SB566: Bill Text

Analysis by the Legislative Reference Bureau

Summary

This bill recognizes same-sex marriage by making references in the statutes to spouses gender neutral, with the intent of harmonizing the Wisconsin statutes with the holding of the U.S. Supreme Court in Obergefell v. Hodges, 135 S. Ct. 2584, 192 L.Ed.2d 609 (2015), which recognizes that same-sex couples have a fundamental constitutional right to marriage. The bill also recognizes legal parentage for same-sex couples under certain circumstances and adopts gender neutral parentage terminology.

Same-sex marriage

This bill provides that marriage may be contracted between persons of the same sex and confers the same rights and responsibilities on married persons of the same sex that married persons of different sexes have under current law. The bill defines “spouse" as a person who is legally married to another person of the same sex or a different sex and replaces every reference to “husband" or “wife" in current law with “spouse." The bill makes applicable to married persons of the same sex all provisions under current law that apply to married persons of different sexes. These provisions relate to such diverse areas of the law as income tax, marital property, inheritance rights, divorce, child and spousal support, insurance coverage, family and spousal recreational licenses, consent to conduct an autopsy, domestic abuse, and eligibility for various types of benefits, such as retirement or death benefits and medical assistance.

Parentage

In addition to making statutory references to spouses gender neutral, the bill specifies ways in which married couples of the same sex may be the legal parents of a child and, with some exceptions, makes current references in the statutes to “mother" and “father," and related terms, gender neutral.

Under current law, all of the following may adopt a child: a husband and wife jointly, a husband or wife whose spouse is the parent of the child, and an unmarried adult. Because the bill makes references in the statutes to spouses gender neutral, same-sex spouses jointly may adopt a child and become the legal parents of the child, and a same-sex spouse of a person who is the parent of a minor child may adopt the child and become the legal parent of his or her spouse's child.

Under current law, if a woman is artificially inseminated under the supervision of a physician with semen donated by a man who is not her husband and the husband consents in writing to the artificial insemination of his wife, the husband is the natural father of any child conceived. Under this bill, one spouse may also consent to the artificial insemination of his or her spouse and is the natural parent of the child conceived. The artificial insemination is not required to take place under the supervision of a physician, but, if it does not, the semen used for the insemination must have been obtained from a sperm bank.

Under current law, there is a paternity presumption whereby a man is presumed to be the father of a child if he and the child's natural mother 1) were married to each other when the child was conceived or born or 2) married each other after the child was born but had a relationship with each other when the child was conceived and no other man has been adjudicated to be the father or is presumed to be the father because the man was married to the mother when the child was conceived or born. The paternity presumption may be rebutted in a legal action or proceeding by the results of a genetic test showing that the statistical probability of another man's parentage is 99.0 percent or higher. The bill expands this presumption into a parentage presumption, so that a person is presumed to be the natural parent of a child if he or she 1) was married to the child's established natural parent when the child was conceived or born or 2) married the child's established natural parent after the child was born but had a relationship with the established natural parent when the child was conceived and no person has been adjudicated to be the father and no other person is presumed to be the child's parent because he or she was married to the mother when the child was conceived or born. The parentage presumption may still be rebutted by the results of a genetic test showing that the statistical probability of another person's parentage is 99.0 percent or higher. Expanding on current law, the bill allows for a paternity action to be brought for the purpose of rebutting the parentage presumption, regardless of whether that presumption applies to a male or female spouse.

Under current law, a mother and a man may sign a statement acknowledging paternity and file it with the state registrar. If the state registrar has received such a statement, the man is presumed to be the father of the child. Under current law, either person who has signed a statement acknowledging paternity may rescind the statement before an order is filed in an action affecting the family concerning the child, or within 60 days after the statement is filed, whichever occurs first. Under current law, a man who has filed a statement acknowledging paternity that is not rescinded within the time period is conclusively determined to be the father of the child. This bill provides that two people may sign a statement acknowledging parentage and file it with the state registrar. If the state registrar has received such a statement, the people who have signed the statement are presumed to be the parents of the child. Under the bill, a statement acknowledging parentage that is not rescinded conclusively establishes parentage with regard to the person who did not give birth to the child and who signed the statement.

