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  • WisBar News
    November 05, 2015

    Same-Sex Couple Must Wait for Answer on Parent Presumption Question

    Joe Forward

    Nov. 5, 2015 – A married same-sex couple attempting to challenge Wisconsin’s gender-specific “parent presumption” will have to wait for a future court to determine whether the presumption applies in same-sex marriage situations, an appeals court has ruled.

    When a woman gives birth to a child in Wisconsin, “a man is presumed to be the natural father” of the child if married to the natural mother. The statute, Wis. Stat. section 891.41, is gender-specific. The presumption applies specifically to “men.”

    In an adoption action, two women argued that the statute must be “ungendered,” since same-sex marriage is now legal, otherwise the statute is unconstitutional.

    The couple married in June 2014, four days after a federal court struck down Wisconsin’s same-sex marriage ban and six days after one of them gave birth to a child through artificial insemination, using sperm from an anonymous donor.

    The couple filed the adoption action for determination of parentage in November 2014, arguing that the mother’s spouse should be presumed to be a parent. But challenging a statute on constitutional grounds required a different legal process, the court ruled.

    In S.R. and C.L v. Circuit Court for Winnebago County, 2015AP219-AC (Nov. 4, 2015), a three-judge panel for the District II Appeals Court agreed, upholding dismissal.

    “[T]hough S.R. and C.L. filed this matter as an adoption action, they actually are seeking declaratory relief and include in their petition a direct challenge to the constitutionality of Wis. Stat §§ 891.40 and 891.41 as written,” wrote Judge Mark Gundrum.

    “As a result, Wis. Stat. § 806.04, Wisconsin declaratory judgments act, required S.R. and C.L. to serve the attorney general ‘with a copy of the proceeding’ as the State was entitled to be heard on the matter before the circuit court.”

    Because the petitioners did not comply with section 806.04, the appeals court ruled that the circuit court lacked competency to hear the matter and it was properly dismissed.

    The appeals court noted that the petitioners filed the action as an adoption to avoid paying the filing fee, which is required for declaratory judgment actions. On appeal, the state also noted that the parties can’t unilaterally challenge a statute’s constitutionality.

    The couple’s argument – that maintaining the gender-specific parent presumption undermines marriage equality and violates equal protection and substantive due process rights – will likely appear in a future action for declaratory judgment.

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