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 fact finder 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
The retroactive application of sub. (4) does not violate the constitutional prohibition of ex post facto laws. Brad Michael L. v. Lee D. 210 W (2d) 438, 564 NW (2d) 354 (Ct. App. 1997).
767.51 Annotation
A father's lack of knowledge of a child's existence and resulting inability to visit and provide for the child may not be considered in deviating from the percentage standards for support. Support in a paternity action must be set exclusive of any marital property law principles. Brad Michael L. v. Lee D. 210 W (2d) 438, 564 NW (2d) 354 (Ct. App. 1997).
767.51 Annotation
A court does not have authority to create a child support obligation directly to an adult child who has received a high school diploma at the time that person commences an action for support. Roberta Jo W. v. Leroy W. 218 W (2d) 225, 578 NW (2d) 185 (1998).
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 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.
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 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 or
938, 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)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 or
938.
767.53(2)
(2) The clerk of circuit court shall provide information from court records to the department under
s. 59.40 (2) (p).
767.60
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
Voluntary acknowledgment of paternity. 767.62(1)(1)
Conclusive determination of paternity. A statement acknowledging paternity that is on file with the state registrar under
s. 69.15 (3) (b) 3. after the last day on which a person may timely rescind the statement, as specified in
s. 69.15 (3m), is a conclusive determination, which shall be of the same effect as a judgment, of paternity.
767.62(2)(a)(a) A statement acknowledging paternity that is filed with the state registrar under
s. 69.15 (3) (b) 3. may be rescinded as provided in
s. 69.15 (3m) by a person who signed the statement as a parent of the child who is the subject of the statement.
767.62(2)(b)
(b) If a statement acknowledging paternity is timely rescinded as provided in
s. 69.15 (3m), a court or family court commissioner may not enter an order specified in
sub. (4) with respect to the man who signed the statement as the father of the child unless the man is adjudicated the child's father using the procedures set forth in
ss. 767.45 to
767.60.
767.62(3)
(3) Actions when paternity acknowledged. 767.62(3)(a)(a) Unless the statement acknowledging paternity has been rescinded, an action affecting the family concerning custody, child support or physical placement rights may be brought with respect to persons who, with respect to a child, jointly signed and filed with the state registrar under
s. 69.15 (3) (b) 3. as parents of the child a statement acknowledging paternity.
767.62(3)(b)
(b) Except as provided in
s. 767.045, in an action specified in
par. (a) the court or family court commissioner may appoint a guardian ad litem for the child and shall appoint a guardian ad litem for a party who is a minor, unless the minor party is represented by an attorney.
767.62(4)
(4) Orders when paternity acknowledged. 767.62(4)(a)(a) In an action under
sub. (3) (a), if the persons who signed and filed the statement acknowledging paternity as parents of the child had notice of the hearing, the court or family court commissioner may make an order that contains any provision directed against the appropriate party to the proceeding concerning the duty of support, the legal custody or guardianship of the child, periods of physical placement, the furnishing of bond or other security for the payment of amounts under the order 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 or family court commissioner 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 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 attorney fees or other costs.
767.62(4)(b)1.1. In this paragraph, "health insurance" does not include medical assistance provided under
subch. IV of ch. 49.
767.62(4)(b)2.
2. In addition to ordering child support for a child under
par. (a), the court or family court commissioner 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 or family court commissioner shall consider whether a child is covered under a parent's health insurance policy or plan at the time the court enters an order under this paragraph, 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 subdivision. If a parent is required to do so, he or she shall provide copies of necessary program or policy identification to the other parent and is liable for any health care costs for which he or she receives direct payment from an insurer. This paragraph may not be construed to limit the authority of the court or family court commissioner to enter or modify support orders containing provisions for payment of medical expenses, medical costs, or insurance premiums that are in addition to and not inconsistent with this paragraph.