The bill defines “natural parent" as a parent of a child who is not an adoptive parent, whether the parent is biologically related to the child or not. Thus, a person who is a biological parent, a parent by consenting to the artificial insemination of his or her spouse, or a parent under the parentage presumption is a natural parent of a child. The definition applies throughout the statutes wherever the term “natural parent" is used. In addition, the bill expands some references in the statutes to “biological parent" by changing the reference to “natural parent."

Birth certificates

Generally, the bill substitutes the term “spouse" for “husband" in the birth certificate statutes and enters the spouse, instead of the husband, of the person who has given birth on the birth certificate at times when a husband would currently be entered on a birth certificate. The name of the person who has given birth is entered on a birth certificate when the person gives birth to a child and current law specifies when another name should be entered on the birth certificate. Current law requires that if a birth mother is married at any time from the conception to the birth of a child, then her husband's name is entered on the birth certificate as the legal father of the child. Under the bill, if a person who gives birth is married at any time from the conception to the birth of the child, then that person's spouse's name is entered as a legal parent of the child. The bill also specifies that, in the instance that a second parent's name is initially omitted from the birth certificate, if the state registrar receives a signed acknowledgement of parentage by people presumed to be parents because the two people married after the birth of the child, the two people had a relationship during the time the child was conceived, no person is adjudicated to be the father, and no other person is presumed to be the parent, then the state registrar must enter the name of the spouse of the person who gave birth as a parent on the birth certificate.

This bill will be referred to the joint survey committee on tax exemptions for a detailed analysis, which will be printed as an appendix to this bill.

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:

SB566,1 Section 1. 29.219 (4) of the statutes is amended to read:

SB566,5,5 29.219 (4) Husband and wife Spouses resident licenses. A combined husband and wife spouses resident fishing license shall be issued subject to s. 29.024 by the department to residents applying for this license. This license confers upon both husband and wife spouses the privileges of resident fishing licenses.

SB566,2 Section 2. 29.228 (5) of the statutes is amended to read:

SB566,6,2 29.228 (5) Annual family fishing license. The department shall issue a nonresident annual family fishing license, subject to s. 29.024, to any nonresident who applies for this license. This license entitles the husband, wife spouses and any minor children to fish under this license.

SB566,3 Section 3. 29.228 (6) of the statutes is amended to read:

SB566,6,7 29.228 (6) Fifteen-day family fishing license. The department shall issue a nonresident 15-day family fishing license, subject to s. 29.024, to any nonresident who applies for this license. This license entitles the husband, wife spouses and any minor children to fish under this license.

SB566,4 Section 4. 29.229 (2) (i) of the statutes is amended to read:

SB566,6,9 29.229 (2) (i) Husband and wife Spouses fishing licenses.

SB566,5 Section 5. 29.2295 (2) (i) of the statutes is amended to read:

SB566,6,11 29.2295 (2) (i) Husband and wife Spouses fishing licenses.

SB566,6 Section 6. 29.563 (3) (a) 3. of the statutes is amended to read:

SB566,6,13 29.563 (3) (a) 3. Husband and wife Spouses: $30.25.

SB566,7 Section 7. 29.607 (3) of the statutes is amended to read:

SB566,6,24 29.607 (3) License required; exceptions; wild rice identification card. Every person over the age of 16 and under the age of 65 shall obtain the appropriate wild rice license to harvest or deal in wild rice but no license to harvest is required of the members of the immediate family of a licensee or of a recipient of old-age assistance or members of their immediate families. The department, subject to s. 29.024 (2g) and (2r), shall issue a wild rice identification card to each member of a licensee's immediate family, to a recipient of old-age assistance and to each member of the recipient's family. The term “immediate family" includes husband and wife spouses and minor children having their abode and domicile with the parent or legal guardian.

SB566,8 Section 8 . 45.01 (6) (c) of the statutes is amended to read:

SB566,7,3 45.01 (6) (c) The biological natural or adoptive parent or a person who acts in the place of a parent and who has so acted for not less than 12 months prior to the veteran's entrance into active service.

SB566,9 Section 9. 45.51 (3) (c) 2. of the statutes is amended to read:

SB566,7,6 45.51 (3) (c) 2. The department may deviate from this sequence upon order of the board to prevent the separation of a husband and wife spouses.

SB566,10 Section 10. 45.51 (5) (a) 1. b. of the statutes is amended to read:

SB566,7,11 45.51 (5) (a) 1. b. Was married to the person under sub. (2) (a) 1. or 2. at the time the person entered the service and who became a widow or widower surviving spouse by the death of the person while in the service or as a result of physical disability of the person incurred during the service.

