SB123: Bill Text

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SB123, s. 187 Section 187. 767.455 (5g) of the statutes is repealed.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SB123, s. 188 Section 188 . 767.455 (5r) of the statutes is repealed.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SB123, s. 189 Section 189. 767.455 (5w) of the statutes is repealed.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SB123, s. 192 Section 192. 767.457 (title) of the statutes is repealed.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.

SB123,112,3 (b) A default judgment may not be entered under par. (a) if there is more than one person alleged in the petition to be the father, unless only any of the following applies:

SB123,112,5 1. Only one of those persons fails to appear and all of the other male respondents have been excluded as the father.

Note: See Sec. 262 in this bill for subd. 2.

SB123,112,13 (2m) (a) At any time after service of the summons and petition, a respondent who is the alleged father may, with or without appearance in court and subject to the approval of the court, in writing acknowledge that he has read and understands the notice under s. 767.455 767.813 (5g) and stipulate that he is the father of the child and for child support payments, legal custody, and physical placement. The court may not approve a stipulation for child support unless it provides for payment of child support determined in a manner consistent with s. 767.25 767.511 or 767.51 767.89.

SB123, s. 204 Section 204 . 767.465 (2m) (b) of the statutes is repealed.

Note: Repeals s. 767.465 (2m) (b), relating to waiver of first appearance. See the note to Sec. 188 in this bill.

SB123, s. 205 Section 205. 767.465 (2m) (c), (3) and (4) of the statutes are renumbered 767.893 (2m) (c), (3) and (4).

SB123, s. 206 Section 206. 767.466 of the statutes is renumbered 767.895.

SB123, s. 207 Section 207. 767.47 of the statutes is renumbered 767.87, and 767.87 (1) (c), (1m) (d) and (3), as renumbered, are amended to read:

SB123,112,20 767.87 (1) (c) Genetic test results under ss. s. 49.225, 767.48 767.84, or 885.23.

SB123,112,21 (1m) (d) Prior to the entry of the judgment under s. 767.51 767.89.

SB123,113,7 (3) Evidence of identified male not under jurisdiction. Except as provided in s. 767.48 767.84 (4), in an action against an alleged father, evidence offered by him with respect to an identified man male who is not subject to the jurisdiction of the court concerning that man's male'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.

SB123, s. 208 Section 208. 767.475 of the statutes is renumbered 767.82, and 767.82 (1) (b), (2m) and (7m), as renumbered, are amended to read:

SB123,113,12 767.82 (1) (b) The court shall appoint a guardian ad litem for the child if s. 767.045 767.407 (1) (a) or (c) applies or if the court has concern that the child's best interest is not being represented.

SB123,113,15 (2m) Custody pending court order. If there is no presumption of paternity under s. 891.41 (1) or if paternity is acknowledged under s. 767.805 (1), the mother shall have sole legal custody of the child until the court orders otherwise.

Note: Creates language specifying that if paternity is acknowledged under s. 767.805 (1) [renumbered from s. 767.62 (1)], the mother has sole legal custody of the child until the court orders otherwise. Current law is silent on legal custody where paternity is acknowledged and the court has not ordered otherwise.

SB123,113,19 (7m) When action has priority. The court shall give priority to an action brought under s. 767.45 whenever 767.80 if the petition under s. 767.45 767.80 (5) indicates that the matter was referred under s. 48.299 (6) (a) or 938.299 (6) (a) by a court assigned to exercise jurisdiction under chs. 48 and 938.

SB123, s. 209 Section 209. 767.477 of the statutes is renumbered 767.85, and 767.85 (2), as renumbered, is amended to read:

SB123,114,4 767.85 (2) Considerations. Before making any temporary order under sub. (1), the court shall consider those factors that the court is required 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. 767.25 767.511 (1n).

SB123, s. 210 Section 210. 767.48 (title) of the statutes is renumbered 767.84 (title).

SB123, s. 211 Section 211. 767.48 (1) (a) of the statutes is renumbered 767.84 (1) (a) 1. and amended to read:

SB123,114,19 767.84 (1) (a) 1. The Except as provided in subd. 2., 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 party or witness, when the court determines such that 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 subdivision unless a party requests additional tests under sub. (2).

Note: Requires genetic tests in every case except defaults, voluntary acknowledgements, and some deceased father cases. Based on a recommendation of the paternity reform committee. The reform committee cited as its reason for the change:

"To reduce the number of paternity cases being reopened. Some cases are reopened after 15 or more years. Such reopenings are very expensive for the courts and very detrimental to children.".

See, also, Sec. 250 of this bill.

