Wisconsin Paternity Law


Paternity – General – Wisconsin

WI STATUTES – CHAPTER 767: ACTIONS AFFECTING THE FAMILY (Current to 2/10/09)

767.80 Determination of paternity.

(1) Who may bring action or file motion. The following persons may bring an action or file a motion, including an action or motion for declaratory judgment, for the purpose of determining the paternity of a child or for the purpose of rebutting the presumption of paternity under s. 891.405 or 891.41 (1):

(a) The child.

(b) The child’s natural mother.

(c) Unless s. 767.805 (1) applies, a male presumed to be the child’s father under s. 891.405 or 891.41 (1).

(d) A male alleged or alleging himself to be the father of the child.

(e) The personal representative of a person specified under pars. (a) to (d) if that person has died.

(f) The legal or physical custodian of the child.

(g) This state whenever the circumstances specified in s. 767.205 (2) (a) apply, including the delegates of the state as specified in sub. (6).

(h) This state as provided under sub. (6m).

(i) A guardian ad litem appointed for the child under s. 48.235, 767.407 (1) (c), or 938.235.

(j) A parent of a person listed under par. (b), (c) or (d), if the parent is liable or is potentially liable for maintenance of a child of a dependent person under s. 49.90 (1) (a) 2.

(k) In conjunction with the filing of a petition for visitation with respect to the child under s. 767.43 (3), a parent of a person who has filed a declaration of paternal interest under s. 48.025 with respect to the child or a parent of a person who, before April 1, 1998, signed and filed a statement acknowledging paternity under s. 69.15 (3) (b) 3. with respect to the child.

(1m) Venue. An action under this section may be brought in the county in which the child or the alleged father resides or is found or, if the father is deceased, in which proceedings for probate of his estate have been or could be commenced.

(2) CERTAIN AGREEMENTS NOT A BAR TO ACTION. Regardless of its terms, an agreement made after July 1, 1981, other than an agreement approved by the court between an alleged or presumed father and the mother or child, does not bar an action under this section. Whenever the court approves an agreement in which one of the parties agrees not to commence an action under this section, the court shall first determine whether or not the agreement is in the best interest of the child. The court shall not approve any provision waiving the right to bring an action under this section if this provision is contrary to the best interests of the child.

(3) Stay if action before birth. If an action under this section is brought before the birth of the child, all proceedings shall be stayed until after the birth, except that service of process, service and filing of pleadings, the first appearance and the taking of depositions to preserve testimony may be done before the birth of the child.

(4) Child as party. The child may be a party to any action under this section.

(5) Petition.

(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.

(b) An action under this section may be joined with any other action for child support and is governed by the procedures specified in s. 767.205 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 court, 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 that 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 767.84.

(c) If a matter is referred under s. 48.299 (6) (a) or 938.299 (6) (a) to an attorney designated under sub. (6) (a), that attorney shall also include in the petition notification to the court that the matter was referred under s. 48.299 (6) (a) or 938.299 (6) (a).

(5m) Applicable procedure; exceptions. Except as provided in ss. 767.805, 767.863 (3), 767.85, 767.893 (2) and (2m), and 769.401, unless a male is presumed the child’s father under s. 891.41 (1), is adjudicated the child’s father either under s. 767.89 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. 767.805 (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 male is adjudicated the father using the procedure set forth in this subchapter, except s. 767.805. Except as provided in ss. 767.805, 767.85, and 769.401, the exclusive procedure for establishment of child support obligations, legal custody, or physical placement rights for a male who is not presumed the child’s father under s. 891.41 (1), adjudicated the father, or acknowledged under s. 767.805 (1) or a substantially similar law of another state to be the father is by an action under this subchapter, except s. 767.805, 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.

(6) Which attorney represents state.

(a) The attorney responsible for support enforcement under s. 59.53 (6) (a) shall provide the representation for the state as specified under s. 767.205 (2) (a) in cases brought under this section.

(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).

(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. 767.205 (2) (a) 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.

(6m) When action must be commenced. 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. 767.805 (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.

(6r) Responsibilities of attorney upon referral.

(a) The attorney designated under sub. (6) (a) who receives a referral under s. 48.299 (6) (a) or 938.299 (6) (a) shall do all of the following:

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.

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:

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.

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.

c. That the male designated in s. 48.299 (6) (a) or 938.299 (6) (a) has previously been excluded as the father of the child.

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.

(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).

(7) Clerk to provide document. 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 that a court may consider under s. 767.511 (1m).

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 certificate 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.

