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Divorce in Wisconsin

Custody and Physical Placement: Frequently Asked Questions

Guardian Ad Litem

Paternity

 
 
 
Frequently Asked Questions About PATERNITY:

WHAT DOES PATERNITY MEAN?
It means that a man is found to be the legal father of a child born to unmarried parents. If paternity is not established the unmarried father has no legally recognized rights or responsibilities regarding the child.

HOW IS PATERNITY ESTABLISHED?
An action is filed in family court by the child, the childís natural mother, a man presumed to be the childís father, a man alleged to be the childís father, the personal representative of the man or woman or child, the person who has legal or physical placement of a child, the state, a guardian ad litem, a grandparent or by a person who has filed a declaration of paternal interest or an acknowledgment of paternity. Paternity may also be established by a voluntary acknowledgment of paternity which is a non-court process.

WHY ESTABLISH PATERNITY?
The reasons to establish paternity include: to give the child a sense of identity and heritage, to establish the legal father, to collect child support, to provide health insurance for the child, to ensure the father's rights, to collect social security disability benefits for a child, to make sure the child has the right to inherit or be eligible for death benefits, and to have access to medical/genetic information regarding the father.

WHAT SHOULD THE PARENTS CONSIDER BEFORE ESTABLISHING PATERNITY?
The mother may not want to involve the father in the life of the child for a variety of reasons - there may be domestic or child abuse, the mother may be marrying another man or she may want to protect the father from the financial obligations that may arise as a result of a paternity judgment. The mother has the child in her exclusive custody until a court orders otherwise, and a mother may decide that a paternity order that may change the custody order is not in the childís best interest.

The father must consider the financial obligations that may be incurred as a result of a paternity order. The father may be ordered to pay child support, to provide health insurance and to repay birth expenses. If the father fails to meet his financial orders, a jail sentence could be imposed upon him. If the father is a minor, there may also be concerns about the financial liability his parents may incur as a result of a paternity order.

WHAT ARE GENETIC TESTS?
Genetic tests are tests that examine the genetic markers present on blood cells, skin cells, tissue cells, bodily fluid cells or cells of another body material for the purposes of determining the statistical probability of paternity. The test are usually conducted by swabbing the inside of the cheek to remove the genetic material from the mother, child and the alleged father. A professional lab will run the tests and the results will give the probability of paternity related to the alleged father.

In Milwaukee, the Office of Child Support Enforcement seeks the orders for genetic testing and has an arrangement with a lab for a reduced fee for conducting the tests. Test conducted by a private lab may cost as much as $600 or more.

Genetic testing is a good idea in all cases to prevent questions in the future. Testing should be done in cases where a woman may have had sex with more than one man during the conceptive period.

WHAT RIGHTS DOES AN ALLEGED FATHER HAVE IN A PATERNITY CASE?
The rights that an alleged father has are outlined in the Notice To Respondent that is served with the Summons for Paternity. The rights are as follows:

    • The right to ask for genetic testing.
    • The right to be represented by an attorney if the genetic tests indicate that the alleged father is excluded as the father and that the statistical probability of paternity is less than 99.0%. If the alleged father is a minor, a Guardian ad Litem will be appointed to represent the alleged parentís best interest.
    • The right to request a jury trial.

WILL A PATERNITY ACTION BE STARTED FOR EVERY NONMARITAL CHILD?
There is a state law the requires the child support office to start an action within 6 months of receipt of notification that a child was born and no father was named on the birth certificate. There are exceptions in cases which involve artificial insemination or surrogate mothers.

In cases where the custodial parent has claimed a good cause exception to the cooperation with child support enforcement requirement, a paternity case may not be initiated. However, it is important to remember that the child support office or the alleged father can still begin a paternity action even if a good cause exception has been granted to the custodial parent.

In some cases a paternity case may be dismissed even after being brought to court. If the court determines that establishing paternity is not in the best interest of the child, the judge or family court commissioner may decide not to order genetic testing or may dismiss the action.

WHAT IS THE GOOD CAUSE EXCEPTION?
Whenever a custodial parent applies for state assistance, the parent is required to cooperate with child support office in establishing paternity and financial orders. A custodial parent can ask to be relieved of the cooperation by filing a claim with the W2 agency for a good cause exception to the cooperation requirement.

