AB166: Bill Text

LRB-1830/1

EAW:kjf

2019 - 2020 LEGISLATURE

2019 Assembly BILL 166

April 15, 2019 - Introduced by Representatives Krug, Subeck, Brandtjen, Crowley, Kitchens, Kulp, Mursau, Spiros, Skowronski, Tusler and VanderMeer, cosponsored by Senators Testin, L. Taylor, Bernier, Bewley, Jacque, Kooyenga and Wirch. Referred to Committee on Family Law.

AB166,2,2 An Act to renumber and amend 49.141 (1) (i) and 767.84 (1) (a); to amend 48.02 (13), 48.27 (5), 48.396 (2) (dm), 48.42 (4) (b) 2., 48.837 (4) (e), 48.91 (2), 49.225 (2) (a), 49.855 (3), 49.855 (4m) (b), 69.15 (3) (a) (intro.), 69.15 (3) (a) 3., 565.30 (5m) (a), 767.407 (1) (c) (intro.), 767.41 (1) (b), 767.41 (1m) (intro.), 767.44 (1), 767.511 (1) (intro.), 767.511 (5), 767.513 (2), 767.55 (1), 767.55 (2) (am) (intro.), 767.55 (3) (a) 1., 767.55 (3) (d), 767.55 (4) (b) (intro.), 767.59 (2s), 767.73 (1) (a), 767.75 (1) (b), 767.77 (1), 767.78 (1), 767.80 (1) (intro.), 767.80 (1) (c), 767.80 (5m), 767.80 (6m), 767.82 (2), 767.82 (2m), 767.855, 767.87 (8), 802.12 (3) (d) 1., 802.12 (3) (d) 3., 808.075 (4) (d) 9., 808.075 (4) (d) 10., 852.05 (2), 938.02 (13), 938.27 (5) and 938.396 (2g) (g); and to create 49.141 (1) (i) 3., 49.141 (1) (j) 6., 767.80 (1) (hm), 767.804, 767.84 (1) (a) 1., 767.84 (1) (a) 2., 767.84 (1) (a) 3., 769.201 (1m) (gm) and 891.407 of the statutes; relating to: presumption and conclusive determination of paternity on the basis of genetic test results and orders that may be granted on the basis of genetic test results.

Analysis by the Legislative Reference Bureau

This bill creates a new presumption of paternity and a new way to conclusively determine paternity under the law using genetic testing. The bill also generally requires the court in a paternity action to order genetic testing. Also, the bill allows a court that determines that a judicial determination of whether a man is the father of the child is not in the best interest of the child to dismiss the paternity action with respect to that man, regardless of whether genetic tests have already been performed or what the results of those genetic tests were.

Under current law, a court may adjudicate a man to be a child's father in a paternity action, or a man and a child's mother may sign and file a statement acknowledging paternity with the state registrar. Both cases result in a conclusive determination that the man is the child's father, and the state registrar may change the child's birth record to show the man as the child's father and a court may enter orders for child support, legal custody, and physical placement rights with respect to the man.

Under the bill, a man is conclusively determined to be a child's father if all of the following are satisfied: 1) genetic tests are performed with respect to the child, the child's mother, and the man in response to a subpoena issued by a county child support agency requiring the parties to submit to the tests; 2) the test results show that the man is not excluded as the father and the statistical probability that he is the father is 99 percent or higher; 3) both the mother and the man are at least 18 years old; and 4) there is no marriage or statement acknowledging paternity presumption. If all of those requirements are satisfied, the child support agency must send notice to the parties advising of the test results, that an action may be commenced for orders related to child support, legal custody, and physical placement, and that either party may submit to the child support agency a written objection to the test results. If either party submits an objection, the child support agency must commence a paternity action on behalf of the state and the test results are admissible in the action. If neither party submits an objection by the time specified in the notice, the child support agency must file with the state registrar a report of the test results, showing a conclusive determination of paternity. On the basis of the report, the state registrar must insert the name of the father on the child's original birth record if the father's name was omitted.

