High court considers child custody rules

The Associated Press, Sep. 17, 2003

MADISON — A child' s best interests, not a paternity test, should determine who is recognized as the father under the law, an attorney argued Tuesday before the Wisconsin Supreme Court.

Attorney Matthew J. Price made his case to the justices as they reviewed a decision by the 2nd District Court of Appeals that awarded his client custody of a now 5-year-old girl he thought was his biological child.

The court used the “equitable parent doctrine” in arriving at its decision. That doctrine extends the rights and responsibilities of a natural parent to a non-biological parent seeking custody or visitation.

Once a court determines someone to be an equitable parent, that person has the same rights and responsibilities as a biological parent.

Jennifer Weber, the attorney who represents the child' s biological father, said biology should be the key factor.

Otherwise, she argued, third parties such as step parents could argue in court they were better suited to raise the child than a biological parent and win custody of the child.

In this case, she said her client could be prevented from having a relationship with his daughter and having visitation rights, she said.

“He' s never going to be able to come in and get that kind of visitation; he' s going to be cut out,” Weber said.

The justices gave no indication of when they would issue a ruling.

According to court records, Randy and Norma Johnson were married in 1990, and Norma Johnson gave birth to a baby girl in January 1998. Randy filed for divorce after Norma was sentenced to eight years in prison for embezzlement in 1999.

During the divorce proceedings, Norma Johnson confessed the girl was another man' s child, and the biological father, Brendan Brennan, tried to establish paternity and obtain custody.

Genetic testing established to a 99.99 percent degree of certainty that Brennan was the father, court records show.

Brennan saw the child weekly because of his relationship with Norma Johnson, until Randy Johnson obtained a court order barring Brennan from having contact with the child, according to court records.

Waukesha County Circuit Judge Lee S. Dreyfus Jr. ruled in 2001 it was in the best interests of the child to remain with Randy Johnson and declared him the legal father.

Norma Johnson and Brennan appealed, arguing that the genetic testing should trump the legal assumption that a child born during a marriage is a child of the man who is married to the mother.

But an appeals court ruled Randy Johnson was entitled to be treated as the “natural father” because he had cared for the child since her birth and had established a close bond with her. Until that ruling, the equitable parent doctrine had been used in Wisconsin only to award visitation to a non-parent.