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  • WisBar News
    September 30, 2015

    Paternity Actions Can Be Dismissed Without Prejudice, Appeals Court Says

    Joe Forward

    Sept. 30, 2015 – A man named Douglas believes he could be the father of a baby born into a marriage. A circuit court dismissed his paternity action, but a state appeals court recently ruled that dismissal does not automatically mean “dismissal with prejudice.”

    In other words, the circuit court could let Douglas file a paternity action in the future if the family circumstances change. The appeals court also remanded the case for a redetermination on whether establishing paternity is in the best interest of the child.

    Douglas entered into a relationship with a woman named Arika, who was married but separated when she began dating Douglas. During the relationship, she became pregnant, but reunited with her husband three months before giving birth.

    Douglas filed a paternity action 20 days after Arika gave birth. But under Wis. Stat. section 767.863(1m), no genetic tests may be ordered and the action shall be dismissed if a judge or commissioner rules “that a judicial determination of whether a male other than the husband is the father is not in the best interest of the child.”

    Arika invoked this provision to object to genetic testing. The court heard testimony that Arika separated from her husband for two years because he had a drinking problem, but returned when he agreed to quit. The couple have two other children together.

    Douglas said he and Arika planned to raise the baby together and engaged in planning activities. However, Arika did not allow Douglas to see the newborn child and never asked for any financial or emotional support after returning to her husband. 

    The guardian ad litem (GAL) recommended a judicial determination of paternity, arguing there was no guarantee that Arika’s marriage would stay intact. The judge concluded that establishing paternity in this case would not be in the child’s best interest, but dismissed the case without prejudice, leaving the door open for a future action. 

    In Douglas L. v. Arika B., 2014AP2656 (Sept. 29, 2015), a three-judge panel for the District III Court of Appeals sent the case back for more factual determinations and ruled that courts have discretion to dismiss paternity actions without prejudice.

    “Here, the circuit court provided its rationale for dismissing without prejudice, and Arika does not contend the court erroneously exercised its discretion in that respect,” Reserve Judge Thomas Cane wrote.

    The panel also remanded the case to determine whether genetic testing is in the child’s best interest. It noted that the appeals court must “accept the circuit court’s factual findings unless clearly erroneous but determine the child’s best interest de novo.”

    In this case, however, the circuit court did not make any factual findings on that issue. “Without any facts on which to base our de novo determination, we are unable to make any determination whatsoever,” Judge Cane wrote.

    Related Article

    Court Can Dismiss Paternity Action Even If Genetic Test Already PerformedWisBar News (Jan. 23, 2015).

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