19: Paternity
- Page ID
- 121705
\( \newcommand{\vecs}[1]{\overset { \scriptstyle \rightharpoonup} {\mathbf{#1}} } \)
\( \newcommand{\vecd}[1]{\overset{-\!-\!\rightharpoonup}{\vphantom{a}\smash {#1}}} \)
\( \newcommand{\dsum}{\displaystyle\sum\limits} \)
\( \newcommand{\dint}{\displaystyle\int\limits} \)
\( \newcommand{\dlim}{\displaystyle\lim\limits} \)
\( \newcommand{\id}{\mathrm{id}}\) \( \newcommand{\Span}{\mathrm{span}}\)
( \newcommand{\kernel}{\mathrm{null}\,}\) \( \newcommand{\range}{\mathrm{range}\,}\)
\( \newcommand{\RealPart}{\mathrm{Re}}\) \( \newcommand{\ImaginaryPart}{\mathrm{Im}}\)
\( \newcommand{\Argument}{\mathrm{Arg}}\) \( \newcommand{\norm}[1]{\| #1 \|}\)
\( \newcommand{\inner}[2]{\langle #1, #2 \rangle}\)
\( \newcommand{\Span}{\mathrm{span}}\)
\( \newcommand{\id}{\mathrm{id}}\)
\( \newcommand{\Span}{\mathrm{span}}\)
\( \newcommand{\kernel}{\mathrm{null}\,}\)
\( \newcommand{\range}{\mathrm{range}\,}\)
\( \newcommand{\RealPart}{\mathrm{Re}}\)
\( \newcommand{\ImaginaryPart}{\mathrm{Im}}\)
\( \newcommand{\Argument}{\mathrm{Arg}}\)
\( \newcommand{\norm}[1]{\| #1 \|}\)
\( \newcommand{\inner}[2]{\langle #1, #2 \rangle}\)
\( \newcommand{\Span}{\mathrm{span}}\) \( \newcommand{\AA}{\unicode[.8,0]{x212B}}\)
\( \newcommand{\vectorA}[1]{\vec{#1}} % arrow\)
\( \newcommand{\vectorAt}[1]{\vec{\text{#1}}} % arrow\)
\( \newcommand{\vectorB}[1]{\overset { \scriptstyle \rightharpoonup} {\mathbf{#1}} } \)
\( \newcommand{\vectorC}[1]{\textbf{#1}} \)
\( \newcommand{\vectorD}[1]{\overrightarrow{#1}} \)
\( \newcommand{\vectorDt}[1]{\overrightarrow{\text{#1}}} \)
\( \newcommand{\vectE}[1]{\overset{-\!-\!\rightharpoonup}{\vphantom{a}\smash{\mathbf {#1}}}} \)
\( \newcommand{\vecs}[1]{\overset { \scriptstyle \rightharpoonup} {\mathbf{#1}} } \)
\(\newcommand{\longvect}{\overrightarrow}\)
\( \newcommand{\vecd}[1]{\overset{-\!-\!\rightharpoonup}{\vphantom{a}\smash {#1}}} \)
\(\newcommand{\avec}{\mathbf a}\) \(\newcommand{\bvec}{\mathbf b}\) \(\newcommand{\cvec}{\mathbf c}\) \(\newcommand{\dvec}{\mathbf d}\) \(\newcommand{\dtil}{\widetilde{\mathbf d}}\) \(\newcommand{\evec}{\mathbf e}\) \(\newcommand{\fvec}{\mathbf f}\) \(\newcommand{\nvec}{\mathbf n}\) \(\newcommand{\pvec}{\mathbf p}\) \(\newcommand{\qvec}{\mathbf q}\) \(\newcommand{\svec}{\mathbf s}\) \(\newcommand{\tvec}{\mathbf t}\) \(\newcommand{\uvec}{\mathbf u}\) \(\newcommand{\vvec}{\mathbf v}\) \(\newcommand{\wvec}{\mathbf w}\) \(\newcommand{\xvec}{\mathbf x}\) \(\newcommand{\yvec}{\mathbf y}\) \(\newcommand{\zvec}{\mathbf z}\) \(\newcommand{\rvec}{\mathbf r}\) \(\newcommand{\mvec}{\mathbf m}\) \(\newcommand{\zerovec}{\mathbf 0}\) \(\newcommand{\onevec}{\mathbf 1}\) \(\newcommand{\real}{\mathbb R}\) \(\newcommand{\twovec}[2]{\left[\begin{array}{r}#1 \\ #2 \end{array}\right]}\) \(\newcommand{\ctwovec}[2]{\left[\begin{array}{c}#1 \\ #2 \end{array}\right]}\) \(\newcommand{\threevec}[3]{\left[\begin{array}{r}#1 \\ #2 \\ #3 \end{array}\right]}\) \(\newcommand{\cthreevec}[3]{\left[\begin{array}{c}#1 \\ #2 \\ #3 \end{array}\right]}\) \(\newcommand{\fourvec}[4]{\left[\begin{array}{r}#1 \\ #2 \\ #3 \\ #4 \end{array}\right]}\) \(\newcommand{\cfourvec}[4]{\left[\begin{array}{c}#1 \\ #2 \\ #3 \\ #4 \end{array}\right]}\) \(\newcommand{\fivevec}[5]{\left[\begin{array}{r}#1 \\ #2 \\ #3 \\ #4 \\ #5 \\ \end{array}\right]}\) \(\newcommand{\cfivevec}[5]{\left[\begin{array}{c}#1 \\ #2 \\ #3 \\ #4 \\ #5 \\ \end{array}\right]}\) \(\newcommand{\mattwo}[4]{\left[\begin{array}{rr}#1 \amp #2 \\ #3 \amp #4 \\ \end{array}\right]}\) \(\newcommand{\laspan}[1]{\text{Span}\{#1\}}\) \(\newcommand{\bcal}{\cal B}\) \(\newcommand{\ccal}{\cal C}\) \(\newcommand{\scal}{\cal S}\) \(\newcommand{\wcal}{\cal W}\) \(\newcommand{\ecal}{\cal E}\) \(\newcommand{\coords}[2]{\left\{#1\right\}_{#2}}\) \(\newcommand{\gray}[1]{\color{gray}{#1}}\) \(\newcommand{\lgray}[1]{\color{lightgray}{#1}}\) \(\newcommand{\rank}{\operatorname{rank}}\) \(\newcommand{\row}{\text{Row}}\) \(\newcommand{\col}{\text{Col}}\) \(\renewcommand{\row}{\text{Row}}\) \(\newcommand{\nul}{\text{Nul}}\) \(\newcommand{\var}{\text{Var}}\) \(\newcommand{\corr}{\text{corr}}\) \(\newcommand{\len}[1]{\left|#1\right|}\) \(\newcommand{\bbar}{\overline{\bvec}}\) \(\newcommand{\bhat}{\widehat{\bvec}}\) \(\newcommand{\bperp}{\bvec^\perp}\) \(\newcommand{\xhat}{\widehat{\xvec}}\) \(\newcommand{\vhat}{\widehat{\vvec}}\) \(\newcommand{\uhat}{\widehat{\uvec}}\) \(\newcommand{\what}{\widehat{\wvec}}\) \(\newcommand{\Sighat}{\widehat{\Sigma}}\) \(\newcommand{\lt}{<}\) \(\newcommand{\gt}{>}\) \(\newcommand{\amp}{&}\) \(\definecolor{fillinmathshade}{gray}{0.9}\)Although the rights of children and their parents with respect to one another are no longer based on whether the child was born during a marriage, legal proceedings remain necessary to establish rights and obligations between children and their unmarried fathers. Though there are some federal laws impacting paternity, the process itself varies between states.
Paternity proceedings: The court proceedings used to identify the child’s father and enter orders regarding child custody, placement, and support are referred to as paternity proceedings (also known as legitimation proceedings, in some states)
Genetic/biological father: The man who supplies the sperm for the conception of a child. The development of increasingly sophisticated scientific testing has significantly enhanced the ability to determine the identity of the genetic/biological father while excluding others as genetic/biological fathers.
Putative father: The man alleged to be the biological father, but not yet medically or legally declared as the father. Typically, this is based on evidence that the man had sexual intercourse with the birth mother during a presumptive conceptive period, based on the child’s birth date and development at the time of birth.
Acknowledged father: A man who has formally declared himself the father by signing an acknowledgment of paternity. Such acknowledgment may have limited effectiveness if the child was born to a mother married to a different man.
Intended father: A man who has taken affirmative steps to be recognized as the father. This term is often used to distinguish legal proceedings that are initiated by the man, as opposed to the child’s birth mother or the state. This difference is reflected primarily in the process used/the evidence gathered to determine he is the father.
Presumptive father: A man who is presumed to be the child’s father unless/until he is medically or legally declared not to be the father. This term is used when the birth mother is married at the time of the child’s conception or birth and applies to the birth mother’s husband.
Equitable father: A man who is not the biological father but has a close relationship with the child, encouraged by the equitable father and the biological mother. In states that recognize this relationship, the equitable father may receive the same custody rights and have child support obligations similar to a biological father. This often happens in divorce proceedings where a child may have a close relationship with a stepparent.
A man’s adjudication as a child’s father has many impacts on the child’s legal status, the child’s rights, and the father’s rights and obligations. These impacts were discussed in Chapter 17.
Federal Law and Paternity/Non-Marital Children
As you learned in Chapter 2, the United States Constitution and several Federal laws apply to non-marital children and their fathers. For example, the status as a non-marital child is a quasi-suspect class that requires state laws treating marital and non-marital children differently to pass the intermediate scrutiny test. Additionally, several Federal laws have been enacted requiring states to assist in locating, identifying, and adjudicating fathers; these laws benefit both fathers and mothers in many respects. Here are some of the Federal requirements:
- States must have a simple civil process for voluntarily acknowledging paternity through documents signed by both parties and notarized, which has the same effect as an adjudication of paternity. Materials must be provided to hospitals and other agencies to facilitate the process, and the state must provide training regarding the process
- States must permit fathers, as well as mothers, to initiate a paternity action.
- States must provide a father registry allowing fathers to register as putative fathers, and allowing mothers and the State to inquire as to whether a man has registered as a putative father
- State IV-D agencies must assist with establishing paternity unless the case involves
- Conception by incest or forcible rape
- A child for whom a legal adoption is already pending
- Circumstances renderingthe establishment of paternity contrary to the child’s best interest
- State IV-D agencies must assist parties with obtaining legally and medically acceptable genetic tests at reasonable cost; or free of cost if the agency orders the testing, or for recipients of government aid.
Methods to Establish Paternity
There are 4 ways to establish paternity: (1) presumptively, (2) voluntarily, (3) involuntarily, and (4) equitably. State requirements, processes, and legal forms relating to each of these methods vary; this chapter will focus on Wisconsin.
Presumptive Paternity
As mentioned in Chapter 17, if a child is born or conceived during a marriage, the husband is presumed to be the father. In Wisconsin, courts often will not order genetic testing that could rebut this presumption absent a determination that overcoming the marital presumption would not be harmful to the child’s best interest. This issue often comes up when the married couple is divorcing and the father wishes to claim that another man is the biological father of the child(ren) so that he can avoid paying child support. Wisconsin’s marital presumption applies when:
- The father and the birth mother are or have been married to each other and the child is conceived or born during the marriage and before the granting of a decree of legal separation, annulment or divorce between the parties. OR
- The father and the birth mother get married after the child is born, and they had sexual intercourse during the period of time within which the child was conceived and no other man has been adjudicated to be the father or presumed to be the father of the child.
- Note: the time of conception is presumed to be 240-300 days before the child’s birth date.
Voluntary Paternity
Both parents can acknowledge a child’s paternity through a form signed by both of them in front of a notary, which is then filed with the state Registrar’s office of Vital Records. For parents who marry after the child is born, the form is referred to as an “Acknowledgement of Marital Child.” For parents who remain unmarried, the form is referred to a “Voluntary Acknowledgement of Paternity.” Once the form is signed and filed, the man is presumed to be the child’s father and remains the child’s father unless and until the presumption is overcome.
