Wisconsin 2019 Senate Bill 158 (SB158) and its companion State Assembly Bill 166 was passed by the assembly on Jan. 21, 2020, and is on its way to Gov. Tony Evers to be signed into law.
SB158 creates a new presumption of paternity in Wisconsin using genetic testing to conclusively determine paternity through an administrative procedure. It is expected to be signed into law on Feb. 5, 2020.
Prior to passage of this bill, the paternity of a non-marital child could be determined through litigation and Court adjudication, or by the child’s biological mother and a male signing a voluntary acknowledgment of paternity and filing it with the State Registrar.
Under this recently passed legislation, a third option is available to conclusively determine paternity, through the use of genetic testing and a streamlined administrative process.
Procedures and Notification Requirements
Under this new procedure, the paternity determination begins with a subpoena issued by a county child support agency requiring the child, the child’s mother, and a putative father to submit to genetic testing.
When the results of the test do not exclude the male as the father and show a statistical probability of parentage at 99% or higher, and if both parents are at least 18 years old and there is no presumption of paternity regarding another male through marriage or a voluntary acknowledgment of paternity, then the child support agency is required to send notice to the parties confirming the test results, notifying them that an action may be commenced for court orders relating to child support, custody, and physical placement.
The notice must provide both parties with an opportunity to send a written objection to the test results to the child support agency. If either party objects, then the child support agency must begin a paternity adjudication action in court. If neither party timely submits an objection, then the child support agency files a report of the test results showing a conclusive determination of paternity with the state registrar.
It is important to note that this law does not affect the marital presumption of paternity, nor the presumption when a child’s mother and putative father sign a voluntary acknowledgment of paternity and record the same with the state registrar. Either of those presumptions would negate the path found in this new legislation from moving forward.
Genetic Testing Requirements
The bill also modifies requirements related to genetic testing in paternity adjudications.
Under the law prior to 2019 SB158, the court may require, and upon the request of a party 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, submit to genetic tests.
Under the new statute, a 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:
First, where an action will be dismissed or a default judgment will be entered because of the failure of a party to appear, then no genetic tests are required.
Second, the court is not required to order any of the following persons to submit to genetic tests:
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any person who is required by the child support agency to submit to genetic testing and who has already done so;
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the respondent if he or she is deceased and genetic material is not available without undue hardship; and
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a male respondent who fails to appear, if genetic tests already conducted with respect to a minor child show that another male is not excluded as the father, and that the statistical probability of that other male being the father is 99% or higher.
Broadened: Not in Best Interest of Child
Finally, the current law broadens the ability for a court to determine that it is not in the best interest of a child for a judicial determination of paternity to be made.
Prior to 2019 SB158, the law allowed a court to refuse to order genetic tests if they haven’t already been performed, and to dismiss the paternity action if the court determines that upon 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.1
The new 2019 SB158 allows a court to determine that a judicial determination of whether a male is the father of a child is not in the best interest of the child, and to dismiss the action with respect to that male, whether or not genetic tests have been performed or what the results of those genetic tests were.
Purpose and Supporters
The impetus for this bill is to allow a streamlined administrative process to establish paternity, in order to allow fathers to be involved as soon as possible in a child’s life, with reduced costs to the parties, and in a manner that relieves burdens on state courts under the previous avenues for determining paternity.
This legislation is supported by the Wisconsin Child Support Enforcement Association, the Wisconsin Counties Association and the State Bar of Wisconsin Family Law Section.
Many paternity situations involve unique facts and circumstances. Should you have any questions, please consult with a Wisconsin licensed attorney that specializes in family law and paternity cases.
This article was originally published on the State Bar of Wisconsin’s Family Law Section Blog. Visit the State Bar sections or the Family Law Section web pages to learn more about the benefits of section membership.
Endnote
1 See Randy A.J. v. Norma I.J., 270 Wis. 2d 384, 677 N.W.2d 630 (2004), wherein the Wisconsin Supreme Court found that “a court may not dismiss the paternity action if genetic tests have already been performed, even if the court finds that a judicial determination of paternity is not in the child’s best interest.”