A new statute has established that a paternity adjudication may not always be in the best interest of the child, even if genetic testing has already occurred. As noted in our January 2015 blog (found here: https://kwvfamilylaw.com/wisconsin-paternity-update/), Wis. Stat. §767.863(1m) provides, “In an action to establish the paternity of a child who was born to a woman while she was married, if a male other than the woman’s husband alleges that he, not the husband, is the child’s father, a party may allege that a judicial determination that a male other than the husband is the father is not in the best interest of the child. If the court or a supplemental court commissioner under s. 757.675(2)(g) determines that a judicial determination of whether a male other than the husband is the father is not in the best interest of the child, no genetic tests may be ordered, and the action shall be dismissed.”

The prior statute and caselaw only allowed this determination if a court ordered genetic test had not already occurred. Now, with the enactment of 2019 Senate Bill 158 on February 5, 2020, a new statute governs whether a genetic test would be considered in the best interest of a child after a genetic test has already been ordered. Wis. Stat. §767.855 states, “Except as provided in s. 767.863(1m), at any time in an action to establish the paternity of a child, upon the motion of a party of guardian ad litem, the court or supplemental court commissioner under s. 757.675(2)(g) may, if the court or supplemental court commissioner determines that a judicial determination of whether a male is the father of the child is not in the best interest of the child, dismiss the action with respect to the male, regardless of whether genetic tests have been performed or what the results of the tests, if performed, were.”

The big takeaway? The old statute (Wis. Stat. §767.433) precluded the court from dismissing the paternity action if genetic tests had already been performed, even if the court found that a judicial determination of paternity is not in the child’s best interest. Now, as noted above, the court can dismiss regardless of whether genetic tests have been performed or what the results of the tests, if performed, were.

All too often, biological fathers wait too long after birth to establish their parental rights. The update to the statute above provides another example of how waiting to establish paternity soon after the birth may prevent a biological parent from establishing paternity at a later point.

If you have questions about how or if you are able to establish paternity, feel free to schedule a free consultation with our firm at (608) 709-5000.