Chapter 767

767.82(3) (3) Time of conception; evidence. Evidence as to the time of conception may be offered as provided in s. 891.395.

767.82(4) (4) Discovery. Discovery shall be conducted as provided in ch. 804, except that no discovery may be obtained later than 30 days before the trial. No discovery may solicit information relating to the sexual relations of the mother occurring at any time other than the probable time of conception.

767.82(5) (5) Statute of limitations. The statute of limitations for commencing actions concerning paternity is as provided in s. 893.88.

767.82(6) (6) Arrest. The respondent in a paternity action may be arrested as provided in s. 818.02 (6).

767.82(7) (7) Appointment of trustee or guardian. The court may appoint a trustee or guardian to receive and manage money paid for the support of a minor child.

767.82(7m) (7m) When action has priority. The court shall give priority to an action brought under s. 767.80 if the petition under s. 767.80 (5) indicates that the matter was referred under s. 48.299 (6) (a) or 938.299 (6) (a) by a court assigned to exercise jurisdiction under chs. 48 and 938.

767.82(8) (8) Procedures applicable to other matters in action. In all other matters, paternity proceedings shall be governed by the procedures applicable to other actions affecting the family.

767.82 History History: 1979 c. 352; 1981 c. 391; 1983 a. 447; 1989 a. 212; 1993 a. 481; 1995 a. 275; 1997 a. 191; 1999 a. 9; 2005 a. 443 ss. 208, 247; Stats. 2005 s. 767.82; 2019 a. 95.

767.82 Note NOTE: 2005 Wis. Act 443 contains explanatory notes.

767.82 Annotation A trust under sub. (7) is not restricted to cases in which the custodial parent is a spendthrift. Mary L.O. v. Tommy R.B., 189 Wis. 2d 440, 525 N.W.2d 793 (Ct. App. 1994).

767.82 Annotation Affirmed in part and reversed in part. 199 Wis. 2d 186, 544 N.W.2d 417 (1996), 93-1929.

767.83 767.83 Right to counsel.

767.83(1) (1) Generally. At the pretrial hearing, at the trial, and in any other proceedings in any paternity action, any party may be represented by counsel. If the male respondent is indigent and the state is the petitioner under s. 767.80 (1) (g), the petitioner is represented by a government attorney as provided in s. 767.80 (6), or the action is commenced on behalf of the child by an attorney appointed under s. 767.407 (1) (c), counsel shall be appointed for the respondent as provided in ch. 977, subject to the limitations under sub. (2m), unless the respondent knowingly and voluntarily waives the appointment of counsel.

767.83(2) (2) Extent of appointed attorney’s representation. An attorney appointed under sub. (1) who is appearing on behalf of a party in a paternity action shall represent that party, subject to the limitations under sub. (2m), in all issues and proceedings relating to the paternity determination. The appointed attorney may not represent the party in any proceeding relating to child support, legal custody, periods of physical placement or related issues.

767.83(2m) (2m) When appointed representation provided. Representation by an attorney appointed under sub. (1) shall be provided only after the results of any genetic tests have been completed and only if all of the results fail to show that the alleged father is excluded and fail to give rise to the rebuttable presumption under s. 767.84 (1m) that the alleged father is the father of the child.

767.83(3) (3) Appearance by state’s attorney not affected. This section does not prevent an attorney responsible for support enforcement under s. 59.53 (6) (a) or any other attorney employed under s. 49.22 or 59.53 (5) from appearing in any paternity action as provided under s. 767.80 (6).

767.83 History History: 1979 c. 352; 1983 a. 27; 1987 a. 355; 1989 a. 31; 1993 a. 16, 481; 1995 a. 27, 100, 201, 404; 1997 a. 35, 191; 2005 a. 443 ss. 221, 248; Stats. 2005 s. 767.83.

767.83 Annotation A paternity respondent does not have a constitutional right to effective assistance of counsel. A paternity action is not a criminal prosecution. R.M.J. v. State, 158 Wis. 2d 712, 463 N.W.2d 403 (Ct. App. 1990).

767.84 767.84 Genetic tests in paternity actions.

767.84(1) (1) When test ordered; report.

