The Marital Presumption of Paternity in Wisconsin

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.

4 thoughts on “The Marital Presumption of Paternity in Wisconsin

  1. 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.

    • 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.

We welcome your comments or questions. We will do our best to try to respond. However, please be advised that we cannot give legal advice in this forum and all communications are for general informational purposes only. Communication should not be construed as forming an attorney-client relationship. This is an open forum and any information you provide may be posted and will not be held confidentially. By posting a comment or question, you are expressly giving consent for the publication of same. If you have any specific legal issues or concerns, we always recommend that you consult with an attorney in the county and state in which you reside.

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