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Husbands can bar challenges to their paternity


Hon. Patience D. Roggensack

Even if a husband is not the biological father of his wife’s children, the wife and biological father can be estopped from challenging his paternity, the Wisconsin Supreme Court held on April 7.

In doing so, the court affirmed a published decision of the court of appeals, Randy A.J. v. Norma I.J., 2002 WI App 307, 259 Wis.2d 120, 655 N.W.2d 195, but adopted a different analysis to reach the same result.

Randy A.J. and Norma I.J. were married on May 11, 1990. On Jan. 24, 1998, Norma gave birth to a daughter, Selena J. Randy paid all of Selena’s birthing expenses and is listed as Selena’s father on her birth certificate. However, during the conceptive period, Norma was involved in an adulterous relationship of which Randy had no knowledge, with Brendan B.

Both before and after Selena’s birth, Norma saw Brendan several weekends a month when she traveled to Chicago, Illinois, for what she told Randy were modeling jobs for Saks Fifth Avenue. After Selena’s birth, Randy continued to pay all of her expenses and to provide a home for her and Norma in Wisconsin.

Although Randy did not know he might not be the father, Norma informed Brendan that he may be.

In 1999, Norma was convicted of embezzlement, and was sentenced to eight years in prison. Finally, she told Randy that he might not be Selena’s biological father.

Counsel’s Perspective:

Randy A.J.
Matthew J. Price
Loeb & Herman, S.C.

Impact of decision: I think it’s premature to predict the future impact. This case allows courts to provide relief under equitable estoppel principles for a person who is a non-biological parent who has assumed every aspect of responsibility as a parent to prevent that person from having that experience and that relationship severed solely based upon biology.

Anything important for attorneys to take away from the case: One of the greatest areas of guidance that the court provided in this opinion was that if there is an issue as to whether it is in the best interest of a child for the biological father to be determined, that has to be brought to the forefront sooner rather than later because the Court held that the subsequent statute, section 767.463, does not apply once genetic testing has occurred. That’s why the Court had to evaluate the case in the context of equitable estoppel. Whereas it was taken as a lighter responsibility in previous cases, I think the decision is going to increase the intensity of pre-genetic testing litigation as it relates to best interest determinations. That’s probably the biggest practical tip offered by the case.

Brendan B.
Vicki Zick and Jennifer L. Weber
Zick & Weber

Impact of decision: As to the actual holding of the case — that Brendan and Norma are equitably estopped from raising the issue of paternity — not much. Had Randy been on his toes he would have argued that a judicial determination of paternity was not in the child’s best interest and blocked the blood tests from the get-go using either § 767.458(1m) or § 767.463, Stats. These two statutes seemingly provide more secure ground for husbands to stand on than waiting until blood test results prove they are not the father and then attempt to argue equitable estoppel.

The application of these statutes gave rise to the core issue in this case. Brendan and Norma argued to the trial court and the court of appeals that you cannot first order blood tests and then hold a best interest hearing if you don’t like how the blood test came out. The court of appeals agreed with Brendan and Norma on this point, as did the Supreme Court. Therefore, we now have pretty clear direction on how husbands asserting Randy’s position should proceed.

As to the understated holding of the case-that you need some factor in addition to biology before you can be named a legal father — I believe that will have far reaching implications. Heretofore, in paternity proceedings, the courts have relied exclusively on court-ordered blood testing to name an individual a father for purposes of child support. In other words, courts could care less whether a biological father ever bonded with his child. So long as there is a possibility that he could be the biological father he will be compelled, even against his will, to take a blood test. If the blood tests show he is the biological father then he becomes the legal father and is forced to pay child support.

Randy A.J. at least opens the door for these men to argue that, despite being a biological father, they cannot be named a legal father for child support purposes if they never formed a parent-like bond with the child. In fact our firm is now preparing cases with this argument in mind. Arguably, if the state can terminate parental rights with the biology-plus argument, then the individual should be able to use the same argument to terminate his own parental rights (and responsibilities).

Anything important for attorneys to take away from the case: The most important thing is that Barstad is no longer the law in Wisconsin. Barstad held that the state cannot terminate parental rights unless it first finds the parent unfit. Of course, the U.S. Supreme Court decided Michael H. after Barstad, leaving all to wonder whether Michael H. abrogated Barstad or not. But no Wisconsin court had ever embraced Michael H. like the Supreme Court did in this case. It would seem therefore that, while not necessarily overruled, the Barstad rule has been severely curtailed.

The second most important thing is that the equitable parent doctrine is dead in Wisconsin. Inasmuch as prior courts had flirted with it from time-to-time, Randy A.J. finally killed it.

