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Garrett Miller

With divorce in the focus, an often-overlooked area of law is parentage, specifically when the parents never went through the divorce process as they were never married. However, with society undergoing significant changes in mores and norms as people increasingly choose non-traditional lifestyles, parentage is becoming all the more important, and the family law issues for non-married families need to be explored.  

It is very important that parents have all the necessary information to pursue their rights, and that they have access to competent legal counsel should they need advice. Couples refraining from becoming married should not frustrate their legal rights as parents, and Wisconsin fully backs this proposition.  In the state of Wisconsin, parents who are not married have full legal recourse in Wisconsin courts to pursue their rights.  

In this article, we will explore the concept of paternity, with a look at several issues that commonly arise in an unmarried family situation.  We will provide succinct answers to a number of legal questions related to paternity, with a perspective on both the mother’s and father’s viewpoints.  If anything is unclear, or you have a question that was not answered in this article, please reach out to our qualified Wisconsin family law attorneys who can help you through this process.  As with any question in family law, the sooner you are working with a qualified attorney, the better your odds are toward reaching a positive outcome.

What Does Paternity Mean?

In the most basic terms, paternity refers to being the legal parent of a child, generally used in the context of a father in a situation where there is a question surrounding the child’s parentage.  Paternity is often the decisive issue in matters where child custody or child support is in question.  Establishing paternity is not just a matter of obligations, fatherhood also comes with its own set of rights in Wisconsin.  

A father has the right to be considered for custody before a child can be placed for adoption.  Fathers also have the right to petition a court for a decision regarding custody of a child and have a strong claim to overnight visits with their child.  Lastly, a father can submit a parenting plan for a court’s review, presenting their wish for how their child’s custody should work.

What is the Wisconsin Department of Children and Families?

The Wisconsin Department of Children and Families (DCF) is the Wisconsin state administration that oversees the child support enforcement and paternity establishment program.  This is accomplished either directly by the department, or through its oversight of a local county administration.  For example, in Milwaukee, the DCF acts as the overseer for the Milwaukee County Child Support Service, the local resource responsible for child support enforcement.

Generally speaking, the Department has two roles, establishing paternity, and enforcing child support awards.  DCF provides financial management services to individuals who are either receiving or making child support payments.  These include, collecting and sending the payments, recording the history of the payments, working with employers to withhold income for support payments, and assisting families with depositing their payments.

How Do I Obtain Child Support in Wisconsin If I Was Not Married to My Child’s Other Parent?

When parents are married at the time of the child’s conception or birth or become married shortly after the child’s birth following a relationship during the period of the child’s conception, the presumption in Wisconsin is that the married couple are the child’s natural and legal parents.  If the couple is not married, Wisconsin does not presume anything regarding paternity, regardless of whether the couple was cohabitating during the relevant time period.  However, note that in Wisconsin child support is the financial responsibility of the legal father, regardless of the marriage status of the couple.  If paternity has been established, the party that has primary custody of the child is entitled to financial support from the other parent.  In a situation where there is a question regarding paternity, and the man the mother believes to be the father objects, she can pursue a court order establishing paternity.

A mother can bring a cause of action in the Wisconsin court system to have an alleged father adjudicated the legal parent of the child in question.  Note that a man who believes himself to be the father of a child can bring a similar suit to establish his legal rights as a father.  

These issues can be brought in front of a court as early as the pregnancy period.  This court has full authority to adjudicate all questions related to paternity, including matters related to child support and child custody.  You can begin a court case for parentage by bring a petition to determine paternity with your local county circuit court and serving the respondent parent with a summons.  As part of the court process, a guardian ad litem will likely be appointed.  The guardian ad litem is the court’s fact-finder for the case, personally gathering information on the child’s situation with an eye towards informing the court on the child’s best interest.  

What is Voluntary Paternity Acknowledgment (VPA)?

A Voluntary Paternity Acknowledgement (VPA) is a legal document that allows parents who were never married to establish the paternity of the child at the time of birth.  Once both parents have signed the document, and it has been properly notarized and filed, the father’s name can be added to the child’s birth certificate.  Once the VPA is valid, and paternity has been established, the father will now have the obligations of legal parenthood.  Note that a valid VPA establishes financial obligations on the part of the father towards the child’s upbringing.  As a result, the father will owe child support if they are not the party with primary custody of the child under Wisconsin law.  Note that only one party is responsible for child support, so if the father has primary custody of the child the mother will be financially obligated to pay following the filing of a VPA.  

