Wisconsin Legislature: 95,38

95,32 Section 32. 767.78 (1) of the statutes is amended to read:

767.78 (1) Definition. In this section, “financial obligation" means an obligation for payment incurred under s. 48.355 (2) (b) 4. or (4g) (a), 48.357 (5m) (a), 48.363 (2), 767.225, 767.241, 767.511, 767.531, 767.56, 767.61, 767.71, 767.804 (3), 767.805 (4), 767.85, 767.863 (3), 767.89, 938.183 (4), 938.355 (2) (b) 4. or (4g) (a), 938.357 (5m) (a), or 938.363 (2).

95,33 Section 33 . 767.80 (1) (intro.) of the statutes is amended to read:

767.80 (1) Who may bring action or file motion. (intro.) 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, 891.407, or 891.41 (1):

95,34 Section 34 . 767.80 (1) (c) of the statutes is amended to read:

767.80 (1) (c) Unless s. 767.804 (1) or 767.805 (1) applies, a male presumed to be the child's father under s. 891.405, 891.407, or 891.41 (1).

95,35 Section 35. 767.80 (1) (hm) of the statutes is created to read:

767.80 (1) (hm) The state as provided under s. 767.804 (1) (d).

95,36 Section 36 . 767.80 (5m) of the statutes is amended to read:

767.80 (5m) Applicable procedure; exceptions. Except as provided in ss. 767.804, 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, is conclusively determined to be the child's father from genetic test results under s. 767.804, 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. 767.804 or 767.805. Except as provided in ss. 767.804, 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, conclusively determined to be the child's father from genetic test results under s. 767.804, 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. 767.804 or 767.805, or under s. 769.402. 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.

95,37 Section 37 . 767.80 (6m) of the statutes is amended to read:

767.80 (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 record of a child who is a resident of the county if paternity has not been conclusively determined from genetic test results under s. 767.804, 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.

95,38 Section 38. 767.804 of the statutes is created to read:

767.804 Genetic test results. (1) Conclusive determination of paternity. (a) If genetic tests have been performed with respect to a child, the child's mother, and a male alleged, or alleging himself, to be the child's father, the test results constitute a conclusive determination of paternity, effective on the date on which the report under par. (c) is submitted to the state registrar, which has the same effect as a judgment of paternity, if all of the following apply:

1. Both the child's mother and the male are over the age of 18 years.

2. The genetic tests were required to be performed by a county child support agency under s. 59.53 (5) pursuant to s. 49.225.

3. The test results show that the male is not excluded as the father and that the statistical probability of the male's parentage is 99.0 percent or higher.

4. No other male is presumed to be the father under s. 891.405 or 891.41 (1).

(b) When the county child support agency under s. 59.53 (5) receives genetic test results described in par. (a) 3. and the requirements under par. (a) are satisfied, the county child support agency shall send notice to the mother and male by regular mail at their last-known addresses. The notice must be sent at least 15 days in advance of the date on which the county child support agency intends to file the report under par. (c) and shall advise the mother and male of all of the following:

1. The test results.

2. That the report under par. (c) will be filed with the state registrar if neither the mother nor the male timely objects under subd. 4., and the date on which the report will be filed.

3. That an action affecting the family concerning custody, child support, or physical placement rights may be brought with respect to the mother and male.

4. That the mother or the male, or both, may object to the test results by submitting an objection in writing to the county child support agency no later than the day before the date specified in subd. 2., and that, if either the mother or the male timely submits an objection, the state will commence a paternity action.

(c) 1. If neither the mother nor the male timely submits an objection under par. (b) 4., the county child support agency shall file with the state registrar 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 prescribed by the state registrar, along with the fee set forth in s. 69.22 (5), if any, which the county child support agency shall collect.

2. The department shall pay, and may not require the county or county child support agency to reimburse the department, for the cost of a fee for inserting the father's name on a birth certificate under s. 69.15 (3) (a) 3. if the county child support agency is unable to collect the fee.

(d) If either the mother or the male timely submits an objection under par. (b) 4., the county child support agency shall commence an action under s. 767.80 (1) on behalf of the state. The genetic test results described in par. (a) are admissible in an action commenced under this paragraph.

