SB123: Bill Text

SB123,102,15 767.80 (1) Who may bring action or file motion. (intro.) The following persons may bring an action or file a 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):

SB123,102,17 (c) Unless s. 767.62 767.805 (1) applies, a man male presumed to be the child's father under s. 891.405 or 891.41 (1).

SB123,102,18 (d) A man male alleged or alleging himself to be the father of the child.

SB123,102,20 (g) This state whenever the circumstances specified in s. 767.075 (1) 767.205 (2) (a) apply, including the delegates of the state as specified in sub. (6).

SB123,102,22 (i) A guardian ad litem appointed for the child under s. 48.235, 767.045 767.407 (1) (c), or 938.235.

SB123,103,2 (k) In conjunction with the filing of a petition for visitation with respect to the child under s. 767.245 767.43 (3), a parent of a person who has filed a declaration of paternal interest under s. 48.025 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.

SB123,103,15 (5) (b) An action under this section may be joined with any other action for child support and shall be is governed by the procedures specified in s. 767.05 767.205 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 circuit court commissioner court, 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 that 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 767.48 767.84.

SB123,104,8 (5m) Applicable procedure; exceptions. Except as provided in ss. 767.458 (3), 767.465 (2) and (2m), 767.477, 767.62 767.805, 767.863 (3), 767.85, 767.893 (2) and (2m), and 769.401, unless a man male is presumed the child's father under s. 891.41 (1), is adjudicated the child's father either under s. 767.51 767.89 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. 767.62 767.805 (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 male is adjudicated the father using the procedure set forth in ss. 767.45 to 767.60 this subchapter, except s. 767.805. Except as provided in ss. 767.477, 767.62 767.805, 767.85, and 769.401, the exclusive procedure for establishment of child support obligations, legal custody, or physical placement rights for a man male who is not presumed the child's father under s. 891.41 (1), adjudicated the father , or acknowledged under s. 767.62 767.805 (1) or a substantially similar law of another state to be the father is by an action under ss. 767.45 to 767.60 this subchapter, except s. 767.805, 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.

SB123,104,11 (6) (a) The attorney responsible for support enforcement under s. 59.53 (6) (a) shall provide the representation for the state as specified under s. 767.075 (1) 767.205 (2) (a) in cases brought under this section.

SB123,104,15 (c) The attorney under s. 59.53 (6) (a) or any state attorney acting under par. (b) may not represent the state as specified under s. 767.075 (1) 767.205 (2) (a) in an action under this section and at the same time act as guardian ad litem for the child or the alleged child of the party.

SB123,104,22 (6m) When action must be commenced. 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. 767.62 767.805 (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.

SB123,104,24 (6r) (a) 2. c. That the man male designated in s. 48.299 (6) (a) or 938.299 (6) (a) has previously been excluded as the father of the child.

SB123,105,5 (7) Clerk to provide document. The clerk of court shall provide without charge, to each person bringing an action under this section, except to the state under sub. (1) (g) or (6m), a document setting forth the percentage standard established by the department under s. 49.22 (9) and listing the factors which that a court may consider under s. 767.25 767.511 (1m).

SB123, s. 185 Section 185. 767.455 (title) and (1) to (4) of the statutes are renumbered 767.813 (title) and (1) to (4).

SB123, s. 186 Section 186. 767.455 (5) of the statutes is renumbered 767.813 (5) and amended to read:

SB123,105,11 767.813 (5) Form Forms. The summons shall be in substantially one of the following form forms:

SB123,105,12 (a) Mother as petitioner.

SB123,105,13 STATE OF WISCONSIN,                        CIRCUIT COURT: ....COUNTY

SB123,105,15 In re the Paternity of A. B.

SB123,105,16 STATE OF WISCONSIN

SB123,105,17   and

SB123,105,18 C. D. (Mother-Petitioner)

SB123,105,19 Address

SB123,105,20 City, State Zip Code                                               File No. ...

SB123,105,21        , Petitioners

SB123,105,22    vs.                                                      S U M M O N S

SB123,105,23 E. F.

SB123,105,24 Address                            .... (Case Classification Type):.... (Code No.)

