Chapter 767

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.

767.89(4)(a)1.b. b. Actions, promises or representations by the other party upon which the party relied.

767.89(4)(a)1.c. c. Actions taken by the other party to evade paternity proceedings.

767.89(4)(a)2. 2. That, after the inducement ceased to operate, he or she did not unreasonably delay in commencing the action.

767.89(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.

767.89(6) (6) Other applicable provisions. Sections 767.41, 767.43, 767.451, 767.481, 767.57, 767.58, 767.59, 767.71, 767.75, 767.76, 767.77, and 767.78, where applicable, apply to a judgment or order under this section.

767.89(7) (7) Preparation of final papers. The court may order the attorney for the prevailing party to prepare findings of fact, conclusions of law and a judgment for the approval of the court.

767.89 History History: 1979 c. 352; 1983 a. 27, 192, 447; 1985 a. 29; 1985 a. 315 s. 22; 1987 a. 27, 37, 355, 413; 1989 a. 212; 1991 a. 39; 1993 a. 481; 1995 a. 27 ss. 7115, 7116, 9126 (19); 1995 a. 100, 201, 279, 375, 404; 1997 a. 27, 35, 191; 1999 a. 9; 2001 a. 16; 2005 a. 304; 2005 a. 443 ss. 218, 261; Stats. 2005 s. 767.89; 2007 a. 20; 2017 a. 203, 334, 366; 2021 a. 127.

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

767.89 Annotation Determining a father’s support obligation by applying percentage standards is inappropriate when the children live in several households. Weidner v. W.G.N., 131 Wis. 2d 301, 388 N.W.2d 615 (1986).

767.89 Annotation Regardless of whether a 15 year old boy’s fathering of a child resulted from sexual assault as defined in criminal law, the trial court could find that intercourse and parenthood were voluntary for purposes of imposing child support. Whether nonconsent is a defense available to a putative father in a paternity action has not been determined. J.J.G. v. L.H., 149 Wis. 2d 349, 441 N.W.2d 273 (Ct. App. 1989).

767.89 Annotation There is no statutory authority for an order requiring the mother to repay lying-in expenses paid by medical assistance. State v. R.R.R., 166 Wis. 2d 306, 479 N.W.2d 237 (Ct. App. 1991).

767.89 Annotation An order for payment of expert witness fees under sub. (3) is not limited by s. 814.04 (2). Kathryn B. v. Sheldon S., 173 Wis. 2d 864, 496 N.W.2d 711 (Ct. App. 1993).

767.89 Annotation Summary judgment is inappropriate when the presumptive conception period under s. 891.395 does not apply and there is no evidence establishing the period or when there is an untested male whom a reasonable fact finder could conclude had intercourse with the mother during the possible conceptive period. State v. Randy J.G., 199 Wis. 2d 500, 544 N.W.2d 926 (Ct. App. 1996), 95-2411.

767.89 Annotation A father’s lack of knowledge of a child’s existence and resulting inability to visit and provide for the child may not be considered in deviating from the percentage standards for support. Support in a paternity action must be set exclusive of any marital property law principles. Brad Michael L. v. Lee D., 210 Wis. 2d 437, 564 N.W.2d 354 (Ct. App. 1997), 94-3050.

767.89 Annotation A court does not have authority to create a child support obligation directly to an adult child who has received a high school diploma at the time that person commences an action for support. Roberta Jo W. v. Leroy W., 218 Wis. 2d 225, 578 N.W.2d 185 (1998), 96-2753.

767.89 Annotation Nothing in this section authorizes ordering a name change in the best interests of the child in a paternity judgement. 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.

767.89 Annotation A paternity judgment determines between two parties who pays what expenses; it does not bind creditors who were not parties. Dean Medical Center, S.C. v. Conners, 2000 WI App 202, 238 Wis. 2d 636, 618 N.W.2d 194, 99-2091.

767.89 Annotation The court’s ability to order payment under sub. (3) (e) is contingent on the father’s ability to pay. When it is undisputed that the father has no ability to pay at the time of the hearing, the court has no authority to set his obligation to pay lying-in expenses. Rusk County Department of Health & Human Services v. Thorson, 2005 WI App 37, 278 Wis. 2d 638, 693 N.W.2d 318, 04-2267.

767.89 Annotation HSS 80: New Rules for Child Support Obligations. Hickey. Wis. Law. Apr. 1995.

767.89 Annotation Which Came First? The Serial Family Payer Formula. Stansbury. Wis. Law. Apr. 1995.

767.89 Annotation Wisconsin’s Custody, Placement, and Paternity Reform Legislation. Walther. Wis. Law. Apr. 2000.

767.89 Annotation Medicaid: New Birth Cost Recovery Rules for Unmarried Parents. Lavigne. Wis. Law. Mar. 2019.

767.893 767.893 Default and stipulated judgments.

