AB816: Bill Text

Summary

This bill recognizes same-sex marriage by making references in the statutes to spouses gender neutral. The bill also recognizes legal parentage for same-sex couples under certain circumstances.

Same-sex marriage

This bill provides that marriage may be contracted between persons of the same sex and confers the same rights and responsibilities on married persons of the same sex that married persons of the opposite sex have under current law. The bill defines "spouse" as a person who is legally married to another person of the same or opposite sex and replaces every reference to "husband" or "wife" in current law with "spouse." The bill makes applicable to married persons of the same sex all provisions under current law that apply to married persons of the opposite sex. These provisions relate to such diverse areas of the law as income tax, marital property, inheritance rights, divorce, child and spousal support, insurance coverage, family and spousal recreational licenses, consent to conduct an autopsy, domestic abuse, and eligibility for various types of benefits, such as retirement or death benefits and medical assistance.

Same-sex parents

In addition to making statutory references to spouses gender neutral, the bill specifies ways in which married couples of the same sex may be the legal parents of a child and, with some exceptions, makes current references in the statutes to "mother" and "father," and related terms, gender neutral.

Under current law, all of the following may adopt a child: a husband and wife jointly, a husband or wife whose spouse is the parent of the child, and an unmarried adult. Because the bill makes references in the statutes to spouses gender neutral, same-sex spouses jointly may adopt a child and become the legal parents of the child, and a same-sex spouse of a person who is the parent of a minor child may adopt the child and become the legal parent of his or her spouse's child.

Under current law, if a woman is artificially inseminated under the supervision of a physician with semen donated by a man who is not her husband and the husband consents in writing to the artificial insemination of his wife, the husband is the natural father of any child conceived. Under this bill, a same-sex spouse may also consent to the artificial insemination of her spouse with donated semen and is the natural parent of the child conceived. The artificial insemination is not required to take place under the supervision of a physician, but, if it does not, the semen used for the insemination must have been obtained from a sperm bank.

Under current law, there is a paternity presumption whereby a man is presumed to be the father of a child if he and the child's natural mother 1) were married to each other when the child was conceived or born or 2) married each other after the child was born but had a relationship with each other when the child was conceived and no other man has been adjudicated to be the father or is presumed to be the father because the man was married to the mother when the child was conceived or born. The paternity presumption may be rebutted in a legal action or proceeding by the results of a genetic test showing that the statistical probability of another man's parentage is 99.0 percent or higher. The bill expands this presumption into a parentage presumption, so that a person is presumed to be the natural parent of a child if he or she 1) was married to the child's mother when the child was conceived or born or 2) married the child's mother after the child was born but had a relationship with the mother when the child was conceived and no man has been adjudicated to be the father and no other person is presumed to be the child's parent because he or she was married to the mother when the child was conceived or born. The parentage presumption may still be rebutted by the results of a genetic test showing that the statistical probability of another person's parentage is 99.0 percent or higher.

The bill does not change the paternity statutes or the statutes relating to statements acknowledging paternity or declarations of paternal interest with respect to their application only to a male who may be adjudicated to be the father of a child or who may sign a statement or declaration that he is the father of a child. Expanding on current law, however, the bill allows for a paternity action to be brought for the purpose of rebutting the parentage presumption, regardless of whether that presumption applies to a male or female spouse of the mother of the child.

The bill defines "natural parent" as a parent of a child who is not an adoptive parent, whether the parent is biologically related to the child or not. Thus, a person who is a biological parent, a parent by consenting to the artificial insemination of his or her spouse, or a parent under the parentage presumption is a natural parent of a child. The definition applies throughout the statutes wherever the term "natural parent" is used. In addition, the bill expands some references in the statutes to "biological parent" by changing the reference to "natural parent."

