A child is born to parents who are not married to each other. The father is at the hospital. He is named on the birth record. He pays for things, he is there on weekends, everyone in both families calls him the father. Two years later the relationship ends, the mother moves, and he discovers that the law does not necessarily agree with everyone else about what he is.
This is the most common misunderstanding in Wisconsin family law, and it costs unmarried fathers more than any other. Being the biological father of a child and being the legal father of that child are two different conditions. The second one has to be created. Until it is, a Wisconsin court cannot order custody, cannot order physical placement, and cannot order support — not for you and not against you.
The rule that governs everything else
Section 767.80 (5m) is the provision to understand first, because it explains why the rest of the machinery exists. With narrow exceptions, no order or temporary order may be entered for child support, legal custody, or physical placement until the male is adjudicated the father under the paternity subchapter, is presumed the father under § 891.41 (1), is conclusively determined to be the father from genetic test results under § 767.804, or has acknowledged paternity under § 767.805 (1) or a substantially similar law of another state.
The statute then goes further: for a man in none of those categories, the procedure in this subchapter is the exclusive way to establish support, custody, or placement rights — and no person may waive the use of this procedure. Parents cannot agree their way around it. An informal arrangement, however long-standing and however amicable, is not an order and cannot be enforced as one.
So the practical question for an unmarried parent is never “does everyone know who the father is.” It is: which of the four doors has this family actually walked through?
Door one: marriage
Under § 891.41 (1) (a), a man is presumed to be the natural father of a child if he and the child’s natural mother are or have been married to each other and the child is conceived or born after the marriage and before the granting of a decree of legal separation, annulment, or divorce. Paragraph (b) covers the couple who marry after the birth, where they had a relationship with one another during the period in which the child was conceived and no other man has been adjudicated or presumed the father under par. (a).
Related, and often confused with it: § 767.803 provides that where the father and mother of a nonmarital child enter into a lawful marriage — or a marriage that appears and they believe is lawful — the child becomes a marital child and enjoys all the rights and privileges of a marital child as if born during the marriage.
The presumption is strong but not absolute. Section 891.41 (2) provides that it is rebutted by genetic test results showing that a man other than the presumed father is not excluded and that the statistical probability of that man’s parentage is 99.0 percent or higher — even if the presumed father is unavailable to be tested. But Wisconsin courts have held that equitable estoppel may preclude a party from rebutting the marital presumption; the question is whether the actions and inactions of the party seeking to rebut it are so unfair as to override the public’s interest in the presumption. Randy A.J. v. Norma I.J., 2004 WI 41, 270 Wis. 2d 384, 677 N.W.2d 630.
Door two: the voluntary acknowledgment
For unmarried parents this is the ordinary route, and it is usually offered at the hospital. Both parents sign a statement acknowledging paternity, which is filed with the state registrar.
What it accomplishes is substantial. Under § 767.805 (1), a statement acknowledging paternity on file with the state registrar, after the last day on which it may be timely rescinded, is a conclusive determination of paternity, of the same effect as a judgment. No hearing, no testing, no court. A minor may not sign one. § 767.805 (1m).
The window to undo it is shorter than people think
Here is the detail that surprises nearly everyone. The rescission rule is in § 69.15 (3m) (a) 3.: the person rescinding must file the rescission with the state registrar before the day on which a court or circuit court commissioner makes an order in an action affecting the family involving the man who signed the statement and the child, or before 60 days elapse after the statement was filed — whichever occurs first.
Sixty days is not a guaranteed period of reflection. It is a ceiling. If a support or placement order is entered on day twelve, the window closed on day twelve. And the acknowledgment must have been signed and filed on or after April 1, 1998, on the prescribed form, with the attestation clause showing that both parties received oral and written notice of the legal consequences before signing. §§ 69.15 (3m) (a) 1., 767.805 (6) (a).
After the window closes, the acknowledgment is not simply reopened on request. Section 767.805 (5) (a) permits a determination arising under that section to be voided at any time, but only on a motion or petition stating facts that show fraud, duress, or a mistake of fact. Regret is not one of the three. Orders already entered generally remain in effect during the pendency of that proceeding, absent good cause. If the court then determines the male is not the father, it vacates the orders as to him, the birth record is corrected, and — a consequence worth sitting with — no paternity action may thereafter be brought against him with respect to that child. § 767.805 (5) (b).
What the acknowledgment does not do
It does not give a father custody. It does not give him placement. It makes him the legal father, which is the precondition for asking a court for those things — not a substitute for asking.
The mechanism is in § 767.805 (3) and (4): once an unrescinded acknowledgment is on file, an action affecting the family concerning custody, child support, or physical placement may be brought, and in that action the court shall make an order containing orders for legal custody and periods of physical placement determined under § 767.41, an order for support determined under § 767.511, a determination of which parent may claim the child as a federal tax exemption, the birth-expense provisions, and orders as to guardian ad litem costs and attorney fees.
