891.39(2)(a)(a) The mother of the child shall not be excused or privileged from testifying fully in any action or proceeding mentioned in
sub. (1) in which the determination of whether the child is a marital or nonmarital child is involved or in issue, when ordered to testify by a court of record or any judge thereof; but she shall not be prosecuted or subjected to any penalty or forfeiture for or on account of testifying or producing evidence, except for perjury committed in giving the testimony.
891.39(3)
(3) If any court under this section adjudges a child to be a nonmarital child, the clerk of court shall report the facts to the state registrar, who shall issue a new birth certificate showing the correct facts as found by the court, and shall dispose of the original, with the court's report attached under
s. 69.15 (3). If the husband is a party to the action and the court makes a finding as to whether or not the husband is the father of the child, such finding shall be conclusive in all other courts of this state.
891.39 Annotation
See note to 767.045, citing In re Marriage of Johnson v. Johnson, 157 W (2d) 490, 460 NW (2d) 166 (Ct. App. 1990).
891.39 Annotation
The courts' power to appropriate compensation for court-appointed counsel is necessary for the effective operation of the judicial system. In ordering compensation for court ordered attorneys, a court should abide by the s. 977.08 (4m) rate when it can retain qualified and effective counsel at that rate, but should order compensation at the rate under
SCR 81.01 or 81.02 or a higher rate when necessary to secure effective counsel. Friedrich v. Dane County Circuit Ct., 192 W (2d) 1, 531 NW (2d) 32 (1995).
891.395
891.395
Presumption as to time of conception. In any paternity proceeding, in the absence of a valid birth certificate indicating the birth weight, the mother shall be competent to testify as to the birth weight of the child whose paternity is at issue, and where the child whose paternity is at issue weighed 5 1/2 pounds or more at the time of its birth, the testimony of the mother as to the weight shall be presumptive evidence that the child was a full term child, unless competent evidence to the contrary is presented to the court. The conception of the child shall be presumed to have occurred within a span of time extending from 240 days to 300 days before the date of its birth, unless competent evidence to the contrary is presented to the court.
891.395 History
History: 1979 c. 352.
891.395 Annotation
Where competent medical testimony limited conceptive period to 2 weeks, testimony of sexual relations outside period was inadmissible unless offered by mother. State ex rel. J. A. S. v. M. E. S., 142 W (2d) 300, 418 NW (2d) 32 (Ct. App. 1987).
891.395 Annotation
Factfinder can find date of conception other than date asserted either by mother or putative father. In re Paternity of A. M. C., 144 W (2d) 621, 424 NW (2d) 707 (1988).
891.40
891.40
Artificial insemination. 891.40(1)
(1) If, under the supervision of a licensed physician and with the consent of her husband, a wife is inseminated artificially with semen donated by a man not her husband, the husband of the mother at the time of the conception of the child shall be the natural father of a child conceived. The husband's consent must be in writing and signed by him and his wife. The physician shall certify their signatures and the date of the insemination, and shall file the husband's consent with the department of health and family services, where it shall be kept confidential and in a sealed file except as provided in
s. 46.03 (7) (bm). However, the physician's failure to file the consent form does not affect the legal status of father and child. All papers and records pertaining to the insemination, whether part of the permanent record of a court or of a file held by the supervising physician or elsewhere, may be inspected only upon an order of the court for good cause shown.
891.40(2)
(2) The donor of semen provided to a licensed physician for use in artificial insemination of a woman other than the donor's wife is not the natural father of a child conceived, bears no liability for the support of the child and has no parental rights with regard to the child.
891.405
891.405
Presumption of paternity based on acknowledgment. A man is presumed to be the natural father of a child if he and the mother have acknowledged paternity under
s. 69.15 (3) (b) 1. or
3. and no other man is presumed to be the father under
s. 891.41.
891.405 History
History: 1989 a. 212;
1993 a. 213.
891.41
891.41
Presumption of paternity based on marriage of the parties. A man is presumed to be the natural father of a child if any of the following applies:
891.41(1)
(1) He and the child's natural mother are or have been married to each other and the child is conceived or born after marriage and before the granting of a decree of legal separation, annulment or divorce between the parties.
891.41(2)
(2) He and the child's natural mother were married to each other after the child was born but he and the child's natural mother had a relationship with one another during the period of time within which the child was conceived and no other man has been adjudicated to be the father or presumed to be the father of the child under
sub. (1).
