767.48(2)
(2) The court, upon request by a party, shall order that independent tests be performed by other experts qualified as examiners of genetic markers present on the cells of the specific body material to be used for the tests. Additional tests performed by other experts of the same qualifications may be ordered by the court at the request of any party.
767.48(3)
(3) In all cases, the court shall determine the number and qualifications of the experts.
767.48(4)
(4) Whenever the results of genetic tests exclude an alleged father as the father of the child, this evidence shall be 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 any male witness from possible paternity, the tests shall be 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 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 (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.
767.48(5)
(5) The fees and costs for genetic tests performed upon any person listed under
sub. (1) shall be paid for by the county except as follows:
767.48(5)(a)
(a) Except as provided in
par. (b), at the close of the proceeding the court may order either or both parties to reimburse the county if the court finds that they have sufficient resources to pay the costs of the genetic tests.
767.48(5)(b)
(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 (2), the court shall require the person requesting the 2nd or subsequent series of tests to pay for it in advance, unless the court finds that the person is indigent.
767.48(6)
(6) Any party calling a male witness for the purpose of testifying that he had sexual intercourse with the mother at any possible time of conception shall provide all other parties with the name and address of the witness 20 days before the trial or pretrial hearing. If a male witness is produced at the hearing for the purpose stated in this subsection but the party calling the witness failed to provide the 20-day notice, the court may adjourn the proceeding for the purpose of taking a genetic test of the witness prior to hearing the testimony of the witness if the court finds that the party calling the witness acted in good faith.
767.48(7)
(7) The court shall ensure that all parties are aware of their right to request genetic tests under this section.
767.48 Annotation
Where initial blood tests excluded alleged father and state moved for additional tests under (2), court erred in denying motion and dismissing action under (4). In re Paternity of S. J. K. 132 W (2d) 262, 392 NW (2d) 97 (Ct. App. 1986).
767.48 Annotation
Chain of custody, or authentication, must be established prior to admission of evidence under (1) (b). In re Paternity of J. S. C. 135 W (2d) 820, 400 NW (2d) 48 (Ct. App. 1986).
767.48 Annotation
Where respondent failed to introduce evidence regarding test, trial court properly barred respondent from attacking test during closing argument. In re Paternity of M. J. B. 144 W (2d) 638, 425 NW (2d) 404 (1988).
767.48 Annotation
See note to 904.01, citing State v. Hartman, 145 W (2d) 1, 426 NW (2d) 320 (1988).
767.48 Annotation
DNA test results are admissible when procedures meet requirements for blood tests under (1) (b). In re Paternity of J.L.K. 151 W (2d) 566, 445 NW (2d) 673 (Ct. App. 1989).
767.48 Annotation
Where more than one set of blood test results are presented, sub. (1m) presumption is inapplicable where only one reached 99%. In re Paternity of J.M.K. 160 W (2d) 429, 465 NW (2d) 833 (Ct. App. 1991).
767.48 Annotation
Where only one potential father named by the mother is not excluded by blood tests, sub. (4) does not prevent showing that the mother on several occasions did not name him as a person with whom she had sex during the conceptual period. Paternity of Jeremy D.L. 177 W (2d) 551, 503 NW (2d) 275 (Ct. App. 1993).
767.48 Annotation
That sub. (1m) applies only to children born to a woman while she is married does not violate principles of equal protection. Thomas M.P. v. Kimberly J.L. 207 W (2d) 390, 558 NW (2d) 897 (Ct. App. 1996).
767.48 Annotation
A mere denial of intercourse where access during the conceptive period is established and no other potential fathers are identified is sufficient to rebut the presumption under sub. (1m) for purposes of preventing entry of a summary judgment of paternity. State v. Michael J. W. 210 W (2d) 132, 565 NW (2d) 179 (Ct. App. 1997).
767.48 Annotation
The term "statistical probability" in sub. (1m) means the probability determined by combining the results of all the different types of tests performed. State v. Michael J. W. 210 W (2d) 132, 565 NW (2d) 179 (Ct. App. 1997).
767.48 Annotation
From here to paternity: Using blood analysis to determine parentage. Haas. WBB July 1988.
