You have been sued. .... claims that you are the father of the child, .... born on .... (date), in .... (city) (county) (state). You must appear to answer this claim of paternity. Your court appearance is:
Date:
Time:
Room:
Judge or Family Court Commissioner:
Address:
If you do not appear, the court will enter a default judgment finding you to be the father. A default judgment will take effect 30 days after it is served on or mailed to you, unless within those 30 days you present to the court evidence of good cause for failure to appear. If you plan to be represented by an attorney, you should contact the attorney prior to the court appearance listed above. If you are unable to afford an attorney, the court will appoint one for you only upon the blood tests showing that you are not excluded as the father and the probability of your being the father is less than 99.0%. Appearance is not required if you complete the attached waiver of first appearance statement and send it to the court at least 10 days prior to the date of your scheduled appearance in this summons.
Dated: ...., .... (year)
Signed:.... ....
G. H., Clerk of Circuit Court
or
Petitioner's Attorney
State Bar No.: ....
Address: ....
City, State Zip Code: ....
Phone No.: ....
767.455(5g)
(5g) Notice. The notice to respondent shall be attached to the summons. The notice shall be in boldface type and substantially the following form:
NOTICE TO RESPONDENT
1. You have been named in a petition alleging paternity. A judgment of paternity would legally designate the child as your child, grant parental rights to you, create the right of inheritance for the child, obligate you to pay child support until the child reaches the age of 18, or the age of 19 if the child is enrolled full-time in high school or its equivalent, and make your failure to pay child support punishable by imprisonment as a contempt of court or as a criminal violation.
2. You have the right to be represented by an attorney. If you are unable to afford an attorney, the court will appoint one for you only if the results of one or more genetic tests show that you are excluded as the father and that the statistical probability of your being the father is less than 99.0%. In order to determine whether you are entitled to have an attorney appointed for you, you may call the following telephone number .... .
3.You may request genetic tests which will indicate the probability that you are or are not the father of the child. The court or county child support agency will order genetic tests on request by you, the state or any other party. Any person who refuses to take court-ordered genetic tests may be punished for contempt of court.
4. The petitioner has the burden of proving by a clear and satisfactory preponderance of the evidence that you are the father. However, if genetic tests show that you are not excluded as the father and that the statistical probability of your being the father is 99.0% or higher, you are rebuttably presumed to be the father.
5. The following defenses are available to you:
(a) That you were sterile or impotent at the time of conception.
(b) That you did not have sexual intercourse with the mother of the child during the conceptive period as provided in
s. 891.395
.
(c) That another man did have sexual intercourse with the mother of the child during the conceptive period.
6. You have the right to request a jury trial.
7. If you fail to appear at any stage of the proceeding, including a scheduled court-ordered genetic test, the court will enter a default judgment finding you to be the father. A default judgment will take effect 30 days after it is served on or mailed to you at your address on file with the court, unless within those 30 days you present to the court evidence of good cause for your failure to appear or your failure to have undergone a court-ordered genetic test. You need not appear at the time and place specified in the summons if you complete the attached waiver of first appearance statement and deliver it to the court by the date specified in the waiver of first appearance statement.
8. You must keep the clerk of court informed of your current address at all times.
767.455(5r)
(5r) Waiver of first appearance. The waiver of first appearance statement shall be attached to the summons. The waiver of first appearance statement shall be in boldface type and substantially the following form:
WAIVER OF FIRST APPEARANCE
1. I understand that by signing this waiver and agreeing to its terms I am not required to appear at the time and place specified in the summons. If I do not sign this statement, I am required to appear at the time and place specified in the summons.
2. I understand that I will be notified by the court of all future stages in the proceeding and agree to appear at those stages. If I fail to appear at any stage, including a scheduled court-ordered genetic test, the court will enter a default judgment finding me to be the father. A default judgment will take effect 30 days after it is served on or mailed to me, unless within those 30 days I present to the court evidence of good cause for my failure to appear or my failure to have undergone a court-ordered genetic test.
3. I enter the following plea (check only one):
.... I agree that I am the child's father.
.... I deny that I am the child's father.
.... I agree that I am the child's father, subject to confirmation by a genetic test.
If I enter a plea agreeing that I am the child's father, a judgment of paternity will be entered against me. If I enter a plea denying that I am the child's father or a plea agreeing that I am the child's father, subject to a genetic test, I agree to undergo a genetic test.
4. I have read the summons and the notice or have had them read to me.
5. This waiver of first appearance statement is valid only if it is delivered to the court on or before .....
6. I will keep the clerk of court informed of my address at all times. The following is my current address:
....................................................
Street address and apartment number
....................................................
City State Zip Code
...... ......................................
Date Signature of Respondent
767.455(5w)
(5w) Exception. Subsections (5) to
(5r) do not apply in an action brought by a man alleging himself to be the father of the child.
767.455(6)
(6) Document. The summons served on the respondent shall be accompanied by a document, provided without charge by the clerk of court, setting forth the percentage standard established by the department under
s. 49.22 (9) and listing the factors which a court may consider under
s. 767.25 (1m).
767.455 Annotation
Failure to object to personal jurisdiction prior to returning a completed "Waiver of First Appearance" form under sub. (5r) constituted a submission to the court's jurisdiction and waiver of objection. In re Paternity of K.J.E.
168 Wis. 2d 209,
483 N.W.2d 588 (Ct. App. 1992).
767.456
767.456
Enlargement of time in a paternity proceeding. The time for service of summons and petition under
s. 801.02 (1) in a paternity proceeding may be extended as provided in either
sub. (1) or
(2):
767.456(1)
(1) Upon the petitioner's demonstration of good cause, the court may without notice order one additional 60-day extension for service of the summons and petition.
767.456(2)
(2) The time for service may be extended until the date the summons and petition are actually served, if both of the following apply:
767.456(2)(a)
(a) There are reasonable grounds to believe that before the time for service under
s. 801.02 (1) or
sub. (1) expired the respondent knew that the mother was pregnant and that the respondent may be the father.
767.456(2)(b)
(b) Due diligence was exercised in attempting to serve the respondent, before he was actually served.
767.456 History
History: 1983 a. 447.
767.457
767.457
Time of first appearance. 767.457(1)
(1) The first appearance under
s. 767.458 may not be held any sooner than 30 days after service or receipt of the summons and petition unless the parties agree that the first appearance may be held sooner.
767.457(2)
(2) A first appearance of a respondent is not required if, at least 10 days prior to the scheduled appearance, the respondent waives his first appearance by filing a completed waiver of first appearance statement under
s. 767.455 (5r).
767.457 History
History: 1987 a. 27;
1991 a. 313.
767.458(1)(1) At the first court appearance where the respondent is present, the court shall inform the parties of the following:
767.458(1)(a)
(a) A judgment of paternity lawfully designates the child as the child of the respondent, granting parental rights to the respondent, creating the right of inheritance for the child, obligating the respondent to pay support until the child reaches the age of 18, and making failure to pay support punishable by imprisonment as a contempt of the court;
767.458(1)(b)
(b) If the respondent is unable to afford counsel due to indigency, and the petitioner is represented by a government attorney under
s. 767.45 (1) (g) or
(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
s. 767.52 and
ch. 977, unless the respondent knowingly and voluntarily waives the appointment of counsel;
767.458(1)(c)
(c) Except as provided under
sub. (1m) and
s. 767.463, the respondent may request the administration of genetic tests which either demonstrate that he is not the father of the child or which demonstrate the probability that he is or is not the father of the child;
767.458(1)(d)
(d) Except as provided in
subs. (1m) and
(2) and
s. 767.463, the court will order genetic tests upon the request of any party; and
767.458(1)(e)
(e) The respondent has the defenses that he was sterile or impotent at the time of conception, he did not have sexual intercourse with the mother during a period 8 to 10 months prior to the birth of the child, or that another man did have sexual intercourse with the mother during that period of time.
767.458(1m)
(1m) In an action to establish the paternity of a child who was born to a woman while she was married, where a man other than the woman's husband alleges that he, not the husband, is the child's father, a party may allege that a judicial determination that a man other than the husband is the father is not in the best interest of the child. If the court or court commissioner under
s. 757.69 (3) (g) determines that a judicial determination of whether a man other than the husband is the father is not in the best interest of the child, no genetic tests may be ordered and the action shall be dismissed.
767.458(2)
(2) At the first appearance, if it appears from a sufficient petition or affidavit of the child's mother or an alleged father, or from sworn testimony of the child's mother or an alleged father, that there is probable cause to believe that any of the males named has had sexual intercourse with the mother during a possible time of the child's conception, the court may, or upon the request of any party shall, order any of the named persons to submit to genetic tests. The tests shall be conducted in accordance with
s. 767.48. The court is not required to order a person who has undergone a genetic test under
s. 49.225 to submit to another genetic test under this subsection unless a party requests additional tests under
s. 767.48 (2).
767.458(3)
(3) At the first appearance, if a statement acknowledging paternity under
s. 69.15 (3) (b) 1. or
3. that was signed and filed before April 1, 1998, is on file, the court may enter an order for child support, legal custody or physical placement and, if the respondent who filed the statement does not dispute his paternity, may enter a judgment of paternity.
767.458 History
History: 1979 c. 352;
1983 a. 447 s.
34; Stats. 1983 s. 767.457;
1987 a. 27 ss.
2136t,
2137d,
2137e; Stats. 1987 s. 767.458;
1987 a. 403,
413;
1993 a. 16,
481;
1995 a. 100;
1997 a. 191.
767.458 Annotation
Before dismissing petition without considering merits, trial court must conduct hearing to determine child's best interests pursuant to (1m). In re Paternity of T.R.B.
154 Wis. 2d 637,
454 N.W.2d 561 (Ct. App. 1990).
767.458 Annotation
Constitutionality of (1m) upheld. Application of best interests standard discussed. In re Paternity of C.A.S.
161 Wis. 2d 1015,
468 N.W.2d 719 (1991).
767.458 Annotation
In re Paternity of C.A.S. and C.D.S.: The New Status of Putative Fathers' Rights in Wisconsin. 1992 WLR 1669.
767.459
767.459
Appearance on behalf of deceased respondent. The personal representative or an attorney may appear for a deceased respondent who is the alleged father whenever an appearance by the respondent is required.
767.459 History
History: 1993 a. 481.
767.46
767.46
Pretrial paternity proceedings. 767.46(1)
(1) A pretrial hearing shall be held before the court or a court commissioner under
s. 757.69 (3) (g). A record or minutes of the proceeding shall be kept. At the pretrial hearing the parties may present and cross-examine witnesses, request genetic tests and present other evidence relevant to the determination of paternity.
767.46(2)
(2) On the basis of the information produced at the pretrial hearing, the court shall evaluate the probability of determining the existence or nonexistence of paternity in a trial and shall so advise the parties. On the basis of the evaluation, the court may make an appropriate recommendation for settlement to the parties. This recommendation may include any of the following:
767.46(2)(a)
(a) That the action be dismissed with or without prejudice.
767.46(2)(b)
(b) That the alleged father voluntarily acknowledge paternity of the child.
767.46(2)(c)
(c) If the alleged father voluntarily acknowledges paternity of the child, that he agree to the duty of support, the legal custody of the child, periods of physical placement of the child and other matters as determined to be in the best interests of the child by the court.
767.46(3)
(3) If the parties accept a recommendation made in accordance with this section, judgment shall be entered accordingly.
767.46(4)
(4) If a party or the guardian ad litem refuses to accept a recommendation made under this section and genetic tests have not yet been taken, the court shall require the appropriate parties to submit to genetic tests. After the genetic tests have been taken the court shall make an appropriate final recommendation.
767.46(5)
(5) If the guardian ad litem or any party refuses to accept any final recommendation, the action shall be set for trial.
767.46(6)
(6) The informal hearing may be terminated and the action set for trial if the court finds it unlikely that all parties would accept a recommendation in this section.
767.46 History
History: 1979 c. 352;
1983 a. 447;
1987 a. 27; Sup. Ct. Order, 141 Wis. 2d xxxix (1987);
1987 a. 355;
1993 a. 481;
1995 a. 100.
767.46 Note
Judicial Council Note, 1988: This section mandates pretrial hearings in paternity proceedings. Under sub. (6), the informal hearing may be terminated and set for trial if the judge or family court commissioner finds it unlikely that all parties would accept a recommendation under this section and similarly, under sub. (5), if the guardian ad litem or any party refuses to accept the final recommendation. This amends sub. (1), to emphasize that this is an informal hearing before a judge, not a court in session, or before a court commissioner and that, while the hearing may be on the record, minutes alone are sufficient. [Re Order effective Jan. 1, 1988]
