LRB-0235/1
PJK:jld:jf
2011 - 2012 LEGISLATURE
March 8, 2011 - Introduced by Representatives Kestell, LeMahieu, Spanbauer and
Strachota, cosponsored by Senators Olsen and
Taylor, by request of
Wisconsin Child Support Enforcement Association. Referred to Committee on
Children and Families.
AB42,2,2
1An Act to renumber and amend 49.141 (1) (i), 767.84 (1) (a) and 767.855;
to
2amend 48.02 (13), 48.27 (5), 48.396 (2) (dm), 48.42 (4) (b) 2., 48.837 (4) (e), 48.91
3(2), 49.225 (2) (a), 49.855 (3), 49.855 (4m) (b), 69.15 (3) (a) (intro.), 69.15 (3) (a)
43., 565.30 (5m) (a), 767.407 (1) (c) (intro.), 767.41 (1) (b), 767.41 (1m) (intro.),
5767.44 (1), 767.511 (1) (intro.), 767.511 (5), 767.513 (2), 767.55 (1), 767.55 (2)
6(am) (intro.), 767.55 (3) (a) 1., 767.55 (3) (d), 767.55 (4) (b) (intro.), 767.59 (2s),
7767.73 (1) (a), 767.75 (1) (b), 767.77 (1), 767.78 (1), 767.80 (1) (intro.), 767.80 (1)
8(c), 767.80 (5m), 767.80 (5m), 767.80 (6m), 767.82 (2), 767.82 (2m), 767.87 (8),
9802.12 (3) (d) 1., 802.12 (3) (d) 3., 808.075 (4) (d) 9., 808.075 (4) (d) 10., 852.05
10(2), 938.02 (13), 938.27 (5) and 938.396 (2g) (g); and
to create 49.141 (1) (i) 3.,
1149.141 (1) (j) 6., 767.80 (1) (hm), 767.804, 767.84 (1) (a) 1., 767.84 (1) (a) 2.,
12767.84 (1) (a) 3., 767.855 (1), 767.855 (2), 769.201 (7m) and 891.407 of the
13statutes;
relating to: presumption and conclusive determination of paternity
1on basis of genetic test results and orders that may be granted on the basis of
2genetic test results.
Analysis by the Legislative Reference Bureau
Under current law, a man may be adjudicated to be a child's father in a
paternity action. In addition, a man and a child's mother may sign and file with the
state registrar a form called a statement acknowledging paternity. Both cases result
in a conclusive determination that the man is the child's father, and the state
registrar may change the child's birth certificate to show the man as the child's father
and a court may enter orders for child support, legal custody, and physical placement
rights with respect to the man. Current law also contains presumptions of paternity.
There is a presumption (marriage presumption) that a man is the father of a child
if he and the child's mother were married when the child was conceived or born or
if he and child's mother married after the child was born but had a relationship
during the time within which the child was conceived and no other man has been
adjudicated to be the father or is presumed to be the father because he was married
to the child's mother when the child was conceived or born. There is also a
presumption (statement acknowledging paternity presumption) that a man is a
child's father if he and the child's mother signed and filed a statement acknowledging
paternity with the state registrar and no other man is presumed to be the child's
father under the marriage presumption.
This bill creates another way for a man to be conclusively determined to be a
child's father, with the same effect as a paternity judgment. Under the bill, a man
is conclusively determined to be a child's father if all of the following are satisfied:
1) genetic tests are performed with respect to the child, the child's mother, and the
man and the test results show that the man is not excluded as the father and the
statistical probability that he is the father is 99 percent or higher; 2) both the mother
and the man are at least 18 years old; 3) there is no marriage or statement
acknowledging paternity presumption; and 4) the genetic tests were performed in
response to a subpoena issued by a county child support agency (child support
agency) requiring the parties to submit to the tests. If all of those requirements are
satisfied, the child support agency must send notice to the parties advising of the test
results, that an action may be commenced for orders related to child support, legal
custody, and physical placement, and that the man may submit to the child support
agency a written objection to the test results. If the man submits an objection, the
child support agency must commence a paternity action on behalf of the state and
the test results are admissible in the action. If the man does not submit an objection
by the time specified in the notice, the child support agency must file with the state
registrar a report of the test results, showing a conclusive determination of paternity.
On the basis of the report, the state registrar must insert the name of the father on
the child's original birth certificate if the father's name was omitted.