767.50(1)(1) The trial shall be divided into 2 parts. The first part shall deal with the determination of paternity. The 2nd part shall deal with child support, legal custody, periods of physical placement and related issues. At the first part of the trial, the main issue 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, the prior issue of whether the husband was not the father of the child. 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 the findings enumerated in
s. 767.51 (2) to
(5). 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 (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.
767.50(2)
(2) If a jury is requested under
sub. (1), the jury shall consist of 6 persons. No verdict is valid or received unless agreed to by at least 5 of the jurors.
767.50 History
History: 1979 c. 352 s.
10; Stats. 1979 s. 767.50;
1983 a. 27,
447;
1987 a. 27,
355,
403;
1993 a. 481.
767.50 Annotation
Preponderance of the evidence standard of proof in paternity actions meets due process requirement. Rivera v. Minnich, 483 US 574 (1987).
767.51
767.51
Paternity judgment. 767.51(1)(1) A judgment or order of the court determining the existence or nonexistence of paternity is determinative for all purposes.
767.51(2)
(2) The clerk of court shall file with the state registrar, within 30 days after the entry of a judgment or order determining paternity, a report showing the names, dates and birth places of the child and the father, the social security numbers of the mother, father and child and the maiden name of the mother on a form designated by the state registrar, along with the fee set forth in
s. 69.22 (5), which the clerk of court shall collect.
767.51(3)
(3) A judgment or order determining paternity may contain any other provision directed against the appropriate party to the proceeding, concerning the duty of support, the legal custody and guardianship of the child, periods of physical placement, the furnishing of bond or other security for the payment of the judgment, or any other matter in the best interest of the child. Unless the court orders otherwise, if there is no presumption of paternity under
s. 891.41 (1) the mother shall have sole legal custody of the child. The court shall order either party or both to pay for the support of any child of the parties who is less than 18 years old, or any child of the parties who is less than 19 years old if the child is pursuing an accredited course of instruction leading to the acquisition of a high school diploma or its equivalent. The judgment or order may direct the father to pay or contribute to the reasonable expenses of the mother's pregnancy and confinement during pregnancy and may direct either party to pay or contribute to the costs of genetic tests, attorney fees and other costs. Contributions to the costs of genetic tests shall be paid to the county which paid for the genetic tests.
767.51(3m)(a)(a) In this subsection, "health insurance" does not include medical assistance provided under
subch. IV of ch. 49.
767.51(3m)(b)
(b) In addition to ordering child support for a child under
sub. (3), the court shall specifically assign responsibility for and direct the manner of payment of the child's health care expenses. In assigning responsibility for a child's health care expenses, the court shall consider whether a child is covered under a parent's health insurance policy or plan at the time the court enters a paternity judgment under this subsection, the availability of health insurance to each parent through an employer or other organization, the extent of coverage available to a child and the costs to the parent for the coverage of the child. A parent may be required to initiate or continue health care insurance coverage for a child under this paragraph. If a parent is required to do so, he or she shall provide copies of necessary program or policy identification to the custodial parent and is liable for any health care costs for which he or she receives direct payment from an insurer. This subsection shall not be construed to limit the authority of the court to enter or modify support orders containing provisions for payment of medical expenses, medical costs, or insurance premiums which are in addition to and not inconsistent with this subsection.
767.51(3m)(c)1.1. In directing the manner of payment of a child's health care expenses, the court may order that payment, including payment for health insurance premiums, be withheld from income and sent to the appropriate health care insurer, provider or plan, as provided in
s. 767.265 (3h), or sent to the department or its designee, whichever is appropriate, for disbursement to the person for whom the payment has been awarded if that person is not a health care insurer, provider or plan. If the court orders income withholding and assignment for the payment of health care expenses, the court shall send notice of assignment in the manner provided under
s. 767.265 (2r) and may include the notice of assignment under this subdivision with a notice of assignment under
s. 767.265. The department or its designee, whichever is appropriate, shall keep a record of all moneys received and disbursed by the department or its designee for health care expenses that are directed to be paid to the department or its designee.
