Chapter 767

767.77 Annotation The trial court had the power to order a parent to look for additional or alternative employment or be held in contempt. Discussing proper contempt procedures. Dennis v. State, 117 Wis. 2d 249, 344 N.W.2d 128 (1984).

767.77 Annotation There is no authority under this section to grant credits against arrearages. To grant a credit requires modification of the judgment under s. 767.32 [now s. 767.59]. Under s. 767.32 (1r) [now s. 767.59 (1r)], a court is without discretion to grant credits against arrearages for direct payments made for child support regardless of when the order was entered. Douglas County Child Support Enforcement Unit v. Fisher, 200 Wis. 2d 807, 547 N.W.2d 801 (Ct. App. 1996), 95-1960.

767.78 767.78 Enforcement; contempt proceedings.

767.78(1) (1) Definition. In this section, “financial obligation” means an obligation for payment incurred under s. 767.531, 2019 stats., or s. 48.355 (2) (b) 4. or (4g) (a), 48.357 (5m) (a), 48.363 (2), 767.225, 767.241, 767.511, 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).

767.78(2) (2) Noncompliance; order to show cause. If a person has incurred a financial obligation and has failed within a reasonable time or as ordered by the court to satisfy the obligation, and the wage assignment proceeding under s. 767.75 and the account transfer under s. 767.76 are inapplicable, impractical, or unfeasible, the court may on its own initiative, and shall on the application of the receiving party, issue an order requiring the payer to show cause at a reasonable time specified in the order why he or she should not be subject to contempt of court under ch. 785.

767.78 History History: 1977 c. 105; 1979 c. 32 ss. 50, 92 (4); 1979 c. 196; 1979 c. 257 s. 17; Stats. 1979 s. 767.305; 1993 a. 481; 1995 a. 77; 1997 a. 27, 191; 1999 a. 103; 2005 a. 443 ss. 142, 143; Stats. 2005 s. 767.78; 2015 a. 373; 2019 a. 95; 2021 a. 35.

767.78 Annotation Contempt is an appropriate means to enforce child support arrearages after a child has reached majority. Griffin v. Reeve, 141 Wis. 2d 699, 416 N.W.2d 612 (1987).

767.78 Annotation When a contemnor’s liberty interests are at risk, the contemnor must be given an opportunity to show the court that the failure to comply with the purge conditions was not willful and intentional. State ex rel. V.J.H. v. C.A.B., 163 Wis. 2d 833, 472 N.W.2d 839 (Ct. App. 1991).

subch. IX of ch. 767 SUBCHAPTER IX

PATERNITY

767.80 767.80 Determination of paternity.

767.80(1) (1) Who may bring action or file motion. The following persons may bring an action or file a motion, including an action or motion for declaratory judgment, for the purpose of determining the paternity of a child, or for the purpose of rebutting the presumption of paternity under s. 891.405, 891.407, or 891.41 (1):

767.80(1)(a) (a) The child.

767.80(1)(b) (b) The child’s natural mother.

767.80(1)(c) (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).

767.80(1)(d) (d) A male alleged or alleging himself to be the father of the child.

767.80(1)(e) (e) The personal representative of a person specified under pars. (a) to (d) if that person has died.

767.80(1)(f) (f) The legal or physical custodian of the child.

767.80(1)(g) (g) This state whenever the circumstances specified in s. 767.205 (2) (a) apply, including the delegates of the state as specified in sub. (6).

767.80(1)(h) (h) This state as provided under sub. (6m).

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

767.80(1)(i) (i) A guardian ad litem appointed for the child under s. 48.235, 767.407 (1) (c), or 938.235.

767.80(1)(j) (j) A parent of a person listed under par. (b), (c) or (d), if the parent is liable or is potentially liable for maintenance of a child of a dependent person under s. 49.90 (1) (a) 2.

767.80(1)(k) (k) In conjunction with the filing of a petition for visitation with respect to the child under s. 767.43 (3), a parent of a person who has filed a declaration of paternal interest under s. 48.025 with respect to the child or a parent of a person who, before April 1, 1998, signed and filed a statement acknowledging paternity under s. 69.15 (3) (b) 3. with respect to the child.