Under the bill, if genetic test results conclusively determine a man to be a child's father and neither the mother nor the man submits an objection after receiving notice, an action may be brought for child support, legal custody, and physical placement. The court may also require the man to pay or contribute to the reasonable expenses of the mother's pregnancy, require either the man or mother to pay or contribute to the other party's attorney fees, and change the child's name upon the request of one or both of the parties.

Current law also contains presumptions of paternity. There is a presumption (marriage presumption) that a man is the father of a child if: 1) he and the child's mother were married when the child was conceived or born; or 2) he and child's mother married after the child was born but had a relationship during the time within which the child was conceived and no other man has been adjudicated to be the father or is presumed to be the father because he was married to the child's mother when the child was conceived or born. There is also a presumption (statement acknowledging paternity presumption) that a man is a child's father if he and the child's mother signed and filed a statement acknowledging paternity with the state registrar and no other man is presumed to be the child's father under the marriage presumption. The bill creates a presumption that a man is a child's father if all of the requirements under the bill are satisfied for conclusively determining a man to be a child's father on the basis of genetic test results and no other man is presumed to be the child's father under the marriage or statement acknowledging paternity presumption.

The bill also makes other modifications related to genetic testing and paternity adjudications. Under current law, in a paternity action the court may require, and upon the request of a party must require, the child, the child's mother, and any male for whom there is probable cause to believe that he had sexual relations with the mother during the possible time of the child's conception to submit to genetic tests. Under the bill, the court in a paternity action must require the child, the child's mother, and any male for whom there is probable cause to believe that he had sexual relations with the mother during the possible time of the child's conception to submit to genetic tests with the following exceptions:

1. Genetic tests are not required if the action will be dismissed or a default judgment will be entered because of the failure of a party to appear.

2. The court is not required to require any of the following persons to submit to genetic tests:

a. A person who was required by a child support agency to submit to a genetic test and who has done so.

b. The respondent in the action if he or she is deceased and genetic material is not available without undue hardship.

c. A male respondent who fails to appear if genetic test results with respect to another male show that the other male is not excluded as the father and that the statistical probability that the other male is the father is 99 percent or higher.

Current law includes an exception to the requirement to order genetic tests in a paternity action. If the court determines, upon the motion of a party or guardian ad litem, that a judicial determination of whether a male is the father of the child is not in the best interest of the child, the court may, with respect to the male, refuse to order genetic tests, if they haven't already been performed, and dismiss the action. The Wisconsin Supreme Court, in Randy A.J. v. Norma I.J., 2004 WI 41, 270 Wis. 2d 384, 677 N.W. 2d 630, determined that a court may not dismiss the paternity action if genetic tests have already been performed, even if the court finds that a judicial determination of paternity is not in the child's best interest. The bill provides that if the court determines that a judicial determination of whether a male is the father of the child is not in the best interest of the child, the court may dismiss the action with respect to that male, regardless of whether genetic tests have been performed or what the results of those genetic tests were. The bill also provides that if, in fact, genetic tests have not yet been performed with respect to that male, the court is not required to order them.

For further information see the state and local fiscal estimate, which will be printed as an appendix to this bill.

The people of the state of Wisconsin, represented in senate and assembly, do enact as follows:

AB166,1 Section 1 . 48.02 (13) of the statutes is amended to read:

AB166,5,2 48.02 (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 child 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. 48.028 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 child, 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.

AB166,2 Section 2 . 48.27 (5) of the statutes is amended to read:

AB166,5,10 48.27 (5) Subject to sub. (3) (b), the court shall make every reasonable effort 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 child in a judicial proceeding unless the person's parental rights have been terminated.

AB166,3 Section 3 . 48.396 (2) (dm) of the statutes is amended to read:

AB166,5,22 48.396 (2) (dm) 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 child 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. 938 relating to the paternity of a child for the purpose of determining the paternity of the child or for the purpose of rebutting the presumption of paternity under s. 891.405, 891.407, or 891.41 (1), the court assigned to exercise jurisdiction under this chapter and ch. 938 shall open for inspection by the requester its records relating to the paternity of the child or disclose to the requester those records.