Involuntary (Contested) Paternity
When a paternity is contested, there are two options for establishing paternity through genetic testing:
- Administrative paternity: In Wisconsin, if the mother and the putative father are both at least 18 years old and there is no other presumption of paternity, the county child support agency can issue administrative subpoenas requiring the mother and alleged father to submit to genetic testing. If the test results show that the man is not excluded as the father and that the statistical probability of paternity is 99% or higher, the man is conclusively determined to be the father.
- Court adjudication of paternity: In Wisconsin, a paternity action can be filed by the mother, the alleged father, the child (between the ages of 18 and 19), or the State. Also, the birth mother’s husband, as well as a man who previously acknowledged paternity, can use these proceedings to refute paternity. Parties may request the court to order genetic testing. These procedures are described later in this chapter.
Equitable Paternity
In some states, either the mother or the alleged father can be estopped from denying a child’s paternity when to prevent damage or injury to the child.
Paternity by estoppel : An equitable doctrine prohibiting an adult from contesting a child's paternity when the adult’s voluntary conduct with respect to a child’s paternity was justifiably relied upon by the other adult and/or the child.
Paternity by estoppel might occur when the child’s birth mother told the alleged father that he was the father of the child and subsequently did not object to him taking responsibility for the child and developing a parental relationship with the child over a period of time. It may also occur when the alleged father was aware that he was not the child’s biological father, yet voluntarily took responsibility for the child and developed a parental relationship with the child over a period of time.
More information regarding paternity in Wisconsin:
Wisconsin Paternity Procedure
A child born to a married couple is presumed, by law, to be the child of both spouses. Paternity issues generally arise when an unmarried woman has a child. Depending on the circumstances, a paternity action may be filed in court with paternity decided by a judge, though Wisconsin law allows for paternity to be established using certain procedures that do not require going to court.
Acknowledgment
If unmarried parents marry after their child is born, the parents may establish paternity by signing a form, referred to as an “acknowledgment of a marital child.” The parents must sign the form before a notary and then submit the form to the state registrar’s office of vital records, along with the parties’ marriage records. Local child support agencies can assist parents with the form. Upon receiving the signed form, the state registrar will add the man’s name to the child’s birth record.
If both the child’s mother and the male are at least 18 years of age and believe the male is the child’s father, then the male and mother may establish paternity by signing a statement acknowledging paternity. The statement, referred to as the “voluntary acknowledgment of paternity” form, is commonly provided by a hospital or midwife after a child’s birth, though the form may be signed at any time after a child is born. The parents must sign the form before a notary and submit the form to the state registrar’s office of Vital Records to add the male’s name to the child’s birth record. Again, local child support agencies may assist with this form. State law presumes that a male is a child’s father if he and the mother have acknowledged paternity and if no other male is presumed to be the father due to marriage.
Administrative Determination Based on Genetic Text Results
Paternity may be established based on genetic tests performed pursuant to a local child support agency’s administrative subpoena power. Specifically, under this method, genetic test results may constitute a conclusive determination of paternity if all of the following conditions apply:
- Both the child’s mother and the male are over 18 years of age.
- A county child support agency required genetic tests be performed using its subpoena power.
- The test results show that the male is not excluded as the father and that the statistical probability of the male’s parentage is 99 percent or higher.
- No other male is presumed to be the father under legal presumptions of paternity related to marriage or acknowledgment.
If a county child support agency receives genetic test results and the above requirements are satisfied, the agency must notify the mother and male of the results and other information, including the right to object. If the mother or male timely object, the agency must commence a paternity action on behalf of the state. If neither the mother nor the male object timely, the agency must file a report with the state registrar to add the man’s name to the child’s birth record, which creates a conclusive determination of paternity and has the same effect as a judgment of paternity. Subsequently, a court action may be filed to address the issues of legal custody, physical placement, or child support.
Court Ruling in a Paternity Action
Wisconsin law also allows for paternity to be established by a court in a paternity case, up until a child turns 19. Several persons are eligible to commence a paternity action under Wisconsin law, including the child, the child’s mother, a man alleging to be the child’s father, or a child support agency on behalf of the state. In addition, the husband of the mother, who is presumed to be the child’s father, or a man legally acknowledged as the child’s father at birth, may bring an action to refute paternity. If a man is named as the possible father in a petition for paternity and does not agree, or, if a man states that he is the father of a child and the mother does not agree, a court will make a ruling about paternity.
