767.458 Annotation
Before dismissing a petition without considering the merits, the trial court must conduct a hearing to determine the child's best interests pursuant to sub. (1m). Paternity of T.R.B.
154 Wis. 2d 637,
454 N.W.2d 561 (Ct. App. 1990).
767.458 Annotation
Sub. (1m) is constitutional. The court has an obligation to refuse to allow blood tests if the tests may result in a determination that the person alleging his paternity is the natural father and that determination would not be in the best interest of the children. 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 circuit or supplemental court commissioner under
s. 757.675 (2) (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;
2001 a. 61.
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]
767.46 Annotation
The trial court may order a putative father to a take blood test only after determining at a pretrial hearing that paternity probably can be established at trial and that the establishment of paternity is in the best interests of the child. State ex rel. Scott v. Slocum,
109 Wis. 2d 397,
326 N.W.2d 118 (Ct. App. 1982).
767.46 Annotation
Notwithstanding s. 804.12 (2) (a) 4., the trial court may find a party in civil contempt for refusing to submit to a blood test. Paternity of T.P.L.
120 Wis. 2d 328,
354 N.W.2d 759 (Ct. App. 1984).
767.46 Annotation
Nothing in this section authorizes ordering a name change in the best interests of the child in a paternity judgement. Sub. (2) (c) only authorizes a court to make settlement recommendations in pretrial proceedings if paternity is acknowledged. 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).
767.463
767.463
Dismissal if adjudication not in child's best interest. Except as provided in
s. 767.458 (1m), at any time in an action to establish the paternity of a child, upon the motion of a party or guardian ad litem, the court or circuit or supplemental court commissioner under
s. 757.675 (2) (g) may, with respect to a man, refuse to order genetic tests, if genetic tests have not yet been taken, and dismiss the action if the court or circuit or supplemental court commissioner determines that a judicial determination of whether the man is the father of the child is not in the best interest of the child.
767.463 History
History: 1997 a. 191;
2001 a. 61.
767.465
767.465
Default and stipulated judgments. 767.465(1)
(1)
Judgment when petitioner fails to appear or is unable to proceed. If a petitioner, other than the state, fails to appear and plead on the date set for the pretrial hearing or the date set for the trial or if the state is the petitioner and is unable to proceed on the date set for the pretrial hearing or the date set for the trial, the court may enter a judgment for the respondent dismissing the action, on the motion of the respondent or upon its own motion.
767.465(1m)
(1m) Judgment when mother fails to appear. Notwithstanding
sub. (1), a court may enter an order adjudicating the alleged father, or man alleging that he is the father, to be the father of the child under
s. 767.51 if the mother of the child fails to appear at the first appearance, unless the first appearance is not required under
s. 767.457 (2), scheduled genetic test, pretrial hearing or trial if sufficient evidence exists to establish the man as the father of the child.
767.465(2)
(2) Judgment when respondent fails to appear. 767.465(2)(a)(a) Except as provided in
sub. (2m), if a respondent is the alleged father and fails to appear at the first appearance, unless the first appearance is not required under
s. 767.457 (2), scheduled court-ordered genetic test, pretrial hearing or trial, the court shall enter an order adjudicating the respondent to be the father and appropriate orders for support, legal custody and physical placement. The orders shall be either served on the respondent or mailed by regular, registered or certified mail, to the last-known address of the respondent. The orders shall take effect 30 days after service or 30 days after the date on which the orders were mailed unless, within that time, the respondent presents to the court or a circuit or supplemental court commissioner under
s. 757.675 (2) (g) evidence of good cause for failure to appear or failure to have undergone a court-ordered genetic test.
767.465(2)(b)
(b) A default judgment may not be entered under
par. (a) if there is more than one person alleged in the petition to be the father, unless only one of those persons fails to appear and all of the other male respondents have been excluded as the father.
767.465(2m)(a)(a) At any time after service of the summons and petition, a respondent who is the alleged father may, with or without appearance in court and subject to the approval of the court, in writing acknowledge that he has read and understands the notice under
s. 767.455 (5g) and stipulate that he is the father of the child and for child support payments, legal custody and physical placement. The court may not approve a stipulation for child support unless it provides for payment of child support determined in a manner consistent with
s. 767.25 or
767.51.
767.465(2m)(b)
(b) If the respondent timely files a completed waiver of first appearance statement under
s. 767.455 (5r), as provided in
s. 767.457 (2), and files the acknowledgment and stipulation in conjunction with the waiver of first appearance statement or before the scheduled pretrial hearing, the respondent need not appear in court in the proceeding unless required to do so by the court.
767.465(2m)(c)
(c) If the court approves the stipulation, the court shall enter an order adjudicating the respondent to be the father as well as appropriate orders for support, legal custody and physical placement. The orders shall either be served on the respondent or mailed by regular, registered or certified mail to the last-known address of the respondent. The orders shall take effect upon entry if the respondent has so stipulated. If the respondent has not so stipulated, the orders shall take effect 30 days after service or 30 days after the date on which the orders were mailed unless, within that time, the respondent presents to the court evidence of good cause why the orders should not take effect.
767.465(3)
(3) Motion to reopen. A default judgment, or a judgment upon stipulation unless each party appeared personally before the court at least one time during the proceeding, that is rendered under this section and that adjudicates a person to be the father of a child may be reopened:
767.465(3)(a)
(a) At any time upon motion or petition for good cause shown.
767.465(3)(c)
(c) Within one year after the judgment upon motion or petition, except that a respondent may not reopen more than one default judgment or more than one such stipulated judgment on a particular case under this paragraph.
767.465(4)
(4) Appeal. An appeal of a denial of the petition or motion to reopen shall be to the court of appeals.
767.465 Annotation
The respondent must appear personally under sub. (2) (a). An attorney's appearance is insufficient. Paternity of Tiffany B.
173 Wis. 2d 864,
496 N.W.2d 711 (Ct. App. 1993).
767.466
767.466
Motion to reopen judgment based on statement acknowledging paternity. A judgment which adjudicates a person to be the father of a child and which was based upon a statement acknowledging paternity that was signed and filed before April 1, 1998, may, if no trial was conducted, be reopened under any of the following circumstances:
767.466(1)
(1) At any time upon motion or petition for good cause shown.
767.466(3)
(3) Within one year after entry of the judgment upon motion or petition.
767.466 History
History: 1987 a. 413;
1997 a. 191.
767.47
767.47
Testimony and evidence relating to paternity. 767.47(1)(1) Evidence relating to paternity, whether given at the trial or the pretrial hearing, may include, but is not limited to:
767.47(1)(a)
(a) Evidence of sexual intercourse between the mother and alleged father at any possible time of conception or evidence of a relationship between the mother and alleged father at any time.
767.47(1)(b)
(b) An expert's opinion concerning the statistical probability of the alleged father's paternity based upon the duration of the mother's pregnancy.
767.47(1)(d)
(d) The statistical probability of the alleged father's paternity based upon the genetic tests.
767.47(1)(e)
(e) Medical, scientific or genetic evidence relating to the alleged father's paternity of the child based on tests performed by experts.
767.47(1)(f)
(f) All other evidence relevant to the issue of paternity of the child, except as provided in
subs. (2),
(2m) and
(3).
767.47(1m)
(1m) If the child was born in this state, the petitioner shall present a certified copy of the child's birth certificate or a printed copy of the record from the birth database of the state registrar to the court, so that the court is aware of whether a name has been inserted on the birth certificate as the father of the child, at the earliest possible of the following:
767.47(2)
(2) Testimony relating to sexual relations or possible sexual relations of the mother any time other than the possible time of conception of the child is inadmissible in evidence, unless offered by the mother.
767.47(2m)
(2m) Medical and genetic information filed with the department of health and family services or the court under
s. 48.425 (1) (am) or
(2) is not admissible to prove the paternity of the child.
767.47(3)
(3) Except as provided in
s. 767.48 (4), in an action against an alleged father, evidence offered by him with respect to an identified man who is not subject to the jurisdiction of the court concerning that man's sexual intercourse with the mother at or about the presumptive time of conception of the child is admissible in evidence only after the alleged father has undergone genetic tests and made the results available to the court.
767.47(4)(a)(a) No person may be prosecuted or subjected to any penalty or forfeiture for or on account of any testimony or evidence given relating to the paternity of the child in any paternity proceeding, except for perjury committed in giving the testimony.
767.47(5)
(5) Except as provided in
sub. (6), upon refusal of any witness, including a party, to testify under oath or produce evidence, the court may order the witness to testify under oath and produce evidence concerning all relevant facts. The refusal of a witness, including a witness who has immunity under
sub. (4), to obey an order to testify or produce evidence is a contempt of the court.
767.47(6)(a)(a) Whenever the state brings the action to determine paternity pursuant to an assignment under
s. 46.261,
48.57 (3m) (b) 2. or
(3n) (b) 2.,
49.19 (4) (h) 1. or
49.45 (19), or receipt of benefits under
s. 49.148,
49.155,
49.157 or
49.159, the natural mother of the child may not be compelled to testify about the paternity of the child if it has been determined that the mother has good cause for refusing to cooperate in establishing paternity as provided in
42 USC 602 (a) (26) (B) and the federal regulations promulgated pursuant to this statute, as of July 1, 1981, and pursuant to any rules promulgated by the department which define good cause in accordance with the federal regulations, as authorized by
42 USC 602 (a) (26) (B) in effect on July 1, 1981.
767.47(7)
(7) Testimony of a physician concerning the medical circumstances of the pregnancy and the condition and characteristics of the child upon birth is not privileged.
767.47(8)
(8) The party bringing an action for the purpose of determining paternity or for the purpose of declaring the nonexistence of paternity presumed under
s. 891.405 or
891.41 (1) shall have the burden of proving the issues involved by clear and satisfactory preponderance of the evidence.
767.47(9)
(9) Where a child is conceived by artificial insemination, the husband of the mother of the child at the time of the conception of the child is the natural father of the child, as provided in
s. 891.40.
767.47(10)
(10) A record of the testimony of the child's mother relating to the child's paternity, made as provided under
s. 48.299 (8) or
938.299 (8), is admissible in evidence on the issue of paternity.
767.47(11)
(11) Bills for services or articles related to the pregnancy, childbirth or genetic testing may be admitted into evidence and are prima facie evidence of the costs incurred for such services or articles.
767.47 History
History: 1979 c. 352;
1981 c. 20 s.
2202 (20) (m);
1981 c. 359 ss.
13,
17;
1983 a. 447;
1987 a. 413;
1989 a. 31,
122,
212;
1993 a. 395,
481;
1995 a. 27 s.
9126 (19);
1995 a. 77,
100,
275,
289,
404;
1997 a. 27,
105,
191,
252;
1999 a. 185.
767.47 Annotation
It is not necessary for an alleged father to produce evidence of who the real father is in order to sustain a verdict of non-paternity. State v. Michael J. W.
210 Wis. 2d 132,
565 N.W.2d 179 (Ct. App. 1997).
767.475
767.475
Paternity procedures. 767.475(1)(a)(a) Except as provided in
par. (b), the court may appoint a guardian ad litem for the child and shall appoint a guardian ad litem for a minor parent or minor who is alleged to be a parent in a paternity proceeding unless the minor parent or the minor alleged to be the parent is represented by an attorney.
767.475(1)(b)
(b) The court shall appoint a guardian ad litem for the child if
s. 767.045 (1) (a) or
(c) applies or if the court has concern that the child's best interest is not being represented.
767.475(2m)
(2m) If there is no presumption of paternity under
s. 891.41 (1), the mother shall have sole legal custody of the child until the court orders otherwise.
767.475(3)
(3) Evidence as to the time of conception may be offered as provided in
s. 891.395.
767.475(4)
(4) Discovery shall be conducted as provided in
ch. 804, except that no discovery may be obtained later than 30 days before the trial. No discovery may solicit information relating to the sexual relations of the mother occurring at any time other than the probable time of conception.
767.475(5)
(5) The statute of limitations for commencing actions concerning paternity is as provided in
s. 893.88.
767.475(7)
(7) The court may appoint a trustee or guardian to receive and manage money paid for the support of a minor child.
767.475(8)
(8) In all other matters, paternity proceedings shall be governed by the procedures applicable to other actions affecting the family.