Effective date note
NOTE: Subd. 1. is shown as amended eff. 1-4-99 by
1997 Wis. Act 27. Prior to 1-4-99 it reads:
Effective date text
1. In directing the manner of payment of a child's health care expenses, the court may order that payment, including payment for health insurance premiums, be withheld from income and sent to the appropriate health care insurer, provider or plan, as provided in s. 767.265 (3h), or sent to the clerk of court or support collection designee, whichever is appropriate, for disbursement to the person for whom the payment has been awarded if that person is not a health care insurer, provider or plan. If the court orders income withholding and assignment for the payment of health care expenses, the court shall send notice of assignment in the manner provided under s. 767.265 (2r) and may include the notice of assignment under this subdivision with a notice of assignment under s. 767.265. The clerk of court shall keep a record of all moneys received and disbursed by the clerk for health care expenses that are directed to be paid to the clerk and the support collection designee shall keep a record of all moneys received and disbursed by the support collection designee for health care expenses that are directed to be paid to the support collection designee.
767.51(3m)(c)2.
2. If the court orders a parent to initiate or continue health insurance coverage for a child under a health insurance policy that is available to the parent through an employer or other organization but the court does not specify the manner in which payment of the health insurance premiums shall be made, the clerk of court may provide notice of assignment in the manner provided under
s. 767.265 (2r) for the withholding from income of the amount necessary to pay the health insurance premiums. The notice of assignment under this subdivision may be sent with or included as part of any other notice of assignment under
s. 767.265, if appropriate. A person who receives notice of assignment under this subdivision shall send the withheld health insurance premiums to the appropriate health care insurer, provider or plan, as provided in
s. 767.265 (3h).
767.51(3m)(d)
(d) If the court orders a parent to provide coverage of the health care expenses of the parent's child and the parent is eligible for family coverage of health care expenses under a health benefit plan that is provided by an employer on an insured or on a self-insured basis, the employer shall do all of the following:
767.51(3m)(d)1.
1. Permit the parent to obtain family coverage of health care expenses for the child, if eligible for coverage, without regard to any enrollment period or waiting period restrictions that may apply.
767.51(3m)(d)2.
2. Provide family coverage of health care expenses for the child, if eligible for coverage, upon application by the parent, the child's other parent, the department or the county child support agency under
s. 59.53 (5), or upon receiving a notice under
par. (f) 1.
767.51(3m)(d)2m.
2m. Inform the county child support agency under
s. 59.53 (5) when coverage of the child under the health benefit plan is in effect and, upon request, provide copies of necessary program or policy identification to the child's other parent.
767.51(3m)(d)3.
3. After the child has coverage under the employer's health benefit plan, and as long as the parent is eligible for family coverage under the employer's health benefit plan, continue to provide coverage for the child unless the employer receives satisfactory written evidence that the court order is no longer in effect or that the child has coverage of health care expenses under another health insurance policy or health benefit plan that provides comparable coverage of health care expenses.
767.51(3m)(e)1.1. If a parent who has been ordered by a court to provide coverage of the health care expenses of a child who is eligible for medical assistance under
subch. IV of ch. 49 receives payment from a 3rd party for the cost of services provided to the child but does not pay the health care provider for the services or reimburse the department or any other person who paid for the services on behalf of the child, the department may obtain a judgment against the parent for the amount of the 3rd party payment.
767.51(3m)(f)1.1. If a parent who provides coverage of the health care expenses of a child under an order under this subsection changes employers and that parent has a court-ordered child support obligation with respect to the child, the county child support agency under
s. 59.53 (5) shall provide notice of the order to provide coverage of the child's health care expenses to the new employer and to the parent.
767.51(3m)(f)2.
2. The notice provided to the parent shall inform the parent that coverage for the child under the new employer's health benefit plan will be in effect upon the employer's receipt of the notice. The notice shall inform the parent that he or she may, within 10 business days after receiving the notice, by motion request a hearing before the court on the issue of whether the order to provide coverage of the child's health care expenses should remain in effect. A motion under this subdivision may be heard by a family court commissioner. If the parent requests a hearing and the court or family court commissioner determines that the order to provide coverage of the child's health care expenses should not remain in effect, the court shall provide notice to the employer that the order is no longer in effect.
767.51(3r)(a)(a) In making an order of legal custody under
sub. (3), the court shall order a parent who is not granted legal custody to provide to the court medical and medical history information that is known to the parent. The court shall send the information to the physician or other health care provider with primary responsibility for the treatment and care of the child, as designated by the parent who is granted legal custody of the child, and advise the physician or other health care provider of the identity of the child to whom the information relates. The information provided shall include all of the following:
767.51(3r)(a)1.