SB123, s. 212 Section 212. 767.48 (1) (b) and (1m) to (7) of the statutes are renumbered 767.84 (1) (b) and (1m) to (7), and 767.84 (4) and (5) (b), as renumbered, are amended to read:

SB123,115,17 767.84 (4) Tests excluding paternity; refusal to submit to test. Whenever the results of genetic tests exclude Genetic test results excluding an alleged father as the father of the child, this evidence shall be are conclusive evidence of nonpaternity and the court shall dismiss any paternity action with respect to that alleged father. Whenever the results of genetic tests exclude Genetic test results excluding any male witness from possible paternity, the tests shall be are 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 Refusal of a party to submit to a genetic test, this fact shall be disclosed to the fact finder. Refusal to submit to a genetic test ordered by the court is a contempt of the court for failure to produce evidence under s. 767.47 767.87 (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.

SB123,115,22 (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 767.458 767.863 (2), the court shall require the person requesting the 2nd or subsequent series of tests to pay for it the series in advance, unless the court finds that the person is indigent.

SB123, s. 213 Section 213. 767.481 (8) of the statutes is created to read:

SB123,115,25 767.481 (8) Not applicable to paternity actions. This section does not apply to paternity actions under subch. IX.

Note: New sub. (8) codifies a court of appeals decision clarifying that s. 767.327, stats., does not apply to paternity actions. [In re the Paternity of Kaila, 241 Wis. 2d 50, 622 N.W.2d 770 (Ct. App. 2000).] In that case, the court, citing a recent law journal article, noted:

"Wisconsin Stat. s. 767.51 (6) expressly applies Wis. Stat. 767.325 to paternity actions and not s. 767.327. This omission of s. 767.327 from paternity actions was not accidental:

When the 1995 amendment [1995 Wisconsin Act 70} was being drafted, adding removal to s. 767.51 (6) was included in the initial drafts. It was removed, however, prior to the final draft. This decision was not without a debate. Those in favor of inclusion argued that removal statutes were designed with the best interest of the child as the primary objective . . . . The other side of the issue argued that inclusion of paternity would be confusing and unnecessary. Many paternity mothers are relatively unsophisticated, whereas many of the respondents have little interest in their children. For those men seriously interested in their relationship with the child, the general modification statute, [s. 767.325, stats.], provides ample opportunity to contest a move.

Judith Hartig-Osanka and Gregg Herman, Removal After Kerkvliet, Wisconsin Journal of Family Law, Vol. 20 at 33 (Apr. 2000). Thus, the legislature did not intend s. 767.327, stats., to apply to paternity actions.".

SB123, s. 214 Section 214. 767.50 of the statutes is renumbered 767.883, and 767.883 (1), as renumbered, is amended to read:

SB123,117,10 767.883 (1) Two parts. The trial shall be divided into 2 parts. The, the first part shall deal dealing with the determination of paternity. The and the 2nd part shall deal dealing with child support, legal custody, periods of physical placement, and related issues. At the first part of the trial, the The main issue at the first part shall be whether the alleged or presumed father is or is not the father of the mother's child, but if the child was born to the mother while she was the lawful wife of a specified man there shall first be determined, as provided in s. 891.39, male the prior issue of whether the husband was not the father of the child shall be determined first, as provided under s. 891.39. The first part of the trial shall be by jury only if the defendant verbally requests a jury trial either at the initial appearance or pretrial hearing or requests a jury trial in writing prior to the pretrial hearing. The court may direct, and, if requested by either party, before the introduction of any testimony in the party's behalf, shall direct the jury, in cases where there is a jury, to find a special verdict as to any of the issues specified in this section, except that the court shall make all of the findings enumerated in s. 767.51 767.89 (2) to (4). If the mother is dead, becomes insane, cannot be found within the jurisdiction, or fails to commence or pursue the action, the proceeding does not abate if any of the persons under s. 767.45 767.80 (1) makes a motion to continue. The testimony of the mother taken at the pretrial hearing may in any such case be read in evidence if it is competent, relevant, and material. The issues of child support, custody and visitation, and related issues shall be determined by the court either immediately after the first part of the trial or at a later hearing before the court.

SB123, s. 215 Section 215. Subchapter VI (title) of chapter 767 [precedes 767.501] of the statutes is created to read:

SB123,117,13 Chapter 767

SB123,117,15 Subchapter vi support and maintenance

SB123, s. 216 Section 216. 767.501 (1) (title) and (2) (title) of the statutes are created to read:

SB123,117,17 767.501 (1) (title) Definitions.

SB123,117,18 (2) (title) Who may commence; support determination.

SB123, s. 217 Section 217 . 767.501 (4) of the statutes is created to read:

SB123,117,23 767.501 (4) Legal custody and physical placement. Upon request of a party to an action under this section, the court may make orders concerning the legal custody and physical placement of any minor child of the parties in accordance with s. 767.41.

Note: Expressly authorizes a request for and determination of legal custody and physical placement in conjunction with an action to compel support and maintenance under renumbered s. 767.501 (former s. 767.08). See, also, Sec. 96 of this bill.

SB123, s. 218 Section 218. 767.51 of the statutes is renumbered 767.89, and 767.89 (2), (3) (b), (c) and (f), (4) (a) (intro.) and (6), as renumbered, are amended to read: