767.48(1m)
(1m) If genetic tests ordered under this section or
s. 49.225 show that the alleged father is not excluded and that the statistical probability of the alleged father's parentage is 99.0% or higher, the alleged father shall be rebuttably presumed to be the child's parent.
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 the alleged father and the state moved for additional tests under sub. (2), the trial court erred in denying the motion and dismissing action under sub. (4). In re Paternity of S. J. K.
132 Wis. 2d 262,
392 N.W.2d 97 (Ct. App. 1986).
767.48 Annotation
The chain of custody, or authentication, must be established prior to admission of evidence under sub. (1) (b). In re Paternity of J. S. C.
135 Wis. 2d 820,
400 N.W.2d 48 (Ct. App. 1986).
767.48 Annotation
Where the respondent failed to introduce evidence regarding the test, the trial court properly barred the respondent from attacking the test during closing argument. In re Paternity of M. J. B.
144 Wis. 2d 638,
425 N.W.2d 404 (1988).
767.48 Annotation
DNA test results are admissible when procedures meet the requirements for blood tests under sub. (1) (b). In re Paternity of J.L.K.
151 Wis. 2d 566,
445 N.W.2d 673 (Ct. App. 1989).
767.48 Annotation
Where more than one set of blood test results are presented, the sub. (1m) presumption is inapplicable where only one reached 99%. In re Paternity of J.M.K.
160 Wis. 2d 429,
465 N.W.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 Wis. 2d 551,
503 N.W.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 Wis. 2d 390,
558 N.W.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 Wis. 2d 132,
565 N.W.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 Wis. 2d 132,
565 N.W.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) [
s. 767.51 (2) to
(4)]. 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 Note
NOTE: The bracketed language indicates the correct cross-reference. Corrective legislation is pending.
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
A preponderance of the evidence standard of proof in paternity actions meets due process requirement. Rivera v. Minnich,
483 U.S. 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 shall contain all of the following provisions:
767.51(3)(a)
(a) An adjudication of the paternity of the child.
767.51(3)(b)
(b) Orders for the legal custody of and periods of physical placement with the child, determined in accordance with
s. 767.24.
767.51(3)(c)
(c) An order requiring either or both of the parents to contribute to 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, determined in accordance with
s. 767.25.
767.51(3)(d)
(d) A determination as to which parent, if eligible, shall have the right to claim the child as an exemption for federal tax purposes under
26 USC 151 (c) (1) (B), or as an exemption for state tax purposes under
s. 71.07 (8) (b).
767.51(3)(e)
(e) An order requiring the father to pay or contribute to the reasonable expenses of the mother's pregnancy and the child's birth, based on the father's ability to pay or contribute to those expenses.
767.51(3)(f)
(f) An order requiring either or both parties to pay or contribute to the costs of the guardian ad litem fees, genetic tests as provided in
s. 767.48 (5) and other costs.
767.51(3)(g)
(g) An order requiring either party to pay or contribute to the attorney fees of the other party.
767.51(4)(a)(a) Subject to
par. (b), liability for past support of the child shall be limited to support for the period after the day on which the petition in the action under
s. 767.45 is filed, unless a party shows, to the satisfaction of the court, all of the following:
767.51(4)(a)1.
1. That he or she was induced to delay commencing the action by any of the following:
767.51(4)(a)1.b.
b. Actions, promises or representations by the other party upon which the party relied.
767.51(4)(a)1.c.
c. Actions taken by the other party to evade paternity proceedings.
767.51(4)(a)2.
2. That, after the inducement ceased to operate, he or she did not unreasonably delay in commencing the action.
767.51(4)(b)
(b) In no event may liability for past support of the child be imposed for any period before the birth of the child.
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;
1999 a. 9.
767.51 Annotation
Determining a father's support obligation by applying percentage standards is inappropriate where the children live in several households. In re Paternity of B. W. S.
131 Wis. 2d 301,
388 N.W.2d 615 (1986).
767.51 Annotation
Regardless of whether a 15 year old boy's parenthood resulted from sexual assault as defined in criminal law, the trial court could find intercourse and parenthood voluntary for purposes of child support. In re Paternity of J.L.H.
149 Wis. 2d 349,
411 N.W.2d 273 (Ct. App. 1989).
767.51 Annotation
There is no statutory authority for an order requiring the mother to repay lying-in expenses paid by medical assistance. In re Paternity of N.L.M.
166 Wis. 2d 306,
479 N.W.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 Wis. 2d 864,
496 N.W.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 Wis. 2d 478,
504 N.W.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 Wis. 2d 868,
112 N.W.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 Wis. 2d 186,
544 N.W.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 Wis. 2d 500,
544 N.W.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 Wis. 2d 438,
564 N.W.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 Wis. 2d 438,
564 N.W.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 Wis. 2d 225,
578 N.W.2d 185 (1998).
767.51 Annotation
Nothing in this section authorizes ordering a name change in the best interests of the child in a paternity judgement. Although s. 69.15 (1) (a) provides for changing a name according to an order in a paternity action, it does not provide authority to order a name change in a paternity action without complying with the procedural requirements for a name change under s. 786.36. Paternity of Noah J.M.
223 Wis. 2d 768,
590 N.W.2d 21 (Ct. App. 1998).
767.51 Annotation
In concluding that a deviation from the percentage standards is warranted, all 14 factors under sub. (5) need not be applied. State v. Alonzo R.
230 Wis. 2d 17,
601 N.W.2d 328 (Ct. App. 1999).
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
Wisconsin's Custody, Placement and Paternity Reform Legislation. Walther. Wis.Law. April 2000.
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 and HFS 80, the percentage standards developed by the Department of Health and Family 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
A paternity respondent does not have a constitutional right to effective assistance of counsel. A paternity action is not a criminal prosecution. In re Paternity of P.L.S.
158 Wis. 2d 712,
463 N.W.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 pending proceedings shall be placed in a closed file, except that:
767.53(1)
(1) Access to the record of any pending 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).
767.53(3)
(3) Subject to
s. 767.19, a record of a past proceeding is open to public inspection if all of the following apply:
767.53(3)(a)
(a) Paternity was established in the proceeding.
767.53(3)(c)
(c) The record relates to a post-adjudication issue.
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.