767.84(1)(a) (a) Except as provided in ss. 767.855 and 767.863, and except in actions to which s. 767.893 applies, the court shall require the child, mother, any male for whom there is probable cause to believe that he had sexual intercourse with the mother during a possible time of the child’s conception, or any male witness who testifies or will testify about his sexual relations with the mother at a possible time of conception to submit to genetic tests. Probable cause of sexual intercourse during a possible time of conception may be established by a sufficient petition or affidavit of the child’s mother or an alleged father, filed with the court, or after an examination under oath of a party or witness, when the court determines that an examination is necessary. The court is not required to order a genetic test under this paragraph with respect to any of the following:

767.84(1)(a)1. 1. A person who has undergone a genetic test under s. 49.225, unless a party requests additional tests under sub. (2).

767.84(1)(a)2. 2. A deceased respondent if genetic material is not available without undue hardship as provided in s. 767.865 (2).

767.84(1)(a)3. 3.

767.84(1)(a)3.a. a. Except as provided in subd. 3. b., a male respondent who fails to appear, if genetic test results with respect to another man show that the other man is not excluded as the father and that the statistical probability of the other man’s parentage is 99.0 percent or higher creating a presumption of the other man’s paternity.

767.84(1)(a)3.b. b. Subdivision 3. a. does not apply if the presumption of the other man’s paternity is rebutted.

767.84(1)(b) (b) The genetic tests shall be performed by an expert qualified as an examiner of genetic markers present on the cells of the specific body material to be used for the tests, appointed by the court. A report completed and certified by the court-appointed expert stating genetic test results and the statistical probability of the alleged father’s paternity based upon the genetic tests is admissible as evidence without expert testimony and may be entered into the record at the trial or pretrial hearing if all of the following apply:

767.84(1)(b)1. 1. At least 10 days before the trial or pretrial hearing, the party offering the report files it with the court and notifies all other parties of that filing.

767.84(1)(b)2. 2. At least 10 days before the trial or pretrial hearing, the department or county child support agency under s. 59.53 (5) notifies the alleged father of the results of the genetic tests and that he may object to the test results by submitting an objection in writing to the court no later than the day before the hearing.

767.84(1)(b)3. 3. The alleged father, after receiving the notice under subd. 2., does not object to the test results in the manner provided in the notice under subd. 2.

767.84(1m) (1m) Rebuttable presumption. If genetic tests ordered under this section or s. 49.225 show that the alleged father is not excluded and that the statistical probability of the alleged father’s parentage is 99.0 percent or higher, the alleged father shall be rebuttably presumed to be the child’s parent.

767.84(2) (2) Independent tests. The court, upon request by a party, shall order that independent tests be performed by other experts qualified as examiners of genetic markers present on the cells of the specific body material to be used for the tests. Additional tests performed by other experts of the same qualifications may be ordered by the court at the request of any party.

767.84(3) (3) Number and qualifications of experts. In all cases, the court shall determine the number and qualifications of the experts.

767.84(4) (4) Tests excluding paternity; refusal to submit to test. Genetic test results excluding an alleged father as the father of the child are conclusive evidence of nonpaternity and the court shall dismiss any paternity action with respect to that alleged father. Genetic test results excluding any male witness from possible paternity are conclusive evidence of nonpaternity of the male witness. Testimony relating to sexual intercourse or possible sexual intercourse of the mother with any person excluded as a possible father, as a result of a genetic test, is inadmissible as evidence. Refusal of a party to submit to a genetic test shall be disclosed to the fact finder. Refusal to submit to a genetic test ordered by the court is a contempt of the court for failure to produce evidence under s. 767.87 (5). If the action was brought by the child’s mother but she refuses to submit herself or the child to genetic tests, the action shall be dismissed.

767.84(5) (5) Fees and costs. The fees and costs for genetic tests performed upon any person listed under sub. (1) shall be paid for by the county except as follows:

767.84(5)(a) (a) Except as provided in par. (b), at the close of the proceeding the court may order either or both parties to reimburse the county if the court finds that they have sufficient resources to pay the costs of the genetic tests.

767.84(5)(b) (b) If 2 or more identical series of genetic tests are performed upon the same person, regardless of whether the tests were ordered under this section or s. 49.225 or 767.863 (2), the court shall require the person requesting the 2nd or subsequent series of tests to pay for the series in advance, unless the court finds that the person is indigent.