767.805 Voluntary acknowledgment of paternity.

(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.

(1m) Minor parent may not sign. A minor may not sign a statement acknowledging paternity.

(2) Rescission of acknowledgment.

(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.

(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.

(3) Actions when paternity acknowledged.

(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.

(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 and shall appoint a guardian ad litem for a party who is a minor, unless the minor party is represented by an attorney.

(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:

(a) Orders for the legal custody of and periods of physical placement with the child, determined in accordance with s. 767.41.

(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.

(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) (1) (B), or as an exemption for state tax purposes under s. 71.07 (8) (b).

(d) 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.

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.

(e) An order requiring either or both parties to pay or contribute to the costs of the guardian ad litem fees and other costs.

(f) An order requiring either party to pay or contribute to the attorney fees of the other party.

(4m) Liability for past support.

(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:

1. That he or she was induced to delay commencing the action by any of the following:

a. Duress or threats.

b. Actions, promises or representations by the other party upon which the party relied.

c. Actions taken by the other party to evade proceedings under sub. (3) (a).

2. That, after the inducement ceased to operate, he or she did not unreasonably delay in commencing the action.

(b) In no event may liability for past support of the child be imposed for any period before the birth of the child.

(5) Voiding determination.

(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.

(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 certificate. No paternity action may thereafter be brought against the male with respect to the child.

(6) Applicability.

(a) This section does not apply unless all of the following apply to the statement acknowledging paternity:

1. The statement is made on a form prescribed by the state registrar for use beginning on April 1, 1998.

2. The statement was signed and filed on or after April 1, 1998.

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.

(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.

(c) The notice requirements under s. 69.15 (3) (b) 3. apply to this section beginning with forms for the acknowledgment of paternity that are prescribed by the state registrar on April 1, 1998.

767.813 Summons.

(1) Purpose. The summons shall state the purpose of the action.

(2) Signing. The process shall be signed by the clerk of the court or by the petitioner’s attorney.

(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.

(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.

(5) Forms. The summons shall be in substantially one of the following forms:

(a) Mother as petitioner.

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:

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: _____________________

2. If you do not appear, the court will enter a default judgment finding you to be the father.

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.

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 5 years. Section 948.31, stats.

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.: _______________

(b) Alleged father as petitioner.

STATE OF WISCONSIN, CIRCUIT COURT: __________ COUNTY

In re the Paternity of A. B.

C. D. (Alleged Father-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:

1. You have been sued. The petitioner __________ claims that he may be 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: ______________________

2. If you do not appear, the court will enter a default judgment finding the petitioner __________ to be the father. If you plan to be represented by an attorney, you should contact the attorney prior to the court appearance listed above.

3. The ____________ County Clerk of Circuit Court is an equal opportunity service provider. If you need assistance to access services in the court 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.: _________________

(c) Nonparent as petitioner.

STATE OF WISCONSIN, CIRCUIT COURT: __________ COUNTY

In re the Paternity of A. B.

C. D. (Nonparent-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

1. You have been sued. The petitioner __________ claims that __________ is the mother and __________ may be 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: ___________________

2. If you do not appear, the court may enter a default judgment finding ___________ to be the father. If you plan to be represented by an attorney, you should contact the attorney prior to the court appearance listed above. If you are alleged to be the father and you are unable to afford an attorney, the court will appoint one for you only upon 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.

3. The ____________ County Clerk of Circuit Court is an equal opportunity service provider. If you need assistance to access services in the court 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.: _______________

(5g) Notice. The notice to parties shall be attached to the summons. The notice shall be in boldface type and in substantially the following form:

NOTICE TO PARTIES

1. You are a party to a petition for paternity. A judgment of paternity legally designates the child in the case to be a child of the man found to be the father. It creates a legally recognized parent-child relationship between the man and the child. It creates the right of inheritance for the child, and obligates the man to support the child 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. The failure by either parent to pay court-ordered support is punishable by imprisonment as a contempt of court or as a criminal violation.

2. A party to a paternity case has the right to be represented by an attorney. If you are unable to afford an attorney and you are a man who is named as the possible father of a child in a paternity case, the court will appoint an attorney 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 percent. In order to determine whether you are entitled to have an attorney appointed for you, you may call the following telephone number ______________.

3. The petitioner in this case has the burden of proving by a clear and satisfactory preponderance of the evidence whether the man named as the possible father is the father. However, if genetic tests show that the man named is not excluded as the father, and show that the statistical probability that the man is the father is 99.0 percent or higher, that man is rebuttably presumed to be the father.

