Frequently Asked Questions Regarding Paternity
Does Every Man Need to Establish Paternity?
No. If a man is married to a woman when she gives birth, then he is presumed to be the father under the law. Of course, it might be the case that he’s not really the father. A married woman could have an affair, for example. But unless the man and the mother agree otherwise, the state will view him as the father.
Why Establish Paternity?
Unless a man is the father, he will not have legal rights to see his children. The mother will have sole custody and placement with the child.
Along with rights come obligations—and the requirement to provide child support and medical care is a big one. Unless a man is established as a child’s father, he has no obligation to provide support.
We see paternity cases brought in three types of situations:
- A man wants to establish paternity so he can have custody and/or time with the child.
- The mother wants to establish paternity so the man starts paying child support.
- The state seeks to establish paternity to put an income withholding order in place and possibly seek reimbursement from the mother for assistance paid.
Can a Man Acknowledge He is the Father?
Yes. For example, a couple might be unmarried when they conceive and have a child. Nevertheless, there is no question in their minds that the man is the father. Although the law will not presume he is the father, both he and the mother can acknowledge him as such. In this case, the couple will jointly sign a form to this effect.
If the couple has a child and then get married, they can legitimate the child by jointly signing an Acknowledgement of Marital Child form. This will also establish the man is the father.
However, if the woman is married to someone else, then the couple cannot use these voluntary methods to establish paternity.
How Does a Court Adjudicate Paternity?
When a couple cannot jointly agree a man is the father, a judge steps in to decide the dispute. We typically think of this happening when a man is trying to deny his legal responsibilities. But sometimes men must take mothers to court to establish their paternity as well.
In most situations, the court hears evidence to establish paternity. It also uses a DNA test to establish whether the child is the man’s biological offspring. Most judges have each side split the cost of the DNA test, but the county might pay if they are poor.
How Much Time Does a Man Have to Establish Paternity?
Unlike other states which give men only a couple years, Wisconsin allows a man to bring an action to establish paternity at any time before the child turns 19. The same deadline applies to children and mothers who wish to bring an action for paternity. Once a child is 19, however, no one can be forced to participate in genetic testing to establish lineage.
Can You Refuse to Take a DNA Test?
Not really. Technically you can say “no”—but if a judge orders that you take the test, then you must comply. Failure to do so will probably result in contempt of court, including fines and time in jail.
What are the Steps in a Paternity Action?
Here is how most paternity actions proceed in Milwaukee:
- A paternity action is filed in court. Either the mother, suspected father, or child enforcement agency can file. Whoever files must provide a copy of the legal pleadings to the other parties. The court documents should allege that the man is the child’s father. In some situations, a mother isn’t entirely sure who the father is, in which case she might join multiple men in the lawsuit.
- If the mother or child support agency files, then the alleged father has a certain amount of time to respond to the allegations. He will also need to show up in court and acknowledge or deny paternity.
- If a man acknowledges paternity, the court then moves on to establish custody, placement, child support, and related matters.
- If a man denies he is the father, the court will accept evidence on the issue and typically orders genetic testing. Genetic testing takes roughly two months. During that time, the court will suspend any orders.
- If the DNA test shows a man is not the father, the judge dismisses him from the case.
- By contrast, if the tests come back showing a match, the man can admit paternity, or he might challenge the DNA test results. A judge ultimately decides whether the man is the child’s father and will proceed to set the terms (custody, child support, etc.)
Can I Have an Attorney?
Yes. There are many benefits—especially if the DNA test comes back positive and a court must set custody, placement, and child support orders.
Who is the Guardian Ad Litem?
This is someone appointed by the court to represent your child’s best interests. The guardian ad litem can perform an investigation into what custody and placement schedule would be best for the child and share this information with the court.
What if You Are Unhappy with the Custody, Placement, or Child Support Orders?
Either parent can seek review. We encourage you to do so if you are unhappy, because these orders are difficult to modify later.
Will My Wages Be Garnished if Paternity is Established?
In the child support context, Wisconsin typically calls for income withholding orders to be sent to your employer. Your employer automatically deducts the amount of child support from your paycheck and sends it to the state. On the bright side, this means you are unlikely to fail to pay and accumulate arrears.
Does the Mother Have to Reimburse the State for Public Assistance?
She might if paternity is established. One reason why the state often files paternity actions is that it wants to limit how much public assistance it pays out.