Under the bill, if genetic test results conclusively determine a man to be a child's
father, an action may be brought for child support, legal custody, and physical
placement. The court may also require the man to pay or contribute to the reasonable
expenses of the mother's pregnancy, require either the man or mother to pay or
contribute to the other party's attorney fees, and change the child's name upon the
request of one or both of the parties. In addition, the bill creates a presumption that
a man is a child's father if all of the requirements under the bill are satisfied for
conclusively determining a man to be a child's father on the basis of genetic test
results and no other man is presumed to be the child's father under the marriage or
statement acknowledging paternity presumption.
The bill also makes other modifications related to genetic testing and paternity
adjudications. Under current law, in a paternity action the court may require, and
upon must require, the child, the child's mother, and any male for whom there is
probable cause to believe that he had sexual relations with the mother during the
possible time of the child's conception to submit to genetic tests. Under the bill, the
court in a paternity action must require the child, the child's mother, and any male
for whom there is probable cause to believe that he had sexual relations with the
mother during the possible time of the child's conception to submit to genetic tests
with the following exceptions:
1. Genetic tests are not required if the action will be dismissed or a default
judgment will be entered because of the failure of a party to appear.
2. The court is not required to require any of the following persons to submit
to genetic tests:
a. A person who was required by a child support agency to submit to a genetic
test and who has done so.
b. The respondent in the action if he or she is deceased and genetic material
is not available without undue hardship.
c. A male respondent who fails to appear if genetic test results with respect to
another male show that the other male is not excluded as the father and that the
statistical probability that he is the father is 99 percent or higher.
Current law includes an exception to the requirement to order genetic tests in
a paternity action. If the court determines, upon the motion of a party or guardian
ad litem, that a judicial determination of whether a male is the father of the child is
not in the best interest of the child, the court may, with respect to the male, refuse
to order genetic tests, if they haven't already been taken, and dismiss the action. The
Wisconsin Supreme Court, in Randy A.J. v. Norma I.J., 2004 WI 41, 270 Wis. 2d 384,
677 N.W. 2d 630, determined that the statute does not apply if genetic tests have
already been performed. The bill removes the requirement that genetic tests must
not have been performed and provides that, if the court determines that a judicial
determination of whether a male is the father of the child is not in the best interest
of the child, the court may not only refuse to order genetic tests but may also dismiss
the action, regardless of whether genetic tests have been performed or what the
results were of any genetic tests that have been performed.
For further information see the state and local fiscal estimate, which will be
printed as an appendix to this bill.
The people of the state of Wisconsin, represented in senate and assembly, do
enact as follows:
AB42, s. 1
1Section
1. 48.02 (13) of the statutes is amended to read:
AB42,4,192
48.02
(13) "Parent" means a biological parent, a husband who has consented
3to the artificial insemination of his wife under s. 891.40, or a parent by adoption. If
4the child is a nonmarital child who is not adopted or whose parents do not
5subsequently intermarry under s. 767.803, "parent" includes a
person conclusively
6determined from genetic test results to be the father under s. 767.804 or a person
7acknowledged under s. 767.805 or a substantially similar law of another state or
8adjudicated to be the biological father. "Parent" does not include any person whose
9parental rights have been terminated. For purposes of the application of s. 48.028
10and the federal Indian Child Welfare Act,
25 USC 1901 to
1963, "parent" means a
11biological parent, an Indian husband who has consented to the artificial
12insemination of his wife under s. 891.40, or an Indian person who has lawfully
13adopted an Indian child, including an adoption under tribal law or custom, and
14includes, in the case of a nonmarital child who is not adopted or whose parents do
15not subsequently intermarry under s. 767.803,
a person conclusively determined
16from genetic test results to be the father under s. 767.804, a person acknowledged
17under s. 767.805, a substantially similar law of another state, or tribal law or custom
18to be the biological father
, or a person adjudicated to be the biological father, but does
19not include any person whose parental rights have been terminated.
AB42, s. 2
20Section
2. 48.27 (5) of the statutes is amended to read:
AB42,5,7
148.27
(5) Subject to sub. (3) (b), the court shall make every reasonable effort
2to identify and notify any person who has filed a declaration of paternal interest
3under s. 48.025,
any person conclusively determined from genetic test results to be
4the father under s. 767.804 (1), any person who has acknowledged paternity of the
5child under s. 767.805 (1), and any person who has been adjudged to be the father
6of the child in a judicial proceeding unless the person's parental rights have been
7terminated.
