767.88 Pretrial paternity proceedings.

(1) Procedure; evidence. A pretrial hearing shall be held before the court or a supplemental court commissioner under s. 757.675 (2) (g). A record or minutes of the proceeding shall be kept. At the pretrial hearing the parties may present and cross-examine witnesses, request genetic tests, and present other evidence relevant to the determination of paternity.

(2) Court evaluation and recommendation. On the basis of the information produced at the pretrial hearing, the court shall evaluate the probability of determining the existence or nonexistence of paternity in a trial and shall so advise the parties. On the basis of the evaluation, the court may make an appropriate recommendation for settlement to the parties. This recommendation may include any of the following:

(a) That the action be dismissed with or without prejudice.

(b) That the alleged father voluntarily acknowledge paternity of the child.

(c) If the alleged father voluntarily acknowledges paternity of the child, that he agree to the duty of support, the legal custody of the child, periods of physical placement of the child and other matters as determined to be in the best interests of the child by the court.

(3) Acceptance of recommendation; judgment. If the parties accept a recommendation made in accordance with this section, judgment shall be entered accordingly.

(4) Recommendation refused and no tests taken. If a party or the guardian ad litem refuses to accept a recommendation made under this section and genetic tests have not yet been taken, the court shall require the appropriate parties to submit to genetic tests. After the genetic tests have been taken the court shall make an appropriate final recommendation.

(5) Final recommendation not accepted; trial. If the guardian ad litem or any party refuses to accept any final recommendation, the action shall be set for trial.

(6) Termination of informal hearing. The informal hearing may be terminated and the action set for trial if the court finds it unlikely that all parties would accept a recommendation in this section.

History: 1979 c. 352; 1983 a. 447; 1987 a. 27; Sup. Ct. Order, 141 Wis. 2d xxxix (1987); 1987 a. 355; 1993 a. 481; 1995 a. 100; 2001 a. 61; 2005 a. 443 ss. 201, 259; Stats. 2005 s. 767.88.

Judicial Council Note, 1988: This section mandates pretrial hearings in paternity proceedings. Under sub. (6), the informal hearing may be terminated and set for trial if the judge or family court commissioner finds it unlikely that all parties would accept a recommendation under this section and similarly, under sub. (5), if the guardian ad litem or any party refuses to accept the final recommendation. This amends sub. (1), to emphasize that this is an informal hearing before a judge, not a court in session, or before a court commissioner and that, while the hearing may be on the record, minutes alone are sufficient. [Re Order effective Jan. 1, 1988]

The trial court may order a putative father to take a blood test only after determining at a pretrial hearing that paternity probably can be established at trial and that the establishment of paternity is in the best interests of the child. State ex rel. Scott v. Slocum, 109 Wis. 2d 397, 326 N.W.2d 118 (Ct. App. 1982).

Notwithstanding s. 804.12 (2) (a) 4., the trial court may find a party in civil contempt for refusing to submit to a blood test. Paternity of T.P.L. 120 Wis. 2d 328, 354 N.W.2d 759 (Ct. App. 1984).

Nothing in this section authorizes ordering a name change in the best interests of the child in a paternity judgement. Sub. (2) (c) only authorizes a court to make settlement recommendations in pretrial proceedings if paternity is acknowledged. Although s. 69.15 (1) (a) provides for changing a name according to an order in a paternity action, it does not provide authority to order a name change in a paternity action without complying with the procedural requirements for a name change under s. 786.36. Paternity of Noah J.M. 223 Wis. 2d 768, 590 N.W.2d 21 (Ct. App. 1998), 97-2353.