Birth certificates

Generally, the bill substitutes the term "spouse" for "husband" in the birth certificate statutes and enters the spouse, instead of the husband, of a birth mother on the birth certificate at times when a husband would currently be entered on a birth certificate. A birth mother's name is entered on a birth certificate when she gives birth to a child and current law specifies when the husband, father, or no additional name should be entered on the birth certificate. Current law requires that if a birth mother is married at any time from the conception to the birth of a child, then her husband's name is entered on the birth certificate as the legal father of the child. Under the bill, if a birth mother is married at any time from the conception to the birth of the child, then her spouse's name is entered as a legal parent of the child. The bill also specifies that, in the instance that a second parent's name is initially omitted from the birth certificate, if the state registrar receives a signed acknowledgement of parentage by people presumed to be parents because the two people married after the birth of the child, the two people had a relationship during the time the child was conceived, no man is adjudicated to be the father, and no other person is presumed to be the parent, then the state registrar must enter the name of the birth mother's spouse as a parent on the birth certificate.

This bill will be referred to the joint survey committee on tax exemptions for a detailed analysis, which will be printed as an appendix to this bill.

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:

AB816,1 Section 1. 29.219 (4) of the statutes is amended to read:

AB816,5,4 29.219 (4) Husband and wife Spouses resident licenses. A combined husband and wife spouses resident fishing license shall be issued subject to s. 29.024 by the department to residents applying for this license. This license confers upon both husband and wife spouses the privileges of resident fishing licenses.

AB816,2 Section 2. 29.228 (5) of the statutes is amended to read:

AB816,5,9 29.228 (5) Annual family fishing license. The department shall issue a nonresident annual family fishing license, subject to s. 29.024, to any nonresident who applies for this license. This license entitles the husband, wife spouses and any minor children to fish under this license.

AB816,3 Section 3. 29.228 (6) of the statutes is amended to read:

AB816,5,14 29.228 (6) Fifteen-day family fishing license. The department shall issue a nonresident 15-day family fishing license, subject to s. 29.024, to any nonresident who applies for this license. This license entitles the husband, wife spouses and any minor children to fish under this license.

AB816,4 Section 4. 29.229 (2) (i) of the statutes is amended to read:

AB816,5,16 29.229 (2) (i) Husband and wife Spouses fishing licenses.

AB816,5 Section 5. 29.2295 (2) (i) of the statutes is amended to read:

AB816,5,18 29.2295 (2) (i) Husband and wife Spouses fishing licenses.

AB816,6 Section 6. 29.563 (3) (a) 3. of the statutes is amended to read:

AB816,5,20 29.563 (3) (a) 3. Husband and wife Spouses: $30.25.

AB816,7 Section 7. 29.607 (3) of the statutes is amended to read:

AB816,6,6 29.607 (3) License required; exceptions; wild rice identification card. Every person over the age of 16 and under the age of 65 shall obtain the appropriate wild rice license to harvest or deal in wild rice but no license to harvest is required of the members of the immediate family of a licensee or of a recipient of old-age assistance or members of their immediate families. The department, subject to s. 29.024 (2g) and (2r), shall issue a wild rice identification card to each member of a licensee's immediate family, to a recipient of old-age assistance and to each member of the recipient's family. The term "immediate family" includes husband and wife spouses and minor children having their abode and domicile with the parent or legal guardian.

AB816,8 Section 8. 45.01 (6) (c) of the statutes is amended to read:

AB816,6,10 45.01 (6) (c) The biological natural or adoptive parent or a person who acts in the place of a parent and who has so acted for not less than 12 months prior to the veteran's entrance into active service.

AB816,9 Section 9. 45.51 (3) (c) 2. of the statutes is amended to read:

AB816,6,13 45.51 (3) (c) 2. The department may deviate from this sequence upon order of the board to prevent the separation of a husband and wife spouses.

AB816,10 Section 10. 45.51 (5) (a) 1. b. of the statutes is amended to read:

AB816,6,18 45.51 (5) (a) 1. b. Was married to the person under sub. (2) (a) 1. or 2. at the time the person entered the service and who became a widow or widower surviving spouse by the death of the person while in the service or as a result of physical disability of the person incurred during the service.