(2) Actions. Unless sub. (1) (d) applies, an action affecting the family concerning custody, child support, or physical placement rights may be brought under this subsection with respect to a child's mother and a male who, along with the child, were the subjects of genetic tests, the results of which constitute a conclusive determination of paternity under sub. (1). Except as provided in s. 767.407, in an action under this subsection the court may appoint a guardian ad litem for the child.

(3) Orders. In an action under sub. (2), if the child's custodial and noncustodial parent 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), 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 guardian ad litem fees, if any, and other costs.

(f) 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 order under sub. (3) 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 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.

(4) 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. (2), 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. (2).

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.

95,39 Section 39 . 767.82 (2) of the statutes is amended to read:

767.82 (2) Presumption. Presumption of paternity shall be as provided in ss. 891.39, 891.405, 891.407, and 891.41 (1).

95,40 Section 40 . 767.82 (2m) of the statutes is amended to read:

767.82 (2m) Custody pending court order. If there is no presumption of paternity under s. 891.41 (1) or if paternity is conclusively determined from genetic test results under s. 767.804 (1) or acknowledged under s. 767.805 (1), the mother shall have sole legal custody of the child until the court orders otherwise.

95,41 Section 41. 767.84 (1) (a) of the statutes is renumbered 767.84 (1) (a) (intro.) and amended to read:

767.84 (1) (a) (intro.) The Except as provided in ss. 767.855 and 767.863, and except in actions to which s. 767.893 applies, 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 genetic test under this paragraph unless a party requests additional tests under sub. (2). with respect to any of the following:

95,42 Section 42. 767.84 (1) (a) 1. of the statutes is created to read:

767.84 (1) (a) 1. A person who has undergone a genetic test under s. 49.225, unless a party requests additional tests under sub. (2).

95,43 Section 43. 767.84 (1) (a) 2. of the statutes is created to read:

767.84 (1) (a) 2. A deceased respondent if genetic material is not available without undue hardship as provided in s. 767.865 (2).

95,44 Section 44 . 767.84 (1) (a) 3. of the statutes is created to read:

767.84 (1) (a) 3. a. Except as provided in subd. 3. b., a male respondent who fails to appear, if genetic test results with respect to another man show that the other man is not excluded as the father and that the statistical probability of the other man's parentage is 99.0 percent or higher creating a presumption of the other man's paternity.

b. Subdivision 3. a. does not apply if the presumption of the other man's paternity is rebutted.

95,45 Section 45 . 767.855 of the statutes is amended to read:

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 a male is the father of the child is not in the best interest of the child, dismiss the action with respect to the male, regardless of whether genetic tests have been performed or what the results of the tests, if performed, were. Notwithstanding ss. 767.813 (5g) (form) 4., 767.84 (1) and (2), 767.863 (2), 767.865 (2), and 767.88 (4), if genetic tests have not yet been performed with respect to the male, the court or supplemental court commissioner is not required to order those genetic tests.

95,46 Section 46 . 767.87 (8) of the statutes is amended to read:

767.87 (8) Burden of proof. The party bringing an action for the purpose of determining paternity or for the purpose of declaring the nonexistence of paternity presumed under s. 891.405, 891.407, or 891.41 (1) shall have the burden of proving the issues involved by clear and satisfactory preponderance of the evidence.

95,47 Section 47 . 769.201 (1m) (gm) of the statutes is created to read:

769.201 (1m) (gm) The individual was conclusively determined from genetic test results to be the father under s. 767.804.

95,48 Section 48. 802.12 (3) (d) 1. of the statutes is amended to read:

802.12 (3) (d) 1. Custody and physical placement under s. 767.41, 767.804 (3), 767.805 (4), 767.863 (3), or 767.89 (3).

95,49 Section 49. 802.12 (3) (d) 3. of the statutes is amended to read:

802.12 (3) (d) 3. Child support under s. 767.511, 767.804 (3), 767.805 (4), 767.863 (3), or 767.89 (3).

95,50 Section 50. 808.075 (4) (d) 9. of the statutes is amended to read:

808.075 (4) (d) 9. Enforcement of payments under s. 767.77, 767.804 (3), 767.805 (4), or 767.89.

