4. You may request genetic tests which will indicate the probability that the man named as the possible father is or is not the father of the child. The court will order genetic tests on a 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.
5. The following defenses are available in a paternity case:
767.813(5g)(a)
(a) The man named as a possible father of the child may claim that he was sterile or impotent at the time of conception.
767.813(5g)(b)
(b) The mother may claim that she, or the man named as a possible father may claim that he, did not have sexual intercourse with the other party during the conceptive period (generally the period 8 to 10 months before the birth of the child).
767.813(5g)(c)
(c) The mother or the man named as a possible father may claim that another man had sexual intercourse with the mother during the conceptive period.
767.813(5g)(c)6.
6. You have the right to request a jury trial on the issue of whether the named man is the father.
767.813(5g)(c)7.
7. If you fail to appear at any stage of the proceeding, including a scheduled court-ordered genetic test, the court may enter a default judgment finding the man claimed to be the father as the father.
767.813(5g)(c)8.
8. You must keep the clerk of court and child support agency informed of your current address at all times.
767.813(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 that a court may consider under
s. 767.511 (1m).
767.813 History
History: 1979 c. 352;
1981 c. 314;
1983 a. 447;
1985 a. 29;
1987 a. 27,
413; Sup. Ct. Order, 171 Wis. 2d xix (1992);
1993 a. 16,
481;
1995 a. 27 ss.
7112,
7113b,
9126 (19);
1995 a. 100,
404,
417;
1997 a. 35,
191,
250;
1999 a. 9;
2001 a. 61,
105;
2005 a. 443 ss.
185,
186,
190,
243,
244; Stats. 2005 s. 767.813.
767.813 Note
NOTE: 2005 Wis. Act 443, which affected this section, contains explanatory notes.
767.814
767.814
Names on pleadings after paternity determined. After paternity is determined by the court in an action or proceeding under this subchapter, any papers filed in, and any records of, the court relating to the action or proceeding may identify the parties by name instead of by initials.
767.814 History
History: 2005 a. 443.
767.815
767.815
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):
767.815(1)
(1) Good cause. 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.
767.815(2)
(2) Reasonable grounds; due diligence. The time for service may be extended until the date the summons and petition are actually served, if both of the following apply:
767.815(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.
767.815(2)(b)
(b) Due diligence was exercised in attempting to serve the respondent, before he was actually served.
767.815 History
History: 1983 a. 447;
2005 a. 443 ss.
191,
246; Stats. 2005 s. 767.815.
767.82
767.82
Paternity procedures. 767.82(1)
(1)
Appointment of guardian ad litem. 767.82(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.
767.82(1)(b)
(b) The court shall appoint a guardian ad litem for the child if
s. 767.407 (1) (a) or
(c) applies or if the court has concern that the child's best interest is not being represented.
767.82(2m)
(2m) Custody pending court order. If there is no presumption of paternity under
s. 891.41 (1) or if paternity is acknowledged under
s. 767.805 (1), the mother shall have sole legal custody of the child until the court orders otherwise.
767.82(3)
(3) Time of conception; evidence. Evidence as to the time of conception may be offered as provided in
s. 891.395.
767.82(4)
(4) Discovery. 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.
767.82(5)
(5) Statute of limitations. The statute of limitations for commencing actions concerning paternity is as provided in
s. 893.88.
767.82(6)
(6) Arrest. The respondent in a paternity action may be arrested as provided in
s. 818.02 (6).
767.82(7)
(7) Appointment of trustee or guardian. The court may appoint a trustee or guardian to receive and manage money paid for the support of a minor child.
767.82(8)
(8) Procedures applicable to other matters in action. In all other matters, paternity proceedings shall be governed by the procedures applicable to other actions affecting the family.
767.82 Note
NOTE: 2005 Wis. Act 443, which affected this section, contains explanatory notes.
