Responsibility for Birth Costs in Paternity Cases in Wisconsin

Under Wisconsin law, establishing paternity is an important step for unmarried fathers to establish their rights to their children. Establishing paternity not only establishes parental rights but also establishes specific financial obligations. One of the lesser-known but significant components of those obligations relates to birth costs.

Birth costs would be the expenses associated with the mother’s pregnancy and the child’s birth. This article explores how Wisconsin law addresses these costs in the context of paternity actions.  

Paternity and Financial Obligations

In Wisconsin, a paternity action is a court proceeding to legally determine whether a man is the father of a child and establish that father’s custodial rights and visitation rights. A judgment of paternity under Wisconsin Statute 767.89 establishes the parent-child relationship and triggers several legal effects, including child support obligations and, importantly for this article, the possibility of orders requiring contributions toward reasonable pregnancy and birth expenses.

A paternity judgment also typically includes orders regarding custody and physical placement, child support, health care expenses, and tax exemption rights.

Practical Implications for Fathers and Mothers

Understanding how Wisconsin law allocates responsibility for birth costs in paternity cases is critical for both parents in cases where:

• The parents were not married at the time of the child’s conception or birth,
• The mother received public assistance, and the assistance covered the costs of pregnancy and/pr birth, or
• The father has a limited ability to pay said costs.

For unmarried fathers, paternity establishment is often the gateway to financial responsibility. Once paternity is adjudicated, either voluntarily or through a court order, authority exists for child support, health care costs, and birth cost orders.  

For unmarried mothers, especially those on state assistance such as BadgerCare, Wisconsin’s recovery mechanisms allow the state to recoup costs if it has paid on the mother’s behalf. The actual amount may not exceed ½ of the total and reasonable costs, and the amount an alleged father pays can be capped after adjustment for his financial circumstances.

Statute for Birth Cost Orders

The key statutory authority for requiring a potential father to contribute to pregnancy and birth expenses is found in Wisconsin Statute 767.89(3)(E), which authorizes the court to include in a paternity judgment:

• An order establishing the amount of the father’s obligation to pay or contribute to the reasonable expenses of the mother’s pregnancy and the child’s birth. The amount established may not exceed one-half of the total actual and reasonable pregnancy and birth expenses.”

The amount the father may be responsible for may not exceed ½ of the total actual and reasonable expenses. The court will determine if the costs are to be repaid by period payments. If the father is at or below the poverty line (or otherwise has no present ability to pay), the court may, at a later date, modify the judgment or order to require periodic payments.

• “The order also shall specify the court’s findings as to whether the father’s income is at or below the poverty line established under 42 USC 9902 (2) and shall specify whether periodic payments are due on the obligation, based on the father’s ability to pay or contribute to those expenses.”

Administrative Standards: How Birth Cost Orders are Set

Wisconsin Statute 767.89(3)(E) provides the statutory basis for establishing responsibility and duty to provide for birth costs. Wisconsin Administrative Code 150.05(2) (Birth Cost Judgement) instructs the courts as to how to determine a fair birth costs order.

The Wisconsin Code above states that recovery of birth costs is inappropriate in cases where the alleged father is a member of an intact family that includes the mother and the subject child at the time paternity or support is established, and the father’s income contributes to the support of the child. This means that the Court will not order birth costs if the mother and the alleged father of the child are living together and the father is providing support for the child. If the parties are separated, however, the court can order the birth costs.  

A birth cost judgment is an order setting a father’s obligation for reasonable pregnancy and birth expenses under 767.89(3)(E). A birth cost judgment must not exceed ½ of the actual and reasonable costs of the mother’s pregnancy and the child’s birth. The administrative rule specifies that the court should order the lowest of the following amounts:

• A sum not exceeding 5% of the father’s current monthly income available for child support, multiplied by 36 months.
• If the father’s monthly income available for child support is between 75% and 150% of the federal poverty guidelines, an amount that does not exceed the maximum birth cost judgment amount provided in the schedule in Appendix D.
• If the father’s monthly income available for child support is less than 75% of the federal poverty guidelines, a birth cost judgment at an amount appropriate for the father’s total economic circumstances.

Appendix D is updated annually based on changes in the federal poverty guidelines. The maximum birth cost judgment amount may not exceed the identified percentage of the father’s current monthly income available for child support multiplied by 36 months. 75% to 150% of the 2023 Federal Poverty Guidelines would range from $911 to $1,823 per month.

For a hypothetical example: if an alleged father earns $1,201 per month, Appendix D outlines a 3.85% interest rate for 36 months, and the maximum birth costs judgment amount would be $1,664.

These administrative standards aim to balance fairness and affordability. They require the courts to consider the alleged father’s ability to pay and federal poverty criteria when setting birth costs obligation, rather than simply imposing half of all billed charges.  

Scope and Limitations of Birth Cost Obligations

There are important limitations on how responsibility for birth costs operates.

• Half of Actual Costs Only. Wisconsin law expressly caps the father’s ordered contributions at ½ of the actual and reasonable pregnancy and birth expenses. The restriction protects the alleged father from bearing the entire financial burden and comes directly from 767.89(3)(E).

• Ability to Pay. Both the statute and administrative rule require consideration of the ability to pay. Administrative standards specifically direct the courts to use income-based guidelines in calculating the amount of the obligation. This is based on the principle that support obligations, including birth expenses, should be proportionate to the parents’ financial situation.  

• Exceptions to Intact Families. Wisconsin child support indicates that courts and child support agencies should not seek birth cost judgments in cases where the alleged father is part of the intact family at the time paternity is established. This means that the alleged father still resides with the mother and the child and contributes his income to the family unit. This policy prevents unnecessary legal liability where parents and the child still live together.  

• Medicaid and Public Assistance Considerations. When the mother’s pregnancy and childbirth are paid for by public assistance programs such as BadgerCare or Medicaid, Wisconsin’s Department of Health Services and child support agencies may pursue recovery of birth costs from the father. This means a birth cost judgment may order repayment to the state rather than to the mother directly. Under the department’s policy, a non-martial father not included in the mother’s Medicaid/BadgerCare group at the initial eligibility could be held responsible for repaying the program's birth costs. This reflects federal rules requiring states to pursue medical support (including pregnancy and birth costs) from noncustodial parents to recover expenses paid by public assistance programs.  

Birth Costs in Relation to Child Support and Health Care Expenses

Birth cost obligations exist alongside child support orders under Wisconsin Statute 767.511. That statute requires courts, when entering a paternity judgment, to assign responsibility for child support, including both ongoing support and health care expenses, and direct the manner of payment.  

Wisconsin Statute 767.513 requires courts to specifically assign responsibility for the child’s health care expenses when entering support orders. Birth cost judgments are conceptually similar but pertain specifically to the pregnancy and delivery period rather than the child's ongoing health care costs.  

Conclusion  

Birth costs responsibility in Wisconsin paternity cases is a nuanced area of family law where statute, administrative rules, and policy intersect. Wisconsin Statute 767.89(3)(E) authorizes courts to order a father to contribute to pregnancy and birth expenses, subject to limits and economic considerations. Administrative guidance from the Department of Children and Families (Wisconsin Administrative Code 150.05(2) Birth Cost Judgement) instructs the courts on how to determine a fair birth cost order.

Contact O’Flaherty Law today to schedule a consultation. Let us guide you through the process with clear advice and trusted support.