AB166,4 Section 4 . 48.42 (4) (b) 2. of the statutes is amended to read:

AB166,6,4 48.42 (4) (b) 2. If the child is a nonmarital child who is not adopted or whose parents do not subsequently intermarry under s. 767.803 and paternity has not been conclusively determined from genetic test results under s. 767.804, acknowledged under s. 767.805 or a substantially similar law of another state , or adjudicated, the court may, as provided in s. 48.422 (6) (b), order publication of a notice under subd. 4.

AB166,5 Section 5 . 48.837 (4) (e) of the statutes is amended to read:

AB166,6,16 48.837 (4) (e) Shall, before hearing the petitions under subs. (2) and (3), ascertain whether the paternity of a nonmarital child who is not adopted or whose parents do not subsequently intermarry under s. 767.803 has been conclusively determined from genetic test results under s. 767.804, acknowledged under s. 767.805 or a substantially similar law of another state, or adjudicated in this state or another jurisdiction. If the child's paternity has not been conclusively determined from genetic test results, acknowledged, or adjudicated, the court shall attempt to ascertain the paternity of the child and shall determine the rights of any person who may be the father of the child as provided under s. 48.423. The court may not proceed with the hearing on the petitions under this section unless the parental rights of the nonpetitioning parent, whether known or unknown, have been terminated.

AB166,6 Section 6 . 48.91 (2) of the statutes is amended to read:

AB166,7,3 48.91 (2) In an adoption proceeding for a nonmarital child who is not adopted or whose parents do not subsequently intermarry under s. 767.803, the court shall establish whether the child's paternity has been conclusively determined from genetic test results under s. 767.804, acknowledged under s. 767.805 or a substantially similar law of another state, or adjudicated in this state or in another jurisdiction. If the child's paternity has not been conclusively determined from genetic test results, acknowledged, or adjudicated, the court shall attempt to ascertain the paternity of the child and shall determine the rights of any person who may be the father of the child as provided under s. 48.423. The court may not proceed with the hearing on the petition for adoption unless the parental rights of the nonpetitioning parent, whether known or unknown, have been terminated.

AB166,7 Section 7 . 49.141 (1) (i) of the statutes is renumbered 49.141(1) (i) (intro.) and amended to read:

AB166,7,8 49.141 (1) (i) (intro.) “Nonmarital coparent" means, with respect to an individual and a dependent child, a parent who is not married to the individual, who resides with the dependent child, and who is either an one of the following:

AB166,7,9 1. An adjudicated parent or a .

AB166,7,11 2. A parent who has signed and filed with the state registrar under s. 69.15 (3) (b) 3. a statement acknowledging paternity.

AB166,8 Section 8 . 49.141 (1) (i) 3. of the statutes is created to read:

AB166,7,14 49.141 (1) (i) 3. A parent who has been conclusively determined from genetic test results to be the father under s. 767.804.

AB166,9 Section 9 . 49.141 (1) (j) 6. of the statutes is created to read:

AB166,7,17 49.141 (1) (j) 6. A man who has been conclusively determined from genetic test results to be the father under s. 767.804.

AB166,10 Section 10 . 49.225 (2) (a) of the statutes is amended to read:

AB166,8,2 49.225 (2) (a) A county child support agency under s. 59.53 (5) may require, by subpoena in substantially the form authorized under s. 885.02 or by other means, a child, the child's mother, and a male alleged, or alleging himself, to be the child's father to submit to genetic tests if there is probable cause to believe that the male had sexual intercourse with the child's mother during a possible time of the child's conception. Probable cause of sexual intercourse during a possible time of conception may be established by a sufficient affidavit of the child's mother or, the male alleged, or alleging himself, to be the child's father, or the county child support agency under s. 59.53 (5) based on information provided by the child's mother.

