Section 767.84. Genetic tests in paternity actions.

 

(1)   When test ordered; report.

(a) The court may, and upon request of a party shall, require the child, mother, any male for whom there is probable cause to believe that he had sexual intercourse with the mother during a possible time of the child's conception, or any male witness who testifies or will testify about his sexual relations with the mother at a possible time of conception to submit to genetic tests. Probable cause of sexual intercourse during a possible time of conception may be established by a sufficient petition or affidavit of the child's mother or an alleged father, filed with the court, or after an examination under oath of a party or witness, when the court determines that an examination is necessary. The court is not required to order a person who has undergone a genetic test under s. 49.225 to submit to another test under this paragraph unless a party requests additional tests under sub. (2) .

(b) The genetic tests shall be performed by an expert qualified as an examiner of genetic markers present on the cells of the specific body material to be used for the tests, appointed by the court. A report completed and certified by the court-appointed expert stating genetic test results and the statistical probability of the alleged father's paternity based upon the genetic tests is admissible as evidence without expert testimony and may be entered into the record at the trial or pretrial hearing if all of the following apply:

1. At least 10 days before the trial or pretrial hearing, the party offering the report files it with the court and notifies all other parties of that filing.

2. At least 10 days before the trial or pretrial hearing, the department or county child support agency under s. 59.53 (5) notifies the alleged father of the results of the genetic tests and that he may object to the test results by submitting an objection in writing to the court no later than the day before the hearing.

3. The alleged father, after receiving the notice under subd. 2. , does not object to the test results in the manner provided in the notice under subd. 2.

(1m)   Rebuttable presumption. If genetic tests ordered under this section or s. 49.225 show that the alleged father is not excluded and that the statistical probability of the alleged father's parentage is 99.0 percent or higher, the alleged father shall be rebuttably presumed to be the child's parent.

(2)   Independent tests. The court, upon request by a party, shall order that independent tests be performed by other experts qualified as examiners of genetic markers present on the cells of the specific body material to be used for the tests. Additional tests performed by other experts of the same qualifications may be ordered by the court at the request of any party.

(3)   Number and qualifications of experts. In all cases, the court shall determine the number and qualifications of the experts.

(4)   Tests excluding paternity; refusal to submit to test. Genetic test results excluding an alleged father as the father of the child are conclusive evidence of nonpaternity and the court shall dismiss any paternity action with respect to that alleged father. Genetic test results excluding any male witness from possible paternity are conclusive evidence of nonpaternity of the male witness. Testimony relating to sexual intercourse or possible sexual intercourse of the mother with any person excluded as a possible father, as a result of a genetic test, is inadmissible as evidence. Refusal of a party to submit to a genetic test shall be disclosed to the fact finder. Refusal to submit to a genetic test ordered by the court is a contempt of the court for failure to produce evidence under s. 767.87 (5) . If the action was brought by the child's mother but she refuses to submit herself or the child to genetic tests, the action shall be dismissed.

(5)   Fees and costs. The fees and costs for genetic tests performed upon any person listed under sub. (1) shall be paid for by the county except as follows:

(a) Except as provided in par. (b) , at the close of the proceeding the court may order either or both parties to reimburse the county if the court finds that they have sufficient resources to pay the costs of the genetic tests.

(b) If 2 or more identical series of genetic tests are performed upon the same person, regardless of whether the tests were ordered under this section or s. 49.225 or 767.863 (2) , the court shall require the person requesting the 2nd or subsequent series of tests to pay for the series in advance, unless the court finds that the person is indigent.

(6)   Calling certain witnesses; notice. Any party calling a male witness for the purpose of testifying that he had sexual intercourse with the mother at any possible time of conception shall provide all other parties with the name and address of the witness 20 days before the trial or pretrial hearing. If a male witness is produced at the hearing for the purpose stated in this subsection but the party calling the witness failed to provide the 20-day notice, the court may adjourn the proceeding for the purpose of taking a genetic test of the witness prior to hearing the testimony of the witness if the court finds that the party calling the witness acted in good faith.

(7)   Notice of right to tests. The court shall ensure that all parties are aware of their right to request genetic tests under this section.

1979 c. 352 ; 1983 a. 447 ; 1987 a. 27 ; 1993 a. 481 ; 1995 a. 100 ; 1997 a. 191 ; 2005 a. 443 ss. 210 , 211c , 212c , 249 , 251 ; Stats. 2005 s. 767.84. When initial blood tests excluded the alleged father and the state moved for additional tests under sub. (2), the trial court erred in denying the motion and dismissing the action under sub. (4). Paternity of S. J. K. 132 Wis. 2d 262 , 392 N.W.2d 97 (Ct. App. 1986). The chain of custody, or authentication, must be established prior to admission of evidence under sub. (1) (b). Paternity of J. S. C. 135 Wis. 2d 820 , 400 N.W.2d 48 (Ct. App. 1986). When the respondent failed to introduce evidence regarding the test, the trial court properly barred the respondent from attacking the test during closing argument. Paternity of M. J. B. 144 Wis. 2d 638 , 425 N.W.2d 404 (1988). DNA test results are admissible when the procedures meet the requirements for blood tests under sub. (1) (b). Paternity of J.L.K. 151 Wis. 2d 566 , 445 N.W.2d 673 (Ct. App. 1989). If more than one set of blood test results are presented, the sub. (1m) presumption is inapplicable if the statistical probability of only one test reaches the 99 percent level. Paternity of J.M.K. 160 Wis. 2d 429 , 465 N.W.2d 833 (Ct. App. 1991). When only one potential father named by the mother is not excluded by blood tests, sub. (4) does not prevent showing that the mother on several occasions did not name him as a person with whom she had sex during the conceptual period. Paternity of Jeremy D.L. 177 Wis. 2d 551 , 503 N.W.2d 275 (Ct. App. 1993). That sub. (1m) applies only to children born to a woman while she is married does not violate principles of equal protection. Thomas M.P. v. Kimberly J.L. 207 Wis. 2d 388 , 558 N.W.2d 897 (Ct. App. 1996), 96-0697 . A mere denial of intercourse, when access during the conceptive period is established and no other potential fathers are identified, is sufficient to rebut the presumption under sub. (1m) for purposes of preventing entry of a summary judgment of paternity. State v. Michael J. W. 210 Wis. 2d 132 , 565 N.W.2d 179 (Ct. App. 1997), 95-2917 . The term "statistical probability" in sub. (1m) means the probability determined by combining the results of all the different types of tests performed. State v. Michael J. W. 210 Wis. 2d 132 , 565 N.W.2d 179 (Ct. App. 1997), 95-2917 . A genetic test showing another man to be the natural father rebuts the presumption under sub. (1m) and s. 891.41 that the spouse of the child's mother is the father, but equitable estoppel may be employed to preclude rebutting the presumption. The issue is whether the actions and inactions of the parties advocating the rebuttal of the marital presumption were so unfair as to preclude them from overcoming the public's interest in the marital presumption based on the results of genetic tests. Randy A. J. v. Norma I. J. 2004 WI 41 , 270 Wis. 2d 384 , 677 N.W.2d 630 , 02-0469 . From here to paternity: Using blood analysis to determine parentage. Haas. WBB July 1988.