767.80(1m) (1m) Venue. An action under this section may be brought in the county in which the child or the alleged father resides or is found or, if the father is deceased, in which proceedings for probate of his estate have been or could be commenced.

767.80(2) (2) Certain agreements not a bar to action. Regardless of its terms, an agreement made after July 1, 1981, other than an agreement approved by the court between an alleged or presumed father and the mother or child, does not bar an action under this section. Whenever the court approves an agreement in which one of the parties agrees not to commence an action under this section, the court shall first determine whether or not the agreement is in the best interest of the child. The court shall not approve any provision waiving the right to bring an action under this section if this provision is contrary to the best interests of the child.

767.80(3) (3) Stay if action before birth. If an action under this section is brought before the birth of the child, all proceedings shall be stayed until after the birth, except that service of process, service and filing of pleadings, the first appearance and the taking of depositions to preserve testimony may be done before the birth of the child.

767.80(4) (4) Child as party. The child may be a party to any action under this section.

767.80(5) (5) Petition.

767.80(5)(a) (a) In this subsection, “any alleged father” includes any male who has engaged in sexual intercourse with the child’s mother during a possible time of conception of the child.

767.80(5)(b) (b) An action under this section may be joined with any other action for child support and is governed by the procedures specified in s. 767.205 relating to child support, except that the title of the action shall be “In re the paternity of A.B.” The petition shall state the name and date of birth of the child if born or that the mother is pregnant if the child is unborn, the name of any alleged father, whether or not an action by any of the parties to determine the paternity of the child or rebut the presumption of paternity to the child has at any time been commenced, or is pending before any court, in this state or elsewhere. If a paternity judgment has been rendered, or if a paternity action has been dismissed, the petition shall state the court that rendered the judgment or dismissed the action, and the date and the place the judgment was granted if known. The petition shall also give notice of a party’s right to request a genetic test under s. 49.225 or 767.84.

767.80(5)(c) (c) If a matter is referred under s. 48.299 (6) (a) or 938.299 (6) (a) to an attorney designated under sub. (6) (a), that attorney shall also include in the petition notification to the court that the matter was referred under s. 48.299 (6) (a) or 938.299 (6) (a).

767.80(5m) (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.

767.80(6) (6) Which attorney represents state.

767.80(6)(a) (a) The attorney responsible for support enforcement under s. 59.53 (6) (a) shall provide the representation for the state as specified under s. 767.205 (2) (a) in cases brought under this section.

767.80(6)(b) (b) The attorney under s. 59.53 (6) (a) is the only county attorney who may provide representation when the state delegates its authority under sub. (1) (g).

767.80(6)(c) (c) The attorney under s. 59.53 (6) (a) or any state attorney acting under par. (b) may not represent the state as specified under s. 767.205 (2) (a) in an action under this section and at the same time act as guardian ad litem for the child or the alleged child of the party.

767.80(6m) (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.

767.80(6r) (6r) Responsibilities of attorney upon referral.

767.80(6r)(a) (a) The attorney designated under sub. (6) (a) who receives a referral under s. 48.299 (6) (a) or 938.299 (6) (a) shall do all of the following:

767.80(6r)(a)1. 1. Give priority to matters referred under s. 48.299 (6) (a) or 938.299 (6) (a), including priority in determining whether an action should be brought under this section and, if the determination is that such an action should be brought, priority in bringing the action and in establishing the existence or nonexistence of paternity.

767.80(6r)(a)2. 2. As soon as possible, but no later than 30 days after the date on which the referral is received, notify the court that referred the matter of one of the following:

767.80(6r)(a)2.a. a. The date on which an action has been brought under this section or the approximate date on which such an action will be brought.

767.80(6r)(a)2.b. b. That a determination has been made that an action should not be brought under this section or, if such a determination has not been made, the approximate date on which a determination will be made as to whether such an action should be brought.

767.80(6r)(a)2.c. c. That the male designated in s. 48.299 (6) (a) or 938.299 (6) (a) has previously been excluded as the father of the child.

767.80(6r)(a)3. 3. If an action is brought under this section, notify the court that referred the matter as soon as possible of a judgment or order determining the existence or nonexistence of paternity.

