767.45(5)(a)(a) In this subsection, "any alleged father" includes any male who has engaged in sexual intercourse with the child's mother during a possible time of conception of the child.
767.45(5)(b)
(b) An action under this section may be joined with any other action for child support and shall be governed by the procedures specified in
s. 767.05 relating to child support, except that the title of the action shall be "In re the paternity of A.B." The petition shall state the name and date of birth of the child if born or that the mother is pregnant if the child is unborn, the name of any alleged father, whether or not an action by any of the parties to determine the paternity of the child or rebut the presumption of paternity to the child has at any time been commenced, or is pending before any judge or circuit court commissioner, in this state or elsewhere. If a paternity judgment has been rendered, or if a paternity action has been dismissed, the petition shall state the court which rendered the judgment or dismissed the action, and the date and the place the judgment was granted if known. The petition shall also give notice of a party's right to request a genetic test under
s. 49.225 or
767.48.
767.45(5m)
(5m) Except as provided in
ss. 767.458 (3),
767.465 (2) and
(2m),
767.477,
767.62 and
769.401, unless a man is presumed the child's father under
s. 891.41 (1), is adjudicated the child's father either under
s. 767.51 or by final order or judgment of a court of competent jurisdiction in another state or has acknowledged himself to be the child's father under
s. 767.62 (1) or a substantially similar law of another state, no order or temporary order may be entered for child support, legal custody or physical placement until the man is adjudicated the father using the procedure set forth in
ss. 767.45 to
767.60. Except as provided in
ss. 767.477,
767.62 and
769.401, the exclusive procedure for establishment of child support obligations, legal custody or physical placement rights for a man who is not presumed the child's father under
s. 891.41 (1), adjudicated the father or acknowledged under
s. 767.62 (1) or a substantially similar law of another state to be the father is by an action under
ss. 767.45 to
767.60 or under
s. 769.701. No person may waive the use of this procedure. If a presumption under
s. 891.41 (1) exists, a party denying paternity has the burden of rebutting the presumption.
767.45(6)(a)(a) The attorney responsible for support enforcement under
s. 59.53 (6) (a) shall provide the representation for the state as specified under
s. 767.075 (1) in cases brought under this section.
767.45(6)(b)
(b) The attorney under
s. 59.53 (6) (a) is the only county attorney who may provide representation when the state delegates its authority under
sub. (1) (g).
767.45(6)(c)
(c) The attorney under
s. 59.53 (6) (a) or any state attorney acting under
par. (b) may not represent the state as specified under
s. 767.075 (1) in an action under this section and at the same time act as guardian ad litem for the child or the alleged child of the party.
767.45(6m)
(6m) The attorney designated under
sub. (6) (a) shall commence an action under this section on behalf of the state within 6 months after receiving notification under
s. 69.03 (15) that no father is named on the birth certificate of a child who is a resident of the county if paternity has not been acknowledged under
s. 767.62 (1) or a substantially similar law of another state or adjudicated, except in situations under
s. 69.14 (1) (g) and
(h) and as provided by the department by rule.
767.45(6r)(a)1.
1. Give priority to matters referred under
s. 48.299 (6) (a) or
938.299 (6) (a), including priority in determining whether an action should be brought under this section and, if the determination is that such an action should be brought, priority in bringing the action and in establishing the existence or nonexistence of paternity.
767.45(6r)(a)2.
2. As soon as possible, but no later than 30 days after the date on which the referral is received, notify the court that referred the matter of one of the following:
767.45(6r)(a)2.a.
a. The date on which an action has been brought under this section or the approximate date on which such an action will be brought.
767.45(6r)(a)2.b.
b. That a determination has been made that an action should not be brought under this section or, if such a determination has not been made, the approximate date on which a determination will be made as to whether such an action should be brought.
767.45(6r)(a)3.
3. If an action is brought under this section, notify the court that referred the matter as soon as possible of a judgment or order determining the existence or nonexistence of paternity.
767.45(6r)(b)
(b) The attorney designated under
sub. (6) (a) who receives a referral under
s. 48.299 (7) or
938.299 (7) may bring an action under this section on behalf of the state and may give priority to the referral and notify the referring court in the same manner as is required under
par. (a) when a matter is referred under
s. 48.299 (6) (a) or
938.299 (6) (a).
767.45(7)
(7) The clerk of court shall provide without charge, to each person bringing an action under this section, except to the state under
sub. (1) (g) or
(6m), a document 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).
767.45 Cross-reference
Cross Reference: See also ch.
DWD 41, Wis. adm. code.
767.45 Annotation
Under the facts of the case, the nonbiological father was not equitably estopped from denying paternity or child support. Marriage of A. J. N. & J. M. N.
141 Wis. 2d 99,
414 N.W.2d 68 (Ct. App. 1987).
767.45 Annotation
A posthumous paternity action is allowable if it is brought by the putative father's personal representative. Le Fevre v. Schreiber,
167 Wis. 2d 733,
482 N.W.2d 904 (1992).
767.45 Annotation
A paternity action may not be used to challenge paternity previously decided in a divorce action. That paternity was not challenged in the divorce is irrelevant if it could have been litigated. Paternity of Nathan T.
174 Wis. 2d 352,
497 N.W.2d 740 (Ct. App. 1993).
767.45 Annotation
The full faith and credit clause of the U.S. Constitution did not bar a petition to determine paternity when a paternity decree of another state would have been subject to collateral attack in that state. Paternity of R.L.L.
176 Wis. 2d 224, N.W.2d (Ct. App. 1993).
767.45 Annotation
Because a child has a right to bring an independent action for paternity under sub. (1) (a), if the child was not a party to an earlier paternity action, it would be a violation of the child's due process rights to preclude the child from litigating the paternity issue. Mayonia M.M. v. Kieth N.
202 Wis. 2d 461,
551 N.W.2d 34 (Ct. App. 1996).
767.45 Annotation
An alleged father has a statutory right to a determination of paternity. A hearing to determine whether the child's best interests would be served by a paternity proceeding is not authorized by statute. Thomas M.P. v. Kimberly J.L.
207 Wis. 2d 390,
558 N.W.2d 897 (Ct. App. 1996).
767.455(1)(1)
Purpose. The summons shall state the purpose of the action.
767.455(2)
(2) Signing. The process shall be signed by the clerk of the court or by the petitioner's attorney.
767.455(3)
(3) Return date. Every summons shall specify a return date and time before the court. The clerk of the court shall set the date and hour at which the summons is returnable.
767.455(4)
(4) Service. The summons and petition shall be served in the manner provided in
s. 801.11 (1) (a) or
(b) or, notwithstanding
s. 990.001 (13), by registered or certified mail, with return receipt signed by the respondent.
767.455(5)
(5) Form. The summons shall be in substantially the following form:
STATE OF WISCONSIN, CIRCUIT COURT: ....COUNTY
In re the Paternity of A. B.
STATE OF WISCONSIN
and
C. D.
Address
City, State Zip Code File No. ...
, Petitioners
vs. S U M M O N S
E. F.
Address .... (Case Classification Type):.... (Code No.)
City, State Zip Code
, Respondent
THE STATE OF WISCONSIN, To the Respondent:
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 Circuit 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 not 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.
