Chapter 767

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.

767.804(3)(d)2. 2. If the order does not require periodic payments because the father has no present ability to pay or contribute to the expenses, the court may modify the judgment or order at a later date to require periodic payments if the father has the ability to pay at that time.

767.804(3)(e) (e) An order requiring either or both parties to pay or contribute to the costs of guardian ad litem fees, if any, and other costs.

767.804(3)(f) (f) An order requiring either party to pay or contribute to the attorney fees of the other party.

767.804(3m) (3m) Change of child’s name.

767.804(3m)(a) (a) Upon the request of both parents, the court shall include in the order under sub. (3) an order changing the name of the child to a name agreed upon by the parents.

767.804(3m)(b) (b) Except as provided in par. (a), the court may include an order changing the surname of the child to a surname that consists of the surnames of both parents separated by a hyphen or, if one or both parents have more than one surname, of one of the surnames of each parent separated by a hyphen, if all of the following apply:

767.804(3m)(b)1. 1. Only one parent requests that the child’s name be changed, or both parents request that the child’s name be changed but each parent requests a different name change.

767.804(3m)(b)2. 2. The court finds that such a name change is in the child’s best interest.

767.804(3m)(c) (c) Section 786.36 does not apply to a name change under this subsection.

767.804(4) (4) Liability for past support.

767.804(4)(a) (a) Subject to par. (b), liability for past support of the child shall be limited to support for the period after the day on which the petition, motion, or order to show cause requesting support is filed in the action for support under sub. (2), unless a party shows, to the satisfaction of the court, all of the following:

767.804(4)(a)1. 1. That he or she was induced to delay commencing the action by any of the following:

767.804(4)(a)1.a. a. Duress or threats.

767.804(4)(a)1.b. b. Actions, promises, or representations by the other party upon which the party relied.

767.804(4)(a)1.c. c. Actions taken by the other party to evade proceedings under sub. (2).

767.804(4)(a)2. 2. That, after the inducement ceased to operate, he or she did not unreasonably delay in commencing the action.

767.804(4)(b) (b) In no event may liability for past support of the child be imposed for any period before the birth of the child.

767.804 History History: 2019 a. 95; 2021 a. 127.

767.805 767.805 Voluntary acknowledgment of paternity.

767.805(1) (1) Conclusive determination of paternity. A statement acknowledging paternity that is on file with the state registrar under s. 69.15 (3) (b) 3. after the last day on which a person may timely rescind the statement, as specified in s. 69.15 (3m), is a conclusive determination, which shall be of the same effect as a judgment, of paternity.

767.805(1m) (1m) Minor parent may not sign. A minor may not sign a statement acknowledging paternity.

767.805(2) (2) Rescission of acknowledgment.

767.805(2)(a) (a) A statement acknowledging paternity that is filed with the state registrar under s. 69.15 (3) (b) 3. may be rescinded as provided in s. 69.15 (3m) by a person who signed the statement as a parent of the child who is the subject of the statement.

767.805(2)(b) (b) If a statement acknowledging paternity is timely rescinded as provided in s. 69.15 (3m), a court may not enter an order specified in sub. (4) with respect to the male who signed the statement as the father of the child unless the male is adjudicated the child’s father using the procedures set forth in this subchapter, except for this section.

767.805(3) (3) Actions when paternity acknowledged.

767.805(3)(a) (a) Unless the statement acknowledging paternity has been rescinded, an action affecting the family concerning custody, child support or physical placement rights may be brought with respect to persons who, with respect to a child, jointly signed and filed with the state registrar under s. 69.15 (3) (b) 3. as parents of the child a statement acknowledging paternity.

767.805(3)(b) (b) Except as provided in s. 767.407, in an action specified in par. (a) the court may appoint a guardian ad litem for the child.

767.805(4) (4) Orders when paternity acknowledged. In an action under sub. (3) (a), if the persons who signed and filed the statement acknowledging paternity as parents of the child had notice of the hearing, the court shall make an order that contains all of the following provisions:

767.805(4)(a) (a) Orders for the legal custody of and periods of physical placement with the child, determined in accordance with s. 767.41.

767.805(4)(am) (am) The information set forth in s. 767.41 (6) (h).

767.805(4)(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.

767.805(4)(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).

767.805(4)(d) (d)

767.805(4)(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.

767.805(4)(d)2. 2. If the order does not require periodic payments because the father has no present ability to pay or contribute to the expenses, the court may modify the judgment or order at a later date to require periodic payments if the father has the ability to pay at that time.

767.805(4)(e) (e) An order requiring either or both parties to pay or contribute to the costs of the guardian ad litem fees and other costs.

767.805(4)(f) (f) An order requiring either party to pay or contribute to the attorney fees of the other party.

767.805(4m) (4m) Liability for past support.

767.805(4m)(a) (a) Subject to par. (b), liability for past support of the child shall be limited to support for the period after the day on which the petition, motion or order to show cause requesting support is filed in the action for support under sub. (3) (a), unless a party shows, to the satisfaction of the court, all of the following:

767.805(4m)(a)1. 1. That he or she was induced to delay commencing the action by any of the following:

767.805(4m)(a)1.a. a. Duress or threats.

767.805(4m)(a)1.b. b. Actions, promises or representations by the other party upon which the party relied.

767.805(4m)(a)1.c. c. Actions taken by the other party to evade proceedings under sub. (3) (a).

767.805(4m)(a)2. 2. That, after the inducement ceased to operate, he or she did not unreasonably delay in commencing the action.

767.805(4m)(b) (b) In no event may liability for past support of the child be imposed for any period before the birth of the child.

767.805(5) (5) Voiding determination.

767.805(5)(a) (a) A determination of paternity that arises under this section may be voided at any time upon a motion or petition stating facts that show fraud, duress or a mistake of fact. Except for good cause shown, any orders entered under sub. (4) shall remain in effect during the pendency of a proceeding under this paragraph.

767.805(5)(b) (b) If a court in a proceeding under par. (a) determines that the male is not the father of the child, the court shall vacate any order entered under sub. (4) with respect to the male. The court or the county child support agency under s. 59.53 (5) shall notify the state registrar, in the manner provided in s. 69.15 (1) (b), to remove the male’s name as the father of the child from the child’s birth record. No paternity action may thereafter be brought against the male with respect to the child.

767.805(6) (6) Applicability.