A father who signed at the hospital and never went further is a legal father with no placement schedule. He generally has no order to enforce when the other parent decides he will not see the child this weekend.
Door three: the conclusive genetic-test determination
Section 767.804 provides a route that bypasses court adjudication entirely, but only on strict conditions. Genetic test results constitute a conclusive determination of paternity — effective when the report is submitted to the state registrar, and with the same effect as a judgment of paternity — if all of the following apply: both the mother and the male are over 18; the tests were required to be performed by the county child support agency under § 59.53 (5) pursuant to § 49.225; the results show the male is not excluded and that the statistical probability of his parentage is 99.0 percent or higher; and no other male is presumed the father under § 891.405 or § 891.41 (1). § 767.804 (1) (a).
The agency must give at least 15 days’ advance written notice by regular mail before filing the report, stating the results, the filing date, that an action concerning custody, support, or placement may be brought, and that either parent may object in writing by the day before that date. If a timely objection arrives, the agency does not file — it commences a paternity action on behalf of the state, and the genetic test results are admissible in it. § 767.804 (1) (b), (d).
A genetic test arranged privately, or ordered inside a pending court case, does not travel this road. It is evidence, and a strong one, but it is not the § 767.804 conclusive determination.
Door four: the paternity action
When the first three do not apply — or when someone disputes the result — paternity is established by a court action under subch. IX of ch. 767.
Who can file, when, and where
Section 767.80 (1) lists the persons who may bring the action or file the motion: the child; the child’s natural mother; a male presumed to be the father under § 891.405, § 891.407, or § 891.41 (1) (unless § 767.804 (1) or § 767.805 (1) applies); a male alleged or alleging himself to be the father; the personal representative of any of those persons if deceased; the child’s legal or physical custodian; the state, including through its delegates; a guardian ad litem appointed for the child; and, in specified circumstances, a parent of one of those persons or a parent of a person who filed a declaration of paternal interest.
The action is brought in the county where the child or the alleged father resides or is found, or, if the father is deceased, where his estate has been or could be probated. § 767.80 (1m). It may be filed before the child is born, but proceedings are stayed until after birth except for service, pleadings, the first appearance, and depositions to preserve testimony. § 767.80 (3). The child may be a party. § 767.80 (4). The case is captioned “In re the paternity of A.B.” § 767.80 (5) (b).
There is an outside limit. Under § 893.88, an action for the establishment of the paternity of a child must be commenced within 19 years of the date of the child’s birth or be barred.
When the state files — and whom its lawyer represents
The county attorney responsible for support enforcement under § 59.53 (6) (a) must commence a paternity action on behalf of the state within six months after receiving notification under § 69.03 (15) that no father is named on the birth record of a child residing in the county, where paternity has not otherwise been conclusively determined, acknowledged, or adjudicated, subject to the exceptions the statute names. § 767.80 (6m).
Understand who that lawyer is. Section 767.80 (6) (a) makes the support-enforcement attorney the representative of the state. That attorney is not the mother’s lawyer and is not the father’s lawyer, and § 767.80 (6) (c) bars the same attorney from simultaneously acting as guardian ad litem for the child. A parent who assumes the county has their interests in hand is making an assumption the statute does not support.
The first appearance and genetic testing
At the first appearance, if a sufficient petition, affidavit, or sworn testimony establishes probable cause to believe that a named male had sexual intercourse with the mother during a possible time of conception, the court may order genetic tests on its own — and must order them at the request of any party. § 767.863 (2). The tests are conducted under § 767.84 by a court-appointed expert. Any party may request independent testing, and the court must order it. § 767.84 (2).
Section 767.84 (1m) supplies the consequence: if genetic tests show the alleged father is not excluded and the statistical probability of his parentage is 99.0 percent or higher, he is rebuttably presumed to be the child’s parent. Note the difference from § 767.804. The same number does different work in the two statutes — conclusive determination there, rebuttable presumption here.
Once tests reach that threshold, money starts before the case ends. On the motion of a party, the court shall make an appropriate temporary order for the payment of child support, and may make a temporary order assigning responsibility for the child’s health care expenses, at any time during the pendency of the action. § 767.85 (1). Before doing so it must consider the same factors it would consider at final judgment. § 767.85 (2).
The best-interest off-ramp
Wisconsin has an unusual provision that catches litigants unprepared. Where a child was born to a woman while she was married, and a male other than the husband alleges that he is the father, a party may allege that a judicial determination to that effect is not in the best interest of the child. If the court so determines, no genetic tests may be ordered and the action shall be dismissed. § 767.863 (1m). The court must hold a hearing on the child’s best interests before dismissing on that ground rather than dismissing summarily. J.F. v. R.B., 154 Wis. 2d 637, 454 N.W.2d 561 (Ct. App. 1990).
A parallel provision, § 767.855, permits dismissal as to a male at any point in a paternity action, on the motion of a party or the guardian ad litem, if the court determines that a judicial determination of whether he is the father is not in the child’s best interest — regardless of whether genetic tests have been performed or what the results were.