A paternity action is commenced by filing a summons, notice, and petition for paternity with the clerk of court for the county in which the child or the alleged father resides. The person filing the action must generally serve the filed documents on the other parent or alleged parent within 90 days of filing the action. The alleged father has a right to counsel in the proceeding. A guardian ad litem (GAL) is appointed for a minor parent and may be appointed for the child in some circumstances.
Paternity court proceedings are closed to the public and generally involve three stages: the first appearance; the pretrial hearing; and the trial. Paternity can be acknowledged at any of these stages. Generally, the alleged father may admit paternity, deny paternity, or admit paternity subject to confirming genetic tests.
At the first appearance, the court must inform the parties of certain information, including the rights and obligations created by a paternity judgment, the right to request genetic tests, and the existence of various defenses to paternity, such as sterility at the time of conception, or lack of intercourse, or another man having intercourse with the mother during the preconception period.
At the pretrial hearing, the court must evaluate the probability of determining paternity at trial. At this stage, witnesses and other evidence may be presented, as described below. The court may, at the conclusion of the evidence, make a recommendation to the parties regarding the paternity action, including dismissal or settlement. If no settlement is reached at the pretrial stage, a paternity trial is held in two parts: first, to determine paternity; and second, if paternity is established, to determine child support, legal custody, periods of physical placement, and any related issues, if necessary.
Genetic tests are a common form of evidence used in a court action to determine paternity, though other types of evidence of paternity are permitted. Wisconsin law generally requires a court to order genetic tests, unless certain exceptions apply. If the results of genetic testing show that the alleged father is not excluded as a possible father of the child and that the statistical probability of the alleged father’s parentage is 99 percent or higher, the alleged father is rebuttably presumed to be the child’s father.
After a settlement by the parties or upon conclusion of a paternity trial, the court enters a judgment of paternity. The judgment contains an adjudication of the child’s paternity, an order requiring payment of child support, an order for the child’s legal custody and physical placement, an order as to which parent may claim the tax exemption for the child, and orders relating to the payment of birth expenses and costs and fees of the action, including GAL fees and genetic testing fees.(ib_paternity_ao_2021_02_26 - wisconsin.gov)
Once the trial is completed, the court enters a judgment of paternity. The judgment contains an adjudication of the child’s paternity, an order requiring either parent to pay child support, an order for the child’s legal custody and physical placement, an order regarding which parent will have the right to claim the tax exemption for the child, and orders relating to the payment of birth expenses and all related costs and fees of the action, including GAL fees and genetic testing fees.
Paternity Under the Uniform Parentage Act
Voluntary Acknowledgement of Parentage
The Uniform Parentage Act (UPA) provides procedures for voluntary acknowledgment of parentage by the child’s birth mother and any other person seeking to establish a parent-child relationship, regardless of that person’s gender. (See Appendix C -- Uniform Parentage Act Article 3). The UPA is worded in such a way that it can easily be applied to same-sex relationships, eliminating the need for adoption procedures to create the parent-child relationship.
Proceeding to Adjudicate Parentage
The UPA also provides procedures for court adjudication of parentage for individuals wishing to claim or dispute parentage based on genetic testing, presumed parentage, acknowledged parentage, and parentage by estoppel (called De facto parentage under the act.). The hearing and adjudication procedures are similar to procedures existing in many states (See Appendix C -- Uniform Parentage Act Article 6). Again, the UPA is worded in such a way that it can easily be applied to persons of any gender.
Parentage through Assisted Reproduction
As you saw in Chapter 17, children conceived through assisted reproduction not involving sexual intercourse can result in unique challenges to courts that are requested to determine parentage, particularly in the absence of a valid and enforceable surrogacy agreement. The UPA addresses this scenario as well, by providing a person other than the birth mother an opportunity to establish parentage of the child conceived through assisted reproduction through signed written consent. The UPA also limits the ability to dispute parentage for spouses (regardless of gender) of birth mothers who conceived through assisted reproduction, if the parties were married at the time of the conception or at the time of the birth. (See Appendix C -- Uniform Parentage Act Article 7).