Cooperation can be waived if the worker finds that cooperation is against the best interest of the child and (a) cooperation is reasonably anticipated to result in EITHER physical or emotional harm to the child, so impairing the child that his or her normal functioning is substantially affected OR physical or emotional harm to the applicant or recipient and the impairment is of such a nature or degree that it reduces that personís capacity to adequately care for the child; (b) at least one of the following circumstances exists and proceedings to establish paternity or secure support would be detrimental to the child - (1) an adoption petition has been filed, (2) the child was conceived as a result of incest or sexual assault, or (3) the parent is being assisted by a social service agency in deciding whether his/her parental rights should be terminated.

WHAT IS A VOLUNTARY ACKNOWLEDGMENT OF PATERNITY?
A voluntary acknowledgment of paternity is a statement that is signed by the parents acknowledging the father of the child. It can be done at the hospital or through the child support office. The voluntary acknowledgment can be rescinded (made legally void) by a person who signed the statement as a parent of the child. The acknowledgment can only be rescinded within 60 days of filing the statement with the state registrar or before an order is issued in an action affecting the family regarding the child in question, whichever occurs first. The state registrar provides the Request to Withdraw Voluntary Acknowledgment forms which must be notarized and filed with the State Vital Records office. The other parent will be notified of the rescinding of the voluntary acknowledgment.

A voluntary acknowledgment of paternity that is not rescinded has the same effect as a judgment of paternity to establish a legal father for a child. However, a petition must be filed in family court to set custody, placement, child support, or other financial orders.

WHAT HAPPENS WHEN I GO TO COURT FOR PATERNITY? The paternity process has two steps. The first step is the adjudication of paternity. That is when the court actually finds the alleged father to be the legal father of the child.

The second step is setting the terms of the paternity judgment. The court makes orders regarding legal custody, physical placement, and payment of future child support, past child support, birth expenses, and health insurance coverage and expenses.

WHAT IS LEGAL CUSTODY?
A person granted legal custody has the right and responsibility to make major decisions concerning the child. Legal custody can be granted to one party or to both. If legal custody is awarded to one party it is called sole legal custody. If legal custody is awarded to both parties it is called joint legal custody. Joint legal custody allows both parties to share in making major decisions for a child. In Wisconsin there is a presumption that joint legal custody is in the best interest of the child. If a party can prove domestic abuse has occurred, then the court must presume that sole or joint legal custody should not be granted to the abusive parent, unless that parent has completed a certified batterers' treatment program, is not abusing alcohol or any other drugs, and it is in the best interest of the child. The court can also order sole legal custody if the parties agree, if there is a finding that one party cannot perform parental duties, if there are conditions that exist that would substantially interfere with the exercise of joint legal custody or if there is evidence of domestic or child abuse.

WHAT MAJOR DECISIONS DO CUSTODIAL PARENTS MAKE?
Major decisions include, but are not limited to, decisions regarding consent to marry, consent to enter military service, consent to obtain a motor vehicle operatorís license, authorization for non-emergency health care and choice of school and religion.

WHAT IS PHYSICAL PLACEMENT?
Physical placement means the time that the parent has the right to have the child physically with the parent. During the parentís time of physical placement, the parent has the right and responsibility to make routine daily decisions regarding the childís care so long as they are consistent with the major decisions made by the parent with legal custody.

DOES JOINT LEGAL CUSTODY MEAN THAT A CHILD LIVES WITH EACH PARENT 50% OF THE TIME?
Joint legal custody really refers to decision making, not the time a child spends with either parent. The court order regarding physical placement determines when the child is with a particular parent. The physical placement orders may be different in every case. In one case the court could order that a child spend one week with one parent, and the next week with the other parent if that arrangement was in the childís best interest. The court could decide that a child will live with one parent during the week and with the other parent on the weekends. Or the court could decide that the child will spend the school year with one parent, and the summer and school breaks with the other parent. Parents can decide what works best for their families. If the parents canít agree, the court will have to decide based upon what is in the childís best interest. It is important to remember that you can have joint legal custody, and not have a 50-50 (or joint) placement schedule.

ARE PERIODS OF PHYSICAL PLACEMENT EVER DENIED?
Yes, but in very limited circumstances. In order to deny placement, a court would have to decide that placement with the parent would endanger the childís physical, mental or emotional health.

If there are concerns about a childís safety with the other parent, the court may order limited or supervised periods of placement if it is shown to the court that is what is in the best interest of the child.

MAY I SEE MY CHILDíS SCHOOL AND MEDICAL RECORDS EVEN IF I DO NOT HAVE LEGAL CUSTODY, AND MY CHILD DOES NOT LIVE WITH ME?
Yes, unless otherwise ordered by the court. A parent has access to a childís medical, dental and school records regardless of whether the parent has legal custody. If a parent is denied any period of placement, that parent does not have the right to have access to the childís medical, dental or school records.