SB566,11 Section 11. 45.51 (5) (a) 1. c. of the statutes is amended to read:

SB566,7,16 45.51 (5) (a) 1. c. The period during which the surviving spouse was married to and lived with the deceased person under sub. (2) (a) 1. or 2. plus the period of widowhood or widowerhood after the death of the deceased person is 6 months or more.

SB566,12 Section 12. 45.55 of the statutes is amended to read:

SB566,8,7 45.55 Notes and mortgages of minor veterans. Notwithstanding any provision of this chapter or any other law to the contrary, any minor who served in the active armed forces of the United States at any time after August 27, 1940, and the husband or wife spouse of such a minor may execute, in his or her own right, notes or mortgages, as defined in s. 851.15, the payment of which is guaranteed or insured by the U.S. department of veterans affairs or the federal housing administrator under the servicemen's readjustment act of 1944, the national housing act, or any acts supplementing or amending these acts. In connection with these transactions, the minors may sell, release, or convey the mortgaged property and litigate or settle controversies arising therefrom, including the execution of releases, deeds, and other necessary papers or instruments. The notes, mortgages, releases, deeds, and other necessary papers or instruments when so executed are not subject to avoidance by the minor or the husband or wife spouse of the minor upon either or both of them attaining the age of 18 because of the minority of either or both of them at the time of the execution thereof.

SB566,13 Section 13. 46.10 (2) of the statutes is amended to read:

SB566,9,12 46.10 (2) Except as provided in subs. (2m) and (14) (b) and (c), any person, including but not limited to a person admitted, committed, protected, or placed under s. 975.01, 1977 stats., s. 975.02, 1977 stats., s. 975.17, 1977 stats., s. 55.05 (5), 2003 stats., and s. 55.06, 2003 stats., and ss. 51.10, 51.13, 51.15, 51.20, 51.35 (3), 51.37 (5), 51.45 (10), (11), (12) and (13), 55.05, 55.055, 55.12, 55.13, 55.135, 971.14 (2) and (5), 971.17 (1), 975.06 and 980.06, receiving care, maintenance, services , and supplies provided by any institution in this state including University of Wisconsin Hospitals and Clinics, in which the state is chargeable with all or part of the person's care, maintenance, services, and supplies, any person receiving care and services from a county department established under s. 51.42 or 51.437 or from a facility established under s. 49.73, and any person receiving treatment and services from a public or private agency under s. 980.06 (2) (c), 1997 stats., s. 980.08 (5), 2003 stats., or s. 971.17 (3) (d) or (4) (e) or 980.08 (4) (g) and the person's property and estate, including the homestead, and the spouse of the person, and the spouse's property and estate, including the homestead, and, in the case of a minor child, the parents of the person, and their property and estates, including their homestead, and, in the case of a foreign child described in s. 48.839 (1) who became dependent on public funds for his or her primary support before an order granting his or her adoption, the resident of this state appointed guardian of the child by a foreign court who brought the child into this state for the purpose of adoption, and his or her property and estate, including his or her homestead, shall be liable for the cost of the care, maintenance, services, and supplies in accordance with the fee schedule established by the department under s. 46.03 (18). If a spouse, widow surviving spouse, or minor, or an incapacitated person may be lawfully dependent upon the property for their support, the court shall release all or such part of the property and estate from the charges that may be necessary to provide for those persons. The department shall make every reasonable effort to notify the liable persons as soon as possible after the beginning of the maintenance, but the notice or the receipt thereof is not a condition of liability.

SB566,14 Section 14. 48.02 (13) of the statutes is amended to read:

SB566,9,25 48.02 (13) “Parent" means a biological natural 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 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 natural parent of an Indian child, an Indian husband spouse who has consented to the artificial insemination of his wife or her spouse 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 Indian child who is not adopted or whose parents do not subsequently intermarry under s. 767.803, a person acknowledged under s. 767.805, a substantially similar law of another state, or tribal law or custom to be the biological father natural parent or a person adjudicated to be the biological father natural parent, but does not include any person whose parental rights have been terminated.

SB566,15 Section 15 . 48.025 (title) of the statutes is amended to read:

SB566,10,8 48.025 (title) Declaration of paternal parental interest in matters affecting children.

