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), 95-2917
Pretrial paternity proceedings. 767.88(1)
A pretrial hearing shall be held before the court or a 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.
(2) Court evaluation and recommendation.
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:
That the action be dismissed with or without prejudice.
That the alleged father voluntarily acknowledge paternity of the child.
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.
(3) Acceptance of recommendation; judgment.
If the parties accept a recommendation made in accordance with this section, judgment shall be entered accordingly.
(4) Recommendation refused and no tests taken.
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.
(5) Final recommendation not accepted; trial.
If the guardian ad litem or any party refuses to accept any final recommendation, the action shall be set for trial.
(6) Termination of informal hearing.
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.
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
; 2005 a. 443
; Stats. 2005 s. 767.88.
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]
The trial court may order a putative father to take a 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).
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).
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), 97-2353
The trial shall be divided into 2 parts, the first part dealing with the determination of paternity and the 2nd part dealing with child support, legal custody, periods of physical placement, and related issues. The main issue at the first part shall be whether the alleged or presumed father is or is not the father of the mother's child, but if the child was born to the mother while she was the lawful wife of a specified male the prior issue of whether the husband was not the father of the child shall be determined first, as provided under s. 891.39
. The first part of the trial shall be by jury only if the defendant verbally requests a jury trial either at the initial appearance or pretrial hearing or requests a jury trial in writing prior to the pretrial hearing. The court may direct and, if requested by either party before the introduction of any testimony in the party's behalf, shall direct the jury to find a special verdict as to any of the issues specified in this section, except that the court shall make all of the findings enumerated in s. 767.89 (2)
. If the mother is dead, becomes insane, cannot be found within the jurisdiction, or fails to commence or pursue the action, the proceeding does not abate if any of the persons under s. 767.80 (1)
makes a motion to continue. The testimony of the mother taken at the pretrial hearing may in any such case be read in evidence if it is competent, relevant, and material. The issues of child support, custody and visitation, and related issues shall be determined by the court either immediately after the first part of the trial or at a later hearing before the court.
(2) Jury size; verdict.
If a jury is requested under sub. (1)
, the jury shall consist of 6 persons. No verdict is valid or received unless agreed to by at least 5 of the jurors.
History: 1979 c. 352
; Stats. 1979 s. 767.50; 1983 a. 27
; 1987 a. 27
; 1993 a. 481
; 2001 a. 38
; 2005 a. 443
; Stats. 2005 s. 767.883.
A preponderance of the evidence standard of proof in paternity actions meets due process requirements. Rivera v. Minnich, 483 U.S. 574
Paternity judgment. 767.89(1)
Effect of judgment or order.
A judgment or order of the court determining the existence or nonexistence of paternity is determinative for all purposes.
The clerk of court or county child support agency under s. 59.53 (5)
shall file with the state registrar, within 30 days after the entry of a judgment or order determining paternity, a report showing the names, dates, and birth places of the child and the father, the social security numbers of the mother, father, and child, and the maiden name of the mother on a form designated by the state registrar, along with the fee set forth in s. 69.22 (5)
, which the clerk of court or county child support agency shall collect.
If the clerk of court or county child support agency is unable to collect any of the following fees under par. (a)
, the department shall pay the fee and may not require the county or county child support agency to reimburse the department for the cost:
(3) Content of judgment or order.
A judgment or order determining paternity shall contain all of the following provisions:
An adjudication of the paternity of the child.
Orders for the legal custody of and periods of physical placement with the child, determined in accordance with s. 767.41
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
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) [26 USC 151
(c)], or as an exemption for state tax purposes under s. 71.07 (8) (b)
NOTE: The correct cross-reference is shown in brackets. Corrective legislation is pending.
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.
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.
An order requiring either or both parties to pay or contribute to the costs of the guardian ad litem fees, genetic tests as provided in s. 767.84 (5)
, and other costs.
An order requiring either party to pay or contribute to the attorney fees of the other party.
Upon the request of both parents, the court shall include in the judgment or order determining paternity an order changing the name of the child to a name agreed upon by the parents.
Except as provided in par. (a)
, the court may include in the judgment or order determining paternity an order changing the surname of the child to a surname that consists of the surnames of both parents separated by a hyphen or, if one or both parents have more than one surname, of one of the surnames of each parent separated by a hyphen, if all of the following apply:
Only one parent requests that the child's name be changed, or both parents request that the child's name be changed but each parent requests a different name change.
