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Overcoming the Marital Presumption of Paternity in Wisconsin

by | May 11, 2020 | Blog, Family

Wis. Stat. § 891.41(1)(a) states that a man who is married to the natural mother of a child who is conceived or born after marriage but before the granting of a decree of legal separation, annulment or divorce is presumed to be the father of the child. This presumption is rebutted by the results of a genetic test showing the probability of 99.0% or higher than another man is the father of the child, Wis. Stat. § 891.41(2). In other words, once paternity is completed that establishes who is the actual biological father via genetic testing, the presumption against the husband can then be overcome. The question is, how does one achieve the correct result on such a delicate matter via the legal process in Wisconsin?

The party who is alleging that the husband is not the father of the child can be the natural mother, presumed father (husband of natural mother at time the minor child was conceived or born) or putative father (man who claims to be the father or who is alleged to be the father of the child who is born to the natural mother to whom he is not married at the time of the child’s birth). One of the aforementioned three individuals has the burden of proof via clear and convincing evidence in a filed legal action pertaining to the paternity of the minor child. There is clearly the legal presumption that the husband is the father. Regardless of who initiates the legal action, the family court must appoint a guardian ad litem  (attorney) to advocate for the minor child in the determination whether the husband is or is not the father, and whether the putative father (if known) is or is not the father. In the context of a pending divorce action between mother and presumed father, the trial judge will order DNA testing of both parties and the minor child, once born, to show whether the husband is or is not the biological father. The court will not simply rely on the “good word” of the parties. If the DNA tests come back and exclude the husband as being the biological father, the divorce trial judge may take the case one step further and require the mother to file for paternity and determine who is the biological father, before completing the divorce case; there are potential exceptions to the latter on a case-by-case basis, but generally speaking, the presumed father will not be “let off the hook” as the minor child’s legal father unless there is another man that can be legally established as the minor child’s father. The idea behind this is that the minor child is entitled to a legal father who shall be responsible for the child, financially and otherwise. Courts are highly reticent to enter a ruling that would leave the minor child without a legal father. As such, Courts will likely order the mother, in the context of a divorce case, to commence a paternity action against the biological father, assuming the mother knows who the actual father is. In some situations, regardless of whether the natural mother is involved in a pending divorce action against the presumed father, the putative father will initiate a paternity action against both the natural mother and presumed father to establish himself as the father of the child who was conceived or born while the mother is/was married to the presumed father; in such a case, genetic testing of the presumed father is likely not necessary so long as both the putative father’s genetic testing results come back at a statistical probability greater than 99.0% that he is the biological father, and the presumed father files an affidavit with the Court denying paternity of the minor child, with said denial ultimately being corroborated in the guardian ad litem’s anticipated thorough investigation and written report pertaining to the matter. In the latter situation, the presumed father, as a named party to the putative father’s paternity action, is to be given the opportunity to be heard in Court to contest the putative father’s assertion of paternity. Ultimately, the genetic testing results will prove paramount as to the Court’s decision regarding whether there is clear and convincing evidence to overcome the marital presumption and, therefore, name the putative father as the minor child’s legal father.

Assuming that the marital presumption can be legally overcome, the putative father is now the legal father of the minor child. Appropriate legal custody and placement rights for the newly-named legal father can then be investigated by a guardian ad litem or custody assessment team (or agreed upon via negotiation and/or child-related mediation), and financial issues (such as child support, health insurance coverage, responsibility for uninsured medical/dental expenses, tax dependency exemptions/credits, etc.) can be negotiated between the parties (or through their respective legal counsel) or litigated before the family court. Additionally, the newly-named father could request in his paternity petition or motion the Court for the child’s last name to be changed. Wis. Stat. § 767.89(3m) states that upon the request of both parents, the Court shall include in the judgment or order determining paternity a provision changing the child’s surname to the agreed-upon name. The Court may change the surname of the child to a surname that includes the surname of each parent, separated by a hyphen if only one parent requests the name change or the parents request the name be changed, but to different surnames and the Court finds that it is in the best interests of the minor child, as per Wis. Stat. § 767.89(3m)(b).

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 ASAP.

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