AB314: Bill Text

AB314,144,10 891.39 (title) Presumption as to whether a child is marital or nonmarital; self-crimination self-incrimination; birth certificates.

AB314,309 Section 309. 891.39 (1) (a) of the statutes is amended to read:

AB314,145,3 891.39 (1) (a) Whenever it is established in an action or proceeding that a child was born to a woman person while he or she was the lawful wife of legally married to a specified man person, any party asserting in such action or proceeding that the husband was spouse is not the father parent of the child shall have the burden of proving that assertion by a clear and satisfactory preponderance of the evidence. In all such actions or proceedings the husband and the wife spouses are competent to testify as witnesses to the facts. The court or judge in such cases shall appoint a guardian ad litem to appear for and represent the child whose paternity parentage is questioned. Results of a genetic test, as defined in s. 767.001 (1m), showing that a man person other than the husband spouse of the person who gave birth to the child is not excluded as the father parent of the child and that the statistical probability of the man’s person’s parentage is 99.0 percent or higher constitute a clear and satisfactory preponderance of the evidence of the assertion under this paragraph, even if the husband spouse of the person who gave birth to the child is unavailable to submit to genetic tests, as defined in s. 767.001 (1m).

AB314,310 Section 310. 891.39 (2) (a) of the statutes is amended to read:

AB314,145,11 891.39 (2) (a) The mother of person who gave birth to the child shall not be excused or privileged from testifying fully in any action or proceeding mentioned in sub. (1) in which the determination of whether the child is a marital or nonmarital child is involved or in issue, when ordered to testify by a court of record or any judge thereof; but she the person who gave birth to the child shall not be prosecuted or subjected to any penalty or forfeiture for or on account of testifying or producing evidence, except for perjury committed in giving the testimony.

AB314,311 Section 311. 891.39 (3) of the statutes is amended to read:

AB314,145,19 891.39 (3) If any court under this section adjudges a child to be a nonmarital child, the clerk of court shall report the facts to the state registrar, who shall issue a new birth record showing the correct facts as found by the court, and shall dispose of the original, with the court’s report attached under s. 69.15 (3). If the husband spouse of the person who gave birth to the child is a party to the action and the court makes a finding as to whether or not the husband spouse is the father parent of the child, such finding shall be conclusive in all other courts of this state.

AB314,312 Section 312. 891.395 of the statutes is amended to read:

AB314,146,8 891.395 Presumption as to time of conception. In any paternity parentage proceeding, in the absence of a valid birth certificate indicating the birth weight, the mother person who gave birth to the child shall be competent to testify as to the birth weight of the child whose paternity parentage is at issue, and where the child whose paternity parentage is at issue weighed 5 1/2 pounds or more at the time of its birth, the testimony of the mother person who gave birth to the child as to the weight shall be presumptive evidence that the child was a full term child, unless competent evidence to the contrary is presented to the court. The conception of the child shall be presumed to have occurred within a span of time extending from 240 days to 300 days before the date of its birth, unless competent evidence to the contrary is presented to the court.

AB314,313 Section 313. 891.40 of the statutes is amended to read:

AB314,147,3 891.40 Artificial insemination. (1) If, A person is the natural parent of a child conceived by artificial insemination if the artificial insemination is performed under the supervision of a licensed physician and with the consent of her husband, a wife is inseminated artificially with semen donated by a man not her husband, the husband of the mother at the time of the conception of the child shall be the natural father of a child conceived. The husband’s consent must be in writing and signed by him and his wife if the person who receives the artificial insemination and the spouse of that person consent to the artificial insemination in a written document signed by both parties. The physician performing the artificial insemination shall certify their both parties’ signatures and the date of the insemination, and shall file the husband’s consent form with the department of health services, where it shall be kept confidential and in a sealed file except as provided in s. 46.03 (7) (bm). However, the physician’s failure to file the consent form does not affect the legal status of father parent and child. All papers and records pertaining to the insemination, whether part of the permanent record of a court or of a file held by the supervising physician or elsewhere, may be inspected only upon an order of the court for good cause shown.

AB314,147,7 (2) The donor of semen provided to a licensed physician for use in artificial insemination of a woman person other than the donor’s wife spouse is not the natural father parent of a child conceived, bears no liability for the support of the child and has no parental rights with regard to the child.