The court finds that such a name change is in the child's best interest.
Subject to par. (b)
, liability for past support of the child is limited to support for the period after the day on which the petition in the action under s. 767.80
is filed, unless a party shows, to the satisfaction of the court, all of the following:
That he or she was induced to delay commencing the action by any of the following:
Actions, promises or representations by the other party upon which the party relied.
Actions taken by the other party to evade paternity proceedings.
That, after the inducement ceased to operate, he or she did not unreasonably delay in commencing the action.
In no event may liability for past support of the child be imposed for any period before the birth of the child.
(6) Other applicable provisions. Sections 767.41
, and 767.78
, where applicable, apply to a judgment or order under this section.
(7) Preparation of final papers.
The court may order the attorney for the prevailing party to prepare findings of fact, conclusions of law and a judgment for the approval of the court.
History: 1979 c. 352
; 1983 a. 27
; 1985 a. 29
; 1985 a. 315
; 1987 a. 27
; 1989 a. 212
; 1991 a. 39
; 1993 a. 481
; 1995 a. 27
, 9126 (19)
; 1995 a. 100
; 1997 a. 27
; 1999 a. 9
; 2001 a. 16
; 2005 a. 304
; 2005 a. 443
; Stats. 2005 s. 767.89; 2007 a. 20
Determining a father's support obligation by applying percentage standards is inappropriate when the children live in several households. Paternity of B. W. S. 131 Wis. 2d 301
, 388 N.W.2d 615
Regardless of whether a 15 year old boy's fathering of a child resulted from sexual assault as defined in criminal law, the trial court could find that intercourse and parenthood were voluntary for purposes of imposing child support. Whether nonconsent is a defense available to a putative father in a paternity action has not been determined. Paternity of J.L.H. 149 Wis. 2d 349
, 411 N.W.2d 273
(Ct. App. 1989).
There is no statutory authority for an order requiring the mother to repay lying-in expenses paid by medical assistance. Paternity of N.L.M. 166 Wis. 2d 306
, 479 N.W.2d 237
(Ct. App. 1991).
An order for payment of expert witness fees under sub. (3) is not limited by s. 814.04 (2). Paternity of Tiffany B. 173 Wis. 2d 864
, 496 N.W.2d 711
(Ct. App. 1993).
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), 95-2411
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 437
, 564 N.W.2d 354
(Ct. App. 1997), 94-3050
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
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), 97-2353
The court's ability to order payment under sub. (3) (e) is contingent on the father's ability to pay. When it is undisputed that the father has no ability to pay at the time of the hearing, the court has no authority to set his obligation to pay lying-in expenses. Rusk County Department of Health and Human Services v. Thorson, 2005 WI App 37
, 278 Wis. 2d 638
, 693 N.W.2d 318
HSS 80: New Rules for Child Support Obligations. Hickey. Wis. Law. April, 1995.
Which Came First? The Serial Family Payer Formula. Stansbury. Wis. Law. April, 1995.
Wisconsin's Custody, Placement and Paternity Reform Legislation. Walther. Wis.Law. April 2000.
Default and stipulated judgments. 767.893(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.
(1m) Judgment when mother fails to appear.
Notwithstanding sub. (1)
, a court may enter an order adjudicating the alleged father, or male alleging that he is the father, to be the father of the child under s. 767.89
if the mother of the child fails to appear at the first appearance, scheduled genetic test, pretrial hearing, or trial if sufficient evidence exists to establish the male as the father of the child.
(2) Judgment when respondent fails to appear. 767.893(2)(a)(a)
Except as provided in sub. (2m)
, if a respondent is the alleged father and fails to appear at the first appearance, 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.
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 any of the following applies:
Only one of those persons fails to appear and all of the other male respondents have been excluded as the father.
The alleged father who fails to appear has had genetic tests under s. 49.225
showing that the alleged father is not excluded and that the statistical probability of the alleged father's parentage is 99.0 percent or higher.
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. 767.813 (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. 767.511
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.
(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:
At any time upon motion or petition for good cause shown.
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.
An appeal of a denial of the petition or motion to reopen shall be to the court of appeals.