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BENCH BLOG: Choice of wrong legal route wastes opportunity in adoption case

By: Jean DiMotto//November 23, 2015//

BENCH BLOG: Choice of wrong legal route wastes opportunity in adoption case

By: Jean DiMotto//November 23, 2015//

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Judge Jean DiMotto retired in 2013 after16 years on the Milwaukee County Circuit bench and now serves as a reserve judge. She also is of counsel with Nistler Law office SC. She can be reached at
Judge Jean DiMotto retired in 2013 after 16 years on the Milwaukee County Circuit bench and now serves as a reserve judge. She also is of counsel with Nistler Law office SC. She can be reached at [email protected]

The attorney for a same-sex couple recently tried unsuccessfully to use an adoption action to challenge the constitutionality of statutes related to artificial insemination and to the presumption of paternity stemming from marriage.

Susan R. and Christie L., both college professors, have been in a relationship since 2010. In the fall of 2013, Ms. R. was artificially inseminated with sperm from an anonymous donor. She gave birth on June 7, 2014, and married Ms. L. six days later.

Adoption action

Just before Thanksgiving 2014, the couple’s attorney filed an adoption action. Ms. L.’s adoption of the child, however, was not the goal of the action.

Rather, in their “Joint Petition for Determination of Parentage,” the couple sought an order: (1) declaring C.L. a legal parent of the child; (2) declaring C.L. and S.R. to be equal legal parents of the child; (3) declaring that the anonymous sperm donor was not a legal parent of the child; and (4) directing the Wisconsin Department of Health Services, Vital Records Office, to identify C.L. and S.R. as the child’s legal parents and to issue a birth certificate listing both C.L. and S.R. as parents.

As part of their petition, the couple challenged the constitutionality of two statutes.

The first — sec. 891.41, the presumption of paternity stemming from the marriage of the parties — provides that a man is presumed to be the natural father of a child if he and the child’s natural mother were married after the child was born and had a relationship when the child was conceived, and if no other man has been adjudicated the father.

The second — sec. 891.40, artificial insemination — provides that if a wife is artificially inseminated, her husband, rather than the sperm donor, is the natural father.

Court hearing

Because it was an adoption action, only the couple and their attorney appeared at the hearing on the petition before Winnebago County Circuit Judge Karen Seifert.

Counsel argued that the two statutes in question needed to be “ungendered” under sec. 990.001(2) (words relating to one gender shall be applied to both genders). This would allow Ms. L. to be declared the natural, legal parent of the child. Not to do so, she argued, would violate Ms. L.’s due process and equal protection rights as established by recent federal cases allowing same-sex marriages.

Judge Seifert said the couple could continue with the adoption action.

But: “The relief that you’ve requested in your petition are all basically asking for a declaratory judgment.” Seifert recommended that the couple file a civil action seeking either declaratory judgment or a paternity action.

Counsel agreed that her clients were actually not seeking adoption. She argued that a paternity action or a family action would be just as inappropriate as an adoption action; in the end, counsel said, her clients simply chose the option that came “without a filing fee.”

Seifert denied the petition because the action was one for adoption. Because the constitutionality of the two statutes was being challenged, she again said the couple could bring an action for declaratory judgment and serve notice on the attorney general’s office.

adoptionRather than file an action for declaratory judgment, the couple appealed.

Court of Appeals

In the appeal — In the Interest of P.L.L.-R. v. Circuit Court for Winnebago County — the couple put forward similar arguments, including that the matter was controlled by Judge Barbara Crabb’s decision in Wolf v. Walker (as affirmed by the 7th Circuit Court of Appeals) and the subsequent U.S. Supreme Court decision in Obergefell v. Hodges. Moreover, she asserted that the current version of the two statutes violated not only the constitutional rights of the same-sex parent but also those of the child.

Judge Mark Gundrum, writing for the District 2 Court of Appeals, noted that Judge Crabb had indicated a few months ago that Obergefell did not answer questions about Wisconsin’s presumption-of-paternity statute. Nor, for that matter, did it answer questions about the artificial-insemination statute.

The court agreed with the state that the couple’s decision to file an adoption action not only permitted them to avoid paying a filing fee but also allowed them to advance their claims unilaterally without any other party having an opportunity to advocate an alternative position.

Moreover, since the action was in essence one for declaratory judgment, the requirements of sec. 806.04 were controlling. Subsection (11) specifically states that if the constitutionality of a statute is challenged, the attorney general must receive notice of the proceeding and have an opportunity to be heard.

The court ruled that failure to give notice to the attorney general raised questions over whether the circuit court was competent to adjudicate the couple’s action. Competency is “the power of a court to exercise its subject matter jurisdiction in a particular case.”

Therefore the court affirmed Judge Seifert, ruling that she had appropriately dismissed the petition.


Apparently eight couples in four counties have had such a petition granted, so there was at least that rationale for the couple’s attorney to file it in an adoption action.

But appealing the dismissal of the adoption action instead of filing a civil action for declaratory judgment was penny-wise and pound-foolish. The couple’s investment of time and emotion in their desired outcome was for naught because the wrong legal route to that outcome was chosen.

Counsel for the couple has been quoted as saying that a “technicality won over the rights of a child and family.” But the avenue to relief in circuit court is paved by filing the appropriate type of case.

The Court of Appeals decided that the failure to provide notice to the attorney general of a constitutional challenge deprived the circuit court of competency to decide the matter. The absence of judicial capacity to rule is hardly a technicality.

It’s all so unfortunate.

The constitutional challenges here are a natural outgrowth of the decisions in Wolf and Obergefell. It is appropriate for a circuit court to consider them.

But that consideration has now been delayed by at least a year, and the couple is still without their desired relief.

A pity.


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