paternity in Wisconsin

How to Establish Paternity in Wisconsin (Update)

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What is paternity and why is it important? It allows you to be legally involved in the child’s life. It also allows you to be named on the child’s birth certificate. Establishing paternity/parentage allows the parent to gain rights to the child and also gives the parent responsibilities related to the child. Determining parentage gives the parent the right to ask the court for custody (the ability to make decisions for your child, for example, where the child goes to school and where the child can attend church) and to have physical placement such as overnight visits with your child. Along with these rights, the child can receive child support, be added to your health insurance, can receive your social security benefits if you become disabled or die, and can inherit from you.

Wisconsin has two ways to establish paternity: 1) voluntary paternity acknowledgment; and 2) court order.

Voluntary Paternity Acknowledgement

The easiest way to establish paternity, when you are not married, is with the Voluntary Paternity Acknowledgement form. This form can be signed if both the mother and the father are over the age of 18 and both agree that the man is the father. All hospitals in Wisconsin have this form and will notarize it at the hospital. Be aware, this form cannot be used if the child was conceived while the mother was married to another man. This form has to be filed with the State and, if it is not rescinded, there can be significant legal ramifications. We would strongly recommend that you do not sign the Voluntary Paternity Acknowledgement unless you are absolutely sure you are the father! If you are not 100% sure, you should seek legal advice before signing the Acknowledgement.

Court Order

If you are named the possible father of a child and you do not agree, a court hearing will be scheduled. During this hearing, your rights and responsibilities will be explained to you. If you would like genetic testing to determine if you are the parent, this would be the time to ask for it. The child support agency pays for the genetic tests until paternity is established. You may be ordered to pay for the tests if the tests show that you are the parent. If you are not determined to be the parent, you will not be charged for the tests. You have the right to object to the test results in court although the current tests are extremely accurate so this would be difficult to do. Under Wisconsin law, the genetic test must show a 99% or greater probability of paternity in order to be presumed the father.

If the mother is married at the time the child is born, the husband is presumed to be the father.  In order to overcome that presumption and adjudicate another man, there are a wide variety of legal steps and  ramifications which are not easily addressed in a blog.  We would encourage you to seek counsel in this situation.

If you are concerned about the paternity of your child or are listed as a possible father in a paternity action, please contact Nelson, Krueger and Millenbach, LLC, for a free consultation to discuss your case with an experienced family law attorney.

The Marital Presumption of Paternity in Wisconsin

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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?

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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.