767.893(1) (1) Judgment when petitioner fails to appear or is unable to proceed. If a petitioner, other than the state, fails to appear and plead on the date set for the pretrial hearing or the date set for the trial or if the state is the petitioner and is unable to proceed on the date set for the pretrial hearing or the date set for the trial, the court may enter a judgment for the respondent dismissing the action, on the motion of the respondent or upon its own motion.

767.893(1m) (1m) Judgment when mother fails to appear. Notwithstanding sub. (1), a court may enter an order adjudicating the alleged father, or male alleging that he is the father, to be the father of the child under s. 767.89 if the mother of the child fails to appear at the first appearance, scheduled genetic test, pretrial hearing, or trial if sufficient evidence exists to establish the male as the father of the child.

767.893(2) (2) Judgment when respondent fails to appear.

767.893(2)(a) (a) Except as provided in sub. (2m), if a respondent is the alleged father and fails to appear at the first appearance, scheduled court-ordered genetic test, pretrial hearing, or trial, the court shall enter an order adjudicating the respondent to be the father and appropriate orders for support, legal custody, and physical placement. The orders shall be either served on the respondent or mailed by regular, registered, or certified mail, to the last-known address of the respondent.

767.893(2)(b) (b) A default judgment may not be entered under par. (a) if there is more than one person alleged in the petition to be the father, unless any of the following applies:

767.893(2)(b)1. 1. Only one of those persons fails to appear and all of the other male respondents have been excluded as the father.

767.893(2)(b)2. 2. The alleged father who fails to appear has had genetic tests under s. 49.225 or 767.84 showing that the alleged father is not excluded and that the statistical probability of the alleged father’s parentage is 99.0 percent or higher.

767.893(2m) (2m) Judgment upon stipulation.

767.893(2m)(a) (a) At any time after service of the summons and petition, a respondent who is the alleged father may, with or without appearance in court and subject to the approval of the court, in writing acknowledge that he has read and understands the notice under s. 767.813 (5g) and stipulate that he is the father of the child and for child support payments, legal custody, and physical placement. The court may not approve a stipulation for child support unless it provides for payment of child support determined in a manner consistent with s. 767.511 or 767.89.

767.893(2m)(c) (c) If the court approves the stipulation, the court shall enter an order adjudicating the respondent to be the father as well as appropriate orders for support, legal custody and physical placement. The orders shall either be served on the respondent or mailed by regular, registered or certified mail to the last-known address of the respondent. The orders shall take effect upon entry if the respondent has so stipulated. If the respondent has not so stipulated, the orders shall take effect 30 days after service or 30 days after the date on which the orders were mailed unless, within that time, the respondent presents to the court evidence of good cause why the orders should not take effect.

767.893(3) (3) Motion to reopen. A default judgment, or a judgment upon stipulation unless each party appeared personally before the court at least one time during the proceeding, that is rendered under this section and that adjudicates a person to be the father of a child may be reopened:

767.893(3)(a) (a) At any time upon motion or petition for good cause shown.

767.893(3)(b) (b) Upon a motion under s. 806.07.

767.893(3)(c) (c) Within one year after the judgment upon motion or petition, except that a respondent may not reopen more than one default judgment or more than one such stipulated judgment on a particular case under this paragraph.

767.893(4) (4) Appeal. An appeal of a denial of the petition or motion to reopen shall be to the court of appeals.

767.893 History History: 1979 c. 352; 1983 a. 447; 1987 a. 27, 403, 413; 1989 a. 31, 56, 212; 1993 a. 481; 1995 a. 100; 1997 a. 191; 2001 a. 61; 2005 a. 443 ss. 203 to 205, 262; Stats. 2005 s. 767.893.

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

767.893 Annotation The respondent must appear personally under sub. (2) (a). An attorney’s appearance is insufficient. Kathryn B. v. Sheldon S., 173 Wis. 2d 864, 496 N.W.2d 711 (Ct. App. 1993).

767.895 767.895 Motion to reopen judgment based on statement acknowledging paternity. A judgment which adjudicates a person to be the father of a child and which was based upon a statement acknowledging paternity that was signed and filed before April 1, 1998, may, if no trial was conducted, be reopened under any of the following circumstances:

767.895(1) (1) At any time upon motion or petition for good cause shown.

767.895(2) (2) Upon a motion under s. 806.07.

767.895(3) (3) Within one year after entry of the judgment upon motion or petition.

767.895 History History: 1987 a. 413; 1997 a. 191; 2005 a. 443 s. 206; Stats. 2005 s. 767.895.77.00