Wisconsin paternity update

Wisconsin paternity update

The Court of Appeals recently decided a case addressing the ability of a biological parent to assert his Wisconsin paternity. The case is Stuart S. v. Heidi R. and can be found online at http://www.wicourts.gov/ca/opinion/DisplayDocument.pdf?content=pdf&seqNo=133315

In this case, Heidi R. and Scott R. were married, but split up for a time. During that time, Heidi became pregnant by Stuart. Heidi and Scott eventually resumed their relationship, and Heidi gave birth. Scott was aware that the baby was not likely his, but he and Heidi raised the child for several years. Apparently with Scott’s knowledge, Heidi continued to bring the child to spend time with Stuart.

Over a few year period, Stuart’s contact with the child increased. What started as occasional contact increased to weekly phone contact, overnight stays, gifts, etc. The child came to see both Stuart and Scott as “dad.” However, Stuart admittedly did not take part in much of the “difficult” work of parenting, including nighttime feedings, diaper changing, doctors’ appointments, etc.

Stuart voluntarily gave cash to Heidi for some of the child’s care, but never paid formal child support or enrolled the child on his health insurance. Stuart also never filed a petition to formally establish his Wisconsin paternity as the child’s father.

After several years, Heidi and Scott filed for divorce. Only at that time did Stuart file a motion to establish his Wisconsin paternity. Stuart had arranged for a private (not court-ordered) paternity test, which indicate that he was the biological father.

Wisconsin law states that a child born to a married woman is presumed to be the child of the husband. A petition is required to overcome that presumption. However, a judge can dismiss such a petition for Wisconsin paternity if it is not in the child’s best interest. A similar law, already interpreted by Wisconsin courts, prohibits the judge from dismissing a paternity motion if genetic tests were already done.

The Court of Appeals ruled that, even though genetic tests were already done, they were done voluntarily by the parents, not by court order. The Court was concerned that parents could obtain a private genetic test to avoid court review on whether doing so was best for the child. The Court prevented Stuart from establishing his Wisconsin paternity of the child.

The main point of the case is that parents cannot avoid court review of Wisconsin paternity cases when a man other than the husband alleges that he is the father of a child. It also points out an issue that I repeatedly come across–biological fathers who wait too long to establish their parental rights. As this case and many others show, a failure to establish Wisconsin paternity soon after birth may prevent a parent from doing it later.

Published by David Kowalski

Attorney David Kowalski is the founding owner of Kowalski, Wilson & Vang, LLC, handling all family law cases from divorce, paternity, child custody, termination of parental rights, restraining orders, and guardianships.

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