767.84(6) (6) Calling certain witnesses; notice. Any party calling a male witness for the purpose of testifying that he had sexual intercourse with the mother at any possible time of conception shall provide all other parties with the name and address of the witness 20 days before the trial or pretrial hearing. If a male witness is produced at the hearing for the purpose stated in this subsection but the party calling the witness failed to provide the 20-day notice, the court may adjourn the proceeding for the purpose of taking a genetic test of the witness prior to hearing the testimony of the witness if the court finds that the party calling the witness acted in good faith.

767.84(7) (7) Notice of right to tests. The court shall ensure that all parties are aware of their right to request genetic tests under this section.

767.84 History History: 1979 c. 352; 1983 a. 447; 1987 a. 27; 1993 a. 481; 1995 a. 100; 1997 a. 191; 2005 a. 443 ss. 210, 211c, 212c, 249, 251; Stats. 2005 s. 767.84; 2019 a. 95.

767.84 Annotation When initial blood tests excluded the alleged father and the state moved for additional tests under sub. (2), the trial court erred in denying the motion and dismissing the action under sub. (4). State v. M.T.D., 132 Wis. 2d 262, 392 N.W.2d 97 (Ct. App. 1986).

767.84 Annotation The chain of custody, or authentication, must be established prior to admission of evidence under sub. (1) (b). B.A.C. v. T.L.G., 135 Wis. 2d 280, 400 N.W.2d 48 (Ct. App. 1986).

767.84 Annotation When the respondent failed to introduce evidence regarding the test, the trial court properly barred the respondent from attacking the test during closing argument. T.A.T. v. R.E.B., 144 Wis. 2d 638, 425 N.W.2d 404 (1988).

767.84 Annotation DNA test results are admissible when the procedures meet the requirements for blood tests under sub. (1) (b). J.L.K. v. J.J., 151 Wis. 2d 566, 445 N.W.2d 673 (Ct. App. 1989).

767.84 Annotation If more than one set of blood test results are presented, the sub. (1m) presumption is inapplicable if the statistical probability of only one test reaches the 99 percent level. State ex rel. K.F.K. v. D.P.K., 160 Wis. 2d 429, 465 N.W.2d 833 (Ct. App. 1991).

767.84 Annotation When only one potential father named by the mother is not excluded by blood tests, sub. (4) does not prevent showing that the mother on several occasions did not name him as a person with whom she had sex during the conceptual period. State v. Mark A., 177 Wis. 2d 551, 503 N.W.2d 275 (Ct. App. 1993).

767.84 Annotation That sub. (1m) applies only to children born to a woman while she is married does not violate principles of equal protection. Thomas M.P. v. Kimberly J.L., 207 Wis. 2d 388, 558 N.W.2d 897 (Ct. App. 1996), 96-0697.

767.84 Annotation A mere denial of intercourse, when access during the conceptive period is established and no other potential fathers are identified, is sufficient to rebut the presumption under sub. (1m) for purposes of preventing entry of a summary judgment of paternity. State v. Michael J.W., 210 Wis. 2d 132, 565 N.W.2d 179 (Ct. App. 1997), 95-2917.

767.84 Annotation The term “statistical probability” in sub. (1m) means the probability determined by combining the results of all the different types of tests performed. State v. Michael J.W., 210 Wis. 2d 132, 565 N.W.2d 179 (Ct. App. 1997), 95-2917.

767.84 Annotation A genetic test showing another man to be the natural father rebuts the presumption under sub. (1m) and s. 891.41 that the spouse of the child’s mother is the father, but equitable estoppel may be employed to preclude rebutting the presumption. The issue is whether the actions and inactions of the parties advocating the rebuttal of the marital presumption were so unfair as to preclude them from overcoming the public’s interest in the marital presumption based on the results of genetic tests. Randy A.J. v. Norma I.J., 2004 WI 41, 270 Wis. 2d 384, 677 N.W.2d 630, 02-0469.

767.84 Annotation From here to paternity: Using blood analysis to determine parentage. Haas. WBB July 1988.

767.85 767.85 Temporary orders.

767.85(1) (1) When required. At any time during the pendency of an action to establish the paternity of a child, if genetic tests show that the alleged father is not excluded and that the statistical probability of the alleged father’s parentage is 99.0 percent or higher, on the motion of a party, the court shall make an appropriate temporary order for the payment of child support and may make a temporary order assigning responsibility for and directing the manner of payment of the child’s health care expenses.

