Chapter 767

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.

767.863 Annotation In re Paternity of C.A.S. and C.D.S.: The New Status of Putative Fathers’ Rights in Wisconsin. Pabst. 1992 WLR 1669.

767.865 767.865 Deceased respondent.

767.865(1) (1) Who may appear.

767.865(1)(a) (a) The personal representative or, if there is no personal representative, a guardian ad litem appointed in accordance with par. (b) may appear for a deceased respondent whenever an appearance by the respondent is required. The summons and petition shall be served on the deceased respondent’s personal representative or guardian ad litem, as the case may be, under s. 767.813 (4).

767.865(1)(b) (b) If the court determines that it is appropriate, the court may appoint a guardian ad litem for the deceased respondent for purposes of par. (a). Section 767.407 (3) and (5) applies to the guardian ad litem. The guardian ad litem shall represent the interests of the deceased respondent. The guardian ad litem shall be compensated at a rate that the court determines is reasonable. The court shall order the compensation to be paid from the deceased respondent’s estate. If the moneys in the estate are not sufficient to pay all or part of the compensation, the court may direct that the county of venue pay the compensation. If the court orders a county to pay the compensation of the guardian ad litem, the amount ordered may not exceed the compensation paid to private attorneys under s. 977.08 (4m) (b).

767.865(2) (2) Genetic tests. If genetic material is available, without undue hardship, from a deceased respondent or a relative of the deceased respondent in an action for paternity, genetic tests shall be administered in accordance with s. 767.84. There is a rebuttable presumption that exhumation of the deceased respondent’s body to obtain the genetic material for testing is an undue hardship under this subsection.

767.865 History History: 1993 a. 481; 2005 a. 443 ss. 199, 200, 255 to 257; Stats. 2005 s. 767.865; 2013 a. 170.

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

767.87 767.87 Testimony and evidence relating to paternity.

767.87(1) (1) Generally. Evidence relating to paternity, whether given at the trial or the pretrial hearing, may include, but is not limited to:

767.87(1)(a) (a) Evidence of sexual intercourse between the mother and alleged father at any possible time of conception or evidence of a relationship between the mother and alleged father at any time.

767.87(1)(b) (b) An expert’s opinion concerning the statistical probability of the alleged father’s paternity based upon the duration of the mother’s pregnancy.

767.87(1)(c) (c) Genetic test results under s. 49.225, 767.84, or 885.23.

767.87(1)(cm) (cm) Genetic test results under s. 48.299 (6) (e) or 938.299 (6) (e).

767.87(1)(d) (d) The statistical probability of the alleged father’s paternity based upon the genetic tests.

767.87(1)(e) (e) Medical, scientific or genetic evidence relating to the alleged father’s paternity of the child based on tests performed by experts.

767.87(1)(f) (f) All other evidence relevant to the issue of paternity of the child, except as provided in subs. (2), (2m) and (3).

767.87(1m) (1m) Birth record required. If the child was born in this state, the petitioner shall present a certified copy of the child’s birth record or a printed copy of the record from the birth database of the state registrar to the court, so that the court is aware of whether a name has been inserted on the birth record as the father of the child, at the earliest possible of the following:

767.87(1m)(a) (a) The initial appearance.

767.87(1m)(b) (b) The pretrial hearing.

767.87(1m)(c) (c) The trial.

767.87(1m)(d) (d) Prior to the entry of the judgment under s. 767.89.

767.87(2) (2) Admissibility of sexual relations by mother. Testimony relating to sexual relations or possible sexual relations of the mother any time other than the possible time of conception of the child is inadmissible in evidence, unless offered by the mother.

767.87(2m) (2m) Admissibility of certain medical and genetic information. Medical and genetic information filed with the department or the court under s. 48.425 (1) (am) or (2) is not admissible to prove the paternity of the child.

767.87(3) (3) Evidence of identified male not under jurisdiction. Except as provided in s. 767.84 (4), in an action against an alleged father, evidence offered by him with respect to an identified male who is not subject to the jurisdiction of the court concerning that male’s sexual intercourse with the mother at or about the presumptive time of conception of the child is admissible in evidence only after the alleged father has undergone genetic tests and made the results available to the court.

767.87(4) (4) Immunity.

767.87(4)(a) (a) No person may be prosecuted or subjected to any penalty or forfeiture for or on account of any testimony or evidence given relating to the paternity of the child in any paternity proceeding, except for perjury committed in giving the testimony.

767.87(4)(b) (b) The immunity provided under par. (a) is subject to the restrictions under s. 972.085.

767.87(5) (5) Refusal to testify or produce evidence. Except as provided in sub. (6), upon refusal of any witness, including a party, to testify under oath or produce evidence, the court may order the witness to testify under oath and produce evidence concerning all relevant facts. The refusal of a witness, including a witness who has immunity under sub. (4), to obey an order to testify or produce evidence is a contempt of the court.

767.87(6) (6) When mother not compelled to testify.

767.87(6)(a) (a) Whenever the state brings the action to determine paternity pursuant to an assignment under s. 48.57 (3m) (b) 2. or (3n) (b) 2., 48.645 (3), 49.19 (4) (h) 1., or 49.45 (19), or receipt of benefits under s. 49.148, 49.155, 49.157, or 49.159, the natural mother of the child may not be compelled to testify about the paternity of the child if it has been determined that the mother has good cause for refusing to cooperate in establishing paternity as provided in 42 USC 602 (a) (26) (B) and the federal regulations promulgated pursuant to this statute, as of July 1, 1981, and pursuant to any rules promulgated by the department which define good cause in accordance with the federal regulations, as authorized by 42 USC 602 (a) (26) (B) in effect on July 1, 1981.

767.87(6)(b) (b) Nothing in par. (a) prevents the state from bringing an action to determine paternity pursuant to an assignment under s. 48.57 (3m) (b) 2. or (3n) (b) 2., 49.19 (4) (h) 1. or 49.45 (19), or receipt of benefits under s. 49.148, 49.155, 49.157 or 49.159, where evidence other than the testimony of the mother may establish the paternity of the child.

767.87(7) (7) Certain testimony of physician not privileged. Testimony of a physician concerning the medical circumstances of the pregnancy and the condition and characteristics of the child upon birth is not privileged.

767.87(8) (8) Burden of proof. The party bringing an action for the purpose of determining paternity or for the purpose of declaring the nonexistence of paternity presumed under s. 891.405, 891.407, or 891.41 (1) shall have the burden of proving the issues involved by clear and satisfactory preponderance of the evidence.

767.87(9) (9) Artificial insemination; natural father. Where a child is conceived by artificial insemination, the husband of the mother of the child at the time of the conception of the child is the natural father of the child, as provided in s. 891.40.

767.87(10) (10) Record of mother’s testimony admissible. A record of the testimony of the child’s mother relating to the child’s paternity, made as provided under s. 48.299 (8) or 938.299 (8), is admissible in evidence on the issue of paternity.