Edward R. Weinstein, Esq.Edward R. Weinstein, Esq.

May I Contest Paternity During My New Jersey Divorce?

If after years of raising a child as his own, a father believes that he is not actually the child’s biological father, he is entitled to request genetic testing to take place. As a divorce attorney here in New Jersey for the past two decades, I have confronted this issue on numerous occasions.  In each case a judge of the Superior Court of New Jersey (Family Part) has discretion whether to grant or deny the request. If the court can show, with good cause, why the request for genetic testing should be denied, then it is permissible. If not, the genetic testing will be allowed. The case of D.W. v. R.W. illustrates this perfectly for both my fellow lawyers as well as the general public..

In the case the parties were married in 1979. Three children were born of the marriage, the last born in 1987. In November 2006, the mother filed a complaint for divorce. As a response, the father filed a counterclaim alleging that the mother fraudulently concealed that he was not the youngest child’s biological father. Additionally, the father filed a third-party complaint against his ex-brother-in-law alleging that he was the child’s biological father and demanding from him reimbursement for the monies spent raising the child.

In May 2007, the father moved to compel his ex-brother-in-law to submit to genetic testing. He submitted a certification detailing evidence that suggested that he and the mother had an affair during which period the youngest child was conceived. He argued that as the child started to grow up, it was clear that he did not resemble the father at all. Additionally, the father claimed that the mother had admitted to having sexual relations with the ex-brother-in-law in the latter part of the summer of 1986—the child was born on April 27, 1987.

Furthermore, the father submitted the results of a privately commissioned DNA test that excluded him as the child’s biological father. However, the trial court dismissed the paternity claim. As a result, the father moved for the court to reconsider. Subsequently, in March 2008 the court granted the motion for reconsideration, reinstated the paternity claim, and ordered a hearing to take place to determine whether genetic testing should be ordered.

At the hearing, the father argued that he had “the inherent right to know if the youngest child was in fact his biological child.” Although he wanted to have a relationship with the child no matter what the genetic testing revealed, the father stated that if the ex-brother-in-law was found to be the child’s biological father, he should have to financially reimburse him for the 20 years he spent raising the child. On the other hand, the mother argued that genetic testing would not be in the child’s best interest because the child had told her that “he would like to choose when he has it done.”

The child also testified at the hearing. He claimed that he did not believe that he was in his best interests to resolve his paternity at the present time, although he might want to resolve it in the future. He had been struggling with an alcohol addiction and was dealing with paying off fines for the two DWIs he received and did not want any more stress added to his plate.

At the end of the hearing, the trial court rejected the father’s request for genetic testing, relying on the best interest of the child standard set forth in the case of M.F. The court found that the father had failed to prove by clear and convincing evidence that genetic testing was in the child’s best interest. The court concluded that it would be unfair to the child for him to become a stigma if the testing revealed that the ex-brother-in-law was his biological father. Additionally, the court noted that if the father succeeded in the parentage action, the child would lose the right of inheritance from the father.

Furthermore, the court dismissed the father’s third party paternity action. It stated that the moment the child determined that the genetic testing was not in his best interests, the father lost his legal right to pursue his third party claim. Although the father appealed the trial court’s decision, the Appellate Division affirmed the findings of the lower court. However, the father did not give up and as a result, was granted certiorari by the Supreme Court of New Jersey.    

On appeal to the Supreme Court of New Jersey, the father argued that the M.F. best interests of the child test should not apply when custody is not at issue and a presumed father is seeking reimbursement for child support from the biological father of a 23 year old, adult emancipated child. As a result, the Supreme Court was left to answer the question “what requirements must be met to allow for genetic testing to rebut a presumption of paternity in a parentage contest?”  

The Supreme Court first looked to the relevant language of the Parentage Act itself. Pursuant to the Act, any person seeking reimbursement for support related expenses can institute a proceeding against the biological father if paternity has been declared, acknowledged, or adjudicated. However, to succeed in a reimbursement suit, the litigant would first have to identify the biological father. Since the biological father is presumed to be the man married to the mother when the child is born, the only way to rebut that would be through genetic testing. Based off of the language of the statute itself, it was clear to the Supreme Court that the Legislature did not intend to place overly restrictive conditions on the use of genetic testing when parentage is truly in dispute.

However the court did note that genetic testing is not an option for everyone every time there is a possibility that paternity is in dispute and that it had the discretion to deny a request for testing for “good cause.” Yet, the court stated that it was unclear from the statute what “good cause” meant. As a result, the Supreme Court set forth eleven factors that must be considered in a good-cause determination whether to grant or deny genetic testing:

1.     the length of time between the proceeding to adjudicate parentage and the time that the presume father was told that he might not be the biological father

2.     the length of time during which the presumed father assumed the role of father of the child

3.     the facts surrounding the presumed father’s discovery of the possibility that he is not the biological father

4.     the nature of the relationship between the child and the presumed father

5.     the nature of the relationship between the child and an alleged father

6.     the age of the child

7.     the degree of harm that might result to the child if presumed paternity is successfully disproved

8.     the extent to which the passage of time lowers the chances of establishing the paternity of another man and a child support obligation in favor of the child

9.     the extent to which uncertainty of parentage exists for the child

10.  the child’s interest in knowing who his or her biological father is

11.  other factors that might impact the equities arising from the disruption of the father-child relationship between the child and the presumed father

After applying the factors to the case at hand, the Supreme Court determined that the father should be entitled to his request for genetic testing because the good-cause requirement for denying genetic testing was not satisfied. In particular, although the child did state that he was not ready to submit to genetic testing, he provided no evidence that it would be emotionally or physically harmful to him. Accordingly, the Supreme Court reversed the findings of the Appellate Division and held that the father’s request for genetic testing should be granted.

If you or a loved one faces a similar dilemma, please contact my office to discuss that matter.  Thank you.