1. The known medical history of the parent providing the information, including specific information about stillbirths or congenital anomalies in the parent's family, and the medical histories, if known, of the parents and siblings of the parent and any sibling of the child who is a child of the parent, except that medical history information need not be provided for a sibling of the child if the parent or other person who is granted legal custody of the child also has legal custody, including joint legal custody, of that sibling.
767.51(3r)(a)2.
2. A report of any medical examination that the parent providing the information had within one year before the date of the judgment or order.
767.51(3r)(am)
(am) The physician or other health care provider designated under
par. (a) shall keep the information separate from other records kept by the physician or other health care provider. The information shall be assigned an identification number and maintained under the name of the parent who provided the information to the court. The patient health care records of the child that are kept by the physician or other health care provider shall include a reference to that name and identification number. If the child's patient health care records are transferred to another physician or other health care provider or another health care facility, the records containing the information provided under
par. (a) shall be transferred with the child's patient health care records. Notwithstanding
s. 146.819, the information provided under
par. (a) need not be maintained by a physician or other health care provider after the child reaches age 18.
767.51(3r)(b)1.
1. The physician or other health care provider with custody of the information, or any other record custodian at the request of the physician or other health care provider, shall have access to the information if, in the professional judgment of the physician or other health care provider, the information may be relevant to the child's medical condition.
767.51(3r)(b)2.
2. The physician or other health care provider may release only that portion of the information, and only to a person, that the physician or other health care provider determines is relevant to the child's medical condition.
767.51(4)
(4) Support judgments or orders ordinarily shall be for periodic payments which may vary in amount if appropriate. The payment amount may be expressed as a percentage of the parent's income or as a fixed sum, or as a combination of both in the alternative by requiring payment of the greater or lesser of either a percentage of the parent's income or a fixed sum. The father's liability for past support of the child shall be limited to support for the period after the birth of the child.
767.51(4g)
(4g) In determining child support payments, the court may consider all relevant financial information or other information relevant to the parent's earning capacity, including information reported under
s. 49.22 (2m) to the department or the county child support agency under
s. 59.53 (5).
767.51(4m)
(4m) Except as provided in
sub. (5), the court shall determine child support payments by using the percentage standard established by the department under
s. 49.22 (9).
767.51(5)
(5) Upon request by a party, the court may modify the amount of child support payments determined under
sub. (4m) if, after considering the following factors, the court finds by the greater weight of the credible evidence that use of the percentage standard is unfair to the child or to the requesting party:
767.51(5)(am)
(am) The physical, mental and emotional health needs of the child, including any costs for health insurance as provided for under
sub. (3m).
767.51(5)(b)
(b) The standard of living and circumstances of the parents, including whether a parent receives maintenance payments under
s. 767.26 and the needs of each party in order to support himself or herself at a level equal to or greater than that established under
42 USC 9902 (2).
767.51(5)(c)
(c) The relative financial means of the parents.
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 in arrears that is equal to or greater than the amount of child support due in one month. If the party no longer has a current obligation to pay child support, interest at the rate of 1.5% per month shall accrue on the total amount of child support in arrears, if any. 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 department or its designee under
s. 767.29. Except as provided in
s. 767.29 (1m), the department or its designee, whichever is appropriate, shall apply all payments received for child support as follows:
Effective date note
NOTE: Sub. (5p) (intro.) is shown as repealed and recreated eff. 1-4-99 by
1997 Wis. Act 191. Prior to 1-4-99 it reads:
Effective date text
(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 in arrears that is equal to or greater than the amount of child support due in one month. If the party no longer has a current obligation to pay child support, interest at the rate of 1.5% per month shall accrue on the total amount of child support in arrears, if any. 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 [department or its] due within the calendar month during which the payment is received.
Effective date note
NOTE: Par. (a) is shown as amended eff. 1-4-99 by 2 acts of the 1997 legislature and as merged by the revisor under s. 13.93 (2) (c). The bracketed language was inserted by
1997 Wis. Act 27 but was rendered surplusage by
1997 Wis. Act 191. Corrective legislation is pending. Prior to 1-4-99 it reads:
Effective date text
(a) First, 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;
1997 a. 27,
35,
191; 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).
