Paternity

Determination of paternity – the identity of a child’s father – is governed in Wisconsin by Wis. Stat. Secs. 767.80 - 767.895. The sections below discuss some of the more common issues that can arise regarding determinations of paternity. As discussed below, in some cases one man is the child’s biological father and another man is the child’s legal father.

Outside of marriage, the identity of a child’s father is usually established in Wisconsin by voluntary acknowledgment of paternity pursuant to Wis. Stats. Sec. 767.805. A voluntary acknowledgment of paternity is used to establish who the father is on a birth certificate, and is usually signed shortly after the child’s birth, often while the parties are still in the hospital. Use caution in signing a voluntary acknowledgment of paternity; do not agree to sign if you have any doubt regarding who the biological father is. You may rescind or withdraw from a voluntary acknowledgment of paternity within 60 days of signing; after that, it is extremely difficult to change parental responsibility for a child. Wis. Stats. Sec. 69.15(3m). A court may void a determination of paternity if fraud, duress, or mistake of fact is shown. Wis. Stats. Sec. 767.805(5).

Alternatively, a parent may establish paternity by filing a paternity action in court. A paternity case may be brought at any time, including during the pregnancy. When a paternity case is initiated, either party may request genetic testing to determine if the alleged father is in fact the biological father. Genetic testing may exclude a man as the father, or establish that there is an extremely high likelihood (but not an absolute certainty) that a man is the father.

Sometimes it makes sense to file an action to determine paternity before the birth of the child. It can take quite awhile for a court to establish paternity; until then, the court has no authority to grant an alleged father any contact with the child. Thus a man who believes he is the father of a child and wants to establish a relationship with the child as early as possible may want to file an action during the pregnancy. For the most part, the action will be put on hold until the child is born, although the person bringing the action can take depositions to preserve testimony prior to the birth of the child. If genetic testing excludes the man as the father, he may dismiss the paternity action.  See Wis. Stats. Sec. 767.80(3).

A child born during a marriage, or born before a marriage to two people who subsequently marry, is presumed to be the husband’s child. Wis. Stats. Sec. 891.41. Either party, or a third party, may contest paternity and try to defeat the presumption of paternity through genetic testing. Wis. Stats. Sec. 891.41(2). Sometimes a husband may assert parental rights to a child even if genetic testing reveals a different biological father. See, for example, the Wisconsin Supreme Court case of Randy A.J. v. Norma I.J.

Contesting Paternity

If one of the parties contests paternity, a paternity trial is held, as described in Wis. Stats. Sec. 767.883. The first part of the trial is solely to determine whether the alleged father will be determined to be the legal father of the child. The alleged father can request a jury trial; this is the only issue in Wisconsin family law that can be decided by a jury. The jury request must be made at the initial appearance, at the pretrial hearing, or in writing prior to the pretrial hearing.  Failure to properly and timely request a jury trial would constitute a waiver of that right, and the trial would be made directly to the judge for a decision.     
After the court determines, either by a jury or by the judge, that the man is the father of the child, the court moves on to the second part of the paternity trial, to decide custody, placement, and child support. No party is entitled to a jury for this second part of the paternity trial.

Once paternity is established, issues of custody, placement, and child support are generally treated the same as in a divorce. Please refer to those sections of this Website. There is, however, a debate in Wisconsin regarding whether the move-away statute (Wis. Stat. Sec. 767.481) applies to paternity cases; some judges apply this statute to paternity cases, and others do not.

If both parents agree, the Paternity Judgment can include a change in the child’s first and/or last name. If only one parent wants to change the child’s last name, the court has authority to change the child’s last name to a hyphenated name containing both parents’ last names, if the court finds that to be in the best interest of the child. Wis. Stats. Sec. 767.89(3m).