Biology, in other words, does not automatically win. It is the ordinary answer, not the invariable one.
Trial
Under § 767.883 (1), the trial is divided into two parts: the first determines paternity, the second addresses child support, legal custody, periods of physical placement, and related issues. Where the child was born to the mother while she was the lawful wife of a specified male, the prior question whether the husband was not the father is determined first, under § 891.39.
There is a right to a jury on the first part, and it is easy to lose. The defendant must request it verbally at the initial appearance or the pretrial hearing, or in writing before the pretrial hearing. The jury consists of six persons, and no verdict is valid unless agreed to by at least five. § 767.883 (1), (2).
These proceedings are private. Section 767.853 requires that any hearing, discovery proceeding, or trial relating to a paternity determination be closed to persons other than those necessary to the action, and that the record of a pending proceeding be placed in a closed file, subject to the access the statute specifically allows.
What the judgment actually contains
A judgment or order determining the existence or nonexistence of paternity is “determinative for all purposes.” § 767.89 (1). Section 767.89 (3) then requires that it contain all of the following:
- An adjudication of the paternity of the child.
- Orders for legal custody and periods of physical placement, determined in accordance with § 767.41.
- An order requiring either or both parents to contribute to the support of a child under 18, or under 19 if the child is pursuing an accredited course of instruction leading to a high school diploma or its equivalent, determined in accordance with § 767.511.
- A determination as to which parent, if eligible, may claim the child as an exemption for federal tax purposes.
- An order establishing the father’s obligation to pay or contribute to the reasonable expenses of the mother’s pregnancy and the child’s birth — an amount that may not exceed one-half of the total actual and reasonable pregnancy and birth expenses — with findings on whether his income is at or below the federal poverty line and whether periodic payments are due based on his ability to pay.
- Orders as to guardian ad litem fees, the cost of genetic tests, and other costs.
- An order requiring either party to pay or contribute to the other’s attorney fees.
On the request of both parents the court shall order the child’s name changed to the name they agree on; absent agreement, it may order a hyphenated surname combining the parents’ surnames if it finds that change in the child’s best interest. § 767.89 (3m).
Back support
The rule that governs the fear most often voiced by fathers who have been out of contact: under § 767.89 (4) (a), liability for past support is limited to support for the period after the day the petition was filed, unless a party shows that he or she was induced to delay commencing the action by duress or threats, by actions, promises, or representations relied on, or by the other party’s actions to evade paternity proceedings — and that, once the inducement ceased, there was no unreasonable delay. And in no event may liability for past support be imposed for any period before the child’s birth. § 767.89 (4) (b).
The exception is real and it is fact-intensive. It is not a formality either party should assume will or will not apply.
After the judgment, the ordinary family-law machinery applies
Section 767.89 (6) makes the general provisions applicable to a paternity judgment: custody and placement under § 767.41, grandparent and other visitation under § 767.43, modification of custody and placement under § 767.451, the relocation rules of § 767.481, and revision of support orders under § 767.59, among others.
The practical meaning is that an adjudicated father is in the same position as a divorced one. The two-year rule and the substantial-change standard govern later changes to his placement schedule. The 100-mile relocation procedure applies if the other parent wants to move. The percentage standard governs support and its revision. Establishing paternity is not the end of the matter; it is admission to the system in which the rest of it is decided.
Two things worth doing early
If you are being asked to sign an acknowledgment and you have any doubt, do not sign it yet. The statute treats the signature as a judgment. Genetic testing before signing costs a delay; unwinding a conclusive determination afterward requires fraud, duress, or mistake of fact, and the window under § 69.15 (3m) can close in far less than 60 days if an order is entered.
If you have signed and you want a relationship with your child, file. The acknowledgment made you the legal father. Only an action under § 767.805 (3) produces the custody and placement orders that make that status enforceable, and the passage of time in an arrangement that works informally tends to shape what a court later regards as the status quo.
Talk to a New Berlin family law attorney
Paternity cases carry a peculiar weight: the legal questions are technical, the emotional stakes are as high as they get in this area of law, and the deadlines are short and easy to miss. Whether you are being asked to sign, being served, or trying to convert an informal arrangement into an order that means something, the sooner the statute is applied to your facts, the more options remain.
Carson Law Office handles family law matters — paternity, custody and physical placement, child support, divorce and legal separation, maintenance, and post-judgment modification — throughout New Berlin, Waukesha County, Milwaukee, West Allis, Wauwatosa, and the surrounding communities. If you are working through a paternity matter, our articles on what legal custody and physical placement actually mean, how child support is calculated, and how a placement order is later modified cover what happens after paternity is established. Call (262) 860-8932 or contact us here to have your own situation measured against the statute.
This article provides general information about Wisconsin law and is not legal advice. Reading it does not create an attorney-client relationship. Every case is different; for advice about your own situation, speak with a licensed Wisconsin attorney.