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.
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. 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 shall make an order that contains all of the following provisions:
767.62(4)(a)
(a) Orders for the legal custody of and periods of physical placement with the child, determined in accordance with
s. 767.24.
767.62(4)(b)
(b) 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.
767.62(4)(c)
(c) 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).
767.62(4)(d)
(d) 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.
767.62(4)(e)
(e) An order requiring either or both parties to pay or contribute to the costs of the guardian ad litem fees and other costs.
767.62(4)(f)
(f) An order requiring either party to pay or contribute to the attorney fees of the other party.
767.62(4m)(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, motion or order to show cause requesting support is filed in the action for support under
sub. (3) (a), unless a party shows, to the satisfaction of the court, all of the following:
767.62(4m)(a)1.
1. That he or she was induced to delay commencing the action by any of the following:
767.62(4m)(a)1.b.
b. Actions, promises or representations by the other party upon which the party relied.
767.62(4m)(a)2.
2. That, after the inducement ceased to operate, he or she did not unreasonably delay in commencing the action.
767.62(4m)(b)
(b) In no event may liability for past support of the child be imposed for any period before the birth of the child.
767.62(5)(a)(a) A determination of paternity that arises under this section may be voided at any time upon a motion or petition stating facts that show fraud, duress or a mistake of fact. Except for good cause shown, any orders entered under
sub. (4) shall remain in effect during the pendency of a proceeding under this paragraph.
767.62(5)(b)
(b) If a court in a proceeding under
par. (a) determines that the man is not the father of the child, the court shall vacate any order entered under
sub. (4) with respect to the man. The court shall notify the state registrar, in the manner provided in
s. 69.15 (1) (b), to remove the man's name as the father of the child from the child's birth certificate. No paternity action may thereafter be brought against the man with respect to the child.
767.62(6)(a)(a) This section does not apply unless all of the following apply to the statement acknowledging paternity:
767.62(6)(a)1.
1. The statement is made on a form prescribed by the state registrar for use beginning on April 1, 1998.
767.62(6)(a)2.
2. The statement was signed and filed on or after April 1, 1998.
767.62(6)(a)3.
3. The statement contains an attestation clause showing that both parties, before signing the statement, received oral and written notice of the legal consequences of, the rights and responsibilities arising from and the alternatives to, signing the statement.
767.62(6)(b)
(b) Parties who signed and filed a statement acknowledging paternity before April 1, 1998, may sign and file a new statement that fulfills the requirements under
par. (a). Such a statement supersedes any statement previously filed with the state registrar and has the effects specified in this section.
767.62(6)(c)
(c) The notice requirements under
s. 69.15 (3) (b) 3. apply to this section beginning with forms for the acknowledgment of paternity that are prescribed by the state registrar on April 1, 1998.
767.62 Annotation
Wisconsin's Custody, Placement and Paternity Reform Legislation. Walther. Wis.Law. April 2000.