891.41 Annotation
Presumption that mother's husband is child's father does not violate putative father's due process rights. Michael H. v. Gerald D. 491 US 110, 105 LEd 2d 91 (1989).
891.43
891.43
Relief from destruction of public records. 891.43(1)(1)
Rerecording instruments. If the records of any county are destroyed, any instrument in writing or certified copy of such instrument which affects title to land in that county and which has been recorded may be rerecorded. Upon rerecording, the register of deeds shall record the certificate of the previous record, and the date of filing for record appearing in the original certificate shall be the date of the record. Copies of any record of such instrument, certified by the register of deeds, shall be received in evidence and have the same effect as certified copies of the original record.
891.43(3)
(3) Court records. If, in any court of record in this or any other state or of the United States, there is any instrument in writing, or certified copy of such instrument, which affects title to land in any county of this state where the records have been destroyed, a copy of the instrument certified by the clerk of such court of record may be made and recorded in the county where the records have been destroyed. Upon recording the certified copy the register of deeds shall record all attached certificates, and if any certificates show the previous recording of the instrument in the county where the records have been destroyed, the date of filing appearing in the certificate shall be taken as the date of the record. Copies of any record, certified by the register of deeds, shall be received in evidence and have the same effect as certified copies of the original record.
891.43(4)(a)(a) If the public record of any plat or map has been injured, lost or destroyed, the clerk of the circuit court shall, upon notification by the register of deeds of the injury, loss or destruction of the records, publish a class 3 notice under
ch. 985 setting forth the facts of the injury, loss or destruction, together with a notice addressed to all whom it may concern that the circuit court will, at a specified time not less than 4 weeks from the first publication of the notice, proceed to take testimony for the purpose of reproducing and reestablishing the record of maps or plats it finds to be injured, lost or destroyed. All persons interested may appear and be heard.
891.43(4)(b)
(b) If the court is satisfied that any public record of maps or plats has been injured, lost or destroyed, an order to that effect shall be entered and the court shall take testimony for the purpose of reproducing and reestablishing the record. Orders and judgments shall be made as to each map or plat separately. The clerk shall cause all maps or plats adjudged to be correct copies of the records lost, injured or destroyed to be filed and recorded in the office of the register of deeds, with an attached certified copy of the order or judgment. The record shall be taken in all courts as a prima facie correct reproduction of the original record. All costs and expenses incurred in the proceedings shall be taxed as costs against the county in which the proceedings are held.
891.43(5)
(5) Chains of title. If the record or any part of the records of any county are destroyed, so that a connected chain of title cannot be shown, certified copies of all deeds, patents, certificates, plats and legal subdivisions of land in the county, in the custody or control of any officer of this state or of the United States, may be recorded in the register of deed's office of the county, and the record shall have the same effect as the record of the originals of such instruments.
891.43(7)
(7) Abstracts of title. If the records of any county are injured, lost or destroyed by fire, the judge of the circuit court of the county shall examine the state of the records, and if the court finds that any abstracts, copies, minutes or extracts exist after such injury, loss or destruction, and that the abstracts, copies, minutes or extracts were made before such injury, loss or destruction by any person in the ordinary course of business, and that they contain a material and substantial part of the records, the court shall certify the facts in regard to such abstracts of titles as found. If the abstracts, copies, minutes and extracts tend to show a connected chain of title to the land in the county, the court shall file an opinion with the clerk of the circuit court and the abstracts, copies, minutes and extracts, or certified copies, shall be admissible as prima facie evidence in all the courts of this state. The owner or keeper of the abstracts shall furnish to all parties so requesting certified copies of the abstracts.
891.43(8)(a)(a) If the records of any county are injured, lost or destroyed, any court in the county with equity jurisdiction may inquire, upon notice to the parties interested, into the condition of any interest in any land in the county, and make all necessary orders and judgments to determine title.
891.43(8)(b)
(b) Any person claiming an interest in land in the county at the time of the injury, loss or destruction of the records may maintain an action for a declaration of interest in real property under
ch. 841. The complaint under
s. 841.02 shall be published by the clerk of the court in which the complaint is filed as a class 3 notice under
ch. 985.