95,51 Section 51. 808.075 (4) (d) 10. of the statutes is amended to read:

808.075 (4) (d) 10. Enforcement of orders under s. 767.78, 767.804 (3), 767.805 (4), or 767.89.

95,52 Section 52 . 852.05 (2) of the statutes is amended to read:

852.05 (2) Property of a child born to unmarried parents passes in accordance with s. 852.01 except that the father or the father's kindred can inherit only if the father has been adjudicated to be the father in a paternity proceeding under ch. 767 or by final order or judgment of a court of competent jurisdiction in another state or has been determined to be the father under s. 767.804 or 767.805 or a substantially similar law of another state.

95,53 Section 53 . 891.407 of the statutes is created to read:

891.407 Presumption of paternity based on genetic test results. A man is presumed to be the natural father of a child if the man has been conclusively determined from genetic test results to be the father under s. 767.804 and no other man is presumed to be the father under s. 891.405 or 891.41 (1).

95,54 Section 54 . 938.02 (13) of the statutes is amended to read:

938.02 (13) “Parent" means a biological parent, a husband who has consented to the artificial insemination of his wife under s. 891.40, or a parent by adoption. If the juvenile is a nonmarital child who is not adopted or whose parents do not subsequently intermarry under s. 767.803, “parent" includes a person conclusively determined from genetic test results to be the father under s. 767.804 or a person acknowledged under s. 767.805 or a substantially similar law of another state or adjudicated to be the biological father. “Parent" does not include any person whose parental rights have been terminated. For purposes of the application of s. 938.028 and the federal Indian Child Welfare Act, 25 USC 1901 to 1963, “parent" means a biological parent, an Indian husband who has consented to the artificial insemination of his wife under s. 891.40, or an Indian person who has lawfully adopted an Indian juvenile, including an adoption under tribal law or custom, and includes, in the case of a nonmarital child who is not adopted or whose parents do not subsequently intermarry under s. 767.803, a person conclusively determined from genetic test results to be the father under s. 767.804, a person acknowledged under s. 767.805, a substantially similar law of another state, or tribal law or custom to be the biological father, or a person adjudicated to be the biological father, but does not include any person whose parental rights have been terminated.

95,55 Section 55 . 938.27 (5) of the statutes is amended to read:

938.27 (5) Notice to biological fathers. Subject to sub. (3) (b), the court shall make reasonable efforts to identify and notify any person who has filed a declaration of paternal interest under s. 48.025, any person conclusively determined from genetic test results to be the father under s. 767.804 (1), any person who has acknowledged paternity of the child under s. 767.805 (1), and any person who has been adjudged to be the father of the juvenile in a judicial proceeding unless the person's parental rights have been terminated.

95,56 Section 56 . 938.396 (2g) (g) of the statutes is amended to read:

938.396 (2g) (g) Paternity of juvenile. Upon request of a court having jurisdiction over actions affecting the family, an attorney responsible for support enforcement under s. 59.53 (6) (a) or a party to a paternity proceeding under subch. IX of ch. 767, the party's attorney or the guardian ad litem for the juvenile who is the subject of that proceeding to review or be provided with information from the records of the court assigned to exercise jurisdiction under this chapter and ch. 48 relating to the paternity of a juvenile for the purpose of determining the paternity of the juvenile or for the purpose of rebutting the presumption of paternity under s. 891.405, 891.407, or 891.41, the court assigned to exercise jurisdiction under this chapter and ch. 48 shall open for inspection by the requester its records relating to the paternity of the juvenile or disclose to the requester those records.

95,57 Section 57. Initial applicability.

(1) Paternity determination or presumption based on genetic test results. The treatment of s. 767.804 first applies to genetic tests that are performed on the effective date of this subsection.

(2) Genetic tests in paternity actions. The treatment of s. 767.855, the renumbering and amendment of s. 767.84 (1) (a), and the creation of s. 767.84 (1) (a) 1., 2., and 3. first apply to paternity actions commenced on the effective date of this subsection.

95,58 Section 58 . Effective dates.

(1) This act takes effect on the first day of the 6th month beginning after publication.