AB42, s. 3
8Section
3. 48.396 (2) (dm) of the statutes is amended to read:
AB42,5,199
48.396
(2) (dm) Upon request of a court having jurisdiction over actions
10affecting the family, an attorney responsible for support enforcement under s. 59.53
11(6) (a) or a party to a paternity proceeding under subch. IX of ch. 767, the party's
12attorney or the guardian ad litem for the child who is the subject of that proceeding
13to review or be provided with information from the records of the court assigned to
14exercise jurisdiction under this chapter and ch. 938 relating to the paternity of a child
15for the purpose of determining the paternity of the child or for the purpose of
16rebutting the presumption of paternity under s. 891.405
, 891.407, or 891.41 (1), the
17court assigned to exercise jurisdiction under this chapter and ch. 938 shall open for
18inspection by the requester its records relating to the paternity of the child or disclose
19to the requester those records.
AB42, s. 4
20Section
4. 48.42 (4) (b) 2. of the statutes is amended to read:
AB42,6,221
48.42
(4) (b) 2. If the child is a nonmarital child who is not adopted or whose
22parents do not subsequently intermarry under s. 767.803 and paternity has not been
23conclusively determined from genetic test results under s. 767.804, acknowledged
24under s. 767.805 or a substantially similar law of another state
, or adjudicated, the
1court may, as provided in s. 48.422 (6) (b), order publication of a notice under subd.
24.
AB42, s. 5
3Section
5. 48.837 (4) (e) of the statutes is amended to read:
AB42,6,144
48.837
(4) (e) Shall, before hearing the petitions under subs. (2) and (3),
5ascertain whether the paternity of a nonmarital child who is not adopted or whose
6parents do not subsequently intermarry under s. 767.803 has been
conclusively
7determined from genetic test results under s. 767.804, acknowledged under s.
8767.805 or a substantially similar law of another state
, or adjudicated in this state
9or another jurisdiction. If the child's paternity has not been
conclusively determined
10from genetic test results, acknowledged
, or adjudicated, the court shall attempt to
11ascertain the paternity of the child and shall determine the rights of any person who
12may be the father of the child as provided under s. 48.423. The court may not proceed
13with the hearing on the petitions under this section unless the parental rights of the
14nonpetitioning parent, whether known or unknown, have been terminated.
AB42, s. 6
15Section
6. 48.91 (2) of the statutes is amended to read:
AB42,7,216
48.91
(2) In an adoption proceeding for a nonmarital child who is not adopted
17or whose parents do not subsequently intermarry under s. 767.803, the court shall
18establish whether the child's paternity has been
conclusively determined from
19genetic test results under s. 767.804, acknowledged under s. 767.805 or a
20substantially similar law of another state
, or adjudicated in this state or in another
21jurisdiction. If the child's paternity has not been
conclusively determined from
22genetic test results, acknowledged
, or adjudicated, the court shall attempt to
23ascertain the paternity of the child and shall determine the rights of any person who
24may be the father of the child as provided under s. 48.423. The court may not proceed
1with the hearing on the petition for adoption unless the parental rights of the
2nonpetitioning parent, whether known or unknown, have been terminated.
AB42, s. 7
3Section
7. 49.141 (1) (i) of the statutes is renumbered 49.141(1) (i) (intro.) and
4amended to read:
AB42,7,75
49.141
(1) (i) (intro.) "Nonmarital coparent" means, with respect to an
6individual and a dependent child, a parent who is not married to the individual,
who 7resides with the dependent child
, and
who is
either an one of the following:
AB42,7,8
81. An adjudicated parent
or a.
AB42,7,10
92. A parent who has signed and filed with the state registrar under s. 69.15 (3)
10(b) 3. a statement acknowledging paternity.
AB42, s. 8
11Section
8. 49.141 (1) (i) 3. of the statutes is created to read:
AB42,7,1312
49.141
(1) (i) 3. A parent who has been conclusively determined from genetic
13test results to be the father under s. 767.804.
AB42, s. 9
14Section
9. 49.141 (1) (j) 6. of the statutes is created to read:
AB42,7,1615
49.141
(1) (j) 6. A man who has been conclusively determined from genetic test
16results to be the father under s. 767.804.
AB42, s. 10
17Section
10. 49.225 (2) (a) of the statutes is amended to read:
AB42,8,218
49.225
(2) (a) A county child support agency under s. 59.53 (5) may require, by
19subpoena in substantially the form authorized under s. 885.02 or by other means, a
20child, the child's mother
, and a male alleged, or alleging himself, to be the child's
21father to submit to genetic tests if there is probable cause to believe that the male
22had sexual intercourse with the child's mother during a possible time of the child's
23conception. Probable cause of sexual intercourse during a possible time of conception
24may be established by a sufficient affidavit of the child's mother
or, the male alleged,
1or alleging himself, to be the child's father
, or the county child support agency under
2s. 59.53 (5) based on information provided by the child's mother.
AB42, s. 11
3Section
11. 49.855 (3) of the statutes is amended to read:
AB42,9,24
49.855
(3) Receipt of a certification by the department of revenue shall
5constitute a lien, equal to the amount certified, on any state tax refunds or credits
6owed to the obligor. The lien shall be foreclosed by the department of revenue as a
7setoff under s. 71.93 (3), (6), and (7). When the department of revenue determines
8that the obligor is otherwise entitled to a state tax refund or credit, it shall notify the
9obligor that the state intends to reduce any state tax refund or credit due the obligor
10by the amount the obligor is delinquent under the support, maintenance, or receiving
11and disbursing fee order or obligation, by the outstanding amount for past support,
12medical expenses, or birth expenses under the court order, or by the amount due
13under s. 46.10 (4), 49.345 (4), or 301.12 (4). The notice shall provide that within 20
14days the obligor may request a hearing before the circuit court rendering the order
15under which the obligation arose. Within 10 days after receiving a request for
16hearing under this subsection, the court shall set the matter for hearing. Pending
17further order by the court or a circuit court commissioner, the department of children
18and families or its designee, whichever is appropriate, is prohibited from disbursing
19the obligor's state tax refund or credit. A circuit court commissioner may conduct the
20hearing. The sole issues at that hearing shall be whether the obligor owes the
21amount certified and, if not and it is a support or maintenance order, whether the
22money withheld from a tax refund or credit shall be paid to the obligor or held for
23future support or maintenance, except that the obligor's ability to pay shall also be
24an issue at the hearing if the obligation relates to an order under s.
767.804 (3) (d)
251., 767.805 (4) (d) 1.
, or 767.89 (3) (e) 1. and the order specifies that the court found
1that the obligor's income was at or below the poverty line established under
42 USC
29902 (2).
AB42, s. 12
3Section
12. 49.855 (4m) (b) of the statutes is amended to read:
AB42,9,254
49.855
(4m) (b) The department of revenue may provide a certification that it
5receives under sub. (1), (2m), (2p), or (2r) to the department of administration. Upon
6receipt of the certification, the department of administration shall determine
7whether the obligor is a vendor or is receiving any other payments from this state,
8except for wages, retirement benefits, or assistance under s. 45.352, 1971 stats., s.
945.40 (1m), this chapter, or ch. 46, 108, or 301. If the department of administration
10determines that the obligor is a vendor or is receiving payments from this state,
11except for wages, retirement benefits, or assistance under s. 45.352, 1971 stats., s.
1245.40 (1m), this chapter, or ch. 46, 108, or 301, it shall begin to withhold the amount
13certified from those payments and shall notify the obligor that the state intends to
14reduce any payments due the obligor by the amount the obligor is delinquent under
15the support, maintenance, or receiving and disbursing fee order or obligation, by the
16outstanding amount for past support, medical expenses, or birth expenses under the
17court order, or by the amount due under s. 46.10 (4), 49.345 (4), or 301.12 (4). The
18notice shall provide that within 20 days after receipt of the notice the obligor may
19request a hearing before the circuit court rendering the order under which the
20obligation arose. An obligor may, within 20 days after receiving notice, request a
21hearing under this paragraph. Within 10 days after receiving a request for hearing
22under this paragraph, the court shall set the matter for hearing. A circuit court
23commissioner may conduct the hearing. Pending further order by the court or circuit
24court commissioner, the department of children and families or its designee,
25whichever is appropriate, may not disburse the payments withheld from the obligor.
1The sole issues at the hearing are whether the obligor owes the amount certified and,
2if not and it is a support or maintenance order, whether the money withheld shall be
3paid to the obligor or held for future support or maintenance, except that the obligor's
4ability to pay is also an issue at the hearing if the obligation relates to an order under
5s.
767.804 (3) (d) 1., 767.805 (4) (d) 1.
, or 767.89 (3) (e) 1. and the order specifies that
6the court found that the obligor's income was at or below the poverty line established
7under
42 USC 9902 (2).
AB42, s. 13
8Section
13. 69.15 (3) (a) (intro.) of the statutes is amended to read:
AB42,10,139
69.15
(3) (a) (intro.) If the state registrar receives an order under sub. (1)
which 10that establishes paternity or determines that the man whose name appears on a
11registrant's birth certificate is not the father of the registrant,
or a report under s.
12767.804 (1) (c) that shows a conclusive determination of paternity, the state registrar
13shall do the following, as appropriate:
AB42, s. 14
14Section
14. 69.15 (3) (a) 3. of the statutes is amended to read:
AB42,10,1715
69.15
(3) (a) 3. Except as provided under subd. 4., insert the name of the
16adjudicated
or conclusively determined father on the original birth certificate if the
17name of the father was omitted on the original certificate.