767.83
767.83
Right to counsel. 767.83(1)(1)
Generally. At the pretrial hearing, at the trial, and in any other proceedings in any paternity action, any party may be represented by counsel. If the male respondent is indigent and the state is the petitioner under
s. 767.80 (1) (g), the petitioner is represented by a government attorney as provided in
s. 767.80 (6), or the action is commenced on behalf of the child by an attorney appointed under
s. 767.407 (1) (c), counsel shall be appointed for the respondent as provided in
ch. 977, subject to the limitations under
sub. (2m), unless the respondent knowingly and voluntarily waives the appointment of counsel.
767.83(2)
(2) Extent of appointed attorney's representation. 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.
767.83(2m)
(2m) When appointed representation provided. 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. 767.84 (1m) that the alleged father is the father of the child.
767.83(3)
(3) Appearance by state's attorney not affected. 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. 767.80 (6).
767.83 Annotation
A paternity respondent does not have a constitutional right to effective assistance of counsel. A paternity action is not a criminal prosecution. Paternity of P.L.S.
158 Wis. 2d 712,
463 N.W.2d 403 (Ct. App. 1990).
767.84
767.84
Genetic tests in paternity actions. 767.84(1)(a)(a) The court may, and upon request of a party shall, require the child, mother, any male for whom there is probable cause to believe that he had sexual intercourse with the mother during a possible time of the child's conception, or any male witness who testifies or will testify about his sexual relations with the mother at a possible time of conception to submit to genetic tests. Probable cause of sexual intercourse during a possible time of conception may be established by a sufficient petition or affidavit of the child's mother or an alleged father, filed with the court, or after an examination under oath of a party or witness, when the court determines that an examination is necessary. The court is not required to order a person who has undergone a genetic test under
s. 49.225 to submit to another test under this paragraph unless a party requests additional tests under
sub. (2).
767.84(1)(b)
(b) The genetic tests shall be performed by an expert qualified as an examiner of genetic markers present on the cells of the specific body material to be used for the tests, appointed by the court. A report completed and certified by the court-appointed expert stating genetic test results and the statistical probability of the alleged father's paternity based upon the genetic tests is admissible as evidence without expert testimony and may be entered into the record at the trial or pretrial hearing if all of the following apply:
767.84(1)(b)1.
1. At least 10 days before the trial or pretrial hearing, the party offering the report files it with the court and notifies all other parties of that filing.
767.84(1)(b)2.
2. At least 10 days before the trial or pretrial hearing, the department or county child support agency under
s. 59.53 (5) notifies the alleged father of the results of the genetic tests and that he may object to the test results by submitting an objection in writing to the court no later than the day before the hearing.
767.84(1)(b)3.
3. The alleged father, after receiving the notice under
subd. 2., does not object to the test results in the manner provided in the notice under
subd. 2.
767.84(1m)
(1m) Rebuttable presumption. 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.
767.84(2)
(2) Independent tests. 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.
767.84(3)
(3) Number and qualifications of experts. In all cases, the court shall determine the number and qualifications of the experts.
767.84(4)
(4) Tests excluding paternity; refusal to submit to test. Genetic test results excluding an alleged father as the father of the child are conclusive evidence of nonpaternity and the court shall dismiss any paternity action with respect to that alleged father. Genetic test results excluding any male witness from possible paternity are 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. Refusal of a party to submit to a genetic test 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. 767.87 (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.
767.84(5)
(5) Fees and costs. 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:
767.84(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.
767.84(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
767.863 (2), the court shall require the person requesting the 2nd or subsequent series of tests to pay for the series in advance, unless the court finds that the person is indigent.
767.84(6)
(6) Calling certain witnesses; notice. 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.
767.84(7)
(7) Notice of right to tests. The court shall ensure that all parties are aware of their right to request genetic tests under this section.
767.84 Annotation
When 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 the action under sub. (4). Paternity of S. J. K.
132 Wis. 2d 262,
392 N.W.2d 97 (Ct. App. 1986).
767.84 Annotation
The chain of custody, or authentication, must be established prior to admission of evidence under sub. (1) (b). Paternity of J. S. C.