767.85(2) (2) Considerations. Before making any temporary order under sub. (1), the court shall consider those factors that the court is required to consider when granting a final judgment on the same subject matter. If the court makes a temporary child support order that deviates from the amount of support that would be required by using the percentage standard established by the department under s. 49.22 (9), the court shall comply with the requirements of s. 767.511 (1n).

767.85 History History: 1997 a. 191; 1999 a. 9; 2005 a. 443 ss. 209, 252; Stats. 2005 s. 767.85.

767.853 767.853 Paternity hearings and records; confidentiality. Any hearing, discovery proceeding or trial relating to paternity determination shall be closed to any person other than those necessary to the action or proceeding. Any record of pending proceedings shall be placed in a closed file, except that:

767.853(1) (1) Pending proceeding. Access to the record of any pending proceeding involving the paternity of the same child shall be allowed to all of the following:

767.853(1)(a) (a) The child’s parents.

767.853(1)(b) (b) The parties to that proceeding and their attorneys or their authorized representatives.

767.853(1)(c) (c) If the child is the subject of a proceeding under ch. 48 or 938, all of the following:

767.853(1)(c)1. 1. The court assigned to exercise jurisdiction under chs. 48 and 938 in which the proceeding is pending.

767.853(1)(c)2. 2. The parties to the proceeding under ch. 48 or 938 and their attorneys.

767.853(1)(c)3. 3. The person under s. 48.09 or 938.09 who represents the interests of the public in the proceeding under ch. 48 or 938.

767.853(1)(c)4. 4. A guardian ad litem for the child and a guardian ad litem for the child’s parent.

767.853(1)(c)5. 5. Any governmental or social agency involved in the proceeding under ch. 48 or 938.

767.853(2) (2) Information access to department and child support agencies. The clerk of circuit court shall provide access to the record of any pending paternity proceeding to the department or any county child support agency under s. 59.53 (5) for purposes related to administering the child and spousal support and establishment of paternity and medical support liability program under ss. 49.22 and 59.53 (5), regardless of whether the department or county child support agency is a party to the proceeding.

767.853(3) (3) Past proceedings. Subject to s. 767.13, a record of a past proceeding is open to public inspection if all of the following apply:

767.853(3)(a) (a) Paternity was established in the proceeding.

767.853(3)(b) (b) The record is filed after May 1, 2000.

767.853(3)(c) (c) The record relates to a post-adjudication issue.

767.853 History History: 1979 c. 352; 1983 a. 447; 1985 a. 29; 1995 a. 27 s. 9126 (19); 1995 a. 201, 275, 404; 1997 a. 80, 252; 1999 a. 9; 2005 a. 443 ss. 222, 253; Stats. 2005 s. 767.853; 2007 a. 81.

767.855 767.855 Dismissal if adjudication not in child’s best interest. Except as provided in s. 767.863 (1m), at any time in an action to establish the paternity of a child, upon the motion of a party or guardian ad litem, the court or supplemental court commissioner under s. 757.675 (2) (g) may, if the court or supplemental court commissioner determines that a judicial determination of whether a male is the father of the child is not in the best interest of the child, dismiss the action with respect to the male, regardless of whether genetic tests have been performed or what the results of the tests, if performed, were. Notwithstanding ss. 767.813 (5g) (form) 4., 767.84 (1) and (2), 767.863 (2), 767.865 (2), and 767.88 (4), if genetic tests have not yet been performed with respect to the male, the court or supplemental court commissioner is not required to order those genetic tests.

767.855 History History: 1997 a. 191; 2001 a. 61; 2005 a. 443 s. 202; Stats. 2005 s. 767.855; 2019 a. 95.

767.855 Annotation Parental status that rises to the level of a constitutionally protected liberty interest does not rest solely on biological factors, but rather, is dependent upon an actual relationship with the child in which the parent assumes responsibility for the child’s emotional and financial needs. Stuart S. v. Heidi R., 2015 WI App 19, 360 Wis. 2d 388, 860 N.W.2d 538, 14-1487.

767.86 767.86 Time of first appearance. The first appearance under s. 767.863 may not be held until 30 days after service or receipt of the summons and petition unless the parties agree to an earlier date.

