court is not required to order a person who has undergone a genetic test under s. 49.225 to submit to another genetic test under this subsection unless a party requests additional tests under s. 767.48 (2).

191,453 Section 453 . 767.458 (3) of the statutes is amended to read:

767.458 (3) At the first appearance, if a statement acknowledging paternity under s. 69.15 (3) (b) 1. or 3. that was signed and filed before April 1, 1998, is on file, the court may enter an order for child support, legal custody or physical placement and, if the respondent who filed the statement does not dispute his paternity, may enter a judgment of paternity.

191,454 Section 454 . 767.463 of the statutes is created to read:

767.463 Dismissal if adjudication not in child's best interest. Except as provided in s. 767.458 (1m), at any time in an action to establish the paternity of a child, upon the motion of a party or guardian ad litem, the court or court commissioner under s. 757.69 (3) (g) may, with respect to a man, refuse to order genetic tests, if genetic tests have not yet been taken, and dismiss the action if the court or court commissioner determines that a judicial determination of whether the man is the father of the child is not in the best interest of the child.

191,455 Section 455 . 767.465 (1m) of the statutes is created to read:

767.465 (1m) Judgment when mother fails to appear. Notwithstanding sub. (1), a court may enter an order adjudicating the alleged father, or man alleging that he is the father, to be the father of the child under s. 767.51 if the mother of the child fails to appear at the first appearance, unless the first appearance is not required under s. 767.457 (2), scheduled genetic test, pretrial hearing or trial if sufficient evidence exists to establish the man as the father of the child.

191,456 Section 456 . 767.465 (2) (a) of the statutes is amended to read:

767.465 (2) (a) Except as provided in sub. (2m), if a respondent is the alleged father and fails to appear at the first appearance, unless the first appearance is not required under s. 767.457 (2), scheduled court-ordered genetic test, pretrial hearing or trial, the court shall enter an order adjudicating the respondent to be the father and appropriate orders for support, legal custody and physical placement. The orders shall be either served on the respondent or mailed by regular, registered or certified mail, to the last-known address of the respondent. The orders shall take effect 30 days after service or 30 days after the date on which the orders were mailed unless, within that time, the respondent presents to the court or court commissioner under s. 757.69 (3) (g) evidence of good cause for failure to appear or failure to have undergone a court-ordered genetic test.

191,457 Section 457 . 767.466 (intro.) of the statutes is amended to read:

767.466 Motion to reopen judgment based on statement acknowledging paternity. (intro.) A judgment which adjudicates a person to be the father of a child and which was based upon a statement acknowledging paternity that was signed and filed before April 1, 1998, may, if no trial was conducted, be reopened under any of the following circumstances:

191,458 Section 458 . 767.47 (1) (c) of the statutes is amended to read:

767.47 (1) (c) Genetic test results under ss. 49.225, 767.48 or 885.23.

191,459 Section 459 . 767.47 (3) of the statutes is amended to read:

767.47 (3) In Except as provided in s. 767.48 (4), in an action against an alleged father, evidence offered by him with respect to an identified man who is not subject to the jurisdiction of the court concerning that man's sexual intercourse with the mother at or about the presumptive time of conception of the child is admissible in evidence only after the alleged father has undergone genetic tests and made the results available to the court genetic tests as provided in s. 767.48.

191,460 Section 460 . 767.47 (8) of the statutes is amended to read:

767.47 (8) The party bringing an action for the purpose of determining paternity or for the purpose of declaring the nonexistence of paternity presumed under s. 891.405 or 891.41 (1) shall have the burden of proving the issues involved by clear and satisfactory preponderance of the evidence.

191,461 Section 461 . 767.47 (11) of the statutes is created to read:

767.47 (11) Bills for services or articles related to the pregnancy, childbirth or genetic testing may be admitted into evidence and are prima facie evidence of the costs incurred for such services or articles.

191,462 Section 462 . 767.475 (1) of the statutes is renumbered 767.475 (1) (a) and amended to read:

767.475 (1) (a) Except as provided in s. 767.045 (1) (c) 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.

191,463 Section 463 . 767.475 (1) (b) of the statutes is created to read:

767.475 (1) (b) The court shall appoint a guardian ad litem for the child if s. 767.045 (1) (a) or (c) applies or if the court has concern that the child's best interest is not being represented.

191,464 Section 464 . 767.475 (2) of the statutes is amended to read:

767.475 (2) Presumption of paternity shall be as provided in ss. 891.39, 891.405 and 891.41 (1).

191,465 Section 465 . 767.477 of the statutes is created to read:

767.477 Temporary orders. (1) At any time during the pendency of an action to establish the paternity of a child, if genetic tests show that the alleged father is not excluded and that the statistical probability of the alleged father's parentage is 99.0% or higher, on the motion of a party, the court shall make an appropriate temporary order for the payment of child support and may make a temporary order assigning responsibility for and directing the manner of payment of the child's health care expenses.

(2) Before making any temporary order under sub. (1), the court shall consider those factors that the court is required under s. 767.51 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. 767.51 (5d).

191,466 Section 466 . 767.48 (1) (a) of the statutes is amended to read:

767.48 (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 complainant party or witness, when the court determines such 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).

191,467 Section 467 . 767.48 (1) (b) of the statutes is renumbered 767.48 (1) (b) (intro.) and amended to read:

767.48 (1) (b) (intro.) 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, at all of the following apply:

1. 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.

191,468 Section 468 . 767.48 (1) (b) 2. of the statutes is created to read:

767.48 (1) (b) 2. 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.

191,469 Section 469 . 767.48 (1) (b) 3. of the statutes is created to read:

767.48 (1) (b) 3. 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.

191,470 Section 470 . 767.48 (1m) of the statutes is amended to read:

767.48 (1m) Under sub. (1), if the 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% or higher, the alleged father shall be rebuttably presumed to be the child's parent.

191,471 Section 471 . 767.48 (4) of the statutes is amended to read:

767.48 (4) Whenever the results of the genetic tests exclude the an alleged father as the father of the child, this evidence shall be conclusive evidence of nonpaternity and the court shall dismiss the any paternity action with respect to that alleged father. Whenever the results of the genetic tests exclude any male witness from possible paternity, the tests shall be 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 to submit to a genetic test, this fact shall be disclosed to the fact finder. This refusal 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 (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.

191,472 Section 472 . 767.48 (5) (a) of the statutes is amended to read:

767.48 (5) (a) At 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.

191,473 Section 473 . 767.48 (5) (b) of the statutes is amended to read:

767.48 (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 (2), the court may shall require the person requesting the 2nd or subsequent series of tests to pay for it in advance, unless the court finds that the person is indigent.

191,474 Section 474 . 767.51 (1) of the statutes is amended to read:

767.51 (1) The A judgment or order of the court determining the existence or nonexistence of paternity is determinative for all purposes.