AB314,314 Section 314. 891.405 of the statutes is amended to read:

AB314,147,13 891.405 Presumption of paternity parentage based on acknowledgment. A man person is presumed to be the natural father parent of a child if he the person and the mother person who gave birth to the child have acknowledged paternity parentage under s. 69.15 (3) (b) 1. or 3. and no other man person is presumed to be the father natural parent under s. 891.41 (1).

AB314,315 Section 315. 891.407 of the statutes is amended to read:

AB314,147,19 891.407 Presumption of paternity parentage based on genetic test results. A man person is presumed to be the natural father parent of a child if the man person has been conclusively determined from genetic test results to be the father parent under s. 767.804 and no other man is presumed to be the father person is presumed to be a parent of the child under s. 891.405 or 891.41 (1).

AB314,316 Section 316. 891.41 (title) of the statutes is amended to read:

AB314,147,22 891.41 (title) Presumption of paternity parentage based on marriage of the parties.

AB314,317 Section 317. 891.41 (1) (intro.) of the statutes is amended to read:

AB314,148,2 891.41 (1) (intro.) A man person is presumed to be the natural father parent of a child if any of the following applies:

AB314,318 Section 318. 891.41 (1) (a) of the statutes is amended to read:

AB314,148,7 891.41 (1) (a) He The person and the child’s natural mother person who gave birth to the child are or have been married to each other and the child is conceived or born after marriage and before the granting of a decree of legal separation, annulment, or divorce between the parties.

AB314,319 Section 319. 891.41 (1) (b) of the statutes is renumbered 891.41 (1) (b) (intro.) and amended to read:

AB314,148,14 891.41 (1) (b) (intro.) He The person and the child’s natural mother person who gave birth to the child were married to each other after the child was born but he the person and the child’s natural mother person who gave birth to the child had a relationship with one another during the period of time within which the child was conceived and no other man all of the following apply:

AB314,148,15 1. No person has been adjudicated to be the father or other parent.

AB314,148,17 2. No other person is presumed to be the father parent of the child under par. (a).

AB314,320 Section 320. 891.41 (2) of the statutes is amended to read:

AB314,149,2 891.41 (2) In a legal action or proceeding, a presumption under sub. (1) is rebutted by results of a genetic test, as defined in s. 767.001 (1m), that show that a man person other than the man person presumed to be the father natural parent under sub. (1) is not excluded as the father parent of the child and that the statistical probability of the man’s person’s parentage is 99.0 percent or higher, even if the man person presumed to be the father natural parent under sub. (1) is unavailable to submit to genetic tests, as defined in s. 767.001 (1m).

AB314,321 Section 321. 891.41 (3) of the statutes is created to read:

AB314,149,5 891.41 (3) This section applies with respect to children born before, on, or after the effective date of this subsection .... [LRB inserts date].

AB314,322 Section 322. 905.04 (4) (e) 3. of the statutes is amended to read:

AB314,149,14 905.04 (4) (e) 3. There is no privilege in situations where the examination of the expectant mother of person pregnant with an abused unborn child creates a reasonable ground for an opinion of the physician, registered nurse, chiropractor, psychologist, social worker, marriage and family therapist or professional counselor that the physical injury inflicted on the unborn child was caused by the habitual lack of self-control of the expectant mother of person pregnant with the unborn child in the use of alcohol beverages, controlled substances or controlled substance analogs, exhibited to a severe degree.

AB314,323 Section 323. 905.05 (title) of the statutes is amended to read:

AB314,149,16 905.05 (title) Husband-wife Spousal and domestic partner privilege.

AB314,324 Section 324. 938.02 (5s) of the statutes is created to read:

AB314,149,18 938.02 (5s) “Expectant parent” means a person who is pregnant.

AB314,325 Section 325. 938.02 (13) of the statutes is amended to read:

AB314,150,16 938.02 (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 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 parent 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 natural parent. “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 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 juvenile, 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 conclusively determined from genetic test results to be the father parent 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 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.

AB314,326 Section 326. 938.27 (3) (b) of the statutes is amended to read:

AB314,150,22 938.27 (3) (b) 1. Except as provided in subd. 2., if the petition that was filed relates to facts concerning a situation under s. 938.13 and if the juvenile is a nonmarital child who is not adopted or whose parents do not subsequently intermarry as provided under s. 767.803 and if paternity parentage has not been established, the court shall notify, under s. 938.273, all of the following persons:

AB314,151,2 a. A person who has filed a declaration of paternal parental interest under s. 48.025.

