Section 767.80. Determination of paternity.

 

(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 or 891.41 (1) :

(a) The child.

(b) The child's natural mother.

(c) Unless s. 767.805 (1) applies, a male presumed to be the child's father under s. 891.405 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) .

(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. 767.805 , 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.

(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 certificate of a child who is a resident of the county if paternity has not been 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) .

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 ; 2015 a. 82 s. 12 . Cross-reference: See also ch. DCF 151 , Wis. adm. code. A paternity proceeding may not be maintained posthumously. Estate of Blumreich, 84 Wis. 2d 545 , 267 N.W.2d 870 (1978). See also Paternity of N.L.B. 140 Wis. 2d 400 , 411 N.W.2d 144 (Ct. App. 1987). Under the facts of the case, the nonbiological father was not equitably estopped from denying paternity or child support. Marriage of A. J. N. & J. M. N. 141 Wis. 2d 99 , 414 N.W.2d 68 (Ct. App. 1987). A posthumous paternity action is allowable if it is brought by the putative father's personal representative. Le Fevre v. Schreiber, 167 Wis. 2d 733 , 482 N.W.2d 904 (1992). A paternity action may not be used to challenge paternity previously decided in a divorce action. That paternity was not challenged in the divorce is irrelevant if it could have been litigated. Paternity of Nathan T. 174 Wis. 2d 352 , 497 N.W.2d 740 (Ct. App. 1993). The full faith and credit clause of the U.S. Constitution did not bar a petition to determine paternity when a paternity decree of another state would have been subject to collateral attack in that state. Paternity of R.L.L. 176 Wis. 2d 224 , N.W.2d (Ct. App. 1993). Because a child has a right to bring an independent action for paternity under sub. (1) (a), if the child was not a party to an earlier paternity action, it would be a violation of the child's due process rights to preclude the child from litigating the paternity issue. Mayonia M.M. v. Kieth N. 202 Wis. 2d 460 , 551 N.W.2d 34 (Ct. App. 1996), 95-2838 . An alleged father has a statutory right to a determination of paternity. A hearing to determine whether the child's best interests would be served by a paternity proceeding is not authorized by statute. Thomas M.P. v. Kimberly J.L. 207 Wis. 2d 388 , 558 N.W.2d 897 (Ct. App. 1996), 96-0697 . Section 893.88, limiting only an action for the establishment of paternity, does not preclude a motion for the purpose of determining paternity in a probate proceeding. DiBenedetto v. Jaskolski, 2003 WI App 70 , 261 Wis. 2d 723 , 661 N.W.2d 869 , 01-2189 . Construing the discretionary authority of a personal representative under sub. (1) (e) in a way that allows preventing the definitive determination of heirs would undermine the principle that property of intestate deceased persons should descend to kindred of the blood and defeat a court's responsibility under s. 863.23 that persons who are the heirs of the decedent shall be determined by the court. DiBenedetto v. Jaskolski, 2003 WI App 70 , 261 Wis. 2d 723 , 661 N.W.2d 869 , 01-2189 . In order for a putative biological father to have the necessary foundation for a constitutionally protected liberty interest in his putative paternity, he must have taken affirmative steps to assume his parental responsibilities for the child. Randy A. J. v. Norma I. J. 2004 WI 41 , 270 Wis. 2d 384 , 677 N.W.2d 630 , 02-0469 . The competing interests of finality and fairness coalesce when considering sub. (1) (h) and principles of res judicata. Res judicata and collateral estoppel are founded on principles of fundamental fairness and should not deprive a party of the opportunity to have a full and fair determination of an issue. When the record demonstrated that an adjudicated father never had an opportunity for a full and fair determination of the question of paternity, res judicata should not have barred relief. Shanee Y. v. Ronnie J. 2004 WI App 58 , 271 Wis. 2d 242 , 677 N.W.2d 684 , 03-1228 . Sub. (1) does not permit a man alleging he is the father to bring a paternity action for the sole purpose of establishing paternity of a stillborn so that he may bring a wrongful death action. The proper vehicle for determining parentage is a motion by the father under s. 885.23 for a determination of parentage within the pending wrongful death action. Shannon E. T. v. Alicia M. V.M. 2007 WI 29 , 299 Wis. 2d 601 , 728 N.W.2d 636 , 05-0077 . Sub. (1) utilizes mandatory language requiring the state to initiate a paternity action when, as provided in sub. (6m), no father's name was listed on the birth certificate. Thus, according to the clear language of this statute, the state was obligated to commence a paternity action. A presumption of paternity under s. 891.41 does not alleviate the state of its obligations under sub. (1). State v. Robin M. W. 2008 WI App 60 , 310 Wis. 2d 786 , 750 N.W.2d 957 , 07-1181 . The standard of review for best-interest determinations in paternity proceedings requires that the appellate court accept the circuit court's factual findings unless clearly erroneous but determine the child's best interest de novo. Douglas L. v. Arika B. 2015 WI App 80 , 365 Wis. 2d 257 , 872 N.W.2d 357 , 14-2656 .