SB123,105,25 City, State Zip Code

SB123,106,1      , Respondent

SB123,106,3 THE STATE OF WISCONSIN, To the Respondent:

SB123,106,6 1. You have been sued. .... claims that you are the father of the child, .... born on .... (date), in .... (city) (county) (state). You must appear to answer this claim of paternity. Your court appearance is:

SB123,106,7 Date: . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

SB123,106,8 Time: . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

SB123,106,9 Room: . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

SB123,106,10 Judge or Circuit Court Commissioner: . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

SB123,106,11 Address: . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

SB123,106,15 2. If you do not appear, 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, unless within those 30 days you present to the court evidence of good cause for failure to appear.

SB123,106,22 3. If you plan to be represented by an attorney, you should contact the attorney prior to the court appearance listed above. If you are unable to afford an attorney, the court will appoint one for you only upon the blood genetic tests showing that you are not excluded as the father and the probability of your being the father is less than 99.0%. Appearance is not required if you complete the attached waiver of first appearance statement and send it to the court at least 10 days prior to the date of your scheduled appearance in this summons 99.0 percent.

SB123,106,25 4. You are also notified that interference with the custody of a child is punishable by a fine of up to $10,000 and imprisonment for up to 5 years. Section 948.31, stats.

SB123,107,3 5. The .... County Clerk of Circuit Court is an equal opportunity service provider. If you need assistance to access services in the courts or need material in an alternate format, please call .....

SB123,107,4 Dated: ...., .... (year)

SB123,107,5 Signed:.... ....

SB123,107,6 G. H., Clerk of Circuit Court

SB123,107,7       or

SB123,107,8 Petitioner's Attorney

SB123,107,9 State Bar No.: ....

SB123,107,10 Address: ....

SB123,107,11 City, State Zip Code: ....

SB123,107,12 Phone No.: ....

Note: Revises the current summons form for a mother-petitioner in a paternity action to reflect changes in the bill making default judgments effective immediately and eliminating the waiver of first appearance in paternity actions. The revised form (and the new forms created in Sec. 243 ) add a provision indicating that the clerk of circuit court is an equal opportunity service provider.

SB123, s. 187 Section 187. 767.455 (5g) of the statutes is repealed.

Note: Replaced by the provision created by Sec. 244 of the bill.

SB123, s. 188 Section 188 . 767.455 (5r) of the statutes is repealed.

Note: The paternity reform committee recommended eliminating the waiver of first appearance in paternity actions, thus requiring a first appearance in every case that comes to court. Only voluntary acknowledgments will not have a first appearance. The committee suggested this change: (1) because the current system is "cumbersome, including extra and unnecessary court appearances"; and (2) to "reduce fraud, which can occur since we do not know with assurance who signed the waiver as most are not notarized".

This change is made in the bill by repealing current ss. 767.455 (5r), 767.457 (2) and 767.465 (2m) (b), relating to waiver of first appearance.

SB123, s. 189 Section 189. 767.455 (5w) of the statutes is repealed.

Note: Repeals current s. 767.455 (5w), stats., which specifies that the current statutory summons form does not apply to "a man alleging himself to be the father of the child". A separate summons form for an alleged father as petitioner is created by Sec. 243 in this bill.

SB123, s. 190 Section 190. 767.455 (6) of the statutes is renumbered 767.813 (6) and amended to read:

SB123,108,6 767.813 (6) Document. The summons served on the respondent shall be accompanied by a document, provided without charge by the clerk of court, setting forth the percentage standard established by the department under s. 49.22 (9) and listing the factors which that a court may consider under s. 767.25 767.511 (1m).

SB123, s. 191 Section 191. 767.456 of the statutes is renumbered 767.815.

SB123, s. 192 Section 192. 767.457 (title) of the statutes is repealed.

SB123, s. 193 Section 193. 767.457 (1) of the statutes is renumbered 767.86 and amended to read:

SB123,108,14 767.86 Time of first appearance. The first appearance under s. 767.458 767.863 may not be held any sooner than until 30 days after service or receipt of the summons and petition unless the parties agree that the first appearance may be held sooner to an earlier date.

SB123, s. 194 Section 194. 767.457 (2) of the statutes is repealed.

Note: This Section, which repeals s. 767.457 (2), and Secs. 188 and 204 eliminate the waiver of first appearance in paternity cases. See the note to Sec. 188 in this bill.

SB123, s. 195 Section 195. 767.458 (title) of the statutes is renumbered 767.863 (title).

