AB476: Bill Text

LRB-0112/2

GMM:kmg:jf

2003 - 2004 LEGISLATURE

2003 Assembly BILL 476

August 22, 2003 - Introduced by Representatives Jeskewitz, Hahn, Taylor, Albers, Ladwig, Krawczyk, Lothian, Freese, Ott, Hundertmark, Kestell, Suder, Wieckert, Gunderson, Gronemus, J. Wood, Vrakas, McCormick, Weber and Van Roy, cosponsored by Senators Plale, Darling, Stepp, Breske and Roessler. Referred to Committee on Family Law.

AB476,1,10 An Act to repeal 48.42 (2) (b) 2.; to renumber 48.025 (3); to renumber and amend 48.025 (2), 48.42 (2m) and 48.423; to amend 46.03 (7) (bm), 48.025 (1), 48.27 (3) (b) 1. a., 48.27 (5), 48.42 (2) (b) 1., 48.42 (2) (b) 3., 48.422 (6) (a), 48.43 (6), 48.837 (4) (e), 48.91 (2), 938.27 (3) (b) 1. a. and 938.27 (5); and to create 48.025 (2) (b), 48.025 (2) (d), 48.025 (3) (a), 48.025 (3) (c), 48.025 (3) (d), 48.025 (5), 48.025 (6), 48.42 (2) (b) 4., 48.42 (2m) (b) and 48.423 (2) of the statutes; relating to: declarations of paternal interest by persons who may be the father of a nonmarital child, notice to those persons of a termination of parental rights proceeding involving the child, the finality of a termination of parental rights order, and providing a penalty.

Analysis by the Legislative Reference Bureau

Under current law, any person claiming to be the father of a nonmarital child whose paternity has not been established may file with the Department of Health and Family Services (DHFS) a declaration of paternal interest in matters affecting the child. The declaration may be filed at any time before a termination of the father's parental rights (TPR) and must be in writing and signed by the person filing the declaration. DHFS must send a copy of the declaration to the mother, who may file a written response to the declaration. Filing a declaration does not extend parental rights to the person filing the declaration, but it does entitle that person to notice of a child in need of protection or services (CHIPS), a juvenile in need of protection or services (JIPS), or a TPR proceeding. Current law requires DHFS to release a declaration of paternal interest to the Department of Workforce Development or a county child support agency upon request or to any other person with a direct and tangible interest in the declaration and permits DHFS to release a declaration to any other person only upon court order.

This bill makes various changes relating to declarations of paternal interest. The bill requires a declaration to be filed before the child's birth or within 14 days after the child's birth and permits a declaration to be revoked at any time. The bill also requires a declaration or revocation to be verified upon oath or affirmation and, in the case of a minor, to also be signed by the parent or guardian of the minor. The bill requires DHFS to keep declarations confidential, except that DHFS must, on the request of a court assigned to exercise jurisdiction under the Children's Code and the Juvenile Justice Code (juvenile court) in a CHIPS, JIPS, TPR, or adoption proceeding or of a person authorized to file a CHIPS, JIPS, TPR, or adoption petition, search its files to determine whether a person who may be the father of the child who is the subject of the proceeding or action has filed a declaration. If DHFS has a declaration on file, it must issue to the requester a certified copy of the declaration. If DHFS does not have a declaration on file, it must issue to the requester a certified statement that no declaration could be located. A TPR petitioner then must file with the juvenile court, prior to the plea hearing, the certified copy of the declaration or the certified statement that no declaration could be located.

Under current law, certain persons who may be the father of a nonmarital child whose paternity has not been established must be served with a summons and petition notifying the person of a TPR proceeding involving the child. Those persons include, in addition to a person who files a declaration of paternal interest, a person who is alleged to be the father of the child or who, based on statements made by the mother or other information, may be the father of the child, and a person who has lived in a familial relationship with the child and who may be the father of the child. A person who receives a summons and petition in a TPR proceeding has standing to appear and contest the TPR petition and, if grounds for TPR are found, may present evidence relevant to the disposition of the case and make alternative dispositional recommendations.

This bill makes certain changes relating to notice to a person who may be the father of a nonmarital child whose paternity has not been established of a TPR proceeding concerning the child. Specifically, the bill eliminates the requirement that notice be provided to a person who is alleged to be the father of the child or who, based on statements made by the mother or other information, may be the father of the child and instead requires notice to be provided to all of the following:

1. A person who has filed an unrevoked declaration of paternal interest, within 14 days after the birth of the child.

2. A person who is openly living with the child and is holding himself out to be the father of the child at the time that the petition is filed or at the time that the child was removed from the home.

3. A person who has established a substantial parental relationship with the child. "Substantial parental relationship" is defined under current law to mean the acceptance and exercise of significant responsibility for the daily supervision, education, protection, and care of a child.

In addition, the bill creates a presumption, in the case of a child who is six months of age or older, that a person has established a substantial parental relationship with the child if the person has openly lived with the child and held himself out to be the father of the child for a period of six months within the one-year period immediately preceding the date on which the petition is filed or the date on which the child was removed from the home.