If there are any serious questions regarding the child’s paternity in the parent’s mind, they should not sign the VPA, as it can make it more difficult in the future to obtain court-ordered genetic testing.  If you believe you have signed a VPA in error, and that the paternity of the child is different from what has been represented, you must file a Request to Withdraw Voluntary Paternity Acknowledgment.  You must have this form signed, witnessed, and filed within 60 days of the VPA becoming valid.  

If you miss the 60-day window for rescinding a VPA, or a court has already made a determination regarding paternity, and you believe you made an error in signing, you will be in a difficult situation legally.  The only way to vacate a VPA at that point is a court order, and you will need to prove that you only signed the form under either duress, fraud, or a material mistake of fact.  As the party challenging the VPA, you will have the burden of proof, and this will almost certainly involve submitting to a genetic test.  

My Partner Is Pregnant, What Are My Options to Establish Paternity in Wisconsin?

Wisconsin provides unmarried fathers with a number of routes to establish paternity.  The most important question will be whether or not paternity is contested.  If the relevant parties all agree on who the father is, the mother and father can sign a Voluntary Paternity Acknowledgment.  This document, covered in more detail above, is presented to unmarried parents who are above the age of eighteen at all Wisconsin hospitals, and allows the father’s name to be placed on the birth certificate.  

If there is a question regarding paternity, and the relevant parties are amicable but unsure of who the father is, a good option is a conclusive paternity determination based on genetic test results.  Developed in 2020, this option allows parents to utilize their local child support agency to perform a DNA test on the potential father.  This generally involves a cotton swab of the inner cheek, applied to the mother, the child, and the potential father.  If the test determines that the statistical probability of paternity is 99% or higher, paternity is established.  Note, that this option is not available if there is an existing presumption regarding paternity, for example if the mother was married at the time of the birth.  Should you become married shortly after the birth of your child, another option available is to fill out an Acknowledgment of a Marital Child form.  This form allows newly married parents to establish paternity.  

In the event that paternity is contested, an interested party can bring a petition to determine custody before a court of law.  This petition can be brought by either the mother, seeking to establish someone as the legal father, or an individual who believes themselves to be the father and would like to establish their legal rights as a parent of the child.

Which Is Better, A Voluntary Paternity Acknowledgment or A Court Adjudication Finding Paternity?

Generally speaking, it is always advisable to have a court order establishing paternity.  While signing a VPA accomplishes adding the father’s name to the birth certificate, this alone does not establish the legal rights of fatherhood.  A VPA can be used by the local child support agency to pursue payments, but until the father has legally pursued their rights in court, a VPA does not entitle them to custody or decision-making authority over their child.

Am I Able To Voluntary Terminate My Parental Rights In Wisconsin?

While Wisconsin courts technically have a process for voluntary termination of parental rights, it is still a very difficult process.  As with any legal question concerning the disposition of a minor in the state of Wisconsin, the legal standard courts apply is the best interest of the child.  

As Wisconsin law strongly supports the idea that every child benefits from having two parents, they are extremely reluctant to grant a voluntary termination of parental rights, regardless of if the parties are agreed it is the best option.  The technical process for voluntary termination involves attending a court hearing in which an individual is advised by the court on the implications of terminating parental rights.  

Once they are considered informed by the court, the court will decide whether to elect to terminate.  Outside of circumstances where an individual is ready to adopt the child in the previous parent’s absence, voluntary termination is unlikely to be granted.  

What Is The Limit On Bringing A Paternity Claim In Wisconsin?

Wisconsin law allows for a paternity claim to be brought throughout the child’s minority.  The statute of limitations for a paternity suit is 19 years after the birth of the child in question, so this means when the child turns 19.  Note that this statute of limitations applies to suit brought by both the mother and the potential father.  After 19 years of age, there is no legal recourse to establish paternity.

What Is A Wisconsin Parenting Plan?

If there has been a falling out between parents in Wisconsin, and they are no longer living together or agree on the raising of their child, they should seek to establish their legal rights as parents in their local circuit court.  As part of this process, the court will order mediation.  This will provide the parents with an opportunity for dialogue.  