SB123, s. 196 Section 196 . 767.458 (1) (intro.) of the statutes is renumbered 767.863 (1) and amended to read:

SB123,108,22 767.863 (1) Notice to parties. At the first court appearance where If the respondent is present at a hearing prior to the determination of paternity, the court shall, at least one time at one such hearing, inform the parties of the following: items in s. 767.813 (5g).

SB123, s. 197 Section 197. 767.458 (1) (a) to (e) of the statutes are repealed.

Note: Repeals s. 767.458 (1) (a) to (e), stats., which set forth the items the court must inform the parties of at the first court appearance where the respondent is present. This provision is no longer necessary because the bill amends current s. 767.458 (1) (intro.) (renumbered s. 767.863 (1) in this bill) to cross-reference the items listed in s. 767.455 (5g) (renumbered s. 767.813 (5g) in this bill). See Sec. 196, above.

SB123, s. 198 Section 198. 767.458 (1m) to (3) of the statutes are renumbered 767.863 (1m) to (3), and 767.863 (1m) and (2), as renumbered, are amended to read:

SB123,109,12 767.863 (1m) Paternity allegation by male other than husband; when determination not in best interest of child. In an action to establish the paternity of a child who was born to a woman while she was married, where a man if a male other than the woman's husband alleges that he, not the husband, is the child's father, a party may allege that a judicial determination that a man male other than the husband is the father is not in the best interest of the child. If the court or a circuit or supplemental court commissioner under s. 757.675 (2) (g) determines that a judicial determination of whether a man male other than the husband is the father is not in the best interest of the child, no genetic tests may be ordered and the action shall be dismissed.

SB123,109,22 (2) Order for tests. At If 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. 767.48 767.84. 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. 767.48 767.84 (2).

SB123, s. 199 Section 199. 767.459 (title) of the statutes is renumbered 767.865 (title) and amended to read:

SB123,110,3 767.865 (title) Appearance on behalf of deceased Deceased respondent.

SB123, s. 200 Section 200 . 767.459 of the statutes is renumbered 767.865 (1) (a) and amended to read:.

SB123,110,11 767.865 (1) (a) The personal representative or an attorney, if there is no personal representative, a guardian ad litem in accordance with par. (b) may appear for a deceased respondent who is the alleged father whenever an appearance by the respondent is required. The summons and petition shall be served on the personal representative of and guardian ad litem for the deceased respondent under s. 767.813 (3).

Note: See the note to Sec. 257 of this bill.

SB123, s. 201 Section 201. 767.46 of the statutes is renumbered 767.88, and 767.88 (1), as renumbered, is amended to read:

SB123,110,18 767.88 (1) Procedure; evidence. A pretrial hearing shall be held before the court or a circuit or supplemental court commissioner under s. 757.675 (2) (g). A record or minutes of the proceeding shall be kept. At the pretrial hearing the parties may present and cross-examine witnesses, request genetic tests, and present other evidence relevant to the determination of paternity.

SB123, s. 202 Section 202. 767.463 of the statutes is renumbered 767.855 and amended to read:

SB123,111,4 767.855 Dismissal if adjudication not in child's best interest. Except as provided in s. 767.458 767.863 (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 circuit or supplemental court commissioner under s. 757.675 (2) (g) may, with respect to a man male, refuse to order genetic tests, if genetic tests have not yet been taken, and dismiss the action if the court or circuit or supplemental court commissioner determines that a judicial determination of whether the man male is the father of the child is not in the best interest of the child.

SB123, s. 203 Section 203. 767.465 (title), (1), (1m), (2) and (2m) (title) and (a) of the statutes are renumbered 767.893 (title), (1), (1m), (2) and (2m) (title) and (a), and 767.893 (1m), (2) (a) and (b) and (2m) (a), as renumbered, are amended to read:

SB123,111,13 767.893 (1m) Judgment when mother fails to appear. Notwithstanding sub. (1), a court may enter an order adjudicating the alleged father, or man male alleging that he is the father, to be the father of the child under s. 767.51 767.89 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 male as the father of the child.

SB123,111,24 (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 a circuit or supplemental court commissioner under s. 757.675 (2) (g) evidence of good cause for failure to appear or failure to have undergone a court-ordered genetic test.

Note: Amended to delete language requiring a delay in the effective date of default judgment orders in paternity actions. The paternity reform committee recommended that default judgments in paternity cases take effect immediately.