135 Wis. 2d 820,
400 N.W.2d 48 (Ct. App. 1986).
767.84 Annotation
When the respondent failed to introduce evidence regarding the test, the trial court properly barred the respondent from attacking the test during closing argument. Paternity of M. J. B.
144 Wis. 2d 638,
425 N.W.2d 404 (1988).
767.84 Annotation
DNA test results are admissible when the procedures meet the requirements for blood tests under sub. (1) (b). Paternity of J.L.K.
151 Wis. 2d 566,
445 N.W.2d 673 (Ct. App. 1989).
767.84 Annotation
If more than one set of blood test results are presented, the sub. (1m) presumption is inapplicable if the statistical probability of only one test reaches the 99% level. Paternity of J.M.K.
160 Wis. 2d 429,
465 N.W.2d 833 (Ct. App. 1991).
767.84 Annotation
When 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).
767.84 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 388,
558 N.W.2d 897 (Ct. App. 1996),
96-0697.
767.84 Annotation
A mere denial of intercourse, when 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),
95-2917.
767.84 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),
95-2917.
767.84 Annotation
A genetic test showing another man to be the natural father rebuts the presumption under sub. (1m) and s. 891.41 that the spouse of the child's mother is the father, but equitable estoppel may be employed to preclude rebutting the presumption. The issue is whether the actions and inactions of the parties advocating the rebuttal of the marital presumption were so unfair as to preclude them from overcoming the public's interest in the marital presumption based on the results of genetic tests. Randy A. J. v. Norma I. J. 2004 WI 41,
270 Wis. 2d 384,
677 N.W.2d 630,
02-0469.
767.84 Annotation
From here to paternity: Using blood analysis to determine parentage. Haas. WBB July 1988.
767.85
767.85
Temporary orders. 767.85(1)(1)
When required. At any time during the pendency of an action to establish the paternity of a child, if genetic tests show that the alleged father is not excluded and that the statistical probability of the alleged father's parentage is 99.0% or higher, on the motion of a party, the court shall make an appropriate temporary order for the payment of child support and may make a temporary order assigning responsibility for and directing the manner of payment of the child's health care expenses.
767.85(2)
(2) Considerations. Before making any temporary order under
sub. (1), the court shall consider those factors that the court is required to consider when granting a final judgment on the same subject matter. If the court makes a temporary child support order that deviates from the amount of support that would be required by using the percentage standard established by the department under
s. 49.22 (9), the court shall comply with the requirements of
s. 767.511 (1n).
767.85 History
History: 1997 a. 191;
1999 a. 9;
2005 a. 443 ss.
209,
252; Stats. 2005 s. 767.85.
767.853
767.853
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:
767.853(1)
(1) Pending proceeding. Access to the record of any pending proceeding involving the paternity of the same child shall be allowed to all of the following:
767.853(1)(b)
(b) The parties to that proceeding and their attorneys or their authorized representatives.
767.853(1)(c)
(c) If the child is the subject of a proceeding under
ch. 48 or
938, all of the following:
767.853(1)(c)1.
1. The court assigned to exercise jurisdiction under
chs. 48 and
938 in which the proceeding is pending.
767.853(1)(c)4.
4. A guardian ad litem for the child and a guardian ad litem for the child's parent.
767.853(1)(c)5.
5. Any governmental or social agency involved in the proceeding under
ch. 48 or
938.
767.853(2)
(2) Information access to department and child support agencies. The clerk of circuit court shall provide access to the record of any pending paternity proceeding to the department or any county child support agency under
s. 59.53 (5) for purposes related to administering the child and spousal support and establishment of paternity and medical support liability program under
ss. 49.22 and
59.53 (5), regardless of whether the department or county child support agency is a party to the proceeding.
767.853(3)
(3) Past proceedings. Subject to
s. 767.13, a record of a past proceeding is open to public inspection if all of the following apply:
767.853(3)(c)
(c) The record relates to a post-adjudication issue.