767.80(6r)(b) (b) The attorney designated under sub. (6) (a) who receives a referral under s. 48.299 (7) or 938.299 (7) may bring an action under this section on behalf of the state and may give priority to the referral and notify the referring court in the same manner as is required under par. (a) when a matter is referred under s. 48.299 (6) (a) or 938.299 (6) (a).

767.80(7) (7) Clerk to provide document. The clerk of court shall provide without charge to each person bringing an action under this section, except to the state under sub. (1) (g) or (6m), a document setting forth the percentage standard established by the department under s. 49.22 (9) and listing the factors that a court may consider under s. 767.511 (1m).

767.80 History History: 1979 c. 352; 1981 c. 20 s. 2202 (20) (m); 1983 a. 447; 1985 a. 29; 1987 a. 27, 355, 399, 413; 1989 a. 31, 212; 1993 a. 326, 481; 1995 a. 27 s. 9126 (19); 1995 a. 68, 100, 201, 275, 404; 1997 a. 191; 1999 a. 9; 2001 a. 61; 2005 a. 443 ss. 12, 184, 241; Stats. 2005 s. 767.80; 2007 a. 97; 2009 a. 321; 2015 a. 82 s. 12; 2017 a. 334; 2019 a. 95.

767.80 Cross-reference Cross-reference: See also ch. DCF 151, Wis. adm. code.

767.80 Annotation A paternity proceeding may not be maintained posthumously. Caldwell v. Kaquatosh, 84 Wis. 2d 545, 267 N.W.2d 870 (1978). See also N.L.B. v. G.B., 140 Wis. 2d 400, 411 N.W.2d 144 (Ct. App. 1987).

767.80 Annotation Under the facts of this case, the nonbiological father was not equitably estopped from denying paternity or child support. A.M.N. v. A.J.N., 141 Wis. 2d 99, 414 N.W.2d 68 (Ct. App. 1987).

767.80 Annotation A posthumous paternity action is allowable if it is brought by the putative father’s personal representative. Le Fevre v. Schrieber, 167 Wis. 2d 733, 482 N.W.2d 904 (1992).

767.80 Annotation A paternity action may not be used to challenge paternity previously decided in a divorce action. That paternity was not challenged in the divorce is irrelevant if it could have been litigated. Max T. v. Carol O., 174 Wis. 2d 352, 497 N.W.2d 740 (Ct. App. 1993).

767.80 Annotation The full faith and credit clause of the U.S. Constitution did not bar a petition to determine paternity when a paternity decree of another state would have been subject to collateral attack in that state. R.D.P. v. R.L.B., 176 Wis. 2d 224, 500 N.W.2d 351 (Ct. App. 1993).

767.80 Annotation Because a child has a right to bring an independent action for paternity under sub. (1) (a), if the child was not a party to an earlier paternity action, it would be a violation of the child’s due process rights to preclude the child from litigating the paternity issue. Mayonia M.M. v. Keith N., 202 Wis. 2d 460, 551 N.W.2d 31 (Ct. App. 1996), 95-2838.

767.80 Annotation An alleged father has a statutory right to a determination of paternity. A hearing to determine whether the child’s best interests would be served by a paternity proceeding is not authorized by statute. Thomas M.P. v. Kimberly J.L., 207 Wis. 2d 388, 558 N.W.2d 897 (Ct. App. 1996), 96-0697.

767.80 Annotation Section 893.88, limiting only an action for the establishment of paternity, does not preclude a motion for the purpose of determining paternity in a probate proceeding. DiBenedetto v. Jaskolski, 2003 WI App 70, 261 Wis. 2d 723, 661 N.W.2d 869, 01-2189.

767.80 Annotation Construing the discretionary authority of a personal representative under sub. (1) (e) in a way that allows preventing the definitive determination of heirs would undermine the principle that property of intestate deceased persons should descend to kindred of the blood and defeat a court’s responsibility under s. 863.23 that persons who are the heirs of the decedent shall be determined by the court. DiBenedetto v. Jaskolski, 2003 WI App 70, 261 Wis. 2d 723, 661 N.W.2d 869, 01-2189.