The third most important thing are these practical rules:

(a) You can win on appeal, but still
lose. Brendan won all of his issues on appeal — in both the court of appeals and the Supreme Court — but still lost his case. The court of appeals blindsided him with the equitable parent doctrine and the Supreme Court blindsided him with equitable estoppel. Contrary to the Supreme Court’s remark that it could take up the issue of equitable estoppel because the parties had briefed it (14 n.3), this is not true. Brendan never briefed equitable estoppel because the only issue up for review was the equitable parent doctrine.

(b) That despite the high court’s long-standing rule that it will not take up issues raised for the first time on appeal, occasionally it will. The trial court ruled that Brendan was not equitably estopped to raise paternity. Given that Brendan did not disagree with this determination he did not present this issue to the court of appeals and it was never discussed in the court of appeals’ case. Likewise, the only issue Norma and Brendan presented to the high court was the application of the equitable parent doctrine. When Randy attempted to brief equitable estoppel Brendan simply argued that this issue was not properly before the court. Nevertheless, the supreme court decided the case on this basis citing to Wirth v. Ehly as authority for doing so. Lawyers should read the Wirth case and its progeny. Wirth does not authorize the court to take up issues raised for the first time on appeal. If a lawyer pulled this stunt the court would admonish him.

(c) That despite the high court’s rule that it is not a fact-finding court, it will occasionally find the facts. Remember that the trial court found that Brendan was not equitably estopped. The Supreme Court found that he was. How can the Supreme Court reach this outcome if it is not a fact-finding body?

In August 1999, Brendan filed a paternity action in Illinois, seeking to have the court declare him to be Selena’s father, but the action was dismissed for lack of jurisdiction.

In September 1999, Randy filed for divorce in Wisconsin, requesting sole legal custody and physical placement of Selena. Brendan did not appear, although he had been provided with notice. The commissioner ordered that Brendan have no contact with Selena and granted temporary sole custody to Randy.

In December, Norma counterclaimed, asserting that Selena was not Randy’s child and requesting genetic testing. Randy opposed the tests.

Ultimately, however, Randy stipulated to genetic tests of Selena, Norma and Brendan, conditioned upon “reserving his right to contest final adjudication of the legal father.”

Tests were taken that established a probability of 99.99 percent that Brendan is the biological father. Upon stipulation of the parties, Brendan was allowed to intervene, asking that Selena be declared his child.

After a trial, Waukesha County Circuit Court Judge Lee S. Dreyfus held as follows: (1) Norma was equitably estopped from raising Selena’s paternity; (2) Brendan was not equitably estopped; (3) Brendan failed to rebut the marital presumption of sec. 891.41; (4) sec. 767.463 applies to the case; and (5) it is in the best interest of Selena to adjudicate Randy as her legal father.

Accordingly, the circuit court dismissed Brendan from the divorce action and dismissed Norma’s counterclaim insofar as it related to paternity.

Brendan and Norma appealed, but the court of appeals affirmed, albeit on different grounds. The court of appeals agreed that Norma was equitably estopped from asserting Brendan’s paternity. Second, it concluded that neither sec. 767.458(1m) nor sec. 767.463 applied because the genetic tests had already been completed and those statutes may be employed only when genetic tests have not been done. Third, it concluded that the genetic tests had enabled Brendan to rebut the marital presumption of sec. 891.41. However, the court also concluded that the equitable parent doctrine overcame Brendan’s biological paternity.

The court held that it was in Selena’s best interest to adjudicate Randy as her father, and affirmed.

The Supreme Court accepted review, and also affirmed in a unanimous decision by Justice Patience D. Roggensack, but also on different grounds. Justice N. Patrick Crooks wrote a separate concurring opinion.


The court began by finding that Brendan had no constitutionally protected liberty interest in the custody of Selena, distinguishing Stanley v. Illinois, 405 U.S. 645, 651 (1972), and Michael H. v. Gerald D., 491 U.S. 110 (1989).

The court found that, for Brendan to establish the foundation for a constitutionally protected interest in paternity, he would have had to have taken affirmative steps to assume parental responsibility.

The court agreed with the circuit court that he did not do so, observing, “Randy and Norma lived together as husband and wife when Selena was born. Randy has provided for Selena since her birth, emotionally and financially. He has made a home for her and provided her with the status of a marital child for six years, while Brendan has been uninvolved in providing for her daily needs. Accordingly, we conclude that Brendan has not demonstrated a constitutionally protected liberty interest in his putative paternity because he has failed to establish a substantial relationship with Selena.”

Genetic Tests

The court then held that it was error for the circuit court to dismiss the case pursuant to sec. 767.463, agreeing with the court of appeals on this point.

The statute provides, “Except as provided in sec. 767.458(1m), at any time in an action to establish the paternity of a child, upon the motion of a party or guardian ad litem, the court or court commissioner under s. 757.69(3)(g) may, with respect to a man, refuse to order genetic tests, if genetic tests have not yet been taken, and dismiss the action if the court or court commissioner determines that a judicial determination of whether the man is the father of the child is not in the best interest of the child.”