AB816,11 Section 11. 45.51 (5) (a) 1. c. of the statutes is amended to read:

AB816,6,23 45.51 (5) (a) 1. c. The period during which the surviving spouse was married to and lived with the deceased person under sub. (2) (a) 1. or 2. plus the period of widowhood or widowerhood after the death of the deceased person is 6 months or more.

AB816,12 Section 12. 45.55 of the statutes is amended to read:

AB816,7,15 45.55 Notes and mortgages of minor veterans. Notwithstanding any provision of this chapter or any other law to the contrary, any minor who served in the active armed forces of the United States at any time after August 27, 1940, and the husband or wife spouse of such a minor may execute, in his or her own right, notes or mortgages, as defined in s. 851.15, the payment of which is guaranteed or insured by the U.S. department of veterans affairs or the federal housing administrator under the servicemen's readjustment act of 1944, the national housing act, or any acts supplementing or amending these acts. In connection with these transactions, the minors may sell, release, or convey the mortgaged property and litigate or settle controversies arising therefrom, including the execution of releases, deeds, and other necessary papers or instruments. The notes, mortgages, releases, deeds, and other necessary papers or instruments when so executed are not subject to avoidance by the minor or the husband or wife spouse of the minor upon either or both of them attaining the age of 18 because of the minority of either or both of them at the time of the execution thereof.

AB816,13 Section 13. 46.10 (2) of the statutes is amended to read:

AB816,8,20 46.10 (2) Except as provided in subs. (2m) and (14) (b) and (c), any person, including but not limited to a person admitted, committed, protected, or placed under s. 975.01, 1977 stats., s. 975.02, 1977 stats., s. 975.17, 1977 stats., s. 55.05 (5), 2003 stats., and 55.06, 2003 stats., and ss. 51.10, 51.13, 51.15, 51.20, 51.35 (3), 51.37 (5), 51.45 (10), (11), (12) and (13), 55.05, 55.055, 55.12, 55.13, 55.135, 971.14 (2) and (5), 971.17 (1), 975.06 and 980.06, receiving care, maintenance, services , and supplies provided by any institution in this state including University of Wisconsin Hospitals and Clinics, in which the state is chargeable with all or part of the person's care, maintenance, services, and supplies, any person receiving care and services from a county department established under s. 51.42 or 51.437 or from a facility established under s. 49.73, and any person receiving treatment and services from a public or private agency under s. 980.06 (2) (c), 1997 stats., s. 980.08 (5), 2003 stats., or s. 971.17 (3) (d) or (4) (e) or 980.08 (4) (g) and the person's property and estate, including the homestead, and the spouse of the person, and the spouse's property and estate, including the homestead, and, in the case of a minor child, the parents of the person, and their property and estates, including their homestead, and, in the case of a foreign child described in s. 48.839 (1) who became dependent on public funds for his or her primary support before an order granting his or her adoption, the resident of this state appointed guardian of the child by a foreign court who brought the child into this state for the purpose of adoption, and his or her property and estate, including his or her homestead, shall be liable for the cost of the care, maintenance, services, and supplies in accordance with the fee schedule established by the department under s. 46.03 (18). If a spouse, widow surviving spouse, or minor, or an incapacitated person may be lawfully dependent upon the property for their support, the court shall release all or such part of the property and estate from the charges that may be necessary to provide for those persons. The department shall make every reasonable effort to notify the liable persons as soon as possible after the beginning of the maintenance, but the notice or the receipt thereof is not a condition of liability.