AB314,151,5 b. A person alleged to the court to be the father parent of the juvenile or who may, based on the statements of the mother person who gave birth to the child or other information presented to the court, be the father parent of the juvenile.

AB314,151,10 2. A court is not required to provide notice, under subd. 1., to any person who may be the father parent of a juvenile conceived as a result of a sexual assault if a physician attests to his or her belief that there was a sexual assault of the juvenile’s mother person who gave birth to the juvenile that may have resulted in the juvenile’s conception.

AB314,327 Section 327. 938.27 (5) of the statutes is amended to read:

AB314,151,19 938.27 (5) Notice to biological fathers parents. Subject to sub. (3) (b), the court shall make reasonable efforts to identify and notify any person who has filed a declaration of paternal parental interest under s. 48.025, any person conclusively determined from genetic test results to be the father parent under s. 767.804 (1), any person who has acknowledged paternity parentage of the child under s. 767.805 (1), and any person who has been adjudged to be the father parent of the juvenile in a judicial proceeding unless the person’s parental rights have been terminated.

AB314,328 Section 328. 938.299 (6) (intro.) of the statutes is amended to read:

AB314,152,3 938.299 (6) Establishment of paternity when man alleges paternity parentage. (intro.) If a man person who has been given notice under s. 938.27 (3) (b) 1. appears at any hearing for which he the person received the notice, alleges that he is the father to be the parent of the juvenile, and states that he wishes requests to establish the paternity parentage of the juvenile, all of the following apply:

AB314,329 Section 329. 938.299 (6) (e) 1., 2., 3. and 4. of the statutes are amended to read:

AB314,152,10 938.299 (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 juvenile’s father parent is the juvenile’s biological father parent.

AB314,152,13 2. The court shall, at the hearing, orally inform any man person specified in sub. (6) (intro.) that he the person may be required to pay for any testing ordered by the court under this paragraph or under s. 885.23.

AB314,153,3 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 juvenile, 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 alleged to be the juvenile’s father parent is the juvenile’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.

AB314,153,9 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 juvenile’s biological father parent is 99.0 percent or higher, the court may determine that for purposes of a proceeding under this chapter or ch. 48, other than a proceeding under subch. VIII of ch. 48, the man alleged parent is the juvenile’s biological parent.

AB314,330 Section 330. 938.299 (7) and (8) of the statutes are amended to read:

AB314,153,19 938.299 (7) Establishment of paternity parentage when no man person alleges paternity parentage. If a man person who has been given notice under s. 938.27 (3) (b) 1. appears at any hearing for which he the person received the notice but does not allege that he is the father to be the parent of the juvenile and state that he wishes to establish the paternity parentage of the juvenile 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 juvenile.

AB314,154,2 (8) Testimony of juvenile’s mother person who gave birth to a juvenile relating to paternity parentage. As part of the proceedings under this chapter, the court may order that a record be made of any testimony of the juvenile’s mother person who gave birth to the juvenile relating to the juvenile’s paternity parentage. A record made under this subsection is admissible in a proceeding to determine the juvenile’s paternity parentage under subch. IX of ch. 767.

AB314,331 Section 331. 938.355 (4g) (a) 1. of the statutes is amended to read:

AB314,154,10 938.355 (4g) (a) 1. The juvenile’s parents are parties to a pending action for divorce, annulment, or legal separation, a man person determined under s. 938.299 (6) (e) 4. to be the biological father parent of the juvenile for purposes of a proceeding under this chapter is a party to a pending action to determine paternity parentage of the juvenile under ch. 767, or the juvenile is the subject of a pending independent action under s. 767.41 or 767.43 to determine legal custody of the juvenile or visitation rights with respect to the juvenile.

AB314,332 Section 332. 939.24 (1) of the statutes is amended to read:

AB314,154,18 939.24 (1) In this section, “criminal recklessness” means that the actor creates an unreasonable and substantial risk of death or great bodily harm to another human being and the actor is aware of that risk, except that for purposes of ss. 940.02 (1m), 940.06 (2) and 940.23 (1) (b) and (2) (b), “criminal recklessness” means that the actor creates an unreasonable and substantial risk of death or great bodily harm to an unborn child, to the woman person who is pregnant with that unborn child, or to another and the actor is aware of that risk.

