767.863 First appearance.

(1) Notice to parties. If the respondent is present at a hearing prior to the determination of paternity, the court shall, at least one time at one such hearing, inform the parties of the items in s. 767.813 (5g).

(1m) Paternity allegation by male other than husband; when determination not in best interest of child. In an action to establish the paternity of a child who was born to a woman while she was married, if a male other than the woman's husband alleges that he, not the husband, is the child's father, a party may allege that a judicial determination that a male other than the husband is the father is not in the best interest of the child. If the court or a supplemental court commissioner under s. 757.675 (2) (g) determines that a judicial determination of whether a male other than the husband is the father is not in the best interest of the child, no genetic tests may be ordered and the action shall be dismissed.

(2) Order for tests. If at the first appearance it appears from a sufficient petition or affidavit of the child's mother or an alleged father or from sworn testimony of the child's mother or an alleged father that there is probable cause to believe that any of the males named has had sexual intercourse with the mother during a possible time of the child's conception, the court may, or upon the request of any party shall, order any of the named persons to submit to genetic tests. The tests shall be conducted in accordance with s. 767.84. The court is not required to order a person who has undergone a genetic test under s. 49.225 to submit to another genetic test under this subsection unless a party requests additional tests under s. 767.84 (2).

(3) Orders if statement on file. At the first appearance, if a statement acknowledging paternity under s. 69.15 (3) (b) 1. or 3. that was signed and filed before April 1, 1998, is on file, the court may enter an order for child support, legal custody or physical placement and, if the respondent who filed the statement does not dispute his paternity, may enter a judgment of paternity.

History: 1979 c. 352; 1983 a. 447 s. 34; Stats. 1983 s. 767.457; 1987 a. 27 ss. 2136t, 2137d, 2137e; Stats. 1987 s. 767.458; 1987 a. 403, 413; 1993 a. 16, 481; 1995 a. 100; 1997 a. 191; 2001 a. 61; 2005 a. 443 ss. 195 to 198, 254; Stats. 2005 s. 767.863.

NOTE: 2005 Wis. Act 443 contains explanatory notes.

Before dismissing a petition without considering the merits, sub. (1m) requires the trial court to conduct a hearing to determine the child's best interests. Paternity of T.R.B. 154 Wis. 2d 637, 454 N.W.2d 561 (Ct. App. 1990).

Sub. (1m) is constitutional. The court has an obligation to refuse to allow blood tests if the tests may result in a determination that the person alleging his paternity is the natural father and that determination would not be in the best interest of the children. Paternity of C.A.S. 161 Wis. 2d 1015, 468 N.W.2d 719 (1991).

The plain language of sub. (1m) does not limit the court's authority to dismiss paternity actions to cases in which no genetic tests have been performed. The circuit court in this case correctly disregarded the genetic testing upon which a nonspouse who asserted paternity relied because the testing was not completed pursuant to court order. The court properly ruled that a judicial determination that the nonspouse was the child's father would not be in the child's best interest. Stuart S. v. Heidi R. 2015 WI App 19, 360 Wis. 2d 388, 860 N.W.2d 538, 14-1487.

Parental status that rises to the level of a constitutionally protected liberty interest does not rest solely on biological factors, but rather, is dependent upon an actual relationship with the child where the parent assumes responsibility for the child's emotional and financial needs. Stuart S. v. Heidi R. 2015 WI App 19, 360 Wis. 2d 388, 860 N.W.2d 538, 14-1487.

Circuit courts have discretion to dismiss actions without prejudice under this section. Section 767.88 expressly contemplates that circuit courts possess discretion to dismiss a paternity action with or without prejudice prior to a trial on the merits. Consequently, s. 767.88 strongly suggests the legislature intended that courts have such discretion when dismissing actions under this section when the ultimate issue of paternity is similarly not reached. Douglas L. v. Arika B. 2015 WI App 80, 365 Wis. 2d 257, 872 N.W.2d 357, 14-2656.

In re Paternity of C.A.S. and C.D.S.: The New Status of Putative Fathers' Rights in Wisconsin. 1992 WLR 1669.