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.

How is Paternity of a Child Established in Wisconsin?

A paternity case is when the parents of a child were never married.  The purpose of a paternity case is to establish parental rights over a child and to set custody, placement and child support orders.

What rights does an alleged father have during the pregnancy of the mother?

Until paternity can be established either by a DNA test or an acknowledgment of paternity, an alleged father has no rights to the child.

What does “adjudication” mean and how does an alleged father become adjudicated?

Adjudication is the formal recognition of an alleged father as the legal father of a child born to unmarried parents.  Prior to an adjudication, an alleged father has no rights to a child.

Adjudication can occur one of two ways:

  1. If both the mother and alleged father are certain of the paternity of the child, then a Voluntary Acknowledgment of Paternity may be signed. This document is presented at the hospital after the birth of the child.  If the alleged father is not present at the birth, the document can be obtained by contacting Wisconsin Vital Records. http://dcf.wisconsin.gov/bcs/path.htm
  2. If one or both of the parties are unsure of the paternity of the child, then a DNA test should be conducted to confirm or exclude the alleged father as the legal father of the child.

How does an alleged father obtain placement and custody rights to a child?

Once a man is adjudicated as the legal father of a child, the Court will order “terms” relating to the custody, placement and support of the child.  Simply being adjudicated does not give a father any rights to custody or placement, nor does adjudication mandate the payment of child support. The process of establishing custody, placement and support can be resolved by the agreement of the parties or a paternity action having been filed with the Court.  A judgment of paternity must be entered and approved by the court before a father has enforceable rights for custody and placement.

What factors will the court consider when ordering custody?

There is a presumption in Wisconsin statutes that parties should share joint legal custody of a child.  Legal Custody is the right to make legal decisions regarding a child.  The Court may order sole legal custody to one parent in cases of domestic abuse or if the Court determines that joint legal custody is not in a child’s best interest.

What factors will the court consider in determining placement?

There are a number of factors that the Court will consider when determining placement.  The age of the child, distance the parents live from each other, work schedules, parents’ ability to communicate, and best interest of the child are only some examples of what the Court will consider when determining placement.  A Court will not automatically award primary placement to the mother simply because she is the mother.  The statute requires that the Court maximize the amount of meaningful time each parent has with the child.  This provision does not necessarily, however, require that the court order equal time.   Please see our Custody and Placement FAQ’s for additional information.

What if I disagree with the placement schedule ordered by the court?

At the first hearing, if the parents cannot agree on a placement schedule, they will be ordered to participate in mediation.  If mediation is unsuccessful, either a custody study and/or a guardian ad litem will be appointed.  The Guardian ad Litem will complete an investigation and make a recommendation to the Court as to what he/she believes to be in the best interest of the child.

Will child support be ordered?

Yes.   Once a father is adjudicated, the obligation to support the child will be addressed by the court.

How much child support will I have to pay?

Please see our Blog Post on Child Support or visit us at our website by clicking here.