The court concluded that the statute only permits dismissal, “if genetic tests have not yet been taken.”

The court rea
soned, “It makes sense that the legislature would choose to require a best interest hearing before genetic tests are completed, as it permits the child to be the focus of the hearing, without concern about the putative father’s rights. That is, the legal issue of the child’s best interest may be clouded by facts that could form part of a constitutional claim of paternity when a best interest hearing is held after genetic tests are completed. Use of the best interest hearing in Wis. Stat. sec. 767.463 prior to genetic testing can avoid that type of problem. … A dismissal of a paternity proceeding based on that statute may not be ordered after genetic tests have been completed.”

Equitable Estoppel

Nevertheless, the court then held that both Norma and Brendan should be equitably estopped from asserting that Randy is not Selena’s father. The court found that Randy established the three elements for equitable estoppel: (1) an action or an inaction that induces; (2) reliance by another; (3) to his or her detriment.

The court found that Norma and Brendan’s deceit and lack of action to assert Brendan’s paternity until Selena was 15 months old caused Randy and Selena to believe Randy is Selena’s father and to develop deep emotional ties with each other.

What the court held

Case: Randy A.J. v. Norma I.J., No. 02-0469.

Issue: Does the biological father of a marital child have a constitutional liberty interest in asserting paternity?

Can sec. 767.463 be used to bar admission of genetic tests showing that a husband is not the biological father of his wife’s child?

Does equitable estoppel prevent a wife and biological father from asserting the father’s paternity against the husband?

Does the equitable parent doctrine apply in Wisconsin?

Holding: No. Only if a substantial relationship with the child has been established by a biological father may he assert a constitutional interest in paternity.

No. Section 767.463 can only be used to prevent tests from being taken, but does not bar the admission of results if that has already happened.

Yes. Where the husband was raising the child in a father-child relationship, in reliance on the actions of the wife and biological father leading him to believe that he was the natural father, the wife and biological father can be prevented from denying the husband’s paternity.

No. The parameters of the equitable parent doctrine are too uncertain, and the long-established doctrine of equitable estoppel is sufficient to address unfairness in paternity proceedings.

Counsel: Robert J. Welcenbach, Milwaukee; Vicki Zick, Johnson Creek, for appellant; Matthew J. Price, Milwaukee, Virginia M. Stuller, New Berlin, for respondent.

In contrast, Norma and Brendan asserted nothing to counter the those arguments, except for the genetic tests. The court concluded, “Norma and Brendan’s actions and lack of action, which were relied on by both Selena and Randy, are so unfair, that when combined with the state’s interest in preserving Selena’s status as a marital child, they outbalance the public’s interest in a purely biological approach to parenthood. Accordingly, we conclude that Norma and Brendan are equitably estopped from rebutting the marital presumption.”

Equitable Parent Doctrine

The court continued, however, to reject the equitable parent doctrine that the court of appeals utilized to overcome the admission of the genetic testing.

The doctrine originates in Atkinson v. Atkinson, 408 N.W.2d 516 (Mich. App.1987), where it was employed when equitable estoppel could not be used to prevent the court from ordering a husband to submit to blood tests.

To support application of the doctrine, Atkinson requires that a person meet four requirements: (1) want to be recognized as the child’s parent; (2) be willing to support the child; (3) want the rights of custody or visitation in regard to the child; and (4) raise “certain circumstances,” that were otherwise undefined by Atkinson. Id. at 519.

The Supreme Court rejected the doctrine, concluding, “its parameters are too indistinct, permitting its use to create uncertainties in the law. We also do not approve its use because equitable estoppel is a wellestablished legal principal (sic) with definite elements that will address those instances where unfairness in a proceeding would harm children and adults.”

The court concluded, “To the extent the equitable parent doctrine has been employed in the past, we preclude its application in the future,” citing See J.J. v. R.J., 162 Wis.2d 420, 469 N.W.2d 877 (Ct.App.1991).

Accordingly, the court affirmed the ultimate conclusions of both the court of appeals and trial court, adjudicating Randy to be Selena’s father.

The Concurrence

Related Links

Wisconsin Supreme Court

Related Article

Case Analysis

Justice Crooks wrote separately, concluding that the circuit court acted properly in applying sec. 767.463 to dismiss the action, even though genetic tests had already taken place.

Crooks concluded, “The clause ‘if genetic tests have not yet been taken’ solely modifies the language preceding it. Because no such modifier is included regarding the dismissal of a paternity action, it appears that a court has discretion to dismiss a case, regardless of whether genetic tests have already been performed.”

Click here for Case Analysis.

David Ziemer can be reached by email.

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