Presumption and conclusive determination of paternity on basis of genetic test results and orders that may be granted on the basis of genetic test results

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.