Chapter 767

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.

767.87(11) (11) Related costs admissible. Bills for services or articles related to the pregnancy, childbirth or genetic testing may be admitted into evidence and are prima facie evidence of the costs incurred for such services or articles.

767.87 History History: 1979 c. 352; 1981 c. 20 s. 2202 (20) (m); 1981 c. 359 ss. 13, 17; 1983 a. 447; 1987 a. 413; 1989 a. 31, 122, 212; 1993 a. 395, 481; 1995 a. 27 s. 9126 (19); 1995 a. 77, 100, 275, 289, 404; 1997 a. 27, 105, 191, 252; 1999 a. 185; 2005 a. 443 ss. 207, 258; Stats. 2005 s. 767.87; 2007 a. 20; 2017 a. 334; 2019 a. 95.

767.87 Annotation It is not necessary for an alleged father to produce evidence of who the real father is in order to sustain a verdict of non-paternity. State v. Michael J.W., 210 Wis. 2d 132, 565 N.W.2d 179 (Ct. App. 1997), 95-2917.

767.88 767.88 Pretrial paternity proceedings.

767.88(1) (1) Procedure; evidence. A pretrial hearing shall be held before the court or a supplemental court commissioner under s. 757.675 (2) (g). A record or minutes of the proceeding shall be kept. At the pretrial hearing the parties may present and cross-examine witnesses, request genetic tests, and present other evidence relevant to the determination of paternity.

767.88(2) (2) Court evaluation and recommendation. On the basis of the information produced at the pretrial hearing, the court shall evaluate the probability of determining the existence or nonexistence of paternity in a trial and shall so advise the parties. On the basis of the evaluation, the court may make an appropriate recommendation for settlement to the parties. This recommendation may include any of the following:

767.88(2)(a) (a) That the action be dismissed with or without prejudice.

767.88(2)(b) (b) That the alleged father voluntarily acknowledge paternity of the child.

767.88(2)(c) (c) If the alleged father voluntarily acknowledges paternity of the child, that he agree to the duty of support, the legal custody of the child, periods of physical placement of the child and other matters as determined to be in the best interests of the child by the court.

767.88(3) (3) Acceptance of recommendation; judgment. If the parties accept a recommendation made in accordance with this section, judgment shall be entered accordingly.

767.88(4) (4) Recommendation refused and no tests taken. If a party or the guardian ad litem refuses to accept a recommendation made under this section and genetic tests have not yet been taken, the court shall require the appropriate parties to submit to genetic tests. After the genetic tests have been taken the court shall make an appropriate final recommendation.

767.88(5) (5) Final recommendation not accepted; trial. If the guardian ad litem or any party refuses to accept any final recommendation, the action shall be set for trial.

767.88(6) (6) Termination of informal hearing. The informal hearing may be terminated and the action set for trial if the court finds it unlikely that all parties would accept a recommendation in this section.

767.88 History History: 1979 c. 352; 1983 a. 447; 1987 a. 27; Sup. Ct. Order, 141 Wis. 2d xxxix (1987); 1987 a. 355; 1993 a. 481; 1995 a. 100; 2001 a. 61; 2005 a. 443 ss. 201, 259; Stats. 2005 s. 767.88.

767.88 Note Judicial Council Note, 1988: This section mandates pretrial hearings in paternity proceedings. Under sub. (6), the informal hearing may be terminated and set for trial if the judge or family court commissioner finds it unlikely that all parties would accept a recommendation under this section and similarly, under sub. (5), if the guardian ad litem or any party refuses to accept the final recommendation. This amends sub. (1), to emphasize that this is an informal hearing before a judge, not a court in session, or before a court commissioner and that, while the hearing may be on the record, minutes alone are sufficient. [Re Order effective Jan. 1, 1988]

767.88 Annotation The trial court may order a putative father to take a blood test only after determining at a pretrial hearing that paternity probably can be established at trial and that the establishment of paternity is in the best interests of the child. State ex rel. Scott v. Slocum, 109 Wis. 2d 397, 326 N.W.2d 118 (Ct. App. 1982).

767.88 Annotation Notwithstanding s. 804.12 (2) (a) 4., the trial court may find a party in civil contempt for refusing to submit to a blood test. J.P.L. v. J.H., 120 Wis. 2d 328, 354 N.W.2d 759 (Ct. App. 1984).

767.88 Annotation Nothing in this section authorizes ordering a name change in the best interests of the child in a paternity judgement. Sub. (2) (c) only authorizes a court to make settlement recommendations in pretrial proceedings if paternity is acknowledged. Although s. 69.15 (1) (a) provides for changing a name according to an order in a paternity action, it does not provide authority to order a name change in a paternity action without complying with the procedural requirements for a name change under s. 786.36. State v. Charles R.P., 223 Wis. 2d 768, 590 N.W.2d 21 (Ct. App. 1998), 97-2353.