The bill also specifies that a person who may be the father of a nonmarital child whose paternity has not been established, by virtue of the fact that the person had sexual intercourse with the mother of the child, is considered to be on notice that a pregnancy and a TPR proceeding might result, has the duty to protect his own rights and interests, and, therefore, is entitled to actual notice of the TPR proceeding only as provided in the bill. In addition, the bill specifies that a person who is not entitled to actual notice of a TPR proceeding under the bill does not have standing to appear and contest the petition, present evidence relevant to the issue of disposition, or make alternative dispositional recommendations unless the person appears at the hearing, establishes paternity, and proves all of the following:

1. That the person resides and has resided in another state where the mother of the child resided or was located at the time of or after the conception of the child.

2. That the mother left that state without notifying or informing that person that she could be located in this state.

3. That the person attempted to locate the mother through every reasonable means, but did not know or have reason to know that the mother was residing or located in this state.

4. That the person has complied with the requirements of the state where the mother previously resided or was located to protect and preserve his paternal interests in matters affecting the child.

Finally, under current law, a person whose parental rights have been terminated may petition for a rehearing on the grounds that new evidence has been discovered affecting the advisability of the court's adjudication no later than one year after the date on which the TPR judgment was entered, except that a parent who has consented to the TPR or who did not contest the TPR petition may move for relief from the judgment no later than 30 days after entry of the TPR judgment. This bill prohibits any person, for any reason, from collaterally attacking a TPR judgment more than one year after its entry.

For further information see the state and local fiscal estimate, which will be printed as an appendix to this bill.

The people of the state of Wisconsin, represented in senate and assembly, do enact as follows:

AB476, s. 1 Section 1. 46.03 (7) (bm) of the statutes is amended to read:

AB476,4,14 46.03 (7) (bm) Maintain a file containing records of artificial inseminations under s. 891.40 and records of, declarations of paternal interest under s. 48.025, and of statements acknowledging paternity under s. 69.15 (3) (b). The department shall may release these those records, declarations, and statements only upon an order of the court except that the department may use nonidentifying information concerning artificial inseminations for the purpose of compiling statistics and except that records relating to, declarations of paternal interest shall be released as provided in s. 48.025 (3) (b) and (c), and statements acknowledging paternity shall be released without a court order to the department of workforce development or a county child support agency under s. 59.53 (5) without a court order upon the request of the that department of workforce development or a or county child support agency under s. 59.53 (5) pursuant to the program responsibilities under s. 49.22 or by to any other person with a direct and tangible interest in the record statement.

AB476, s. 2 Section 2. 48.025 (1) of the statutes is amended to read:

AB476,4,21 48.025 (1) Any person claiming to be the father of a nonmarital child who is not adopted or whose parents do not subsequently intermarry under s. 767.60 and whose paternity has not been established may, in accordance with procedures under this section, file with the department a declaration of his interest in matters affecting such the child. The department may not charge a fee for filing a declaration under this section.

AB476, s. 3 Section 3. 48.025 (2) of the statutes is renumbered 48.025 (2) (a) and amended to read:

AB476,5,6 48.025 (2) (a) The A declaration provided in under sub. (1) may be filed at any time except after before a termination of the father's parental rights under subch. VIII. This paragraph does not apply to a declaration that is filed on or after the effective date of this paragraph .... [revisor inserts date].

AB476,5,13 (c) The declaration shall be in writing, shall be signed and verified upon oath or affirmation by the person filing the declaration, and shall contain the person's name and address, the name and last-known address of the mother, the month and year of the birth or expected birth of the child, and a statement that he the person filing the declaration has reason to believe that he may be the father of the child. If the person filing the declaration is under 18 years of age, the declaration shall also be signed by a parent or guardian of the person.

AB476, s. 4 Section 4. 48.025 (2) (b) of the statutes is created to read:

AB476,5,18 48.025 (2) (b) A declaration under sub. (1) may be filed at any time before the birth of the child or within 14 days after the birth of the child. This paragraph does not apply to a declaration filed before the effective date of this paragraph .... [revisor inserts date].

AB476, s. 5 Section 5. 48.025 (2) (d) of the statutes is created to read:

AB476,5,25 48.025 (2) (d) A person who has filed a declaration under sub. (1) may revoke the declaration at any time by filing with the department a statement, signed and verified upon oath or affirmation, that the person, to the best of his knowledge and belief, is not the father of the child or that another person has been adjudicated as the father of the child. If the person filing the revocation is under 18 years of age, the revocation shall also be signed by a parent or guardian of the person.

AB476, s. 6 Section 6. 48.025 (3) of the statutes is renumbered 48.025 (3) (b).

AB476, s. 7 Section 7. 48.025 (3) (a) of the statutes is created to read:

AB476,6,6 48.025 (3) (a) The department shall keep confidential and may not open to public inspection or disclose the contents of any declaration, revocation of a declaration, or response to a declaration filed under this section, except as provided under pars. (b) and (c) or by order of the court for good cause shown.

