How Is Paternity Established in Wisconsin?
A child's paternity is established by the father's voluntary acknowledgment, a court hearing, or by the child's unmarried parents signing a form and filing it when they get married. DNA testing can be requested by the court or by either party. Court hearings are scheduled when the mother names the father and he doesn't agree as well as if the mother disagrees with the father.
Why Establish Paternity?
Questions surrounding paternity usually arise in cases that involve a child born to unwed parents. If the child or children's biological father is in doubt, DNA testing can be used to resolve a wide variety of legal issues, which include:
- Ensure the legal rights of the father
- Provide the child with health insurance
- Access available medical and genetic information from both parents
- Ensure that the child has the right to inherit from both parents and be eligible for death benefits (Social Security, military/VA benefits, and pension)
- Give rights to tribal enrollment (for Native American children)
- Give the child a sense of identity and heritage, knowing who his or her father is
Paternity also allows a child to receive support from both parents until he or she is an adult. Even if the parents are living together without marriage, the child's rights are guaranteed with legal fatherhood. If they do not live together, the father can also ask for visitation and/or custody rights, and submit a parenting plan to the court.
Children born in a marriage are presumed to be the biological child of both parents unless proven otherwise with DNA testing.
Should a child be placed for adoption, the father's permission will be required. Once established, the father's name will be added to the child's birth certificate if it's not already present.
Wisconsin's Process for Establishing Paternity
There are three methods to establish paternity in Wisconsin:
- The Voluntary Paternity Acknowledgement–this is a form both parents sign when a baby is born (usually, the parents are unmarried.)
- Court Ruling–if a mother names a father for her baby, but the father disagrees, a court hearing is scheduled to review the evidence. Both parents should attend. The court will make a ruling on the child's paternity, and the father's rights will be explained to him. He can request genetic testing at the hearing to prove that he is or isn't the father.
- Legitimation, or Acknowledgment of Marital Child–if the parents get married after the child is born, they simply need to sign this form in front of a notary and send it to Wisconsin's Office of Vital Records. This ensures that the father's name is on the birth certificate and that his paternity is established. The form is available from local child support and Vital Statistics offices. The mailing address is on the form.
Who Can Request Paternity To Be Established?
Anyone of these individuals can file a petition to establish paternity in Wisconsin:
- The child's biological (birth) mother
- The male claiming to be the child's father
- The child themself
- The individual with legal and/or physical custody
- A guardian ad litem (GAL), a court-appointed attorney appointed to represent the best interests of the child in question
- A grandparent, if the parent is dependent on that grandparent
- The State of Wisconsin
What to Consider Before Establishing Paternity
If the individual claiming to be the father signs the Voluntary Paternity Acknowledgement, paternity is established. Should the parents not be together, it is usually expected that the father will begin paying child support, including back child support due, birth expenses, and providing health insurance if needed. Failing to pay support can result in a jail sentence.
If there is any question about paternity, genetic testing can be requested. If paternity testing is required, it's done in the county where you live. Once the Voluntary Paternity Acknowledgement is signed and recorded, you'd need additional evidence to overturn it.
If the mother is marrying a man who is not the father, she may want to shield the father from the legal and financial obligations associated with paternity.
Should the mother be concerned about domestic and/or child abuse, establishing paternity may not be in the child's best interest.
Is It Possible to Get a Refund on Child Support if They Are Found to not Be My Kids?
This question is actually quite complex. There are many things the court will factor in. First, did you have prior knowledge that the children were not yours? If you knew and still accepted responsibility, that is a factor that will be considered. Second, the age of the children and prior attempts made to establish paternity will be considered. Without all the details, it is hard to determine a probable outcome for this type of child support case.
In the case of Strawser v. Strawser 126 Wis. 2d 485, 377 N.W.2d 196 (Ct. App. 1985), a father established that he was not the father of two of three children. He moved for a reimbursement of 2/3 of past child support. The court denied the request and issued a sua sponte order backdating the wife's maintenance nunc pro tunc to the original trial. He appealed, and the decisions of child support and maintenance were reversed. Your case will be determined on its own merits, but this is one possible outcome.
However, the alternative is that if you do not want to have any relationship with the child and choose to not parent the child, you should not be required to pay support.
In A.M.N. v. A.J.N., 141 Wis.2d 99, 414 N.W.2d 68 (Ct. App. 1987), the court reviewed Wisconsin statutes and decided that a husband is not bound to support non-marital children born to his wife. Although Wisconsin has not articulated a theory of equitable estoppel specifically applicable to child support proceedings, many other jurisdictions have done so.
Can I Receive Child Support From a Father's Estate?
As discussed in N.L.B. v. G.B. (In re Paternity of N.L.B.), 140 Wis.2d 400, 411 N.W.2d 144 (Ct. App. 1987), there are currently no statutes for maintenance against a dead putative father, and if the legislature intended to have one, it would have been listed in statute section 767. There is a specific statute governing procedure if the mother is dead, insane, cannot be found, or fails to pursue a paternity action. There is no comparable statute for the father.
Will I Have to Pay for Paternity if I First Hear About It Seven Years After the Child Was Born?
The paternity statutes that courts follow require an individual (whether it be the mother or the child independently) to file a paternity claim within five years of the birth of the child. The statutes also state the district attorney should be involved in paternity cases and has broad discretion over whether a child support claim is legitimate.
In the case of J.M.S. v. Benson, 98 Wis.2d 406, 297 N.W.2d 18 (1980), an illegitimate child attempted to file a paternity claim against an alleged father but did so without the district attorney participating in the case. The child was approximately 11 years old at the time, and neither the child nor the mother had previously raised a paternity claim. The court ruled in favor of the alleged father as the child did not consult the district attorney and failed to follow the paternity statutes.
How Can I Prove Paternity if My Child Does not Fall Under the Presumptive Period?
Proving paternity without the statutory-enforced presumptive period of conception was discussed in B.A.C. v. T.L.G. (In re Paternity of J.S.C.). If the child is not full term, other competent evidence including menstrual periods and sexual acts must establish the conceptive period. However, it is not essential that the exact date of conception be proven.
References: Voluntary Paternity Acknowledgement, Strawser v. Strawser (1985), A.M.N. v. A.J.N (1987), N.L.B. v. G.B. (1987), J.M.S. v. Benson (1980), B.A.C. v. T.L.G. (In re Paternity of J.S.C.)
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