AB816,14 Section 14. 48.02 (13) of the statutes is amended to read:

AB816,9,13 48.02 (13) "Parent" means a biological natural parent, a husband who has consented to the artificial insemination of his wife under s. 891.40, or a parent by adoption. If the child is a nonmarital child who is not adopted or whose parents do not subsequently intermarry under s. 767.803, "parent" includes a person acknowledged under s. 767.805 or a substantially similar law of another state or adjudicated to be the biological father. "Parent" does not include any person whose parental rights have been terminated. For purposes of the application of s. 48.028 and the federal Indian Child Welfare Act, 25 USC 1901 to 1963, "parent" means a biological natural parent of an Indian child, an Indian husband spouse who has consented to the artificial insemination of his wife or her spouse under s. 891.40, or an Indian person who has lawfully adopted an Indian child, including an adoption under tribal law or custom, and includes, in the case of a nonmarital Indian child who is not adopted or whose parents do not subsequently intermarry under s. 767.803, a person acknowledged under s. 767.805, a substantially similar law of another state, or tribal law or custom to be the biological father or a person adjudicated to be the biological father, but does not include any person whose parental rights have been terminated.

AB816,15 Section 15. 48.396 (2) (dm) of the statutes is amended to read:

AB816,9,25 48.396 (2) (dm) Upon request of a court having jurisdiction over actions affecting the family, an attorney responsible for support enforcement under s. 59.53 (6) (a) or a party to a paternity proceeding under subch. IX of ch. 767, the party's attorney or the guardian ad litem for the child who is the subject of that proceeding to review or be provided with information from the records of the court assigned to exercise jurisdiction under this chapter and ch. 938 relating to the paternity of a child for the purpose of determining the paternity of the child or for the purpose of rebutting the presumption of paternity under s. 891.405 or the presumption of parentage under s. 891.41 (1), the court assigned to exercise jurisdiction under this chapter and ch. 938 shall open for inspection by the requester its records relating to the paternity of the child or disclose to the requester those records.

AB816,16 Section 16. 48.422 (7) (bm) of the statutes is amended to read:

AB816,10,19 48.422 (7) (bm) Establish whether a proposed adoptive parent of the child has been identified. If a proposed adoptive parent of the child has been identified and the proposed adoptive parent is not a relative of the child, the court shall order the petitioner to submit a report to the court containing the information specified in s. 48.913 (7). The court shall review the report to determine whether any payments or agreement to make payments set forth in the report are coercive to the birth parent of the child or to an alleged to or presumed father of the child or are impermissible under s. 48.913 (4). Making any payment to or on behalf of the any birth parent of the child, an, alleged father, or presumed father parent of the child or the child conditional in any part upon transfer or surrender of the child or the termination of parental rights or the finalization of the adoption creates a rebuttable presumption of coercion. Upon a finding of coercion, the court shall dismiss the petition or amend the agreement to delete any coercive conditions, if the parties agree to the amendment. Upon a finding that payments which that are impermissible under s. 48.913 (4) have been made, the court may dismiss the petition and may refer the matter to the district attorney for prosecution under s. 948.24 (1). This paragraph does not apply if the petition was filed with a petition for adoptive placement under s. 48.837 (2).

AB816,17 Section 17. 48.422 (7) (br) of the statutes is amended to read:

AB816,10,23 48.422 (7) (br) Establish whether any person has coerced a birth parent or any, alleged father, or presumed father parent of the child in violation of s. 48.63 (3) (b) 5. Upon a finding of coercion, the court shall dismiss the petition.

AB816,18 Section 18. 48.432 (1) (am) 2. b. of the statutes is amended to read:

AB816,11,3 48.432 (1) (am) 2. b. If there is no adjudicated father, the husband spouse of the mother at the time the individual or adoptee is conceived or born, or when the parents intermarry under s. 767.803.

AB816,19 Section 19. 48.63 (3) (b) 4. of the statutes is amended to read:

AB816,11,13 48.63 (3) (b) 4. Before a child may be placed under subd. 1., the department, county department, or child welfare agency making the placement and the proposed adoptive parent or parents shall enter into a written agreement that specifies who is financially responsible for the cost of providing care for the child prior to the finalization of the adoption and for the cost of returning the child to the parent who has custody of the child if the adoption is not finalized. Under the agreement, the department, county department, or child welfare agency or the proposed adoptive parent or parents, but not the any birth parent of the child or any, alleged father, or presumed father parent of the child, shall be financially responsible for those costs.