If mediation is successful, the parents will create a document outlining their agreed rights and responsibilities in regards to the raising of their child.  This document is referred to as a parenting plan.  If mediation is deemed unproductive, the court proceeding will move forward.  Depending on the county, each parent will have a set amount of time, often 60 days, to provide their own proposed parenting plan to the court following the end of mediation.  It is extremely important that parents provide the court their proposal within this timeframe, as by failing to do so they run the risk of the court entering the other’s parent’s proposal by default.  

Wisconsin statue defines certain terms that must be included in a parenting plan.  These include but aren’t limited to; the physical placement plan (physical placement is Wisconsin’s term for child custody), the parent’s current living situation including their home address and hours of employment, the child care plan for when the parent is unable to be with the child, the healthcare plan for the child including their pediatrician, any religious plans for the child if the parent intends religious participation, who has decision-making authority for the child in regards to medical and educational questions, a process for disagreement resolution between the parents, the child support payment plan, and how the child will spend holidays between the parents.  

When the parents negotiate, they can define these terms between themselves within certain limits.  If they are unable to negotiate, the court will take each proposal under advisement, and provide a plan they believe is in the best interest of the child.  The court will likely appoint a guardian ad litem to investigate the child’s living situation as part of this process.  This will include interview with both the parents and the child.  Preparing a parenting plan can be a complicated process, having legal counsel to advise you on what you should include is a must.

When Can I Claim My Child As A Dependent For The Purposes Of Taxes?

Having your child as a dependent on your federal and state tax return can confer big benefits, qualifying you for a tax exemption and potentially opening up the opportunity of major tax credits.  However, only one parent may claim the exemption, and when parents do not live together this can be a sticking point between.  The Internal Revenue Service (IRS) provides clarity in this situation through their rules defining when a child qualifies as a dependent.  For the purposes of tax, the IRS allows the “custodial parent” to claim the child as their dependent on their form.  

The IRS has a straightforward calculation to determine which parent is custodial; whichever parent the child spends the majority of nights with over the course of the year.  Nights are further defined as where the child sleeps, regardless of whether the parent is home during that time.  

In a joint custody situation, where the child is spending an equal number of nights with both parents, the IRS uses the income of each parent to determine who qualifies for the exemption, with the parent having the higher earnings able to claim the status on their tax form.  Note that the custodial parent can consent to the non-custodial parent claiming the exemption, or they can agree to such an arrangement in their Wisconsin parenting plan, if they feel that it would be appropriate given the circumstances surrounding the child’s living arrangement.  However, are the only acceptable scenarios for the non-custodial parent claiming the dependent, as such without the custodial parent’s consent they will be unable to do so.

Can The Mother Of My Child Prevent Me From Spending Time With Them In Wisconsin?

In Wisconsin, there are several important factors when considering if a mother’s decision to deny her child’s father visitation was appropriate.  The most important of these is whether paternity has been adjudicated by a court decision.  Note that in Wisconsin, until paternity has been conclusively established in a court of law, the mother has sole custody and decision-making authority over the child. The relevant Wisconsin statute reads:

The mother of a nonmarital child has legal custody of the child unless the court grants legal custody to another person or transfers legal custody to an agency. - Wis. Stat. § 48.435

Note that the mother also has sole custody during the legal process for paternity itself:  

Custody pending court order. If there is no presumption of paternity, …, or if paternity is conclusively determined from genetic test results, …, the mother shall have sole legal custody of the child until the court orders otherwise. - 767.82(2m)

This means that until you litigate the issue and have a court find you are the father, you have no rights to physical placement of the child, and the mother can unilaterally determine if and when you are able to interact with the child.  

While this presents a hurdle for fathers to have a meaningful relationship with their children, once paternity has been adjudicated the situation improves substantially.  When considering questions of physical placement, Wisconsin courts apply the standard of the best interest of the child and must consider the legal father’s interest, providing them opportunity to present their own proposal for a parenting plan.  Fortunately for fathers, Wisconsin law holds that is generally in the child’s best interest to have a meaningful relationship with both of their parents.  

Wisconsin is not a so called “mothers’ venue,” meaning a state that gives baseline preference to the mother in a custody proceeding.  In the event you do no receive primary physical placement of your child, you will still generally receive substantial visitation.  

Only in rare circumstances, where a significant risk posed by the father’s interaction with the child has been established, generally based on a documented history of violence or neglect, will a court deny a father any meaningful interaction with their child.  There are circumstances where a court might elect to have the father undergo a period of supervised visitation before they can have the child in their custody for overnight visits.  Wisconsin courts may use supervised visitation in a situation where the father has not been a part of their child’s life for a significant amount of time, and as such building up the father-child relationship over time in a public setting.  

Once the father has been awarded physical placement or visitation by a court, the mother must conform to the ordered parenting plan.  Failure on the part of the mother to do so could put her in contempt of court, a very serious charge in Wisconsin.  Failure to conform to the parenting plan could look like an unwillingness by the mother to communicate with the father about the child being unavailable for pick-up or failing to show up with the child to planned hand-off locations at the agreed upon time.  

While parents should always make a good faith effort to work with each other, if one party is simply and habitually not following the parenting plan, the court should be made aware of this.  A substantial failure by one of the parents to comply could justify modifying the parenting plan entirely.  A mother could unfortunately pursue less ethical means to frustrate a father-child relationship, including misusing orders of protection.  Orders of protection, also known as restraining order, are legitimate and important legal mechanism that provide individuals safe harbor from abuse.  

Sadly, they are sometimes used illegitimately by parties in family law proceedings to prevent parents from interacting with their children, as a punitive measure for perceived wrongdoing by the other parent.  As with any complicated family law issue, it is critical that you retain qualified representation, who can present the actual facts of the case to the court.  

If My Child’s Father Or Mother And I Break Up, What Is My Interest In Our Property In Wisconsin?

Under Wisconsin law, all property and debt acquired during the course of a marriage is considered to be “community property” of the married couple.  With a small exception for items that were inherited or acquired via a gift, and even for these items there is still a chance for division depending on the circumstances, property the couple acquired throughout their marriage will be split 50/50 in the event of divorce under the community property designation.  

For unmarried couples in Wisconsin, no such presumption exists for property acquired over the course of their relationship and cohabitation.  Note, in Wisconsin the legal principle of common law marriage, i.e., marriage by default after a period of cohabitation and marriage-like behavior, does not exist.  Therefore, even couples who have undergone cohabitation and the raising of a family for a significant amount of time will not be able to utilize the community property system of property division in a court of law in Wisconsin.  

The baseline presumption will be that property acquired throughout the relationship will lawfully belong to whoever’s name the property is held in.  This applies to all property acquired during the relationship, including expensive gifts such as jewelry, and major purchases like vehicles and homes the couple shared.  Note however, this is only the presumption.  Wisconsin courts have recognized the in-equitability of such a distribution of property for long term cohabitating couples.  While courts have consistently ruled that the equal distribution entitled to married couples does not extend to cohabitating unmarried partners, concepts have been developed in Wisconsin law to provide parties with substantial shared financial assets with some protection in the event of a break-up.

One strategy to overcome this presumption for unmarried couples is to avoid the situation all together by creating “cohabitation agreements.”  These agreements, better understood as contracts, would define the legal rights and responsibilities each party has towards a piece of a property acquired during the relationship.  Whereas simply having the property in the name of one of the parties’ disadvantages the other by creating a presumption of ownership, cohabitation agreements allow unmarried couples to define their own terms, in a legally enforceable official document that can be brought in a court of law.  

One thing to keep in mind however is that Wisconsin does not allow marriage-like contracts.  To avoid your cohabitation agreement being found unenforceable by a court, keep the terms of the contract as business-like as possible.  Keep the contract based on real world considerations, like property and the economic contribution of each party, not on intangibles like the existence of a continuing relationship.  

Outside of a break-up, cohabitation agreements also allow a couple to define what happens to their property in the vent of the death of either partner.  Without such an agreement in place, property would be distributed along the lines of the rules of inheritance in Wisconsin.  This means that if the deceased had not included their partner in a will at the time of their death, the partner would not be entitled to any of the deceased’s property interest.  

Another option is to come an agreement with your ex-partner regarding property distribution following a break-up.  It is generally preferable to negotiate with someone, when possible, rather than going straight to the court process to enforce your rights.  Agreements on selling major pieces of property, and how the proceeds should be distributed, avoid the time and effort put into litigating the issue.  Note, an attorney should always be consulted during this process.  They will be able to help define each party’s interest and advise their client on whether they are receiving an appropriate share of the couple’s shared assets.

Outside of a valid cohabitation agreement, or an agreed division by the relevant parties, Wisconsin courts have developed legal theories that can be employed in the event of a break-up to protect the property interests of people in long-term cohabitating relationships.  The most significant of these is pursuing an unjust enrichment claim through what is known as a “Watts Case.”  These actions derive their name from the landmark Wisconsin Supreme Court case, Watts v. Watts.  The participants in Watts had been cohabitating for over 12 years, having two children together in that time, with the mother Sue acting as caretaker and the father James being the primary bread winner.  They held themselves out to the public as if they married, but never went through the formal marriage process.  Sue brought an action in a Wisconsin circuit court to order an accounting of James’ personal and business assets accumulated during the course of their cohabitation.  The circuit court dismissed Sue’s action on the grounds she had no claim for property distribution, as there had been no marriage.  On appeal, the Supreme Court of Wisconsin decided differently.  While the ruling agreed that the protections of marriage did not apply to this living situation, the court overturned the decision, finding that Sue had grounds under contract, unjust enrichment, and partition theories to pursue compensation for her interest in the couple’s property.    

Over the years, Watts has become the go to case for action involving disputed property distribution following cohabitation in Wisconsin.  In particular, an equitable claim of unjust enrichment under the Watts ruling allows individual to be compensated for the value they invested in the property acquired by the couple during cohabitation.  

Unjust enrichment is broken down into three factors, first, an accumulation of assets, second, the assets were acquired through the efforts of the party bringing the claim and their former partner, and three, the assets were kept in an unreasonable fashion by the former partner.  The key to establishing unjust enrichment is demonstrating both parties contributed to the acquisition of the couple’s property, either through financial contributions or shared expenses.  Note this includes housework, along the lines of upbringing children and maintaining the household, if it can be demonstrated that it contributed to the ability of the other party to acquire resources during relationship.

Can I Collect Maintenance Or Alimony From My Former Partner If I Was Financially Dependent On Them?

When a couple undergoes divorce in Wisconsin, and there is a significant imbalance in their earning power, the court will consider if financial payments between the parties in the form of alimony may be appropriate. Wisconsin refers to this concept as “spousal maintenance.”  Spousal maintenance can be awarded in a limited fashion, allowing the receiving party time to search for gainful employment following the divorce, or indefinitely, in cases where a non-working long-term spouse is unlikely to ever find acceptable employment.  Note, temporary support can even be awarded in Wisconsin for the duration of the divorce proceeding itself, so as to prevent a lack of resources forcing a party to stay in an unhealthy marriage.  

However, Wisconsin does not extend this concept to unmarried couples, and with Wisconsin not recognizing the principle of common-law marriage, there is no way to obtain this payment outside of marriage.   Even in situations where a couple has been cohabitating for an extended period of time, with one partner at home as the dedicated caretaker of the couple’s children, no support in the form of “partner maintenance” is available.  

Legal observers have created a concept called “palimony,” a combination of the words pal and alimony, to describe a legal situation where alimony like payments would be incurred following a break-up of a long-term cohabitating relationship where a party was financially dependent on another.  As of now, Wisconsin has not recognized any form of this concept.  

One thing to note, if an unmarried couple had children, and paternity has been established by the filing of a Voluntary Paternity Acknowledgment or adjudicated in a court of law with an order establishing paternity being entered, the custodial parent will be entitled to financial assistance from the other parent for the maintenance of the child, in the form of child support payments.

The qualified Wisconsin family law attorneys at O’Flaherty Law are ready to fight for you in your parentage questions.  We know the process and can help you reach a better outcome.  Call our office at (630) 324-6666, email, or schedule a consultation with one of our experienced Wisconsin lawyers today. You can also fill out our confidential contact form and we will get back to you shortly.  

Disclaimer: The information provided on this blog is intended for general informational purposes only and should not be construed as legal advice on any subject matter. This information is not intended to create, and receipt or viewing does not constitute an attorney-client relationship. Each individual's legal needs are unique, and these materials may not be applicable to your legal situation. Always seek the advice of a competent attorney with any questions you may have regarding a legal issue. Do not disregard professional legal advice or delay in seeking it because of something you have read on this blog.

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