What to Expect When It's Unexpected

05.23.2025

What to Expect When It’s Unexpected

In 2024, approximately 40% of children born in the United States were born to unmarried adults.  The Wisconsin statutes create separate pathways to address when a child is born outside of a marriage. This process is typically referred to as determining “paternity.” When parents are unmarried, “paternity” is established in one of two ways.

Voluntary Paternity Acknowledgment:  At the hospital, both parents can sign a statement acknowledging paternity, or “Voluntary Paternity Acknowledgement” form.  This form is a conclusive determination of paternity once it is filed with the state registrar and 60 days elapse.  If the VPA is not rescinded within sixty days of filing, it has the same effect as a judgment of paternity.  Fatherhood is determined and legally binding.

Going to Court: If no father is listed on the child’s birth certificate paternity needs to be adjudicated.  A court case can be started by the child’s mother, a male alleging that he is the child’s father, or (most commonly) the State of Wisconsin. The State of Wisconsin initiates court cases when State benefits or child support issues arise. .  These types of cases are generally brought by a county attorney who works closely with the local child support agency.

It should be noted that the process is different and more complicated when a child is born to a married mother, but the biological father of the child is not mom’s husband.

A.  First Order: Once a case is filed, the Court must determine paternity. This may be voluntarily done, or the parents and children may be ordered to participate in paternity testing.

B.  Second Order: Once paternity is established, the Family Court Commissioner or Circuit Court Judge generally make orders deciding the following issues:

  1. Legal Custody and Physical Placement: “Legal Custody” is the parents’ ability to make choices for the child. These include healthcare, schooling, religious upbringing, and other activities. “Physical Placement” determines the amount of time each parent has with the child.
    1.  It is important to note that an unmarried father has no legally binding custody or placement rights until they are court ordered. It is common for a father to live with his children for years as part of an intact family, and only learn he has no custody and placement rights once the parents separate.
  2. Dependency exemption: The judge can order that the parents alternate the ability to claim the child for State and Federal income tax purposes, or that one parent has the ability to do so each year.
  3. Birth Expenses: If Mom receives Medical Assistance at the time of the child’s birth, a part of that cost will be Dad’s responsibility. The amount a father is required to pay depends on the county, but in any event may not exceed one-half of the actual costs incurred.
  4. Child support: The amount of child support ordered depends on the placement schedule entered and incomes of the parties. There are standard calculations which the court commissioner or judge has the discretion to deviate from for specific reasons.

In summary, the number of children born to unmarried parents has skyrocketed in recent years.  While this article provides an overview, many family attorneys anticipate changes in the law to address these larger societal changes. If you have questions about your family situation or parental rights, please contact a family attorney to discuss your options.