Established relationship with child trumps DNA, Wisconsin court rules.

Genetic evidence alone is insufficient to establish legal fatherhood, the Wisconsin Supreme Court ruled recently. The court affirmed an appeals court decision that a biological father failed to establish a constitutionally protected liberty interest in his paternity. (Randy A.J. v. Norma I.J., 677 N.W.2d 630 (Wis. 2004).)

Selena, the child at the center of the custody dispute, was born in January 1998 to Randy A.J. and Norma I.J., husband and wife. The following year, Norma was convicted of embezzlement and sentenced to eight years in prison; she then told Randy that he might not be Selena's father. After Randy was served with a paternity action filed by Brendan B.--with whom Norma had been conducting an affair both before and after Selena's birth--he filed for divorce and requested sole custody.

"This case is highly unusual," said Matthew Price of Milwaukee, who represented Randy before the state supreme court. "Most of the [paternity] cases are, 'How can I beat this rap?' not 'How can I keep myself involved?'"

Randy was awarded temporary sole custody of Selena in October 1999. Norma counterclaimed, asserting that Randy was not Selena's father and requesting genetic testing. Randy initially opposed the test, arguing that he was presumed to be the father and a genetic test would not be in Selena's best interest. But eventually he agreed to be tested, reserving the right to contest the results.

Although the test established a 99.99 percent probability that Brendan is Selena's biological father, the trial court concluded that, under Wisconsin law, a paternity action can be dismissed even after genetic tests have been performed if dismissal is in the child's best interest. The court denied Brendan's motion to intervene, dismissed Norma's courterclaim, and declared Randy to be Selena's legal father. Norma and Brendan appealed.

The appeals court and supreme court both disagreed with the trial court's interpretation of the law, ruling that a paternity action can not be dismissed once the blood tests have been completed. Despite the DNA evidence, however, the supreme court found that Brendan had not established a substantial enough relationship with Selena to overcome Randy's presumption of fatherhood.

"In order for Brendan to have the necessary foundation for a constitutionally protected liberty interest in his putative paternity; he would have to have taken affirmative steps to assume his parental responsibilities for Selena," wrote Justice Patience Roggensack for the majority.

The trial court found that "Brendan had no substantial relationship with Selena, who is six years old and has lived with Randy as her father all her life. Brendan is not listed as her father on her birth certificate; he was not present at her birth; he did not pay for her birthing expenses; he took no legal steps to assert his paternity until she was 15 months old, when he filed a paternity action in Illinois .... And finally, he did not provide for Selena's emotional and financial support, either before or after the genetic tests were performed. Therefore, we conclude that the record fully supports the [trial] court's finding."

The court also ruled that Norma and Brendan are equitably estopped from asserting that Randy is not Selena's father.

"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," Roggensack wrote.

But the court rejected Randy's request to affirm the "equitable parent" doctrine used by the appeals court. An "equitable parent," according to the supreme court, is "one who through judicial determination is able to exercise all the rights and responsibilities of a natural parent." The parameters of this doctrine are "too indistinct" and its use would create "uncertainties in the law," Roggensack wrote.

"What is extraordinary about [the supreme court's] discussion of equitable parenting is that not only did they say that it doesn't apply in this case, but they made a proscription into the future for using it," Price said. "If stare decisis means anything, you wonder if this proclamation that you can never use this concept will tie their hands unnecessarily in the future."

Norma and Brendan argued against affirming the equitable parent doctrine, saying it would open a Pandora's box, Price said.

"They tend to make it sound like next-door neighbors and people at the supermarket are going to start running to the court to try to claim children," he said. "In reality, this equitable parent argument applies only to husbands in family situations where this circumstance occurs. It is exceptionally narrow. I don't think they are going to start handing children out like baseball cards."

The case now is headed back to the trial court to settle the issue of custody, Price said.

"I don't expect any surprises. If it really is all about the best interests of the child, then what's to fear?"