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

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 in response to a subpoena issued by a county child support agency requiring the parties to submit to the tests; 2) 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; 3) both the mother and the man are at least 18 years old; and 4) there is no marriage or statement acknowledging paternity presumption. 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 either party may submit to the child support agency a written objection to the test results. If either party 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 neither party submits 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 record if the father's name was omitted.

Under the bill, if genetic test results conclusively determine a man to be a child's father and neither the mother nor the man submits an objection after receiving notice, 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.

Current law also contains presumptions of paternity. There is a presumption (marriage presumption) that a man is the father of a child if: 1) he and the child's mother were married when the child was conceived or born; or 2) he and child's mother married after the child was born but had a relationship during the time within which the child was conceived and no other man has been adjudicated to be the father or is presumed to be the father because he was married to the child's mother when the child was conceived or born. There is also a presumption (statement acknowledging paternity presumption) that a man is a child's father if he and the child's mother signed and filed a statement acknowledging paternity with the state registrar and no other man is presumed to be the child's father under the marriage presumption. 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 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 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 the other male 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 performed, 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 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. The bill 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 dismiss the action with respect to that male, regardless of whether genetic tests have been performed or what the results of those genetic tests were. The bill also provides that if, in fact, genetic tests have not yet been performed with respect to that male, the court is not required to order them.