A man and woman marry and have children together. Sadly, the union ultimately ends in a divorce, in turn, and the father is to provide for his children with an amount calculated by New Jersey’s child support guidelines. A few years after the father has been paying child support, he discovers that he is not the child’s father. How can he disestablish paternity and have his support obligations reduced or eliminated? As an attorney who only practices family and divorce law, I consistently review new cases in order to stay “on my game.” Today, we shall take look at the recent New Jersey Appellate Division case of M.M. v. M.G. which addresses this very issue.
In the case, the parties married in June 1989 and divorced in December 1999. Two children were born during the marriage, one in 1990 and the other in 1994. In the final judgment of divorce, the father agreed to pay child support for both of his children. However, in 2009 a family friend told the father that he obtained a DNA test, which proved that he was actually the younger child’s dad. At the time, the child was fifteen years old. After discovering this news, the father filed a pro se motion in March 2010 seeking to disestablish paternity of his younger son, modify child support, and receive credit for what he had previously paid based on fraudulent paternity.
Yet, the mother filed a certification asserting that the parties always had doubts regarding the paternity. Therefore, she stated that she did not defraud her ex-husband. In June 2010, the father’s application to disestablish paternity was completely denied. The court ordered that the application was denied without prejudice because there was no evidence that the mother had defrauded the father. Furthermore, the court stated that the father signed the child’s birth certificate and did not contest paternity at any point in time until the filing of the motion.
In July 2011, the father filed a new motion; however, this time he retained a New Jersey divorce lawyer. Once again, the father set forth his legal basis to disestablish paternity, but he also sought a recalculation of child support based on changed circumstance. He stated that he had been unemployed for two years and therefore his income had significantly gone down. Additionally, the father highlighted that his ex-wife received an increase in her salary.
As a response, the mother filed a cross-motion requesting that the court deny her ex-husband’s motion. She again alleged that the parties always doubted the younger child’s paternity. However, the father filed a reply certification, which still contended that he was defrauded. He argued that he signed the birth certificate only because he trusted his ex-wife and because there was a legal presumption that he was the father since he was married to the child’s mother. He stated that he never doubted his son’s paternity and that he had no reason to doubt it until his family friend gave him a copy of the DNA test results.
In September 2011, the court again denied the father’s motion in its entirety. This time the court stated that if the father wanted to file a support action against the child’s biological father, he could. However, the relationship issues presented did not constitute a change of circumstances since the last order entered into in June 2010. The father appealed. On appeal, he argued that the trial court erred in denying his application to disestablish paternity.
The New Jersey Appellate Division reviewed the claims raised pertaining to the disestablishment of paternity. In particular, the court examined the father’s contention that the trial court’s decision should have been reviewed pursuant to the Parentage Act. The Appellate Division agreed that the decision should have been reviewed pursuant to the Act; however, it stated that the decision should have been viewed in light of the recent interpretation of the Act, N.J.S.A. 9:17-38 to -59, related to a husband’s challenge to paternity.
Pursuant to the Act, after a parentage action is brought to declare the existence or lack thereof of the father and child relationship, the Act provides that “if blood tests or genetic tests have not been taken, then the court shall order the child and the parties to submit to blood tests or genetic tests unless a party claims, and the court finds, good cause for not ordering the tests.” N.J.S.A. 9:17-48(d). The court went on to discuss the presumption within the Act that the husband is the father of a child born during the course of his marriage. It stated that the presumption of paternity can only be overcome by clear and convincing evidence. With that said, genetic testing in most cases might be the only sufficiently persuasive evidence to overcome the presumption.
The Appellate Division continued its analysis by looking more closely at N.J.S.A. 9:17-48(d). Pursuant to that provision, when there is a “reasonable possibility” that parentage is in doubt, good cause must be shown why genetic testing should not be undertaken. However, once the “reasonable possibility” threshold of paternity or non-paternity has been crossed, the default position is genetic testing. At that point, the burden would shift to the opponent to make a good cause showing that genetic testing should not occur. The Appellate Division noted that since the Act does not define good cause, the court would look to the best interest of the child, in addition to eleven factors when determining to grant or deny genetic testing.
1)the length of time between the proceeding to adjudicate parentage and the time that the presumed father was given notice that he might not be the genetic father
2)the length of time during which the presumed father has been a father figure to the child
3)the facts surrounding the presumed father’s discovery that he might not be the genetic father
4)the nature of the relationship between the child and the presumed father
5)the nature of the relationship between the child and any alleged father
6)the age of the child
7)the degree of physical, mental and emotional harm that could result to the child if the presumed paternity is disestablished
8)the extent to which the passage of time lowers the chances of establishing the paternity of another man (and a child support obligation)
9)the extent to which the child believes the presumed father is his or her genetic father
10)the child’s interest in knowing about his or her family background
11)other factors that may impact the equities arising from disruption of the father-child relationship
After laying out those factors, the Appellate Division found that the father’s motion did satisfy the “reasonable possibility” threshold of non-paternity based on the DNA test results provided by the child’s genetic father. However, it remanded the case back to the trial court because the lower court failed to examine the issue in accordance with the eleven factors. For more questions on establishing or disestablishing paternity, please contact my office today.