891.43(12)
(12) Record of new instruments. If any instrument in writing affecting title to land in any county is filed for record so short a time before the injury, loss or destruction of the records that no proof of it remains either on the records or among the abstracts, copies, minutes or extracts under
sub. (7), it shall be the duty of the person having filed the instrument, within one year after the injury, loss or destruction, to rerecord the instrument, or, if that cannot be done, he or she may file a complaint to establish title under
sub. (8) (b).
891.43(14)
(14) Evidence to show title. In all cases under this section, and in all proceedings concerning any interest in land, when any party to the proceeding testifies that the original of any deed, conveyance or other written or recorded evidence relating to the title to the land has been lost or destroyed, or it is not in the power of the party wishing to use it on trial to produce it, and the record has been injured, lost or destroyed, the court shall receive any evidence that may establish the execution or contents of the deed, conveyance, record or other written evidence lost or destroyed, including any abstract of title made in the ordinary course of business before the injury, loss or destruction, showing the title or any part of title to the land.
891.43(15)
(15) Record of deed in chain of title. If the records of any county have been injured, lost or destroyed so that a connected chain of title to any land cannot be shown, any person who can produce deeds showing a chain running back for 10 years or more may make an affidavit before the circuit court of the county to the effect that he or she is the person named as grantee in the last conveyance in the chain of title and that his or her immediate grantor has been in continual possession of the premises, which the affidavit shall completely describe, for not less than 10 years and he or she may record the affidavit and the deeds showing the chain of title in the office of the register of deeds. The deeds and affidavit or the record shall then be prima facie evidence that the affiant holds title to the land described in the deed or affidavit. For the purposes of constituting the possession required under this subsection,
s. 893.26 (4) shall apply.
891.43 Note
Legislative Council Note, 1979: In
chapter 523, laws of 1927, the legislature withdrew s. 891.43 from the statutes. Section 891.43 is amended to reflect current statutory drafting practices, without any intention of making substantive changes in the law. In section 26 of this act, it is declared that s. 891.43 shall be printed in future editions of the statutes. [Bill 458-A]
891.44
891.44
Presumption of lack of contributory negligence for infant minor. It shall be conclusively presumed that an infant minor who has not reached the age of 7 shall be incapable of being guilty of contributory negligence or of any negligence whatsoever.
891.44 Annotation
Refusal to instruct under 891.44 was not error where no issue of plaintiff's negligence was presented by the pleadings or by evidence. Wagner v. American Family Mut. Ins. Co. 65 W (2d) 243, 222 NW (2d) 652.
891.45
891.45
Presumption of employment connected disease. In any proceeding involving the application by a municipal fire fighter or his or her beneficiary for disability or death benefits under s.
66.191, 1981 stats., or
s. 40.65 (2) or any pension or retirement system applicable to fire fighters, where at the time of death or filing of application for disability benefits the deceased or disabled fire fighter had served a total of 5 years as a fire fighter and a qualifying medical examination given prior to the time of his or her joining the department showed no evidence of heart or respiratory impairment or disease, and where the disability or death is found to be caused by heart or respiratory impairment or disease, such finding shall be presumptive evidence that such impairment or disease was caused by such employment. In this section, "municipal fire fighter" includes any person designated as primarily a fire fighter under
s. 61.66 (2) and any person under
s. 61.66 whose duties as a fire fighter during the 5-year qualifying period took up at least two-thirds of his or her working hours.
891.46
891.46
Mailed service. Unless otherwise specifically provided by statute or rule adopted under
s. 751.12, summonses, citations, notices, motions and other papers required or authorized to be served by mail in judicial or administrative proceedings are presumed to be served when deposited in the U.S. mail with properly affixed evidence of prepaid postage.
891.46 History
History: Sup. Ct. Order, No. 95-10, 195 W (2d) xv (1996).
891.46 Note
Judicial Council Note, 1995: The purpose of this statute is to overrule the statement in Boeck v. State Highway Commission,
36 Wis. 2d 440, 444,
153 N.W. 2d 610, 612 (1967), that ``as a general rule in the absence of the statutory provision, ... service of notice would not become effective until the party received it." The creation of this rule does not affect the presumptions and shifting of burdens of mailing articulated in State ex rel. Flores v. State,
183 Wis. 2d 587,
516 N.W. 2d 362 (1994).