AB166,11 Section 11. 49.855 (3) of the statutes is amended to read:

AB166,9,2 49.855 (3) Receipt of a certification by the department of revenue shall constitute a lien, equal to the amount certified, on any state tax refunds or credits owed to the obligor. The lien shall be foreclosed by the department of revenue as a setoff under s. 71.93 (3), (6), and (7). When the department of revenue determines that the obligor is otherwise entitled to a state tax refund or credit, it shall notify the obligor that the state intends to reduce any state tax refund or credit due the obligor by the amount the obligor is delinquent under the support, maintenance, or receiving and disbursing fee order or obligation, by the outstanding amount for past support, medical expenses, or birth expenses under the court order, or by the amount due under s. 46.10 (4), 49.345 (4), or 301.12 (4). The notice shall provide that within 20 days the obligor may request a hearing before the circuit court rendering the order under which the obligation arose. Within 10 days after receiving a request for hearing under this subsection, the court shall set the matter for hearing. Pending further order by the court or a circuit court commissioner, the department of children and families or its designee, whichever is appropriate, is prohibited from disbursing the obligor's state tax refund or credit. A circuit court commissioner may conduct the hearing. The sole issues at that hearing shall be whether the obligor owes the amount certified and, if not and it is a support or maintenance order, whether the money withheld from a tax refund or credit shall be paid to the obligor or held for future support or maintenance, except that the obligor's ability to pay shall also be an issue at the hearing if the obligation relates to an order under s. 767.804 (3) (d) 1., 767.805 (4) (d) 1., or 767.89 (3) (e) 1. and the order specifies that the court found that the obligor's income was at or below the poverty line established under 42 USC 9902 (2).

AB166,12 Section 12 . 49.855 (4m) (b) of the statutes is amended to read:

AB166,9,25 49.855 (4m) (b) The department of revenue may provide a certification that it receives under sub. (1), (2m), (2p), or (2r) to the department of administration. Upon receipt of the certification, the department of administration shall determine whether the obligor is a vendor or is receiving any other payments from this state, except for wages, retirement benefits, or assistance under s. 45.352, 1971 stats., s. 45.40 (1m), this chapter, or ch. 46, 108, or 301. If the department of administration determines that the obligor is a vendor or is receiving payments from this state, except for wages, retirement benefits, or assistance under s. 45.352, 1971 stats., s. 45.40 (1m), this chapter, or ch. 46, 108, or 301, it shall begin to withhold the amount certified from those payments and shall notify the obligor that the state intends to reduce any payments due the obligor by the amount the obligor is delinquent under the support, maintenance, or receiving and disbursing fee order or obligation, by the outstanding amount for past support, medical expenses, or birth expenses under the court order, or by the amount due under s. 46.10 (4), 49.345 (4), or 301.12 (4). The notice shall provide that within 20 days after receipt of the notice the obligor may request a hearing before the circuit court rendering the order under which the obligation arose. An obligor may, within 20 days after receiving notice, request a hearing under this paragraph. Within 10 days after receiving a request for hearing under this paragraph, the court shall set the matter for hearing. A circuit court commissioner may conduct the hearing. Pending further order by the court or circuit court commissioner, the department of children and families or its designee, whichever is appropriate, may not disburse the payments withheld from the obligor. The sole issues at the hearing are whether the obligor owes the amount certified and, if not and it is a support or maintenance order, whether the money withheld shall be paid to the obligor or held for future support or maintenance, except that the obligor's ability to pay is also an issue at the hearing if the obligation relates to an order under s. 767.804 (3) (d) 1., 767.805 (4) (d) 1., or 767.89 (3) (e) 1. and the order specifies that the court found that the obligor's income was at or below the poverty line established under 42 USC 9902 (2).

AB166,13 Section 13 . 69.15 (3) (a) (intro.) of the statutes is amended to read:

AB166,10,13 69.15 (3) (a) (intro.) If the state registrar receives an order under sub. (1) which that establishes paternity or determines that the man whose name appears on a registrant's birth record is not the father of the registrant, or a report under s. 767.804 (1) (c) that shows a conclusive determination of paternity, the state registrar shall do the following, as appropriate:

AB166,14 Section 14 . 69.15 (3) (a) 3. of the statutes is amended to read: