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Section 767.80 – Determination of paternity

May 14, 2021 | Family Law, Wisconsin

(1) WHO MAY BRING ACTION OR FILE MOTION. The following persons may bring an action or file a motion, including an action or motion for declaratory judgment, for the purpose of determining the paternity of a child, or for the purpose of rebutting the presumption of paternity under s. 891.405 , 891.407, or 891.41(1) :

(a) The child.
(b) The child’s natural mother.
(c) Unless s. 767.804(1) or 767.805(1) applies, a male presumed to be the child’s father under s. 891.405 , 891.407, or 891.41(1) .
(d) A male alleged or alleging himself to be the father of the child.
(e) The personal representative of a person specified under pars. (a) to (d) if that person has died.
(f) The legal or physical custodian of the child.
(g) This state whenever the circumstances specified in s. 767.205(2) (a) apply, including the delegates of the state as specified in sub. (6).
(h) This state as provided under sub. (6m).
(hm) The state as provided under s. 767.804(1) (d).
(i) A guardian ad litem appointed for the child under s. 48.235 , 767.407(1) (c) , or 938.235 .
(j) A parent of a person listed under par. (b), (c) or (d), if the parent is liable or is potentially liable for maintenance of a child of a dependent person under s. 49.90(1) (a) 2
(k) In conjunction with the filing of a petition for visitation with respect to the child under s. 767.43(3) , a parent of a person who has filed a declaration of paternal interest under s. 48.025 with respect to the child or a parent of a person who, before April 1, 1998, signed and filed a statement acknowledging paternity under s. 69.15(3) (b) 3 with respect to the child.
(1m) VENUE. An action under this section may be brought in the county in which the child or the alleged father resides or is found or, if the father is deceased, in which proceedings for probate of his estate have been or could be commenced.
(2) CERTAIN AGREEMENTS NOT A BAR TO ACTION. Regardless of its terms, an agreement made after July 1, 1981, other than an agreement approved by the court between an alleged or presumed father and the mother or child, does not bar an action under this section. Whenever the court approves an agreement in which one of the parties agrees not to commence an action under this section, the court shall first determine whether or not the agreement is in the best interest of the child. The court shall not approve any provision waiving the right to bring an action under this section if this provision is contrary to the best interests of the child.
(3) STAY IF ACTION BEFORE BIRTH. If an action under this section is brought before the birth of the child, all proceedings shall be stayed until after the birth, except that service of process, service and filing of pleadings, the first appearance and the taking of depositions to preserve testimony may be done before the birth of the child.
(4) CHILD AS PARTY. The child may be a party to any action under this section.
(5) PETITION.

(a) In this subsection, “any alleged father” includes any male who has engaged in sexual intercourse with the child’s mother during a possible time of conception of the child.
(b) An action under this section may be joined with any other action for child support and is governed by the procedures specified in s. 767.205 relating to child support, except that the title of the action shall be “In re the paternity of A.B.” The petition shall state the name and date of birth of the child if born or that the mother is pregnant if the child is unborn, the name of any alleged father, whether or not an action by any of the parties to determine the paternity of the child or rebut the presumption of paternity to the child has at any time been commenced, or is pending before any court, in this state or elsewhere. If a paternity judgment has been rendered, or if a paternity action has been dismissed, the petition shall state the court that rendered the judgment or dismissed the action, and the date and the place the judgment was granted if known. The petition shall also give notice of a party’s right to request a genetic test under s. 49.225 or 767.84 .
(c) If a matter is referred under s. 48.299(6) (a) or 938.299(6) (a) to an attorney designated under sub. (6) (a), that attorney shall also include in the petition notification to the court that the matter was referred under s. 48.299(6) (a) or 938.299(6) (a) .
(5m) APPLICABLE PROCEDURE; EXCEPTIONS. Except as provided in ss. 767.804, 767.805 , 767.863(3) , 767.85 , 767.893(2) and (2m) , and 769.401 , unless a male is presumed the child’s father under s. 891.41(1) , is adjudicated the child’s father either under s. 767.89 or by final order or judgment of a court of competent jurisdiction in another state, is conclusively determined to be the child’s father from genetic test results under s. 767.804, or has acknowledged himself to be the child’s father under s. 767.805(1) or a substantially similar law of another state, no order or temporary order may be entered for child support, legal custody, or physical placement until the male is adjudicated the father using the procedure set forth in this subchapter, except s. 767.804 or 767.805 . Except as provided in ss. 767.804, 767.805 , 767.85 , and 769.401 , the exclusive procedure for establishment of child support obligations, legal custody, or physical placement rights for a male who is not presumed the child’s father under s. 891.41(1) , adjudicated the father, conclusively determined to be the child’s father from genetic test results under s. 767.804, or acknowledged under s. 767.805(1) or a substantially similar law of another state to be the father is by an action under this subchapter, except s. 767.804 or 767.805 , or under s. 769.402 . No person may waive the use of this procedure. If a presumption under s. 891.41(1) exists, a party denying paternity has the burden of rebutting the presumption.
(6) WHICH ATTORNEY REPRESENTS STATE.

(a) The attorney responsible for support enforcement under s. 59.53(6) (a) shall provide the representation for the state as specified under s. 767.205(2) (a) in cases brought under this section.
(b) The attorney under s. 59.53(6) (a) is the only county attorney who may provide representation when the state delegates its authority under sub. (1) (g).
(c) The attorney under s. 59.53(6) (a) or any state attorney acting under par. (b) may not represent the state as specified under s. 767.205(2) (a) in an action under this section and at the same time act as guardian ad litem for the child or the alleged child of the party.
(6m) WHEN ACTION MUST BE COMMENCED. The attorney designated under sub. (6) (a) shall commence an action under this section on behalf of the state within 6 months after receiving notification under s. 69.03(15) that no father is named on the birth record of a child who is a resident of the county if paternity has not been conclusively determined from genetic test results under s. 767.804, acknowledged under s. 767.805(1) or a substantially similar law of another state, or adjudicated, except in situations under s. 69.14(1) (g) and (h) and as provided by the department by rule.
(6r) RESPONSIBILITIES OF ATTORNEY UPON REFERRAL.

(a) The attorney designated under sub. (6) (a) who receives a referral under s. 48.299(6) (a) or 938.299(6) (a) shall do all of the following:

1. Give priority to matters referred under s. 48.299(6) (a) or 938.299(6) (a) , including priority in determining whether an action should be brought under this section and, if the determination is that such an action should be brought, priority in bringing the action and in establishing the existence or nonexistence of paternity.
2. As soon as possible, but no later than 30 days after the date on which the referral is received, notify the court that referred the matter of one of the following:

a. The date on which an action has been brought under this section or the approximate date on which such an action will be brought.
b. That a determination has been made that an action should not be brought under this section or, if such a determination has not been made, the approximate date on which a determination will be made as to whether such an action should be brought.
c. That the male designated in s. 48.299(6) (a) or 938.299(6) (a) has previously been excluded as the father of the child.
3. If an action is brought under this section, notify the court that referred the matter as soon as possible of a judgment or order determining the existence or nonexistence of paternity.
(b) The attorney designated under sub. (6) (a) who receives a referral under s. 48.299(7) or 938.299(7) may bring an action under this section on behalf of the state and may give priority to the referral and notify the referring court in the same manner as is required under par. (a) when a matter is referred under s. 48.299(6) (a) or 938.299(6) (a) .
(7) CLERK TO PROVIDE DOCUMENT. The clerk of court shall provide without charge to each person bringing an action under this section, except to the state under sub. (1) (g) or (6m), a document setting forth the percentage standard established by the department under s. 49.22(9) and listing the factors that a court may consider under s. 767.511(1m) .

Wis. Stat. ยง 767.80

Amended by Acts 2019 ch, 95,s 37, eff. 8/1/2020.
Amended by Acts 2019 ch, 95,s 36, eff. 8/1/2020.
Amended by Acts 2019 ch, 95,s 35, eff. 8/1/2020.
Amended by Acts 2019 ch, 95,s 34, eff. 8/1/2020.
Amended by Acts 2019 ch, 95,s 33, eff. 8/1/2020.
Amended by Acts 2018 ch, 334,s 129, eff. 4/18/2018.
1979 c. 352; 1981 c. 20 s. 2202 (20) (m); 1983 a. 447; 1985 a. 29; 1987 a. 27, 355, 399, 413; 1989 a. 31, 212; 1993 a. 326, 481; 1995 a. 27 s. 9126 (19); 1995 a. 68, 100, 201, 275, 404; 1997 a. 191; 1999 a. 9; 2001 a. 61; 2005 a. 443 ss. 12, 184, 241; Stats. 2005 s. 767.80; 2007 a. 97; 2009 a. 321.

Sub. (5m) is amended by 2009 Wis. Act 321 effective the date stated in the notice published in the Wisconsin Administrative Register under s. 769.904 to read:

(5m) Applicable procedure; exceptions. Except as provided in ss. 767.805, 767.863(3), 767.85, 767.893(2) and (2m), and 769.401, unless a male is presumed the child’s father under s. 891.41(1), is adjudicated the child’s father either under s. 767.89 or by final order or judgment of a court of competent jurisdiction in another state, or has acknowledged himself to be the child’s father under s. 767.805(1) or a substantially similar law of another state, no order or temporary order may be entered for child support, legal custody, or physical placement until the male is adjudicated the father using the procedure set forth in this subchapter, except s. 767.805. Except as provided in ss. 767.805, 767.85, and 769.401, the exclusive procedure for establishment of child support obligations, legal custody, or physical placement rights for a male who is not presumed the child’s father under s. 891.41(1), adjudicated the father, or acknowledged under s. 767.805(1) or a substantially similar law of another state to be the father is by an action under this subchapter, except s. 767.805, or under s. 769.402. No person may waive the use of this procedure. If a presumption under s. 891.41(1) exists, a party denying paternity has the burden of rebutting the presumption.