SB566,16 Section 16 . 48.025 (2) (b) of the statutes is amended to read:

SB566,10,14 48.025 (2) (b) A declaration under sub. (1) may be filed at any time before the birth of the child or within 14 days after the birth of the child, except that a man person who receives a notice under s. 48.42 (1g) (b) may file a declaration within 21 days after the date on which the notice was mailed. This paragraph does not apply to a declaration filed before July 1, 2006.

SB566,17 Section 17 . 48.025 (3) (c) of the statutes is amended to read:

SB566,11,4 48.025 (3) (c) A court in a proceeding under s. 48.13, 48.133, 48.14, or 938.13 or under a substantially similar law of another state or a person authorized to file a petition under s. 48.25, 48.42, 48.837, or 938.25 or under a substantially similar law of another state may request the department to search its files to determine whether a person who may be the father parent of the child who is the subject of the proceeding has filed a declaration under this section. If the department has on file a declaration of paternal parental interest in matters affecting the child, the department shall issue to the requester a copy of the declaration. If the department does not have on file a declaration of paternal parental interest in matters affecting the child, the department shall issue to the requester a statement that no declaration could be located. The department may require a person who requests a search under this paragraph to pay a reasonable fee that is sufficient to defray the costs to the department of maintaining its file of declarations and publicizing information relating to declarations of paternal parental interest under this section.

SB566,18 Section 18 . 48.27 (3) (b) 1. a. of the statutes is amended to read:

SB566,11,7 48.27 (3) (b) 1. a. A person who has filed a declaration of paternal parental interest under s. 48.025.

SB566,19 Section 19 . 48.27 (3) (b) 1. b. of the statutes is amended to read:

SB566,11,11 48.27 (3) (b) 1. b. A person alleged to the court to be the father a parent of the child or who may, based on the statements of the mother parent who gave birth to the child or other information presented to the court, be the father parent of the child.

SB566,20 Section 20 . 48.27 (5) of the statutes is amended to read:

SB566,11,18 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 parental interest under s. 48.025, 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 parent of the child in a judicial proceeding unless the person's parental rights have been terminated.

SB566,21 Section 21 . 48.299 (6) (intro.) of the statutes is amended to read:

SB566,11,23 48.299 (6) (intro.) If a man person who has been given notice under s. 48.27 (3) (b) 1. appears at any hearing for which he or she received the notice, alleges that he or she is the father a parent of the child and states that he or she wishes to establish the paternity parentage of the child, all of the following apply:

SB566,22 Section 22 . 48.299 (6) (e) 1. of the statutes is amended to read:

SB566,12,5 48.299 (6) (e) 1. In this paragraph, “genetic test" means a test that examines genetic markers present on blood cells, skin cells, tissue cells, bodily fluid cells or cells of another body material for the purpose of determining the statistical probability that a man person who is alleged to be a child's father parent is the child's biological father parent.

SB566,23 Section 23 . 48.299 (6) (e) 2. of the statutes is amended to read:

SB566,12,9 48.299 (6) (e) 2. The court shall, at the hearing, orally inform any man person specified in sub. (6) (intro.) that he or she may be required to pay for any testing ordered by the court under this paragraph or under s. 885.23.

SB566,24 Section 24 . 48.299 (6) (e) 3. of the statutes is amended to read:

SB566,12,23 48.299 (6) (e) 3. In addition to ordering testing as provided under s. 885.23, if the court determines that it would be in the best interests of the child, the court may order any man person specified in sub. (6) (intro.) to submit to one or more genetic tests which shall be performed by an expert qualified as an examiner of genetic markers present on the cells and of the specific body material to be used for the tests, as appointed by the court. A report completed and certified by the court-appointed expert stating genetic test results and the statistical probability that the man person alleged to be the child's father parent is the child's biological father parent based upon the genetic tests is admissible as evidence without expert testimony and may be entered into the record at any hearing. The court, upon request by a party, may order that independent tests be performed by other experts qualified as examiners of genetic markers present on the cells of the specific body materials to be used for the tests.

SB566,25 Section 25 . 48.299 (6) (e) 4. of the statutes is amended to read:

SB566,13,5 48.299 (6) (e) 4. If the genetic tests show that an alleged father parent is not excluded and that the statistical probability that the alleged father parent is the child's biological father parent is 99.0 percent or higher, the court may determine that for purposes of a proceeding under this chapter, other than a proceeding under subch. VIII, the man person is the child's biological parent.

