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  • WisBar News
    January 23, 2015

    Court Can Dismiss Paternity Action Even If Genetic Test Already Performed

    Joe Forward
    Legal Writer

    Jan. 23, 2015 – Despite a conclusive genetic test, a state appeals court has ruled that the circuit court correctly disregarded the genetic test and properly dismissed a potential father’s action to establish paternity because dismissal was in the child’s best interest.

    A man named Stuart filed a paternity action in 2013, when the young girl he believed to be his daughter was five years old. The girl, referred to as A.R.R. in court records, is the legal daughter of Scott and Heidi, who were married in 1990 but divorced in 2013.

    Stuart’s petition alleged that Heidi and Scott were separated in 2006 when Stuart and Heidi conceived A.R.R. and that Stuart had maintained a father/daughter relationship with her since her birth in August 2007. The petition also alleged that a genetic test showed a 99.9999996 percent likelihood that Stuart was A.R.R.’s biological father.

    However, the circuit court granted a motion to dismiss filed by A.R.R’s guardian ad litem (GAL), concluding that a judicial determination that Stuart was A.R.R’s father would not be in A.R.R’s best interest. The GAL noted that A.R.R. had a close sibling, and a judicial determination that Stuart was the father could result in splitting A.R.R from her sibling.

    The court recognized a substantial amount of testimony to indicate that Stuart had been part of A.R.R’s life since she was born. But it was not substantial enough, the court ruled, to overcome the statutory presumption that a man is the father of a child if the child is conceived or born while the man is married to the child’s biological mother.

    Under Wis. Stat. section 891.41(2), the presumption can be rebutted with a genetic test showing a 99 percent or higher probability that another man is the father. But the circuit noted that genetic tests are only relevant after the child’s best interest is considered.

    Under section 767.863(1m), “a party may allege that a judicial determination that a male other than the husband is the father is not in the best interest of the child.”

    If establishing conclusive paternity is not in the best interest of the child, “no genetic tests may be ordered and the action shall be dismissed.” The circuit court ruled that it would not be in A.R.R’s best interest if Stuart was determined to be the father.

    In Stuart S. v. Heidi R. and Scott R., 2014AP1487 (Jan. 21, 2015), a three-judge panel for the District III Court of Appeals affirmed, rejecting Stuart’s argument that a paternity action cannot be dismissed if genetic tests have already been performed.

    Stuart had relied on a case interpreting section 767.855, which says in paternity actions, a court may at any time “refuse to order genetic tests, if genetic tests have not yet been taken, and dismiss the action” if the court determines that it would not be in the child’s best interest to declare someone other than the mother’s husband to be the father.

    But in that case – Randy A.J. v. Norma I.J., 2004 WI 41, 270 Wis. 2d 384, 677 N.W.2d 630 – both parties agreed to genetic testing and it was court-ordered. Once testing was completed, neither party could use section 767.855 to have the case dismissed.

    “The [Randy A.J] court was clearly concerned that, by stipulating to an order for genetic tests, the parties had circumvented the best interest determination that otherwise would have been required under § 767.863(1m),” Judge Lisa Stark explained.

    “The Randy A.J. court was not presented with a situation, like the one in this case, in which certain parties took it upon themselves to have genetic tests performed without all parties’ consent or the court’s approval,” wrote Judge Stark, noting that parties cannot circumvent the child’s best interest determination with tests that are not court ordered.

    The panel concluded that the circuit court properly dismissed the paternity action, and also rejected Stuart’s claim that dismissal violated his constitutionally protected liberty interest in his putative paternity based on his substantial relationship A.R.R.

    Highlighting the factual findings of the circuit court, the panel concluded that “Stuart’s relationship with A.R.R. was not substantial enough to give rise to a constitutionally protected liberty interest in his putative paternity.”

    The circuit court had found that although Stuart saw A.R.R. frequently, he did not perform day-to-day parenting responsibilities in the first 2 1/2 years of her life.

    He provided some financial support but less than would have been required under child support laws, and he had waited until A.R.R. was five to establish paternity. In addition, the action seemed motivated to give Heidi an advantage in her pending divorce, the panel noted.

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