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:

(a) The man named as a possible father of the child may claim that he was sterile or impotent at the time of conception.

(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).

(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.

6. You have the right to request a jury trial on the issue of whether the named man is the father.

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.

8. You must keep the clerk of court and child support agency informed of your current address at all times.

(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).

767.814 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.

767.815 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):

(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.

(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:

(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.

(b) Due diligence was exercised in attempting to serve the respondent, before he was actually served.

767.82 Paternity procedures.

(1) Appointment of guardian ad litem.

(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.

(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.

(2) Presumption. Presumption of paternity shall be as provided in ss. 891.39, 891.405 and 891.41 (1).

(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.

(3) Time of conception; evidence. Evidence as to the time of conception may be offered as provided in s. 891.395.

(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.

(5) Statute of limitations. The statute of limitations for commencing actions concerning paternity is as provided in s. 893.88.

(6) Arrest. The respondent in a paternity action may be arrested as provided in s. 818.02 (6).

(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.

(7m) When action has priority. The court shall give priority to an action brought under s. 767.80 if the petition under s. 767.80 (5) indicates that the matter was referred under s. 48.299 (6) (a) or 938.299 (6) (a) by a court assigned to exercise jurisdiction under chs. 48 and 938.

(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.

767.83 Right to counsel.

(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.

(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.

(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.

(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).

767.84 Genetic tests in paternity actions.

(1) When test ordered; report.

(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).

(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:

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.

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.

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.

(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.

(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.

(3) Number and qualifications of experts. In all cases, the court shall determine the number and qualifications of the experts.

(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.

(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:

(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.

(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.

(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.

(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.

767.85 Temporary orders.

(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.

(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).

767.853 (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 Section 59.53 (5) for purposes related to administering the child and spousal support and establishment of paternity and medical support liability program under Sections 49.22 and 59.53 (5), regardless of whether the department or county child support agency is a party to the proceeding.

767.855 Dismissal if adjudication not in child’s best interest.

Except as provided in s. 767.863 (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 supplemental court commissioner under s. 757.675 (2) (g) may, with respect to a male, refuse to order genetic tests, if genetic tests have not yet been taken, and dismiss the action if the court or supplemental court commissioner determines that a judicial determination of whether the male is the father of the child is not in the best interest of the child.

767.86 Time of first appearance.

The first appearance under s. 767.863 may not be held until 30 days after service or receipt of the summons and petition unless the parties agree to an earlier date.

767.863 First appearance.

(1) Notice to parties. If the respondent is present at a hearing prior to the determination of paternity, the court shall, at least one time at one such hearing, inform the parties of the items in s. 767.813 (5g).

(1m) Paternity allegation by male other than husband; when determination not in best interest of child. In an action to establish the paternity of a child who was born to a woman while she was married, if a male other than the woman’s husband alleges that he, not the husband, is the child’s father, a party may allege that a judicial determination that a male other than the husband is the father is not in the best interest of the child. If the court or a supplemental court commissioner under s. 757.675 (2) (g) determines that a judicial determination of whether a male other than the husband is the father is not in the best interest of the child, no genetic tests may be ordered and the action shall be dismissed.

(2) Order for tests. If at the first appearance it appears from a sufficient petition or affidavit of the child’s mother or an alleged father or from sworn testimony of the child’s mother or an alleged father that there is probable cause to believe that any of the males named has had sexual intercourse with the mother during a possible time of the child’s conception, the court may, or upon the request of any party shall, order any of the named persons to submit to genetic tests. The tests shall be conducted in accordance with s. 767.84. The court is not required to order a person who has undergone a genetic test under s. 49.225 to submit to another genetic test under this subsection unless a party requests additional tests under s. 767.84 (2).

(3) Orders if statement on file. At the first appearance, if a statement acknowledging paternity under s. 69.15 (3) (b) 1. or 3. that was signed and filed before April 1, 1998, is on file, the court may enter an order for child support, legal custody or physical placement and, if the respondent who filed the statement does not dispute his paternity, may enter a judgment of paternity.

767.865 Deceased respondent.

(1) Who may appear.

(a) The personal representative or, if there is no personal representative, a guardian ad litem in accordance with par. (b) may appear for a deceased respondent whenever an appearance by the respondent is required. The summons and petition shall be served on the personal representative of and guardian ad litem for the deceased respondent under s. 767.813 (3).

