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Paternity Test

Oshkosh, WI |

I just received an order in the mail(not certified) from a wiconsin court to submit to a dna test. I am in Illinois and never been to Wisconsin.5years ago I was with a girl and we broke up.She had moved back in with her previous boyfriend and became pregnant.before the baby was born she moved to wisconsin and they got married.Now 5years later shes getting a divorcee and claiming me the father.When I asked her why im just now getting this she said she didn't want him on the birth certificate as well as the child has his last name.I asked her why she married him and if she told him he was not the father and she said she did but he wanted to be the father of the baby.So there now divorcing and he and she has no job and hes moved back to Illinois and now since that didn't work out for her

and hes broke she wants me to pay support 5 years after the fact.Can she do this?It was his willing choice to take responsibility of the child and now they don't want that.What are my legal right and obligations due to the fact they chose to do all of this without even telling me in the first place 5 years ago. Am I required to take the paternity test that was ordered? Is it valid due to the fact they don't have jurisdiction in Illinois to order anything?

Attorney Answers 2

Posted

First, yes they can order you to take a paternity test. Unlike other types of cases, Jurisdiction is over the child and where the child is, not you. Second, her husband is presumed to be the father if they were married when the child is born. He should be taking/have taken a paternity test first and only if he is found not to be the father do they normally move forward to the next step - a paternity action with a third party.

So, it sounds as if it may be likely that you are the father. If you are the father, you cannot be ordered to pay back support in this situation. You can only be ordered to pay support from the date you were served. And, of course, you will now have the right to get to know and have a relationship with your child.

To protect you in this situation and obtain the best results if you are the father, I strongly suggest you obtain local counsel who is an experienced family law attorney. Good luck to you.

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2 comments

Asker

Posted

The husband has never been asked to take any tests nor does he respond to anything the court sends him, which is why I don't like how there doing this.Shes married and just saise hes not and I am and they want me to comply. Nothing was asked of me by Illinois who has jurisdiction over me(jurisdiction of child is Wisconsin, not over me though right?), and the paper they sent were not served just ordinary mail.

Teri M. Nelson

Teri M. Nelson

Posted

That is not the way it is supposed to be done. On the other hand, either you are the father or you are not. The DNA test is definitive. If you are not, then it gets passed back to her husband. If you are, it doesn't much matter. If the child was older, mom or the husband could argue that the presumption should stand as he has raised her from birth. However, with a young child, the courts tend not to do that. Also, if both parents want the presumption to be overcome, then it will be. In a paternity case, personal jurisdiction over you is not required - only jurisdiction over the child. So, it doesn't matter if you are in Illinois or not except they cannot compel you to come to Wisconsin for the test - it must be done in Illinois. And, any child support orders must go through Illinois but the paternity itself stays here.

Posted

I agree in principle with previous counsel, but...
I have seen these fact patterns before and with out of state fathers. I that other fact pattern he had never lived in WISC, and just like you the husband had taken responsibility previously. In his circumstance he refused the orders of the Wisconsin court by not responding. Then they when through his local state which had real problems with the fact pattern and eventually refused to order him the father, even though he had taken a DNA test on his own many years before and was actually the father.
So, I would suggest that you contact a lawyer in your own state. It may not go as well given you being so close to Wisconsin (the next state over), but if you want to fight it, that would be how to state.

WALWORTH, ROCK and JEFFERSON County Divorce/Family Law Attorney - Atty Richard Missimer does answer questions on Avvo strictly to be helpful but these do not constitute legal advice. These answers do not establish an attorney/client relationship. If you would like my help and are within my practice area, contact me at (262)565-8200 for a FREE CONSULTATION.

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2 comments

Asker

Posted

So is this legal for them to directly order me as ive never even set foot there, I could understand if they asked Illinois to order me but they didn't do that. Also if I don't do it and the order isn't valid can they default me as the legal father although one was established 5 years ago when they were married while she was pregnant. And now im just hearing of all this and she saise they were both aware of him not being the father 5years ago but both wanted him to be the father which is why they married. I just think its not fair that the reason shes doing this is because he now has no job which I don't have the best but I at least try, but if he did nothing would have ever been said, he moved back here and doesn't even respond to any of the divorce papers, its all her pushing this. So really what id like to know though, is the order for the genetic test valid in Illinois since its from Wisconsin and not here? Do they have the power to legally order people from other states to do what they want?

Asker

Posted

This girl is also a habitual lier. I don't believe a lot that she says. She even told the guardian ad litem that i had personally came up to Wisconsin and told her i was the father of the child and as i said ive never even been to Wisconsin.

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