AB816,20 Section 20. 48.63 (3) (b) 5. of the statutes is amended to read:

AB816,11,20 48.63 (3) (b) 5. Prior to termination of parental rights to the child, no person may coerce a birth parent of the child or any, alleged father, or presumed father parent of the child into refraining from exercising his or her right to withdraw consent to the transfer or surrender of the child or to termination of his or her parental rights to the child, to have reasonable visitation or contact with the child, or to otherwise exercise his or her parental rights to the child.

AB816,21 Section 21. 48.82 (1) (a) of the statutes is amended to read:

AB816,11,23 48.82 (1) (a) A husband and wife Spouses jointly, or either the husband or wife if the other spouse is of a parent of the minor.

AB816,22 Section 22. 48.837 (1r) (d) of the statutes is amended to read:

AB816,12,9 48.837 (1r) (d) Before a child may be placed under par. (a), the department, county department, or child welfare agency making the placement and the proposed adoptive parent or parents shall enter into a written agreement that specifies who is financially responsible for the cost of providing care for the child prior to the finalization of the adoption and for the cost of returning the child to the parent who has custody of the child if the adoption is not finalized. Under the agreement, the department, county department, or child welfare agency or the proposed adoptive parent or parents, but not the any birth parent of the child or any, alleged father, or presumed father parent of the child, shall be financially responsible for those costs.

AB816,23 Section 23. 48.837 (1r) (e) of the statutes is amended to read:

AB816,12,16 48.837 (1r) (e) Prior to termination of parental rights to the child, no person may coerce a birth parent of the child or any, alleged father, or presumed father parent of the child into refraining from exercising his or her right to withdraw consent to the transfer or surrender of the child or to termination of his or her parental rights to the child, to have reasonable visitation or contact with the child, or to otherwise exercise his or her parental rights to the child.

AB816,24 Section 24. 48.837 (6) (b) of the statutes is amended to read:

AB816,13,6 48.837 (6) (b) At the beginning of the hearing held under sub. (2), the court shall review the report that is submitted under s. 48.913 (6). The court shall determine whether any payments or the conditions specified in any agreement to make payments are coercive to the any birth parent of the child or to an, alleged father, or presumed father parent of the child or are impermissible under s. 48.913 (4). Making any payment to or on behalf of the a birth parent of the child, an, alleged father, or presumed father parent of the child or the child conditional in any part upon transfer or surrender of the child or the termination of parental rights or the finalization of the adoption creates a rebuttable presumption of coercion. Upon a finding of coercion, the court shall dismiss the petitions under subs. (2) and (3) or amend the agreement to delete any coercive conditions, if the parties agree to the amendment. Upon a finding that payments which that are impermissible under s. 48.913 (4) have been made, the court may dismiss the petition and may refer the matter to the district attorney for prosecution under s. 948.24 (1).

AB816,25 Section 25. 48.837 (6) (br) of the statutes is amended to read:

AB816,13,11 48.837 (6) (br) At the hearing on the petition under sub. (2), the court shall determine whether any person has coerced a birth parent or any, alleged father, or presumed father parent of the child in violation of sub. (1r) (e). Upon a finding of coercion, the court shall dismiss the petitions under subs. (2) and (3).

AB816,26 Section 26. 48.913 (1) (a) of the statutes is amended to read:

AB816,13,14 48.913 (1) (a) Preadoptive counseling for a birth parent of the child or an, alleged father, or presumed father parent of the child.

AB816,27 Section 27. 48.913 (1) (b) of the statutes is amended to read:

AB816,13,17 48.913 (1) (b) Post-adoptive counseling for a birth parent of the child or an, alleged father, or presumed father parent of the child.