SB566,26 Section 26 . 48.299 (7) of the statutes is amended to read:

SB566,13,14 48.299 (7) If a man person who has been given notice under s. 48.27 (3) (b) 1. appears at any hearing for which he or she received the notice but does not allege that he or she is the father a parent of the child and state that he or she wishes to establish the paternity parentage of the child or if no man person to whom such notice was given appears at a hearing, the court may refer the matter to the state or to the attorney responsible for support enforcement under s. 59.53 (6) (a) for a determination, under s. 767.80, of whether an action should be brought for the purpose of determining the paternity parentage of the child.

SB566,27 Section 27 . 48.355 (4g) (a) 1. of the statutes is amended to read:

SB566,13,22 48.355 (4g) (a) 1. The child's parents are parties to a pending action for divorce, annulment, or legal separation, a man person determined under s. 48.299 (6) (e) 4. to be the biological father parent of the child for purposes of a proceeding under this chapter is a party to a pending action to determine paternity of the child under ch. 767, or the child is the subject of a pending independent action under s. 767.41 or 767.43 to determine legal custody of the child or visitation rights with respect to the child.

SB566,28 Section 28 . 48.396 (2) (dm) of the statutes is amended to read:

SB566,14,9 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 parentage under s. 891.405 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.

SB566,29 Section 29 . 48.42 (1g) (a) 4. of the statutes is amended to read:

SB566,14,12 48.42 (1g) (a) 4. A statement identifying any man person who has lived in a familial relationship with the child and who may be the father a parent of the child.

SB566,30 Section 30 . 48.42 (1g) (b) of the statutes is amended to read:

SB566,14,22 48.42 (1g) (b) The petitioner shall notify any man person identified in the affidavit under par. (a) as an alleged father parent of his the right to file a declaration of paternal parental interest under s. 48.025 before the birth of the child, within 14 days after the birth of the child, or within 21 days after the date on which the notice is mailed, whichever is later; of the birth date or anticipated birth date of the child; and of the consequences of filing or not filing a declaration of paternal parental interest. The petitioner shall include with the notice a copy of the form required to file a declaration of paternal parental interest under s. 48.025. The notice shall be sent by certified mail to the last-known address of the alleged father parent.

SB566,31 Section 31 . 48.42 (1g) (c) of the statutes is amended to read:

SB566,14,25 48.42 (1g) (c) If an affidavit under par. (a) is not filed with the petition, notice shall be given to an alleged father parent under sub. (2).

SB566,32 Section 32. 48.42 (2) (b) 1. of the statutes is amended to read:

SB566,15,4 48.42 (2) (b) 1. A person who has filed an unrevoked declaration of paternal parental interest under s. 48.025 before the birth of the child or within 14 days after the birth of the child.

SB566,33 Section 33 . 48.42 (2) (b) 2. of the statutes is amended to read:

SB566,15,9 48.42 (2) (b) 2. A person or persons alleged to the court to be the father a parent of the child or who may, based upon the statements of the mother parent who gave birth to the child or other information presented to the court, be the father parent of the child unless that person has waived the right to notice under s. 48.41 (2) (c).

SB566,34 Section 34 . 48.42 (2) (bm) 1. of the statutes is amended to read:

SB566,15,14 48.42 (2) (bm) 1. A person who has filed an unrevoked declaration of paternal parental interest under s. 48.025 before the birth of the child, within 14 days after the birth of the child, or within 21 days after a notice under sub. (1g) (b) is mailed, whichever is later.

SB566,35 Section 35 . 48.422 (6) (a) of the statutes is amended to read:

SB566,15,25 48.422 (6) (a) In the case of a nonmarital child who is not adopted or whose parents do not subsequently intermarry under s. 767.803 and for whom paternity has not been established, or for whom a declaration of paternal parental interest has not been filed under s. 48.025 within 14 days after the date of birth of the child or, if s. 48.42 (1g) (b) applies, within 21 days after the date on which the notice under s. 48.42 (1g) (b) is mailed, the court shall hear testimony concerning the paternity parentage of the child. Based on the testimony, the court shall determine whether all interested parties who are known have been notified under s. 48.42 (2) and (2g) (ag). If not, the court shall adjourn the hearing and order appropriate notice to be given.

SB566,36 Section 36. 48.422 (7) (bm) of the statutes is amended to read: