Marriage no bar to paternity

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Despite the presumption that a husband is the father of his wife’s child, the actual biological father can be forced to pay child support.

The married couple, Garry M. and Jennifer Hendrick, were married in 1999, and a daughter was born in 2000.

In 2006, Jennifer filed for divorce, but prior to that, Garry had himself and the daughter tested to see if he was the biological father. He was not.

The next year, the state filed a paternity action against Christopher L. Skarzynski, alleging he was the father of the girl. Despite the presumption of marital paternity, Skarzynski was ordered to undergo genetic testing, which revealed he was the biological father.

He was then ordered to pay child support and half the cost of the genetic tests, and he appealed. Appeals of the divorce and child support action were consolidated, and the Court of Appeals affirmed in a decision by Judge Ralph Adam Fine.

Pursuant to sec. 767.855, a court may refuse to order genetic tests if it determines that it is not in the best interest of the child.

However, the circuit court found, and the Court of Appeals agreed, that genetic testing of Skarzynski was in the best interests of the child based on several factors.

The court wrote, “[T]he circuit court accepted the uncontradicted assertions that Mr. Hendrick had essentially abandoned her … and that the girl knew that. The circuit court also observed that it was important for Mrs. Hendrick’s daughter to know who her father was, noting that she would for all practical purposes be ‘fatherless’ unless a putative biological father was tested, the test results received, and established someone’s paternity. The circuit court also heard from the guardian ad litem, who further noted that it is important for children to know who their biological parents are ‘for medical reasons.’”

In addition, sec. 767.863(2) provides that, upon a showing of probable cause, and upon the request of any party, the court “shall” order genetic testing.

Because Jennifer attested that she had intercourse only with Skarzynski and Garry during the conception period, the court concluded that the circuit court would have lacked discretion not to order testing.

Addressing other issues, the court held that it was not error for the circuit court to appoint the same guardian ad litem for the divorce and the paternity action, and that the circuit court properly denied Skarzynski’s motion to intervene in the divorce.

Judge Fine wrote, “The circuit court properly rejected his attempt to avoid the obligations of fatherhood by muddying the waters of the Hendricks’ divorce action.”

Case analysis

The court’s statutory analysis is suspect. The court held that genetic testing was required under sec. 767.863(2) because there was probable cause that Skarzynski was the father.

However, sec. 767.855 provides that, if the court finds testing is not in the child’s best interest, the court may dismiss a paternity action. The statutes are thus ambiguous.

The only reasonable way to reconcile the conflicting statutes is to hold a best interests hearing before testing, at least when the mother is married to someone other than the putative father. That’s how the Supreme Court interpreted the predecessor statute to sec. 767.855 in Randy A.J. v. Norma I.J., 2004 WI 41, 270 Wis.2d 384, 677 N.W.2d 630.
Even if the court’s statutory analysis is correct, however, the court’s opinion raises troubling public policy concerns.

The court found that the husband went outside the judicial process to obtain genetic testing, and then, based on that testing, “abandoned” the child.

In turn, the court used those facts as reasons to conclude that genetic testing of Skarzynski would be in the best interests of the child.

By doing so, the court encourages other husbands to do the same. Of course, it is the husband’s right to “abandon” the girl if a court ultimately finds another man to be the father. However, it is bad public policy to adopt a rule that encourages extrajudicial genetic testing, and abandonment of children, prior to any court hearings.

Jessica Roulette, an attorney with Legal Action of Wisconsin in Milwaukee, who represented Skarzynski, noted yet another negative policy implication — the opinion encourages meddling with intact marriages by men who believe themselves to be the father of a marital child.

Roulette said, “If Mr. Skarzynski had come to me when the child was two years old, and said he wanted paternity tests done, I would have told him ‘butt out.’ But now, that would be malpractice.”

Roulette explained, “Now, I’d have to advise him that, even if he does nothing, he could still be dragged in years later and forced to pay child support, but he’d have lost all those years when he could have been bonding with his child.”

By encouraging biological fathers to intrude on an intact marriage, Roulette said, the opinion is not good public policy.

Roulette said that she intends to seek review in the Wisconsin Supreme Court.