AB816,28 Section 28. 48.913 (1) (h) of the statutes is amended to read:

AB816,13,21 48.913 (1) (h) Legal and other services received by a birth parent of the child, an, alleged father, or presumed father parent of the child or the child in connection with the adoption.

AB816,29 Section 29. 48.913 (2) (intro.) of the statutes is amended to read:

AB816,14,4 48.913 (2) Payment of expenses when birth parent is residing in another state. (intro.) Notwithstanding sub. (1), the proposed adoptive parents of a child or a person acting on behalf of the proposed adoptive parents of a child may pay for an expense of a birth parent of the child or an, alleged father, or presumed father parent of the child if the birth parent or the, alleged father, or presumed father parent was residing in another state when the payment was made and when the expense was incurred and if all of the following apply:

AB816,30 Section 30. 48.913 (2) (b) of the statutes is amended to read:

AB816,14,8 48.913 (2) (b) The state in which the birth parent or the, alleged father, or presumed father parent was residing when the payment was made permits the payment of that expense by the proposed adoptive parents of the child.

AB816,31 Section 31. 48.913 (2) (c) (intro.) of the statutes is amended to read:

AB816,14,18 48.913 (2) (c) (intro.) A listing of all payments made under this subsection, a copy of the statutory provisions of the state in which the birth parent or the, alleged father, or presumed father parent was residing when the payments were made that permit those payments to be made by the proposed adoptive parents of the child, and a copy of all orders entered in the state in which the birth parent or the, alleged father, or presumed father parent was residing when the payments were made that relate to the payment of expenses of the birth parent or the, alleged father, or presumed father parent by the proposed adoptive parents of the child is submitted to the court as follows:

AB816,32 Section 32. 48.913 (3) of the statutes is amended to read:

AB816,15,2 48.913 (3) Method of payment. Any payment under sub. (1) or (2) shall be made directly to the provider of a good or service except that a payment under sub. (1) or (2) may be made to a birth parent of the child or to an, alleged father, or presumed father parent of the child as reimbursement of an amount previously paid by the birth parent or by the, alleged father, or presumed father parent if documentation is provided showing that the birth parent or, alleged father, or presumed father parent has made the previous payment.

AB816,33 Section 33. 48.913 (4) of the statutes is amended to read:

AB816,15,7 48.913 (4) Other payments prohibited. The proposed adoptive parents of a child or a person acting on behalf of the proposed adoptive parents may not make any payments to or on behalf of a birth parent of the child, an, alleged father, or presumed father parent of the child or the child except as provided in subs. (1) and (2).

AB816,34 Section 34. 48.913 (7) of the statutes is amended to read:

AB816,15,23 48.913 (7) Report to the court; contents required. The report required under sub. (6) shall include a list of all transfers of anything of value made or agreed to be made by the proposed adoptive parents or by a person acting on their behalf to a birth parent of the child, an, alleged father, or presumed father parent of the child or the child, on behalf of a birth parent of the child, an, alleged father, or presumed father parent of the child or the child, or to any other person in connection with the pregnancy, the birth of the child, the placement of the child with the proposed adoptive parents, or the adoption of the child by the proposed adoptive parents. The report shall be itemized and shall show the goods or services for which payment was made or agreed to be made. The report shall include the dates of each payment, the names and addresses of each attorney, doctor, hospital, agency, or other person or organization receiving any payment from the proposed adoptive parents or a person acting on behalf of the proposed adoptive parents in connection with the pregnancy, the birth of the child, the placement of the child with the proposed adoptive parents, or the adoption of the child by the proposed adoptive parents.

AB816,35 Section 35. 49.141 (1) (j) 1. of the statutes is amended to read:

AB816,15,25 49.141 (1) (j) 1. A biological natural parent.

AB816,36 Section 36. 49.141 (1) (j) 2. of the statutes is repealed.

AB816,37 Section 37. 49.155 (1m) (c) 1g. of the statutes is amended to read: