767.51(5)(d)
(d) The earning capacity of each parent, based on each parent's education, training and work experience and based on the availability of work in or near the parent's community.
767.51(5)(e)
(e) The need and capacity of the child for education, including higher education.
767.51(5)(g)
(g) The financial resources and the earning ability of the child.
767.51(5)(gm)
(gm) Any physical custody arrangement ordered or decided upon.
767.51(5)(gp)
(gp) Extraordinary travel expenses incurred in exercising the right to periods of physical placement.
767.51(5)(h)
(h) The responsibility of the parents for the support of others.
767.51(5)(i)
(i) The value of services contributed by the custodial parent.
767.51(5)(j)
(j) Any other factors which the court in each case determines are relevant to the best interests of the child.
767.51(5d)
(5d) If the court finds under
sub. (5) that use of the percentage standard is unfair to the child or the requesting party, the court shall state in writing or on the record the amount of support that would be required by using the percentage standard, the amount by which the court's order deviates from that amount, its reasons for finding that use of the percentage standard is unfair to the child or the party, its reasons for the amount of the modification and the basis for the modification.
767.51(5p)
(5p) A party ordered to pay child support under this section shall pay simple interest at the rate of 1.5% per month on any amount unpaid, commencing the first day of the 2nd month after the month in which the amount was due. Interest under this subsection is in lieu of interest computed under
s. 807.01 (4),
814.04 (4) or
815.05 (8) and is paid to the clerk of court or support collection designee under
s. 767.29. Except as provided in
s. 767.29 (1m), the clerk of court or support collection designee, whichever is appropriate, shall apply all payments received for child support as follows:
767.51(5p)(a)
(a) First, to payment of child support due within the calendar month during which the payment is withheld from income under
s. 767.265 or under similar laws of another state. If payment is not made through income withholding, the clerk or support collection designee, whichever is appropriate, shall first apply child support payments received to payment of child support due within the calendar month during which the payment is received.
767.51(5p)(b)
(b) Second, to payment of unpaid child support due before the payment is received.
767.51(5p)(c)
(c) Third, to payment of interest accruing on unpaid child support.
767.51(6)
(6) Sections 767.24,
767.245,
767.263,
767.265,
767.267,
767.29,
767.293,
767.30,
767.305,
767.31,
767.32 and
767.325, where applicable, shall apply to a judgment or order under this section.
767.51(7)
(7) The court may order the attorney for the prevailing party to prepare findings of fact, conclusions of law and a judgment for the approval of the court.
767.51 History
History: 1979 c. 352;
1983 a. 27,
192,
447;
1985 a. 29;
1985 a. 315 s.
22;
1987 a. 27,
37,
355,
413;
1989 a. 212;
1991 a. 39;
1993 a. 481;
1995 a. 27 ss.
7115,
7116,
9126 (19);
1995 a. 100,
201,
279,
375,
404; s. 13.93 (2) (c).
767.51 Annotation
Determining father's support obligation by applying percentage standards is inappropriate where children live in several households. In re Paternity of B. W. S., 131 W (2d) 301, 388 NW (2d) 615 (1986).
767.51 Annotation
Regardless of whether fifteen-year-old boy's parenthood resulted from sexual assault as defined in criminal law, court could find intercourse and parenthood voluntary for purposes of child support. In re Paternity of J.L.H. 149 W (2d) 349, 411 NW (2d) 273 (Ct. App. 1989).
767.51 Annotation
Is no statutory authority for order requiring mother to repay lying-in expenses paid by medical assistance. In re Paternity of N.L.M. 166 W (2d) 306, 479 NW (2d) 237 (Ct. App. 1991).
767.51 Annotation
An order for payment of expert witness fees under sub. (3) is not limited to $100 by s. 814.04 (2). In re Paternity of Tiffany B. 173 W (2d) 864, 496 NW (2d) 711 (Ct. App. 1993).
767.51 Annotation
Sub. (4m) applies to back and future support, subject to the court's discretion. A discount in back support based on the father's assertion of paternity and lack of contact with the child was improper. Paternity of Ashleigh N.H. 178 W (2d) 478, 504 NW (2d) 422 (Ct. App. 1993).
767.51 Annotation
The assignment to the state of child support by AFDC recipients under s. 49.19 (5) does not prevent a trial court acting under s. 767.51 (5) from giving the father credit for amounts actually contributed for support prior to the entry of an order even though the credit results in there being no payments owing from the father from which AFDC payments can be recovered. Paternity of Cheyenne D.L. 181 W (2d) 868, 112 NW (2d) 522 (Ct. App. 1994).
767.51 Annotation
Money may be set aside in trust under sub. (5) during a child's minority for future support including higher education expenses which may be incurred after the child's majority. The percentage standards may be used to generate future support. Paternity of Tukker M.O., 199 W (2d) 186, 544 NW (2d) 417 (1996).
767.51 Annotation
Summary judgment is inappropriate when the presumptive conception period under s. 891.395 does not apply and there is no evidence establishing the period or when there is an untested male whom a reasonable factfinder could conclude had intercourse with the mother during the possible conceptive period. Paternity of Taylor R.T. 199 W (2d) 500, 544 NW (2d) 926 (Ct. App. 1996).
767.51 Annotation
HSS 80: New Rules for Child Support Obligations. Hickey. Wis. Law. April, 1995.
767.51 Annotation
Which Came First? The Serial Family Payer Formula. Stansbury. Wis. Law. April, 1995.
767.51 Annotation
See also Wisconsin Administrative Code Citations published in the Wisconsin Administrative Code for a list of citations to cases citing ch. HSS 80, the percentage standards developed by the Department of Health and Social Services.
767.52
767.52
Right to counsel. 767.52(1)(1) At the pretrial hearing, at the trial and in any further proceedings in any paternity action, any party may be represented by counsel. If the respondent is indigent and the state is the petitioner under
s. 767.45 (1) (g), the petitioner is represented by a government attorney as provided in
s. 767.45 (6) or the action is commenced on behalf of the child by an attorney appointed under
s. 767.045 (1) (c), counsel shall be appointed for the respondent as provided in
ch. 977, and subject to the limitations under
sub. (2m), unless the respondent knowingly and voluntarily waives the appointment of counsel.
767.52(2)
(2) An attorney appointed under
sub. (1) who is appearing on behalf of a party in a paternity action shall represent that party, subject to the limitations under
sub. (2m), in all issues and proceedings relating to the paternity determination. The appointed attorney may not represent the party in any proceeding relating to child support, legal custody, periods of physical placement or related issues.
767.52(2m)
(2m) Representation by an attorney appointed under
sub. (1) shall be provided only after the results of any genetic tests that were ordered by the court have been completed and only if all of the results fail to show that the alleged father is excluded and fail to give rise to the rebuttable presumption under
s. 767.48 (1m) that the alleged father is the father of the child. [genetic]
767.52(3)
(3) This section does not prevent an attorney responsible for support enforcement under
s. 59.53 (6) (a) or any other attorney employed under
s. 49.22 or
59.53 (5) from appearing in any paternity action as provided under
s. 767.45 (6).
767.52 Note
NOTE: Sub. (3) is shown as affected by two acts of the 1995 legislature and as merged by the revisor under s. 13.93 (2) (c).
767.52 Annotation
Paternity respondent does not have constitutional right to effective assistance of counsel; paternity action is not a criminal prosecution. In re Paternity of P.L.S. 158 W (2d) 712, 463 NW (2d) 403 (Ct. App. 1990).
767.53
767.53
Paternity hearings and records; confidentiality. Any hearing, discovery proceeding or trial relating to paternity determination shall be closed to any person other than those necessary to the action or proceeding. Any record of the proceedings shall be placed in a closed file, except that:
767.53(1)
(1) Access to the record of any pending or past proceeding involving the paternity of the same child shall be allowed to all of the following:
767.53(1)(b)
(b) The parties to that proceeding and their attorneys or their authorized representatives.
767.53(1)(c)
(c) If the child is the subject of a proceeding under
ch. 48, all of the following:
767.53(1)(c)1.
1. The court assigned to exercise jurisdiction under
chs. 48 and
938 in which the proceeding is pending.
767.53(1)(c)2.
2. The parties to the proceeding under
ch. 48 and their attorneys.
767.53(1)(c)3.
3. The person under
s. 48.09 who represents the interests of the public in the proceeding under
ch. 48.
767.53(1)(c)4.
4. A guardian ad litem for the child and a guardian ad litem for the child's parent.
767.53(1)(c)5.
5. Any governmental or social agency involved in the proceeding under
ch. 48.
767.53(2)
(2) The clerk of circuit court shall provide information from court records to the department under
s. 59.40 (2) (p).
767.53 Note
NOTE: Sub. (2) is shown as affected by two acts of the 1995 legislature and as merged by the revisor under s. 13.93 (2) (c).
767.60
767.60
Determination of marital children. In any case where the father and mother of any nonmarital child shall enter into a lawful marriage or a marriage which appears and they believe is lawful, except where the parental rights of the mother were terminated prior thereto, that child shall thereby become a marital child, shall be entitled to a change in birth certificate under
s. 69.15 (3) (b) and shall enjoy all the rights and privileges of a marital child as if he or she had been born during the marriage of the parents; and this section shall be taken to apply to all cases prior to its date, as well as those subsequent thereto but no estate already vested shall be divested by this section and
ss. 765.05 to
765.24 and
852.05. The issue of all marriages declared void under the law shall, nevertheless, be marital issue.
767.60 History
History: 1979 c. 32 ss.
48,
92 (2); Stats. 1979 s. 765.25;
1979 c. 352; Stats. 1979 s. 767.60;
1981 c. 314 s.
146;
1983 a. 447;
1985 a. 315.
767.62
767.62
Orders when paternity acknowledged. 767.62(1)
(1) In an action affecting the family that seeks to establish an obligation for the support of a child, the court or family court commissioner may enter a child support order against a man who has signed and filed with the state registrar under
s. 69.15 (3) (b) 3. a statement acknowledging paternity that includes notice of the provisions of this section and who has notice of the hearing. The court shall determine child support under this subsection in the manner provided in
s. 767.51 (4m) to
(5d).
767.62(3)
(3) Within one year after signing the statement or one year after attaining the age of 18, whichever is later, a person who has signed a statement acknowledging paternity that is filed as specified in
sub. (1) may request that the court or family court commissioner order genetic tests. Upon such a request, the court or family court commissioner shall require the appropriate parties to submit to genetic tests. If the results of the genetic tests exclude as the father of the child the man who signed the statement, the court shall dismiss any action for child support under this section, or shall vacate any order for child support entered under this section, with respect to the man. This subsection does not apply if, before a request for genetic tests under this subsection, the man who signed the statement acknowledging paternity is determined to be the father of the child after the performance of genetic tests.
767.62 History
History: 1993 a. 481;
1995 a. 100.
