Wisconsin Statutes 767.84 – Genetic tests in paternity actions
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Terms Used In Wisconsin Statutes 767.84
- Adjourn: A motion to adjourn a legislative chamber or a committee, if passed, ends that day's session.
- Affidavit: A written statement of facts confirmed by the oath of the party making it, before a notary or officer having authority to administer oaths.
- Evidence: Information presented in testimony or in documents that is used to persuade the fact finder (judge or jury) to decide the case for one side or the other.
- Following: when used by way of reference to any statute section, means the section next following that in which the reference is made. See Wisconsin Statutes 990.01
- in writing: includes any representation of words, letters, symbols or figures. See Wisconsin Statutes 990.01
- Person: includes all partnerships, associations and bodies politic or corporate. See Wisconsin Statutes 990.01
- Probable cause: A reasonable ground for belief that the offender violated a specific law.
- Qualified: when applied to any person elected or appointed to office, means that such person has done those things which the person was by law required to do before entering upon the duties of the person's office. See Wisconsin Statutes 990.01
- Testify: Answer questions in court.
- Testimony: Evidence presented orally by witnesses during trials or before grand juries.
- Trial: A hearing that takes place when the defendant pleads "not guilty" and witnesses are required to come to court to give evidence.
(1) When test ordered; report.
767.84(1)(a) (a) Except as provided in ss. 767.855 and 767.863, and except in actions to which s. 767.893 applies, the court 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 genetic test under this paragraph with respect to any of the following:
1. A person who has undergone a genetic test under s. 49.225, unless a party requests additional tests under sub. (2).
2. A deceased respondent if genetic material is not available without undue hardship as provided in s. 767.865 (2).
3.
a. Except as provided in subd. 3. b., a male respondent who fails to appear, if genetic test results with respect to another man show that the other man is not excluded as the father and that the statistical probability of the other man’s parentage is 99.0 percent or higher creating a presumption of the other man’s paternity.
b. Subdivision 3. a. does not apply if the presumption of the other man’s paternity is rebutted.
(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.