767.62(4)(b)3.a.a. In directing the manner of payment of a child's health care expenses, the court or family court commissioner 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 or family court commissioner orders income withholding and assignment for the payment of health care expenses, the court or family court commissioner shall send notice of assignment in the manner provided under
s. 767.265 (2r) and may include that notice of assignment 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. a. is shown as repealed and recreated eff. 1-4-99 by
1997 Wis. Act 191. Prior to 1-4-99 it reads:
767.62 Note
a. In directing the manner of payment of a child's health care expenses, the court or family court commissioner 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 or family court commissioner orders income withholding and assignment for the payment of health care expenses, the court or family court commissioner shall send notice of assignment in the manner provided under s. 767.265 (2r) and may include that notice of assignment 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.
767.62(4)(b)3.b.
b. If the court or family court commissioner 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 or family court commissioner 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. That notice of assignment may be sent with or included as part of any other notice of assignment under
s. 767.265, if appropriate. A person who receives the notice of assignment shall send the withheld health insurance premiums to the appropriate health care insurer, provider or plan, as provided in
s. 767.265 (3h).
767.62(4)(b)4.
4. If the court or family court commissioner 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:
767.62(4)(b)4.a.
a. 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.
767.62(4)(b)4.b.
b. 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
subd. 6.
767.62(4)(b)4.bm.
bm. 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.
767.62(4)(b)4.c.
c. 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 order of the court or family court commissioner 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.
767.62(4)(b)5.a.a. If a parent who has been ordered by a court or family court commissioner 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.
767.62(4)(b)6.a.a. If a parent who provides coverage of the health care expenses of a child under an order under this paragraph 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.
767.62(4)(b)6.b.
b. 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
subd. 6. b. 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.
767.62(4)(c)1.1. In making an order of legal custody under
par. (a), 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:
767.62(4)(c)1.a.
a. 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.
767.62(4)(c)1.b.
b. A report of any medical examination that the parent providing the information had within one year before the date of the order.
767.62(4)(c)2.
2. The physician or other health care provider designated under
subd. 1. 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
subd. 1. shall be transferred with the child's patient health care records. Notwithstanding
s. 146.819, the information provided under
subd. 1. need not be maintained by a physician or other health care provider after the child reaches age 18.
767.62(4)(c)3.a.
a. 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.
767.62(4)(c)3.b.
b. 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.
767.62(4)(d)1.1. Except as provided in
par. (e), the court or family court commissioner shall determine child support payments under
par. (a) by using the percentage standard established by the department under
s. 49.22 (9).
767.62(4)(d)2.
2. In determining child support payments under
par. (a), the court or family court commissioner 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).
767.62(4)(d)3.
3. Support orders under
par. (a) 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.
767.62(4)(e)
(e) Upon request by a party, the court or family court commissioner may modify the amount of child support payments determined under
par. (d) if, after considering the following factors, the court or family court commissioner 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:
767.62(4)(e)2.
2. The physical, mental and emotional health needs of the child, including any costs for health insurance as provided for under
par. (b).
767.62(4)(e)3.
3. 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).
767.62(4)(e)5.
5. 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.
767.62(4)(e)6.
6. The need and capacity of the child for education, including higher education.
767.62(4)(e)8.
8. The financial resources and the earning ability of the child.
767.62(4)(e)9.
9. Any physical custody arrangement ordered or decided upon.
767.62(4)(e)10.
10. Extraordinary travel expenses incurred in exercising the right to periods of physical placement.
767.62(4)(e)11.
11. The responsibility of the parents for the support of others.
767.62(4)(e)12.
12. The value of services contributed by the custodial parent.
767.62(4)(e)14.
14. Any other factors that the court or family court commissioner in each case determines are relevant to the best interests of the child.
767.62(4)(f)
(f) If the court or family court commissioner finds under
par. (e) that use of the percentage standard is unfair to the child or the requesting party, the court or family court commissioner 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 or family court commissioner's order deviates from that amount, the reasons for finding that use of the percentage standard is unfair to the child or the party, the reasons for the amount of the modification and the basis for the modification.
767.62(4)(g)
(g) A party ordered to pay child support under this subsection 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 paragraph 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:
