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February 18, 2015 by Robert Franklin, Esq, Member, National Board of Directors, National Parents Organization

Picking up the case of In Re the Paternity of A.R.R. from Monday, recall that the U.S. Supreme Court and the Wisconsin Court of Appeals require an unmarried father to have formed an extensive relationship with his child before the law affords him parental rights. (But that rule only applies if he’s the one seeking to benefit from his paternity by gaining parental rights. If it’s the mother seeking child support or the state seeking reimbursement of welfare, a completely different set of rules come into play. In that situation, the biological father need only demonstrate that he’s not unfit to care for the child, i.e. not that he’s formed a deep and lasting relationship with him/her. He can be a total stranger to the child, but still acquire parental rights due solely to his newfound obligation to pay.)

As I’ve said before, the requirement that he have formed such a relationship with his son or daughter effectively places his parental rights in the hands of the person in possession of the child, usually Mom. If she permits him access to the child, then he can form the requisite relationship. If she doesn’t, he can’t, and his constitutional liberty interest is void.


But the case I’m writing about demonstrates that no one need interfere with Dad’s relationship with his child. The simple circumstances of life can be sufficient to deny him rights to his child. In the process of course the child misses out on her father as well.

In my last piece, I listed the factors both Wisconsin courts relied on to deny Stuart S. parental rights to his daughter. Let’s examine them and see which of them he had control over, if any.

“A.R.R. had lived with Scott for most of her life;”

Nope, not that one. Obviously, Heidi and Scott were married and A.R.R. lived with them. There was nothing Stuart could do about that except file a paternity action and hope to get custody. I’ll deal with that next.

“Stuart was not listed as A.R.R.’s father on her birth certificate, was not present for her birth, and did not take any steps to assert paternity until she was five years old;”

Again, who’s listed as the father on the birth certificate simply wasn’t up to him. It was up to Heidi who, at the time, was married to Scott and pretending that Scott was the father. Perhaps she believed he was, and, in any event, Wisconsin law presumed him to be.

Yes, Stuart wasn’t present for A.R.R.’s birth. What do the two courts imagine would happen if Stuart had showed up at the hospital (assuming Heidi had told him where and when she was to give birth) with the announcement “Hi, I had sex with Heidi R. a few months ago, so I may be the father of the child and I want to be in the delivery room.” There’s essentially no chance the hospital would have done anything except escort him off the premises.

As to asserting paternity, it strains credulity that the very courts that are in the process of denying Stuart paternal rights take him to task for not filing suit earlier. To put it mildly, that just doesn’t make sense. They denied him this time, so they’d have denied him then.

It makes even less sense in light of the fact that his entire claim for parental rights rests on his relationship with A.R.R. Now, if he’d asserted his paternity earlier, would his relationship with his daughter have been greater or less than it was when he went to court five years later? That’s a question simple enough for even the Wisconsin judges to answer. On the face of it, if he failed to establish a sufficient relationship with A.R.R. after five years of trying, he wouldn’t have succeeded when the child was a week, a month, a year, two years old. Stuart’s failure to assert his parental rights earlier than he did is an excuse, not a reason, to deny him those rights. In fact, it looks very much like desperation on the part of the courts.

“Although Stuart provided some financial support for A.R.R., he paid “what he felt like, when he wanted to[,]” which was less than he would have been required to pay under the applicable child support guidelines;”

By any stretch of the imagination, paying any money at all to support a child whom you don’t know to be yours and to whom you have no legal right isn’t a failure to pay child support, it’s generosity. It’s also a powerful indicator of how strongly Stuart was motivated to be a part of his daughter’s life. Impartial observers would, I believe, agree.

“Stuart never provided health insurance for A.R.R.;”

Have the judges ruling on Stuart’s paternity ever filled out an application for health insurance? If they have they’ve noticed what’s on, as far as I know, every such application. Insurance companies routinely inquire whether the person to be covered is also covered by any other policy of health insurance. If so, the coverage will be denied. Now, how likely is it that Scott and Heidi had an insurance policy that covered A.R.R.? My guess is they did. If so, it made no sense for Stuart to try to cover her also.

“The timing of the paternity action appeared to be motivated by a desire to give Heidi an advantage in the pending divorce case;”

Hmm. Could be. If Heidi had an advantage, then it probably meant she’d get custody of A.R.R. If she got custody, Stuart’s chances of maintaining a relationship with his daughter were enhanced. All that’s either true or, at the very least, plausible.

It’s also utterly irrelevant to the decision the courts were supposedly making. The issue was whether Stuart had enough of a relationship with A.R.R. for it to be in her interests for him to be adjudicated her father. Perhaps the judges ruling in his case can explain what his filing of his paternity action at time A instead of time B has to do with that. They can’t because the factor has neither legal relevancy nor common sense.

Besides, people testify on behalf of or opposed to particular litigants countless times every day. As long as they do it truthfully, they have a constitutional right to do so and not have another constitutional right abridged because of it. This too is an excuse, not a reason, to deny Stuart S. his parental rights.

And finally,

“Stuart was more like a “father of convenience” than a true father.”

No, actually, he was more like the best father he could be under the circumstances. Over the girl’s entire life, he formed and maintained deep and lasting bonds with her. She thought of him as her father and he considered her his daughter. He did everything reasonable to care for her given that she lived in another home with another couple.

The courts have laid out a series of things Stuart supposedly failed to do, all of which were either impossible, absurd or irrelevant to his parental rights. But this last factor is more than simply an excuse to deny Stuart his rights. It highlights the other great failing of both courts in this case. Recall that the issue of whether Stuart’s actions were sufficient to produce parental rights. The second requirement is that they demonstrate that his relationship with A.R.R. is sufficiently important for it to be in her interests for him to be considered her legal father.

Put simply, it is impossible to read the court’s recitation of the facts of everything Stuart did, his love and caring for his daughter and her deep attachment to and love for him and pretend that severing that relationship would in some way be beneficial to her. In the name of “the best interests of the child,” these courts have done the opposite; they have unquestionably harmed a child whose father can now be legally barred from having anything to do with her. Because of this ruling, he is now legally a stranger to her and her to him. Best interests of the child? They’re kidding, right? Sadly, no.

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