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The Waukesha Freeman

Supreme Court denies paternity to biological father

Child born of adultery remains with her marital dad

The Waukesha Freeman, By BRIAN HUBER - GM Today Staff

April 8, 2004, Waukesha, Wisconsin, U.S.A.

WAUKESHA - In a case that could have repercussions in other states, the Wisconsin Supreme Court on Wednesday denied paternity rights to a man who sired a child in an adulterous relationship with the child's mother, leaving the girl in the care of the man she has come to call "Dad."

In a unanimous decision, the Supreme Court upheld the ruling of Waukesha County Circuit Court Judge Lee S. Dreyfus Jr. that the biological father's finding of paternity in the case could be overridden if it was in the best interests of the child. The Supreme Court also agreed with the decision of an appellate court, but ruled that the doctrine it applied in its review of the case, called "equitable parent," left the door open for "uncertainties in the law" and should be barred from consideration in Wisconsin cases.

The case came about after the child's mother, identified only as Norma J., had an adulterous relationship with a man identified as Brendan B. Norma informed Brendan prior to and after the 1998 birth of the child that it might be his, but didn't inform her husband, Randy, about it until she had been convicted of embezzlement in 1999. Until that point, Randy cared for and supported the child as if it were his own.

Randy filed for divorce against Norma, and Brendan unsuccessfully tried to establish paternity in Illinois. After a paternity test established a 99.99 percent probability that he was the father of the child, Brendan was able to intervene in the divorce case to try to establish paternal rights.

In 1999, Randy was given temporary custody of the child because Brendan failed to appear at a hearing in the matter, and Brendan was ordered to have no contact with the child, now 6.

Legal arguments

Dreyfus ruled that the results of a paternity test could be thrown out after the test was completed because it was in the child's best interests to not have paternity established, and that Norma, the mother, was legally prevented from raising the issue of paternity based on her prior actions in the case.

Dreyfus also ruled "that Brendan did not support the child emotionally or financially, and that occasionally buying formula and diapers was insufficient to show his assumption of parental responsibility, as was his failure to assert parental rights either at her birth or at the court hearing in October 1999," the Supreme Court noted.

"Therefore, 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 (the child)," the Supreme Court ruled. "In regard to his relationship with (the child) the circuit court found Brendan had no substantial relationship with (her), who is 6 years old and has lived with Randy as her father all her life."

The Court of Appeals agreed with the decision, but on different grounds, saying that the "equitable parent" rule, where a parent through a judicial order is able to exercise all the rights of a natural parent, overcame all the aspects of the case. Brendan appealed to the Supreme Court.

In its ruling Wednesday, the Supreme Court struck down that notion, but upheld the original Dreyfus ruling.

Parents react

Matthew J. Price, Randy's attorney, said he expected the matter to go back to the circuit court for findings on how the child should be placed.

"The court found my client was led to believe from day one that this was his child in every sense of the word, and based on the actions of what Norma and Brendan did and did not do, he certainly relied on that, and it certainly would be detrimental to have that ripped out from underneath him," Price said.

"I think the justices were very thorough in recognizing the importance of this case, particularly when you consider the best interests of a child who didn't have an opportunity to pick either of her parents and the court is rightly protective of that."

But Jennifer Weber, Brendan's attorney, said things remain complicated, as Brendan and Norma are now married. Although Norma has partial custody of the child, her husband, the child's father, remains under a court-imposed no contact order.

"We are very upset by the results and opinion of the Supreme Court," she said. "It's an absurdity to think that my client is now married to the child's mother and has no rights to that child. The way the decision came out essentially left DNA testing and biological paternity by the wayside."

She added that during the first 15 months of the child' s life, Norma frequently visited Brendan, and he supported the child with clothes and food when the child was present.

Weber said that as it stands, if Brendan and Norma were to ever divorce, Brendan would have no legal standing to be part of his child's life.

Weber said the Supreme Court's ruling is that biology isn't enough to establish paternity. She predicted in the future, men who paid no child support and denied paternity might try to turn this ruling on its head to show they can't be named the father of their children.

Robert Welcenbach, who represented Norma, said it was good the Supreme Court struck down the equitable parent doctrine in paternity cases, which is similar to rules in other states. Courts must instead rule in the best interests of the child, rather than trying to determine who might be the best parent.

"I think it is a very important case, not only for Wisconsin, but nationwide," he said.

He added that it was possible for Brendan to gain visitation rights to the child, if a child psychologist decides it is appropriate in the future.

Brian Huber can be reached at

This story appeared in the Waukesha Freeman on April 8, 2004.