HOW DOES THE COURT DECIDE CUSTODY IF THE PARENTS DONíT AGREE?
If the parents donít agree about custody, the first step the court orders is mediation. The first session of mediation is free. A fee is charged for further sessions. The fee may be divided between the parents or in cases where the parents are low income, the fee may be deferred.

Mediation is conducted by a neutral third party who is trained to assist people in discussing the issues related to custody and helping people come to agreements. Mediation may not be successful in every case. In situations where there is domestic abuse, mediation should not be used at all.

WHAT HAPPENS IF THERE IS NO AGREEMENT AFTER ATTEMPTING MEDIATION?
The court will appoint a guardian ad litem to represent the best interests of the child. The guardian ad litem is an attorney who conducts an investigation to determine what is in a childís best interest. The guardian ad litem charges a fee. The fee is usually split equally between the parents. In some cases, only one parent may be ordered to pay the fee. The County may pay the fee if both parents are low income.

HOW DOES THE COURT DECIDE WHAT CUSTODY ORDER IS BEST FOR A CHILD?
The standards that the judge looks at to determine what custody arrangement is best for the child are in the law. There is a presumption that joint legal custody is in the best interest of the child. Sole legal custody can be ordered if the parents agree, or if the parties cannot cooperate in decision making for the child, such as situations where there is domestic violence or child abuse.

The judge will look to several factors to determine what physical placement orders are best for a child, such as the wishes of the parents, the age of the child, the cooperation between the parents and others. The judge will also listen to the recommendation of the guardian ad litem before making orders about custody and placement.

HOW IS CHILD SUPPORT DETERMINED?
The judge will make orders for future support, past support, and lying-in (birth) expenses. Future support is support that will be paid after the entry of the paternity judgment. Past support is the amount to be paid for the period of time from the filing of the paternity action until the start of the future support order.

Child support is based upon percentages of gross income. The judge will set an amount to pay each month which represents the percentage of the paying parentís income. The percentages are 17% for one child, 25% for 2 children, 29% for 3 children, 31% for 4 children and 34% for 5 or more children. The judge may not order the whole percentage amount in every case if the parent is low income or if the parent has child support orders for other children which are in effect. The percentage orders may not be used in cases where there is shared placement of a child, or where there is a split placement order. If the paying parent is a minor, the judge may order that he/she continue is school and pay a reduced amount of support or not order any support until a later time.

WHAT ARE LYING-IN EXPENSES?
Birth expenses are referred to as lying-in expenses. If the paying parent is low income, the child support agency may request a specific amount be set for repayment, but there should be no monthly repayment order entered as long as the fatherís income is below 185% of the federal poverty guidelines. The lying-in debt can be collected through tax intercept at any time.

CAN THE COURT MAKE AN ORDER FOR THE FATHER TO PROVIDE HEALTH INSURANCE?
Yes, the judge can order the father to provide health insurance for the child as part of the paternity judgment. The mother may also be ordered to provide health insurance for the child.

CAN THE COURT ESTABLISH PATERNITY IF THE MOTHER OF THE CHILD DOES NOT COME TO COURT?
Yes, the judge can establish paternity if the mother does not appear for the court hearing if there is enough evidence to show that the alleged father is the legal father.

CAN THE PATERNAL GRANDPARENTS BE ORDERED TO CONTRIBUTE TO THE SUPPORT OF THE CHILD IF THE FATHER IS A MINOR?
Yes, there is a provision in the law that gives the judge authority to order the paternal grandparents to pay child support on behalf of their minor son. This does not happen often in Milwaukee County.

CAN A FATHER BE PROSECUTED FOR HAVING SEX WITH A MINOR MOTHER?
Yes, there could be a criminal prosecution for having sex with a minor. A father should consider this before voluntarily signing any acknowledgment.

Legal Action of Wisconsin, Inc. does not discriminate on the basis of disability in the provision of services or in employment. If you need printed material interpreted or in a different form, or if you need assistance in using our services, please inform us. Deaf, hearing-impaired or speech-impaired callers may reach us through the Wisconsin Telecommunications Relay System (1-800-947-3529).

The above is intended to provide general information only and is not a substitute for thorough and specific advice on an individual case. Depending on the complexity of your legal problem you may need to consult an attorney for advice or representation.

This was prepared by the staff of Legal Action of Wisconsin, Inc., on behalf of low-income clients and was funded by the Legal Services Corporation, Washington, D.C. 20005. Any opinions contained herein are those of the authors and should not be construed as those of the Legal Services Corporation.

Updated: August 2004

 
 
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