Paternity and Arithmetic

By Attorney Gregg Herman
December 11, 2002

A recent District II Court of Appeals case, recommended for publication, addressed the difficult issue of biological versus psychological parentage. In an interesting decision involving what the court of appeals called “an unusual factual situation scenario”, the court upheld the result reached by the trial court, but for entirely different reasons.

This is the first of two articles discussing the implications of the decision. In Randy A.J. v. Norma I.J.,, No. 02-0469 (Nov. 13, 2002), Norma gave birth to a daughter while married to Randy. Genetic tests, not ordered by the court, proved that Brendan was really the biological father.


For the first year and one-half of his life, Norma visited Brendan with the child weekly. Then Norma began a period of incarceration and the child lived with Randy. While Norma was incarcerated, Randy started a divorce action, seeking to exclude contact between Brendan and the child. Norma filed a counterclaim, seeking Brendan to be named the child’s father. Brendan filed a motion to intervene, seeking not only to be named the father, but also seeking legal custody and primary physical placement, as well.

Waukesha County Circuit Court Judge Lee S. Dreyfus found that Norma was equitably estopped from raising the issue of paternity. After a hearing, the court went on to find that, pursuant to Wis. Stats. §767.463 and 767.458(1m), it was in the child’s best interests to dismiss Brendan’s motion to intervene and Norma’s counterclaim as well.

The District II court of appeals affirmed the trial court’s order, but on different grounds. In a decision by Judge Richard S. Brown, the appellate court held that both Wis. Stats. §767.463 and 767.458(1m) were inapplicable, as they were both premised on no genetic tests having been performed. In the instant case, the biology of the child was already known as genetic tests had been performed without court order.

Notwithstanding the errors by the trial court in methodology, the appellate court agreed with the result. The court held that Wisconsin has an “equitable parent” doctrine. According to the appellate court, the equitable parent doctrine “extends the rights and responsibilities of a natural parent to a non-biological parent seeking custody of visitation.”

Citing a Michigan court of appeals decision, the Wisconsin court of appeals found that, under the equitable parent doctrine, a husband who is not the biological father of a child born during a marriage can be deemed the natural parent of the child where:

The Wisconsin court went on to find that Randy had served in the role as father and that there was a father-child bond created, whereas Bendan had not performed the appropriate roles. Accordingly, the appellate court affirmed the trial court’s determination that it was in the child’s best interests that Norma be estopped from asserting the child’s parentage. The appellate court affirmed that Randy is the legal father and entitled to custody.

A Punctuation Problem?

The court of appeals might have reached the same conclusion, but more firmly rooted in statutes, had it read Wis. Stat. §767.463 without a comma.

In relevant part, the statute allows a trial court to “…refuse to order genetic tests, if genetic tests have not been taken, and dismiss the action…” The court of appeals appears to include the phrase between the commas with the preceding clause. Under that reading, the court can dismiss an action only if the court has not ordered genetic testing. Had the appellate court read the statute with the middle portion conditioning the preceding clause, the court would still have the power to dismiss the action even if genetic testing had already been done.

The underlying problem appears to be with two statutes which appear – at least according to the reading by the court of appeals – to assume that the paternity tests occur only when ordered by the court. Perhaps they hearken back to an older time, when ABO blood tests could only exclude potential fathers, not determine parentage. Today, however, with DNA testing, parentage can be definitely established. At least from a biological point of view.

In reality, being a parent means much more than donating DNA. And it means more than an occasional purchase of diapers, formula or clothing when the mother visits, as the trial court in this case noted. Being a parent means bonding with a child, having a relationship with a child, simply being there for a child.

The law, of course, recognizes that these “psychological” bonds can be far more important than biological ones. Therefore, the law allows the court to terminate parental rights under certain circumstances. The law allows children to be adopted, and once finalized, the parent-child legal bond is identical to parent-child bonds created biologically.

When Simple Arithmetic Becomes Complicated

The underlying issue is one of simple arithmetic. The law allows each child to have one father, not zero (usually) or two fathers. If there are two candidates, the issue is frequently resolved by which one wants to volunteer. If the volunteer is the husband, the marital presumption controls and the case is over. If the volunteer is the boyfriend (for want of another term) and the husband wants out, the presumption can be overturned and the boyfriend adjudicated the father through a paternity procedure.

The difficult legal battles — the ones commanding the wisdom of Solomon – arise where there are two volunteers — both willing to pay support, if need be, and both wanting a relationship with the child. Simple arithmetic requires the court to subtract one candidate, who most likely will then be completely eliminated from the child’s life.

Whether this is best accomplished with use of the existing statutes or the appellate court fashioning its own equitable remedy will be the subject of the second article discussing this case.

This article originally appeared in Wisconsin Law Journal.

Attorney Gregg Herman is a founding partner of Loeb & Herman, LLC in Milwaukee, WI. He practices family law exclusively, and can be reached via e-mail or by calling (414) 272-5632.