767.80 Annotation In order for a putative biological father to have the necessary foundation for a constitutionally protected liberty interest in his putative paternity, he must have taken affirmative steps to assume his parental responsibilities for the child. Randy A.J. v. Norma I.J., 2004 WI 41, 270 Wis. 2d 384, 677 N.W.2d 630, 02-0469.

767.80 Annotation The competing interests of finality and fairness coalesce when considering s. 806.07 (1) (h) and principles of res judicata. Res judicata and collateral estoppel are founded on principles of fundamental fairness and should not deprive a party of the opportunity to have a full and fair determination of an issue. When the record demonstrated that an adjudicated father never had an opportunity for a full and fair determination of the question of paternity, res judicata should not have barred relief. Shanee Y. v. Ronnie J., 2004 WI App 58, 271 Wis. 2d 242, 677 N.W.2d 684, 03-1227.

767.80 Annotation Sub. (1) does not permit a man alleging he is the father to bring a paternity action for the sole purpose of establishing paternity of a stillborn so that he may bring a wrongful death action. The proper vehicle for determining parentage is a motion by the father under s. 885.23 for a determination of parentage within the pending wrongful death action. Shannon E.T. v. Alicia M.V.M., 2007 WI 29, 299 Wis. 2d 601, 728 N.W.2d 636, 05-0077.

767.80 Annotation Sub. (1) utilizes mandatory language requiring the state to initiate a paternity action when, as provided in sub. (6m), no father’s name was listed on the birth certificate. Thus, according to the clear language of this statute, the state was obligated to commence a paternity action. A presumption of paternity under s. 891.41 does not alleviate the state of its obligations under sub. (1). State v. Robin M.W., 2008 WI App 60, 310 Wis. 2d 786, 750 N.W.2d 957, 07-1181.

767.80 Annotation The standard of review for best-interest determinations in paternity proceedings requires that the appellate court accept the circuit court’s factual findings unless clearly erroneous but determine the child’s best interest de novo. Douglas L. v. Arika B., 2015 WI App 80, 365 Wis. 2d 257, 872 N.W.2d 357, 14-2656.

767.803 767.803 Determination of marital children. If the father and mother of a nonmarital child enter into a lawful marriage or a marriage which appears and they believe is lawful, except where the parental rights of the mother were terminated before either of these circumstances, the child becomes a marital child, is entitled to a change in birth record under s. 69.15 (3) (b), and shall enjoy all of the rights and privileges of a marital child as if he or she had been born during the marriage of the parents. This section applies to all cases before, on, or after its effective date, but no estate already vested shall be divested by this section and ss. 765.05 to 765.24 and 852.05. The children of all marriages declared void under the law are nevertheless marital children.

767.803 History History: 1979 c. 32 ss. 48, 92 (2); Stats. 1979 s. 765.25; 1979 c. 352; Stats. 1979 s. 767.60; 1981 c. 314 s. 146; 1983 a. 447; 1985 a. 315; 2005 a. 443 s. 229; Stats. 2005 s. 767.803; 2017 a. 334.

767.804 767.804 Genetic test results.

767.804(1) (1) Conclusive determination of paternity.

767.804(1)(a) (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:

767.804(1)(a)1. 1. Both the child’s mother and the male are over the age of 18 years.

767.804(1)(a)2. 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.

767.804(1)(a)3. 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.

767.804(1)(a)4. 4. No other male is presumed to be the father under s. 891.405 or 891.41 (1).

767.804(1)(b) (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:

767.804(1)(b)1. 1. The test results.

767.804(1)(b)2. 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.

767.804(1)(b)3. 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.

767.804(1)(b)4. 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.

767.804(1)(c) (c)

767.804(1)(c)1. 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.

767.804(1)(c)2. 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.

767.804(1)(d) (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.

767.804(2) (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.

767.804(3) (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:

767.804(3)(a) (a) Orders for the legal custody of and periods of physical placement with the child, determined in accordance with s. 767.41.

767.804(3)(b) (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.

767.804(3)(c) (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).

767.804(3)(d) (d)

767.804(3)(d)1. 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.