I receive many inquiries each day pertaining to the rights of a child born out of wedlock. Usually, the couple are fighting over the baby and the question becomes who has legal custody of the child? The answer lies at sec. 767.82 of the Wisconsin Statutes, (2m) and reads as follows; “CUSTODY PENDING COURT ORDER. If there is no presumption of paternity under s. 891.41 (1) or if paternity is acknowledged under s. 767.805 (1), the mother shall have sole legal custody of the child until the court orders otherwise.” Under sec. 48.435 of the Wisconsin Statutes, CUSTODY OF CHILDREN, the statute states,” The mother of a non-marital child has legal custody of the child unless the court grants legal custody to another person or transfers legal custody to an agency.” This means that the alleged father has absolutely no rights to the child born out of wedlock pertaining to custody or placement until a court hearing is held to determine their rights.

This answer usually leads to the person calling who informs me, “but his name is on the birth certificate.” His name on the birth certificate in Wisconsin holds no legal impact on the question of whether he is the biological father or not.

There are two ways in Wisconsin that paternity can be established; (1) by both parties signing a voluntary acknowledgment in writing or (2) by one of the parties filing a formal paternity action in court to have the alleged father adjudicated as being the biological father. This is usually done as well by having DNA testing of the parties and the baby.

Once paternity is established, the court will hold what lawyers/courts refer to as a “terms hearing.” At this hearing, the court will deal with the issues of custody, placement, visitation, child support, retroactive child support, health insurance, payment of future unpaid medical bills for the child, past medical bills, birthing expenses, income tax dependency exemption and any other issues that are unique to the case or deals with the financial end of things. Until that “terms hearing” and the court enters an order as to custody and placement, under 767.82 (2m) and sec. 48.435 Stats., the mother is in the driver’s seat. Sorry dads!

Since there are an abundance in court of these types of cases, a person is well advised to consider hiring private counsel for filing a paternity action in court and having their attorney appear at all hearings in the matter, so that their legal rights can be properly protected.

If you have questions about a paternity case in Wisconsin, contact our attorneys.