AB314,333 Section 333. 939.25 (1) of the statutes is amended to read:

AB314,155,4 939.25 (1) In this section, “criminal negligence” means ordinary negligence to a high degree, consisting of conduct that the actor should realize creates a substantial and unreasonable risk of death or great bodily harm to another, except that for purposes of ss. 940.08 (2), 940.10 (2) and 940.24 (2), “criminal negligence” means ordinary negligence to a high degree, consisting of conduct that the actor should realize creates a substantial and unreasonable risk of death or great bodily harm to an unborn child, to the woman person who is pregnant with that unborn child, or to another.

AB314,334 Section 334. 940.01 (1) (b) of the statutes is amended to read:

AB314,155,8 940.01 (1) (b) Except as provided in sub. (2), whoever causes the death of an unborn child with intent to kill that unborn child, kill the woman person who is pregnant with that unborn child, or kill another is guilty of a Class A felony.

AB314,335 Section 335. 940.02 (1m) of the statutes is amended to read:

AB314,155,13 940.02 (1m) Whoever recklessly causes the death of an unborn child under circumstances that show utter disregard for the life of that unborn child, the woman person who is pregnant with that unborn child, or another is guilty of a Class B felony.

AB314,336 Section 336. 940.05 (2g) (intro.) of the statutes is amended to read:

AB314,155,17 940.05 (2g) (intro.) Whoever causes the death of an unborn child with intent to kill that unborn child, kill the woman person who is pregnant with that unborn child or kill another is guilty of a Class B felony if:

AB314,337 Section 337. 940.05 (2h) of the statutes is amended to read:

AB314,155,22 940.05 (2h) In prosecutions under sub. (2g), it is sufficient to allege and prove that the defendant caused the death of an unborn child with intent to kill that unborn child, kill the woman person who is pregnant with that unborn child, or kill another.

AB314,338 Section 338. 940.195 (1) of the statutes is amended to read:

AB314,156,3 940.195 (1) Whoever causes bodily harm to an unborn child by an act done with intent to cause bodily harm to that unborn child, to the woman person who is pregnant with that unborn child, or another is guilty of a Class A misdemeanor.

AB314,339 Section 339. 940.195 (2) of the statutes is amended to read:

AB314,156,7 940.195 (2) Whoever causes substantial bodily harm to an unborn child by an act done with intent to cause bodily harm to that unborn child, to the woman person who is pregnant with that unborn child, or another is guilty of a Class I felony.

AB314,340 Section 340. 940.195 (4) of the statutes is amended to read:

AB314,156,11 940.195 (4) Whoever causes great bodily harm to an unborn child by an act done with intent to cause bodily harm to that unborn child, to the woman person who is pregnant with that unborn child, or another is guilty of a Class H felony.

AB314,341 Section 341. 940.195 (5) of the statutes is amended to read:

AB314,156,16 940.195 (5) Whoever causes great bodily harm to an unborn child by an act done with intent to cause great bodily harm to that unborn child, to the woman person who is pregnant with that unborn child, or another is guilty of a Class E felony.

AB314,342 Section 342. 940.23 (1) (b) of the statutes is amended to read:

AB314,156,21 940.23 (1) (b) Whoever recklessly causes great bodily harm to an unborn child under circumstances that show utter disregard for the life of that unborn child, the woman person who is pregnant with that unborn child, or another is guilty of a Class D felony.

AB314,343 Section 343. 943.20 (2) (c) of the statutes is amended to read:

AB314,157,2 943.20 (2) (c) “Property of another” includes property in which the actor is a co-owner and property of a partnership of which the actor is a member, unless the actor and the victim are husband and wife married to each other.

AB314,344 Section 344. 943.201 (1) (b) 8. of the statutes is amended to read:

AB314,157,5 943.201 (1) (b) 8. The maiden name surname of an individual’s mother parent before marriage if the surname was changed as a result of marriage.

AB314,345 Section 345. 943.205 (2) (b) of the statutes is amended to read:

AB314,157,9 943.205 (2) (b) “Owner” includes a co-owner of the person charged and a partnership of which the person charged is a member, unless the person charged and the victim are husband and wife married to each other.

AB314,346 Section 346. 944.17 (3) of the statutes is amended to read:

AB314,157,12 944.17 (3) Subsection (2) does not apply to a mother’s breast-feeding person’s breastfeeding of her that person’s child.

AB314,347 Section 347. 944.20 (2) of the statutes is amended to read:

AB314,157,15 944.20 (2) Subsection (1) does not apply to a mother’s breast-feeding person’s breastfeeding of her that person’s child.