By Gretchen Schuldt
A Milwaukee County judge's effort to force a man to remain a child's legal father after a DNA test showed he was not the biological dad was thrown out Tuesday by a State Court of Appeals panel.
The ruling reversed Milwaukee County Circuit Judge Paul R. Van Grunsven's decision that Deray J. Shaffale should remain the legal father because it was in the best interest of the child.
Shaffale had earlier signed a voluntary paternity acknowledgement because, he said, he thought he was the child's father and he wanted to get the child insured.
In sending the case back to Circuit Court, the three-member District 1 Court of Appeals panel said Van Grunsven applied the wrong standard and directed the judge and state attorneys involved in the case to read the relevant statutes.
Van Grunsven had found that requiring Shaffale to remain the legal father was in the best interests of the child.
"You signed that document, you’re the best and only father for this kid," Van Grunsven said during a 2018 hearing, according to the appellate decision.
He also said he had previously required men who erroneously acknowledged paternity to maintain their legal obligations even when they provided proof they were not the fathers.
"Let me explain this," Van Grunsven said. "I have had guys that I’ve known are not the father. I had genetic testing that establishes without a doubt that they’re not the father, but I continue to have that person under Wisconsin law be the legal father of the child because it was in the child’s best interest. That’s what the law is."
The appeals panel, though, in an opinion written by Appeals Judge Timothy G. Dugan, said that state law provides for voiding a paternity acknowledgement if a court finds that the male who signed it is not the biological father.
"We note that the statute does not reference a best interest of the child standard," Dugan wrote.
Shaffale wound up in court in the first place after the state filed a child support action naming both him and the child's mother, Vanidy R. Cross, as respondents.
Shaffale submitted the results of a privately obtained DNA test showing that he has 0% chance of being the father. Another man living in Seattle whom Cross said might be the father refused to submit to genetic testing that would determine whether he was.
The state argued that "it is better for the child to have a father on the birth records than no father at all," Dugan wrote. "The GAL agreed with the state."
Van Grunsven appointed the GAL, or guardian ad litem, to represent the child.
The state's lawyer told Van Grunsven the paternity acknowledgement could be voided only if its signing was tainted by fraud, mistake of fact, or duress, Dugan wrote. Van Grunsven found that Shaffale did not adequately show that it was, but the appeals panel said Van Grunsven did not do enough to determine that.
"There is no testimony or evidence in the record that establishes that Shaffale knew or had reason to believe that there were other potential fathers," Dugan wrote. "Cross was never called as a witness....There is no testimony or evidence in the record regarding Cross’s actions and representations to Shaffale....Further, because Cross was never called as a witness, Shaffale never had an opportunity to cross-examine her. He also was not given an opportunity to give his own direct testimony."
Dugan was joined in his opinion by Appeals Judges William W. Brash III and Joan F. Kessler.
Shaffale was represented on appeal by Demetra Christopoulos.
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