767.86 History History: 1987 a. 27; 1991 a. 313; 2005 a. 443 s. 193.

767.86 Note NOTE: 2005 Wis. Act 443 contains explanatory notes.

767.863 767.863 First appearance.

767.863(1) (1) Notice to parties. If the respondent is present at a hearing prior to the determination of paternity, the court shall, at least one time at one such hearing, inform the parties of the items in s. 767.813 (5g).

767.863(1m) (1m) Paternity allegation by male other than husband; when determination not in best interest of child. In an action to establish the paternity of a child who was born to a woman while she was married, if a male other than the woman’s husband alleges that he, not the husband, is the child’s father, a party may allege that a judicial determination that a male other than the husband is the father is not in the best interest of the child. If the court or a supplemental court commissioner under s. 757.675 (2) (g) determines that a judicial determination of whether a male other than the husband is the father is not in the best interest of the child, no genetic tests may be ordered and the action shall be dismissed.

767.863(2) (2) Order for tests. If at the first appearance it appears from a sufficient petition or affidavit of the child’s mother or an alleged father or from sworn testimony of the child’s mother or an alleged father that there is probable cause to believe that any of the males named has had sexual intercourse with the mother during a possible time of the child’s conception, the court may, or upon the request of any party shall, order any of the named persons to submit to genetic tests. The tests shall be conducted in accordance with s. 767.84. The court is not required to order a person who has undergone a genetic test under s. 49.225 to submit to another genetic test under this subsection unless a party requests additional tests under s. 767.84 (2).

767.863(3) (3) Orders if statement on file. At the first appearance, if a statement acknowledging paternity under s. 69.15 (3) (b) 1. or 3. that was signed and filed before April 1, 1998, is on file, the court may enter an order for child support, legal custody or physical placement and, if the respondent who filed the statement does not dispute his paternity, may enter a judgment of paternity.

767.863 History History: 1979 c. 352; 1983 a. 447 s. 34; Stats. 1983 s. 767.457; 1987 a. 27 ss. 2136t, 2137d, 2137e; Stats. 1987 s. 767.458; 1987 a. 403, 413; 1993 a. 16, 481; 1995 a. 100; 1997 a. 191; 2001 a. 61; 2005 a. 443 ss. 195 to 198, 254; Stats. 2005 s. 767.863.

767.863 Note NOTE: 2005 Wis. Act 443 contains explanatory notes.

767.863 Annotation Before dismissing a petition without considering the merits, sub. (1m) requires the trial court to conduct a hearing to determine the child’s best interests. J.F. v. R.B., 154 Wis. 2d 637, 454 N.W.2d 561 (Ct. App. 1990).

767.863 Annotation Sub. (1m) is constitutional. The court has an obligation to refuse to allow blood tests if the tests may result in a determination that the person alleging his paternity is the natural father and that determination would not be in the best interest of the children. W.W.W. v. M.C.S., 161 Wis. 2d 1015, 468 N.W.2d 719 (1991).

767.863 Annotation The plain language of sub. (1m) does not limit the court’s authority to dismiss paternity actions to cases in which no genetic tests have been performed. The circuit court in this case correctly disregarded the genetic testing upon which a nonspouse who asserted paternity relied because the testing was not completed pursuant to court order. The court properly ruled that a judicial determination that the nonspouse was the child’s father would not be in the child’s best interest. Stuart S. v. Heidi R., 2015 WI App 19, 360 Wis. 2d 388, 860 N.W.2d 538, 14-1487.

767.863 Annotation Parental status that rises to the level of a constitutionally protected liberty interest does not rest solely on biological factors, but rather, is dependent upon an actual relationship with the child in which the parent assumes responsibility for the child’s emotional and financial needs. Stuart S. v. Heidi R., 2015 WI App 19, 360 Wis. 2d 388, 860 N.W.2d 538, 14-1487.

767.863 Annotation Circuit courts have discretion to dismiss actions without prejudice under this section. Section 767.88 expressly contemplates that circuit courts possess discretion to dismiss a paternity action with or without prejudice prior to a trial on the merits. Consequently, s. 767.88 strongly suggests the legislature intended that courts have such discretion when dismissing actions under this section when the ultimate issue of paternity is similarly not reached. Douglas L. v. Arika B., 2015 WI App 80, 365 Wis. 2d 257, 872 N.W.2d 357, 14-2656.