In Wisconsin, there is a presumption of paternity based on the fact that the parties are married. Even if the parties have been separated for months, or even years, Wisconsin law presumes that any child “of the marriage” is the child of both parties.
The marital presumption can be overcome by results of genetic testing that show that a man, other than the husband, has a 99% probability of being the father.
In marriages where there is a dispute of this nature, the court will almost always appoint a Guardian ad Litem to investigate the matter. Guardian ad Litem’s are appointed on cases where there is a placement or custody dispute, and their job on the case is to represent the best interests of the child.
The Guardian ad Litem will typically recommend that the court order genetic testing at the first appearance for the mother, the child, and the husband to find out if the child is related to the husband. This is ordered immediately, because the parties must present an Order for Genetic Testing to the Child Services Agency to do genetic testing through the court.
If the genetic testing proves that the child is not the husband’s, the Guardian ad Litem typically advises the mother begin a paternity action against the biological father, so that the child has a legal father in his or her life. A court will not typically overcome the marital presumption unless there is an adjudication of a legal father.
Please note, if the couple is LEGALLY separated (meaning the couple has been granted a legal separation by the court), then there is no presumption that the husband is the father.
If you are concerned about the paternity of your child and are subject to the marital presumption in Wisconsin, it is in your best interest to seek legal counsel to resolve this issue as soon as possible.
10 thoughts on “The Marital Presumption of Paternity in Wisconsin”
I’m currently married and my husband is the legal father of our daughter and the only father figure who has been in her life and supporting her. a different man believes he is the biological father and has requested dna testing through courts. Do I have the right to deny this per marital presumption and if so, could a judge still overrule and grant the testing?
Yes, you and your husband have the right to fight to uphold the marital presumption. It would be extremely rare for a judge to allow testing in this situation, especially if your daughter is older. However, you should hire experienced counsel right away.
Does this presumption of parentage apply to married same sex couples?
Good question! Unfortunately, I do not have an answer for you. There is very little case law in Wisconsin regarding same sex couples and, in fact, very few same sex divorces have even been filed in the courts yet. The law is still evolving in this area across the country and the courts/judges have virtually no legal guidance for these decisions. They are going to have to make new law at the circuit court level and wait until these cases wind through the appeals system until there are any firm answers. This is going to take time. Thank you for your interest in our blog.
Under 891.42 (2) am I correct in understanding that proving I am not the father can overcome marital presumption,
If not what other means to overcome marital presumption.
Every judge and every county is different. For example, in Waukesha county, proving you are not the father is sufficient to overcome the presumption. However, Milwaukee county, an adjudication of paternity for the biological father is usually also required. You should consult with an attorney experienced in family law in your county of residence. Good luck.
My fiancee has been divorced for 3 years now. His ex wife ended up pregnant during the divorce. Could the child be his possibly but she claimed to the guardian that it was her boyfriend’s and that her boyfriend was willing to sign the birth certificate. The child has since been taken away from her and him and placed elsewhere,as her boyfriend is incarcerated for a while and she has been in and out of incarceration. My fiancee still questions to this day if the child is his and if there is any way he can go back and ask for paternity with the facts of her ending up pregnant during the time of their split and filing for divorce? Thank you
It would be very difficult to go back. However, I suppose it doesn’t hurt to ask. He would have to file a motion to reopen the judgment of divorce (finding of paternity) and ask for DNA tests. The worst that could happen is the court says no and he spends some attorneys fees. I would advise to consult with an experienced family law attorney in his county and go from here. Good luck!
If the couple are going through a divorce and the wife gets pregnant from another man, can the husband take the child from the mother through visitation?
I’m not exactly sure what the question is. If the couple is already going through the divorce, chances are that the marital presumption will be overcome and the husband will not have any legal rights to the child. In that case, there would be no visitation ordered. Typically, a DNA test will be ordered to definitively determine whether husband is father or not. If he is not, that is pretty much the end of it and the relationship between husband and child is severed. Sometimes, the courts will want to see a paternity action initiated against the biological father as well but not often. If you have any further questions, you should consult with an experienced family law attorney.