On Feb. 5, 2020, Gov. Tony Evers signed SB-158 into law as 2019 Wisconsin Act 95. While Act 95 makes various changes to Wis. Stat. chapter 767, it most notably creates another avenue for establishing paternity in Wisconsin, known as administrative paternity.
Supporters of administrative paternity advocated for this law for nearly 10 years, as this alternative process may be less disruptive to mothers and fathers, save the court time, and in many instances, establish paternity faster.
Prior to this change, Wisconsin law provided three methods to establish paternity: marital presumption, acknowledgment, and paternity court action.
Administrative Paternity: Process Overview
The new administrative paternity process is found in Wis. Stat. section 767.804, and will be conducted by the county Child Support Agencies (CSA) commencing Aug. 1, 2020. Genetic test results obtained prior to Aug. 1, 2020, will not be subject to section 767.804.
After receiving a referral from the local economic support office or an application for services, the CSA conducts a paternity interview, and sends an administrative subpoena by mail (essentially a letter), pursuant to Wis. Stat. section 49.225, to the mother and the alleged father. If the mother and alleged father submit to genetic testing, the CSA mails the results to the mother and the alleged father.
The administrative paternity process is not appropriate and will not be conducted for a parent who is under age 18 or in excluded cases under Wis. Admin. Code DCF § 151.04.
After receiving the genetic test results, the mother and the alleged father have 15 days to submit a written objection to the CSA. If a written objection is timely, the CSA will file a paternity action under Wis. Stat. section 767.80 if the results for the man indicate the statistical probability of the man’s parentage is 99% or higher.1 The genetic test results obtained through the administrative subpoena are admissible in the paternity action.
If no timely written objection is received by the CSA and the results for the man indicate the statistical probability of the man’s parentage is 99% or higher, the CSA sends a report to the State Registrar. The report includes notification of a conclusive determination of paternity due to test results of 99% or higher, along with the man’s information for updating the birth record.
The test results constitute a conclusive determination of paternity on the date the report is filed.2 This has the same effect as a judgment of paternity, and makes the man the legal father, all without even stepping foot inside a courtroom. This conclusive determination of paternity also creates a rebuttable presumption that the man is the father.3
A New Family Court Action
Act 95 also creates a new type of family court action. These actions are filed after the man’s name is added to the birth record, and will address custody, placement, child support, and other related issues.4 The CSA will file an action under this section unless the parents are living together as an intact family or one party has been granted good cause.
An action under Wis. Stat. section 767.804(2) is different from a paternity action under section 767.80 and from an acknowledgment action under section 767.805(3). There is a new code for these filings on the Wisconsin Court System website (CCAP).
As a practitioner, you may find yourself filing an action under section 767.804(2) months or years after a man is administratively determined to be the legal father, if the parties later separate, and neither party is receiving public assistance or requesting services directly from the CSA.
Advantages of Administrative Paternity
Wis. Stat. section 69.03(15) and Wis. Admin. Code Ch. DCF 151 require the CSA to pursue paternity for any child whose birth certificate does not contain the name of a father. Historically, the CSA would file a paternity action, schedule a first appearance, and personally serve the parties.
In a traditional paternity action, there is a minimum of two hearings – one for ordering genetic testing and one for the adjudication hearing. There can be even more if a party requests an adjournment to consult with an attorney. Given court calendars and scheduling, this could mean a delay of months.
Administrative paternity is less adversarial and more confidential. Personal service is not required, and the mother and alleged father do not need to attend court hearings until after a father is added to the birth record.
Additionally, it saves time for the parties and the court. Instead of missing work to attend two or more court hearings before an adjudication, the only time required of the parties is the time it takes to give a genetic sample, which is a simple cheek swab.
Conclusion: A Monumental Shift
Administrative paternity is a monumental shift in Wisconsin family law that focuses on efficiency and the best interests of the family while also preserving the due process rights of mothers and alleged fathers. It also recognizes the scientific advancements in genetic testing for the purposes of determining paternity.
In addition to administrative paternity, Act 95 also creates other important provisions, such as the ability to dismiss an action even after genetic testing was conducted, if adjudication is not in the best interest of the child.5 Becoming familiar with 2019 Act 95 is important for all family law practitioners.
For more information about administrative paternity, contact Jill Mueller at (608) 422-7046.
This article was originally published on the State Bar of Wisconsin’s Family Law Section Blog. Visit the State Bar sections or the Family Law Section web pages to learn more about the benefits of section membership.
1 Wis. Stat. § 767.804(1)(d).
2 Wis. Stat. 767.804(1)(a).
3 Wis. Stat. § 891.407.
4 Wis. Stat. § 767.804(2).
5 Wis. Stat. § 767.855.