(b) If the court determines that it is appropriate, the court may appoint a guardian ad litem for the deceased respondent for purposes of par. (a). Section 767.407 (3) and (5) applies to the guardian ad litem. The guardian ad litem shall represent the interests of the deceased respondent. The guardian ad litem shall be compensated at a rate that the court determines is reasonable. The court shall order the compensation to be paid from the deceased respondent’s estate. If the moneys in the estate are not sufficient to pay all or part of the compensation, the court may direct that the county of venue pay the compensation. If the court orders a county to pay the compensation of the guardian ad litem, the amount ordered may not exceed the compensation paid to private attorneys under s. 977.08 (4m) (b).

(2) Genetic tests. If genetic material is available, without undue hardship, from a deceased respondent or a relative of the deceased respondent in an action for paternity, genetic tests shall be administered in accordance with s. 767.84. There is a rebuttable presumption that exhumation of the deceased respondent’s body to obtain the genetic material for testing is an undue hardship under this subsection.

767.87 Testimony and evidence relating to paternity.

(1) Generally. Evidence relating to paternity, whether given at the trial or the pretrial hearing, may include, but is not limited to:

(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.

(b) An expert’s opinion concerning the statistical probability of the alleged father’s paternity based upon the duration of the mother’s pregnancy.

(c) Genetic test results under s. 49.225, 767.84, or 885.23.

(cm) Genetic test results under s. 48.299 (6) (e) or 938.299 (6) (e).

(d) The statistical probability of the alleged father’s paternity based upon the genetic tests.

(e) Medical, scientific or genetic evidence relating to the alleged father’s paternity of the child based on tests performed by experts.

(f) All other evidence relevant to the issue of paternity of the child, except as provided in subs. (2), (2m) and (3).

(1m) Birth record required. 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:

(a) The initial appearance.

(b) The pretrial hearing.

(c) The trial.

(d) Prior to the entry of the judgment under s. 767.89.

(2) Admissibility of sexual relations by mother. 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.

(2m) Admissibility of certain medical and genetic information. Medical and genetic information filed with the department or the court under s. 48.425 (1) (am) or (2) is not admissible to prove the paternity of the child.

767.88 Pretrial paternity proceedings.

(1) Procedure; evidence. 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:

(a) That the action be dismissed with or without prejudice.

(b) That the alleged father voluntarily acknowledge paternity of the child.

(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.

(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.

767.883 Trial.

(1) Two parts. 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) to (4). 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.

767.89 Paternity judgment.

(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.

(2) Report to state registrar.

(a) 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.

(b) 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:

1. A fee for omitting the father’s name on a birth certificate under s. 69.15 (3) (a) 1.

2. A fee for changing the father’s name on a birth certificate under s. 69.15 (3) (a) 2.

3. A fee for inserting the father’s name on a birth certificate under s. 69.15 (3) (a) 3.

(3) Content of judgment or order. A judgment or order determining paternity shall contain all of the following provisions:

(a) An adjudication of the paternity of the child.

(b) Orders for the legal custody of and periods of physical placement with the child, determined in accordance with s. 767.41.

(c) 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.

(d) 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), or as an exemption for state tax purposes under s. 71.07 (8) (b).

(e) 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.

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.

(f) 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.

(g) An order requiring either party to pay or contribute to the attorney fees of the other party.

(3m) Change of child’s name.

(a) 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.

(b) 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:

1. 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.

2. The court finds that such a name change is in the child’s best interest.

(c) Section 786.36 does not apply to a name change under this subsection.

(4) Liability for past support.

(a) 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:

1. That he or she was induced to delay commencing the action by any of the following:

a. Duress or threats.

b. Actions, promises or representations by the other party upon which the party relied.

c. Actions taken by the other party to evade paternity proceedings.

2. That, after the inducement ceased to operate, he or she did not unreasonably delay in commencing the action.

(b) 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, 767.43, 767.451, 767.57, 767.58, 767.59, 767.71, 767.75, 767.76, 767.77, 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.

767.893 Default and stipulated judgments.

(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.

(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.

(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 any of the following applies:

1. Only one of those persons fails to appear and all of the other male respondents have been excluded as the father.

2. The alleged father who fails to appear has had genetic tests under s. 49.225 or 767.84 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.

(2m) Judgment upon stipulation.

(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. 767.813 (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 or 767.89.

(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.

(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:

(a) At any time upon motion or petition for good cause shown.

(b) Upon a motion under s. 806.07.

(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.

(4) Appeal. An appeal of a denial of the petition or motion to reopen shall be to the court of appeals.

767.895 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:

(1) At any time upon motion or petition for good cause shown.

(2) Upon a motion under s. 806.07.

(3) Within one year after entry of the judgment upon motion or petition.