767.80 Annotation
Sub. (1) does not permit a man alleging he is the father to bring a paternity action for the sole purpose of establishing paternity of a stillborn so that he may bring a wrongful death action. The proper vehicle for determining parentage is a motion by the father under s. 885.23 for a determination of parentage within the pending wrongful death action. Shannon E. T. v. Alicia M. V.M.
2007 WI 29,
299 Wis. 2d 601,
728 N.W.2d 636,
05-0077.
767.80 Annotation
Sub. (1) utilizes mandatory language requiring the state to initiate a paternity action when, as provided in sub. (6m), no father's name was listed on the birth certificate. Thus, according to the clear language of this statute, the state was obligated to commence a paternity action. A presumption of paternity under s. 891.41 does not alleviate the state of its obligations under sub. (1). State v. Robin M. W.
2008 WI App 60,
310 Wis. 2d 786,
750 N.W.2d 957,
07-1181.
767.80 Annotation
The standard of review for best-interest determinations in paternity proceedings requires that the appellate court accept the circuit court's factual findings unless clearly erroneous but determine the child's best interest de novo. Douglas L. v. Arika B.
2015 WI App 80,
365 Wis. 2d 257,
872 N.W.2d 357,
14-2656.
767.803
767.803
Determination of marital children. If the father and mother of a nonmarital child 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 before either of these circumstances, the child becomes a marital child, is entitled to a change in birth record under s.
69.15 (3) (b), and shall enjoy all of the rights and privileges of a marital child as if he or she had been born during the marriage of the parents. This section applies to all cases before, on, or after its effective date, but no estate already vested shall be divested by this section and ss.
765.05 to
765.24 and
852.05. The children of all marriages declared void under the law are nevertheless marital children.
767.803 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;
2005 a. 443 s.
229; Stats. 2005 s. 767.803;
2017 a. 334.
767.805
767.805
Voluntary acknowledgment of paternity. 767.805(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.
767.805(1m)
(1m) Minor parent may not sign. A minor may not sign a statement acknowledging paternity.
767.805(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.
767.805(2)(b)
(b) If a statement acknowledging paternity is timely rescinded as provided in s.
69.15 (3m), a court may not enter an order specified in sub.
(4) with respect to the male who signed the statement as the father of the child unless the male is adjudicated the child's father using the procedures set forth in this subchapter, except for this section.
767.805(3)
(3) Actions when paternity acknowledged. 767.805(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.
767.805(3)(b)
(b) Except as provided in s.
767.407, in an action specified in par.
(a) the court may appoint a guardian ad litem for the child.
767.805(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 shall make an order that contains all of the following provisions:
767.805(4)(a)
(a) Orders for the legal custody of and periods of physical placement with the child, determined in accordance with s.
767.41.
767.805(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.
767.511.
767.805(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), or as an exemption for state tax purposes under s.
71.07 (8) (b).
767.805(4)(d)1.1. An order establishing the amount of the father's obligation to pay or contribute to the reasonable expenses of the mother's pregnancy and the child's birth. The amount established may not exceed one-half of the total actual and reasonable pregnancy and birth expenses. The order also shall specify the court's findings as to whether the father's income is at or below the poverty line established under
42 USC 9902 (2), and shall specify whether periodic payments are due on the obligation, based on the father's ability to pay or contribute to those expenses.
767.805(4)(d)2.
2. If the order does not require periodic payments because the father has no present ability to pay or contribute to the expenses, the court may modify the judgment or order at a later date to require periodic payments if the father has the ability to pay at that time.
767.805(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.
767.805(4)(f)
(f) An order requiring either party to pay or contribute to the attorney fees of the other party.
767.805(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:
767.805(4m)(a)1.
1. That he or she was induced to delay commencing the action by any of the following:
767.805(4m)(a)1.b.
b. Actions, promises or representations by the other party upon which the party relied.
767.805(4m)(a)2.
2. That, after the inducement ceased to operate, he or she did not unreasonably delay in commencing the action.
767.805(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.
767.805(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.
767.805(5)(b)
(b) If a court in a proceeding under par.
(a) determines that the male is not the father of the child, the court shall vacate any order entered under sub.
(4) with respect to the male. The court or the county child support agency under s.
59.53 (5) shall notify the state registrar, in the manner provided in s.
69.15 (1) (b), to remove the male's name as the father of the child from the child's birth record. No paternity action may thereafter be brought against the male with respect to the child.
767.805(6)(a)
(a) This section does not apply unless all of the following apply to the statement acknowledging paternity:
767.805(6)(a)1.
1. The statement is made on a form prescribed by the state registrar for use beginning on April 1, 1998.
767.805(6)(a)2.
2. The statement was signed and filed on or after April 1, 1998.
767.805(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.
767.805(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). The new statement supersedes any statement previously filed with the state registrar and has the effects specified in this section.
767.805(6)(c)
(c) The notice requirements under s.
69.15 (3) (b) 3. apply to this section beginning with the acknowledgements of paternity that are prescribed by the state registrar on April 1, 1998.
767.805 Annotation
A Michigan Affidavit of Parentage was a conclusive determination of paternity in Wisconsin. The affidavit was not voided under sub. (5) (a) by a Wisconsin child support action in which tests found the signer of the affidavit not to be the biological father when there was no showing of fraud, duress, or a mistake of fact in relation to the signing of the affidavit. Sub. (5) (b) does not prevent the child from bringing a paternity action based on having been unrepresented at the original paternity proceeding. Daniel T. W. v. Joni K. W.
2009 WI App 13,
315 Wis. 2d 181,
762 N.W.2d 444,
08-0902.
767.805 Annotation
A circuit court does not have the power to change the name of a child when paternity has been determined on the basis of voluntary acknowledgment under this section. Scace v. Schulte,
2018 WI App 30,
382 Wis. 2d 180,
913 N.W.2d 189,
16-2413.
767.805 Annotation
Wisconsin's Custody, Placement and Paternity Reform Legislation. Walther. Wis. Law. April 2000.
767.813(1)(1)
Purpose. The summons shall state the purpose of the action.
767.813(2)
(2) Signing. The process shall be signed by the clerk of the court or by the petitioner's attorney.
767.813(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.
767.813(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.
767.813(5)
(5) Forms. The summons shall be in substantially one of the following forms:
STATE OF WISCONSIN, CIRCUIT COURT: ....COUNTY
In re the Paternity of A. B.
STATE OF WISCONSIN
and
C. D. (Mother-Petitioner)
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:
767.813(5)(a)1.
1. 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:
767.813(5)(a)2.
2. If you do not appear, the court will enter a default judgment finding you to be the father.
767.813(5)(a)3.
3. 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 genetic tests showing that you are not excluded as the father and the probability of your being the father is less than 99.0 percent.
767.813(5)(a)4.
4. You are also notified that interference with the custody of a child is punishable by a fine of up to $10,000 and imprisonment for up to 3 years and 6 months. Section
948.31, stats.
767.813(5)(a)5.
5. The .... County Clerk of Circuit Court is an equal opportunity service provider. If you need assistance to access services in the courts or need material in an alternate format, please call .....
Dated: ...., .... (year)
Signed:.... ....
G. H., Clerk of Circuit Court
or
Petitioner's Attorney
State Bar No.: ....
Address: ....
City, State Zip Code: ....
Phone No.: ....
