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Divorce in Wisconsin
Custody and Physical Placement: Frequently Asked Questions
Guardian Ad Litem
Frequently Asked Questions About
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
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
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:
WILL A PATERNITY ACTION BE STARTED FOR EVERY NONMARITAL CHILD?
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.
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
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
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
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
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
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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