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If 2 guys have sex with a woman who becomes pregnant, both better assume parental responsibility

E.M.K. v. Z.T.R., 2018AP1896, District 2, 5/1/19 (1-judge opinion, ineligible for publication); case activity

That’s the upshot of this court of appeals decision. Before terminating a biological father’s parental rights, there must be a finding that he “failed to assume parental responsibility” under §48.415(6). But what if there is a dispute about whether he is actually the biological father of the child? The court of appeals holds that if only one other guy was having sex with the mother when she became pregnant then the unverified, biological father had “reason to believe” he was in fact the father and should assume parental responsibility for the child.

State v. Bobby G., 2007 WI 77, 301 Wis. 2d 531, 734 N.W.2d 81 holds that in deciding whether a father has failed to assume parental responsibility a circuit court must consider the father’s efforts undertaken after he discovers that he is the father but before it has adjudicated the grounds of the termination proceeding. Along the same lines see Dane County DHS v. John L.-B., 2013AP462 (W. Ct. App 5/16/13)(unpublished), which held that the jury should not decide whether a father “failed to assume parental responsibility” unless it first decides whether the father “knew or has reason to believe that he was the child’s father.”

We don’t have access to the briefs in this appeal. However, it appears that Z.T.R. did not know for sure that he was the father of A.J.E.S. until DNA tests established that fact. He was uncertain because E.M.K., the mother, told him that she was also having sex with another man, and that she herself did not know who the father was.  So at his TPR trial, ZTR argued that the jury had to decide “whether he had reason to believe” that he was the father before he received DNA results. He also asked the circuit the court to give Wis JI Children 364A, which asks” “Has (parent) failed to assume parental responsibility for (child) after knowing or having reason to believe that he was (child)’s father?” (Emphasis added.) The circuit court refused to give the instruction and decided as a matter of law that Z.T.R. had “reason to believe” he was the father. The court of appeals affirmed.

¶16 The only contrary fact noted by Z.T.R. is of the other man who also had sexual relations with E.M.K. Although this made the paternity of the child uncertain, it does nothing to negate the circumstances that already gave Z.T.R. reason to believe that he may be the father. Z.T.R. attempts to spin the fact of another man as meaning it was only “possible” that he was the father, and that a mere “possibility” is not enough. This is incorrect. That E.M.K. identified only one other possible father made the prospect that Z.T.R. was the father fixed and realistic. With no other evidence to disprove or diminish the chances that Z.T.R. was the father, the circuit court correctly concluded that Z.T.R. had a reason to believe he was the father and that there was no need to give WIS JI—CHILDREN 346A.

What if the mom was sleeping with 2 or 3 additional guys? Do all 3 or 4 have “reason to believe” they are the father? Should they all assume parental responsibility for the child before anyone does a DNA test? We hope to see a petition for review so that SCOW can reconcile Bobby G., John L.B. and this case.

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