767.883 767.883 Trial.

767.883(1) (1) Two parts. The trial shall be divided into 2 parts, the first part dealing with the determination of paternity and the 2nd part dealing with child support, legal custody, periods of physical placement, and related issues. The main issue at the first part shall be whether the alleged or presumed father is or is not the father of the mother’s child, but if the child was born to the mother while she was the lawful wife of a specified male the prior issue of whether the husband was not the father of the child shall be determined first, as provided under s. 891.39. The first part of the trial shall be by jury only if the defendant verbally requests a jury trial either at the initial appearance or pretrial hearing or requests a jury trial in writing prior to the pretrial hearing. The court may direct and, if requested by either party before the introduction of any testimony in the party’s behalf, shall direct the jury to find a special verdict as to any of the issues specified in this section, except that the court shall make all of the findings enumerated in s. 767.89 (2) to (4). If the mother is dead, becomes insane, cannot be found within the jurisdiction, or fails to commence or pursue the action, the proceeding does not abate if any of the persons under s. 767.80 (1) makes a motion to continue. The testimony of the mother taken at the pretrial hearing may in any such case be read in evidence if it is competent, relevant, and material. The issues of child support, custody and visitation, and related issues shall be determined by the court either immediately after the first part of the trial or at a later hearing before the court.

767.883(2) (2) Jury size; verdict. If a jury is requested under sub. (1), the jury shall consist of 6 persons. No verdict is valid or received unless agreed to by at least 5 of the jurors.

767.883 History History: 1979 c. 352 s. 10; Stats. 1979 s. 767.50; 1983 a. 27, 447; 1987 a. 27, 355, 403; 1993 a. 481; 2001 a. 38; 2005 a. 443 ss. 214m, 260; Stats. 2005 s. 767.883.

767.883 Annotation A preponderance of the evidence standard of proof in paternity actions meets due process requirements. Rivera v. Minnich, 483 U.S. 574, 107 S. Ct. 3001, 97 L. Ed. 2d 473 (1987).

767.89 767.89 Paternity judgment.

767.89(1) (1) Effect of judgment or order. A judgment or order of the court determining the existence or nonexistence of paternity is determinative for all purposes.

767.89(2) (2) Report to state registrar.

767.89(2)(a) (a) The clerk of court or county child support agency under s. 59.53 (5) shall file with the state registrar, within 30 days after the entry of a judgment or order determining paternity, 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 designated by the state registrar, along with the fee set forth in s. 69.22 (5), which the clerk of court or county child support agency shall collect.

767.89(2)(b) (b) If the clerk of court or county child support agency is unable to collect any of the following fees under par. (a), the department shall pay the fee and may not require the county or county child support agency to reimburse the department for the cost:

767.89(2)(b)1. 1. A fee for omitting the father’s name on a birth record under s. 69.15 (3) (a) 1.

767.89(2)(b)2. 2. A fee for changing the father’s name on a birth record under s. 69.15 (3) (a) 2.

767.89(2)(b)3. 3. A fee for inserting the father’s name on a birth record under s. 69.15 (3) (a) 3.

767.89(3) (3) Content of judgment or order. A judgment or order determining paternity shall contain all of the following provisions:

767.89(3)(a) (a) An adjudication of the paternity of the child.

767.89(3)(b) (b) Orders for the legal custody of and periods of physical placement with the child, determined in accordance with s. 767.41.

767.89(3)(bm) (bm) The information set forth in s. 767.41 (6) (h).

767.89(3)(c) (c) 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.

767.89(3)(d) (d) 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).

767.89(3)(e) (e)

767.89(3)(e)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.

767.89(3)(e)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.

767.89(3)(f) (f) An order requiring either or both parties to pay or contribute to the costs of the guardian ad litem fees, genetic tests as provided in s. 767.84 (5), and other costs.

767.89(3)(g) (g) An order requiring either party to pay or contribute to the attorney fees of the other party.

767.89(3m) (3m) Change of child’s name.

767.89(3m)(a) (a) Upon the request of both parents, the court shall include in the judgment or order determining paternity an order changing the name of the child to a name agreed upon by the parents.

767.89(3m)(b) (b) Except as provided in par. (a), the court may include in the judgment or order determining paternity 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:

767.89(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.

767.89(3m)(b)2. 2. The court finds that such a name change is in the child’s best interest.

767.89(3m)(c) (c) Section 786.36 does not apply to a name change under this subsection.

767.89(4) (4) Liability for past support.

767.89(4)(a) (a) Subject to par. (b), liability for past support of the child is limited to support for the period after the day on which the petition in the action under s. 767.80 is filed, unless a party shows, to the satisfaction of the court, all of the following:

767.89(4)(a)1. 1. That he or she was induced to delay commencing the action by any of the following:

767.89(4)(a)1.a. a. Duress or threats.