Wisconsin Statutes
Wis. Stat. § 891.41 (2026)
Presumption of paternity based on marriage of the parties
✓ current as of July 2026
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891.41(1)(a)(a) He and the child’s natural mother are or have been married to each other and the child is conceived or born after marriage and before the granting of a decree of legal separation, annulment or divorce between the parties.
891.41(1)(b)(b) He and the child’s natural mother were married to each other after the child was born but he and the child’s natural mother had a relationship with one another during the period of time within which the child was conceived and no other man has been adjudicated to be the father or presumed to be the father of the child under par. (a).
891.41(2)(2) In a legal action or proceeding, a presumption under sub. (1) is rebutted by results of a genetic test, as defined in s. 767.001 (1m), that show that a man other than the man presumed to be the father under sub. (1) is not excluded as the father of the child and that the statistical probability of the man’s parentage is 99.0 percent or higher, even if the man presumed to be the father under sub. (1) is unavailable to submit to genetic tests, as defined in s. 767.001 (1m).
891.41 HistoryHistory: 1979 c. 352; 1983 a. 447; 1985 a. 315 s. 22; 1987 a. 413; 1989 a. 212; 1997 a. 191.
891.41 AnnotationIn order for a putative biological father 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. Randy A.J. v. Norma I.J., 2004 WI 41, 270 Wis. 2d 384, 677 N.W.2d 630, 02-0469.
891.41 AnnotationA genetic test showing another man to be the natural father rebuts the presumption under sub. (1) and s. 767.48 (1m) [now s. 767.84 (1m)] that the spouse of the child’s mother is the father, but equitable estoppel may be employed to preclude rebutting the presumption. The issue is whether the actions and inactions of the parties advocating the rebuttal of the marital presumption are so unfair as to preclude them from overcoming the public’s interest in the marital presumption based on the results of genetic tests. Randy A.J. v. Norma I.J., 2004 WI 41, 270 Wis. 2d 384, 677 N.W.2d 630, 02-0469.
891.41 AnnotationThe presumption that the mother’s husband is the child’s father does not violate a putative father’s due process rights. Michael H. v. Gerald D., 491 U.S. 110, 109 S. Ct. 2333, 105 L. Ed. 2d 91 (1989).
891.41 AnnotationIf a child is conceived subsequent to the entry of a decree of legal separation, there is no presumption of paternity. Schoenfeld v. Apfel, 237 F.3d 788 (2001).
891.41 AnnotationAs I See It: Out of Sync: Assistive Reproductive Technology & Parentage Law. Walsh. Wis. Law. May 2017.
Notes of Decisions
Cited in 24
cases (4 in the last 5 years), 1987–2024 · leading case: Randy A. J. v. Norma I. J., 2004 WI 41 (Wis. 2004).
Randy A. J. v. Norma I. J., 2004 WI 41 (Wis. 2004). “However, because we also conclude that Norma and Brendan are equitably estopped from asserting the genetic test results as proof to rebut the marital child presumption found in Wis. Stat. § 891.41 , that presumption remains intact.”
In Re Marriage of Ulrich v. Cornell, 469 N.W.2d 890 (Wis. Ct. App. 1991). “Nor is he someone to whom the presumption of paternity under section 891.41, Stats., would apply. See ibid.”
Randy A. J. v. Norma I. J., 2002 WI App 307 (Wis. Ct. App. 2002). “99% degree of certainty, Brendan had not rebutted the marital presumption contained in Wis. Stat. § 891.41 (1). Section 891.41(l)(a) provides that a man is presumed to be the natural father of a child if he and the child's natural mother have been married to each other and the…”
David J. Rosecky v. Monica M. Schissel, 2013 WI 66 (Wis. 2013). “805 (voluntary acknowledgment of paternity); § 891.41 (presumption of paternity based on marriage of the parties).”
Heather Martin Gartner & Melissa Gartner, Individually & as Next Friends of Mackenzie Jean Gartner, a Minor Child v. Iowa Dep't of Pub. Health, 830 N.W.2d 335 (Iowa 2013). “”); Wis. Stat. Ann. § 891.41 (1)(a) (West 2012) (“A man is presumed to be the natural father of a child if .”
In Re Paternity of TJDC, 2008 WI App 60 (Wis. Ct. App. 2008). “Although Robin provided the State with the father's name, she declined to pursue the Acknowledgement of Marital Child form. Accordingly, based on the foregoing, and pursuant to Wis.”
Hendrick v. Hendrick, 2009 WI App 33 (Wis. Ct. App. 2009). “He contends, however, that the circuit court should not have ordered that he be tested genetically to see if he was the girl's father because of the presumption in Wis. Stat. § 891.41 (l)(a). Section 891.41 provides, as material here: (1) A man is presumed to be the natural…”
S.R. & C.L. v. Circuit Court, 2015 WI App 98 (Wis. Ct. App. 2015). “contend Wis. Stat. §§ 891.41 2 and 891.40, 3 respectively addressing the "[p]resumption of paternity based on marriage of *137 the parties" and "[artificial insemination," should be "ungendered" based upon Wis.”
W.W.W. v. M.C.S., 468 N.W.2d 719 (Wis. 1991). “, provides that: "A man is presumed to be the natural father of a child if any of the following applies: (1) He and the child's natural mother are or have been married to each other and the child is conceived or born after marriage . . .." Section 767.”
In Re Paternity of CAS, 468 N.W.2d 719 (Wis. 1991). “, provides that: "A man is presumed to be the natural father of a child if any of the following applies: (1) He and the child's natural mother are or have been married to each other and the child is conceived or born after marriage . . .." Section 767.45(1)(d), Stats.”
A.M.N. v. A.J.N., 414 N.W.2d 68 (Wis. Ct. App. 1987). “, a husband who has a child born during the marriage is entitled to bring an action to rebut the presumption of paternity under sec. 891.41, Stats. The husband has the burden of rebutting this presumption.”
Torres v. Rhoades, 317 F.R.D. 85 (W.D. Wis. 2016). “However, plaintiffs had not explained how they were being harmed by § 891.41. The only issue plaintiffs raised in their complaint related to birth certificates, which are governed by Wis.”
— Wis. Stat. § 891.41(1) — 9 cases
Randy A. J. v. Norma I. J., 2004 WI 41 (Wis. 2004). “However, because we also conclude that Norma and Brendan are equitably estopped from asserting the genetic test results as proof to rebut the marital child presumption found in Wis. Stat. § 891.41 , that presumption remains intact.”
In Re Marriage of Ulrich v. Cornell, 469 N.W.2d 890 (Wis. Ct. App. 1991). “Nor is he someone to whom the presumption of paternity under section 891.41, Stats., would apply. See ibid.”
W.W.W. v. M.C.S., 468 N.W.2d 719 (Wis. 1991). “, provides that: "A man is presumed to be the natural father of a child if any of the following applies: (1) He and the child's natural mother are or have been married to each other and the child is conceived or born after marriage . . .." Section 767.”
In Re Paternity of TJDC, 2008 WI App 60 (Wis. Ct. App. 2008). “Although Robin provided the State with the father's name, she declined to pursue the Acknowledgement of Marital Child form. Accordingly, based on the foregoing, and pursuant to Wis.”
In Re Paternity of CAS, 468 N.W.2d 719 (Wis. 1991). “, provides that: "A man is presumed to be the natural father of a child if any of the following applies: (1) He and the child's natural mother are or have been married to each other and the child is conceived or born after marriage . . .." Section 767.45(1)(d), Stats.”
— Wis. Stat. § 891.41(1)(a) — 4 cases
M.S.G. v. J.L.H. (in Re B.h.), 918 N.W.2d 643 (Wis. Ct. App. 2018).
Amy Cady-Krech v. Kimberly A. Mitchell (Wis. Ct. App. 2021).
Sheboygan Cnty. DH&HS v. E.C. (Wis. Ct. App. 2022).
Amanda Fisher v. M. F. (Wis. Ct. App. 2022).
— Wis. Stat. § 891.41(1)(b) — 1 case
Amy Cady-Krech v. Kimberly A. Mitchell (Wis. Ct. App. 2021).
— Wis. Stat. § 891.41(2) — 1 case
In Re Marriage of Ulrich v. Cornell, 469 N.W.2d 890 (Wis. Ct. App. 1991). “Nor is he someone to whom the presumption of paternity under section 891.41, Stats., would apply. See ibid.”
— Wis. Stat. § 891.41(a) — 1 case
Torres v. Seemeyer, 207 F. Supp. 3d 905 (W.D. Wis. 2016).
— Wis. Stat. § 891.41(l)(a) — 1 case
Randy A. J. v. Norma I. J., 2002 WI App 307 (Wis. Ct. App. 2002). “99% degree of certainty, Brendan had not rebutted the marital presumption contained in Wis. Stat. § 891.41 (1). Section 891.41(l)(a) provides that a man is presumed to be the natural father of a child if he and the child's natural mother have been married to each other and the…”
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