AB476, s. 8 Section 8. 48.025 (3) (c) of the statutes is created to read:

AB476,6,20 48.025 (3) (c) A court in a proceeding under s. 48.13, 48.133, 48.14, or 938.13 or under a substantially similar law of another state or a person authorized to file a petition under s. 48.42, 48.837, or 938.25 or under a substantially similar law of another state may request the department to search its files to determine whether a person who may be the father of the child who is the subject of the proceeding has filed a declaration under this section. If the department has on file a declaration of paternal interest in matters affecting the child, the department shall issue to the requester a certified copy of the declaration. If the department does not have on file a declaration of paternal interest in matters affecting the child, the department shall issue to the requester a certified statement that no declaration could be located. The department may require a person who requests a search under this paragraph to pay a reasonable fee that is sufficient to defray the costs to the department of maintaining its file of declarations under this section.

AB476, s. 9 Section 9. 48.025 (3) (d) of the statutes is created to read:

AB476,7,2 48.025 (3) (d) Any person who obtains any information under this subsection may use or disclose that information only for the purposes of a proceeding under s. 48.13, 48.133, 48.14, or 938.13 or under a substantially similar law of another state and may not use or disclose that information for any other purpose except by order of the court for good cause shown.

AB476, s. 10 Section 10. 48.025 (5) of the statutes is created to read:

AB476,7,6 48.025 (5) The department shall publicize, in a manner calculated to provide maximum notice to all persons who might claim to be the father of a nonmarital child, all of the following information:

AB476,7,8 (a) That a person claiming to be the father of a nonmarital child may file a declaration of interest under this section.

AB476,7,9 (b) The procedures for filing a declaration of interest.

AB476,7,10 (c) The consequences of filing a declaration of interest.

AB476,7,11 (d) The consequences of not filing a declaration of interest.

AB476, s. 11 Section 11. 48.025 (6) of the statutes is created to read:

AB476,7,16 48.025 (6) (a) Any person who makes a false statement in a declaration, revocation of a declaration, or response to a declaration filed under this section that the person does not believe is true is subject to prosecution for false swearing under s. 946.32 (2).

AB476,7,19 (b) Except as permitted under sub. (3), any person who intentionally obtains, uses, or discloses information that is confidential under this section may be fined $1,000 or imprisoned for 90 days or both.

AB476, s. 12 Section 12. 48.27 (3) (b) 1. a. of the statutes is amended to read:

AB476,7,22 48.27 (3) (b) 1. a. A person who has filed a declaration of paternal interest under s. 48.025.

AB476, s. 13 Section 13. 48.27 (5) of the statutes is amended to read:

AB476,8,4 48.27 (5) Subject to sub. (3) (b), the court shall make every reasonable effort to identify and notify any person who has filed a declaration of paternal interest under s. 48.025, any person who has acknowledged paternity of the child under s. 767.62 (1), and any person who has been adjudged to be the biological father of the child in a judicial proceeding unless the biological father's person's parental rights have been terminated.

AB476, s. 14 Section 14. 48.42 (2) (b) 1. of the statutes is amended to read:

AB476,8,8 48.42 (2) (b) 1. A person who has filed a an unrevoked declaration of paternal interest under s. 48.025 before the birth of the child or within 14 days after the birth of the child.

AB476, s. 15 Section 15. 48.42 (2) (b) 2. of the statutes is repealed.

AB476, s. 16 Section 16. 48.42 (2) (b) 3. of the statutes is amended to read:

AB476,8,14 48.42 (2) (b) 3. A person who has lived in a familial relationship is openly living with the child and who may be is holding himself out to be the father of the child at the time that the petition is filed or at the time that the child was removed from the home.

AB476, s. 17 Section 17. 48.42 (2) (b) 4. of the statutes is created to read:

AB476,8,22 48.42 (2) (b) 4. A person who has established a substantial parental relationship, as defined in s. 48.415 (6) (b), with the child. In the case of a child who is 6 months of age or older on the date on which the petition is filed, a person who openly lived with the child and held himself out to be the father of the child for a period of 6 months within the one-year period immediately preceding the date on which the petition is filed or the date on which the child was removed from the home is presumed to have a substantial parental relationship with the child.

AB476, s. 18 Section 18. 48.42 (2m) of the statutes is renumbered 48.42 (2m) (a) and amended to read:

AB476,9,14 48.42 (2m) (a) Parent as a result of sexual assault. Except as provided in this subsection paragraph, notice is not required to be given to a person who may be the father of a child conceived as a result of a sexual assault in violation of s. 940.225 (1), (2) or (3), 948.02 (1) or (2), or 948.025 if a physician attests to his or her belief that a sexual assault as specified in this subsection paragraph has occurred or if the person who may be the father of the child has been convicted of sexual assault as specified in this subsection paragraph for conduct which may have led to the child's conception. A person who under this subsection paragraph is not given notice does not have standing to appear and contest a petition for the termination of his parental rights, present evidence relevant to the issue of disposition, or make alternative dispositional recommendations. This subsection paragraph does not apply to a person who may be the father of a child conceived as a result of a sexual assault in violation of s. 948.02 (1) or (2) if that person was under 18 years of age at the time of the sexual assault.