Paternity rights of biological mothers and fathers are set forth in the New Jersey Parentage Act N.J.S.A. 9:38 – 59.
Acknowledgment of Paternity begins at the hospital when the child is born. The father has the opportunity to sign a Certificate of Paternity (COP) voluntarily at the hospital. New Jersey has a Paternity Opportunity Program (POP) to facilitate the establishment of paternity to unmarried parents, and again provide the father an opportunity to voluntarily acknowledge paternity. New Jersey has a Paternity Opportunity Program which is an online guide to paternity.
N.J.S.A. 9:17-41(b) sets forth the proof necessary for the establishment of paternity including but not limited to paternity having been adjudicated under prior law or laws governing probate, a determination of paternity made by another state or jurisdiction, or by a Certificate of Parentage, even if executed by a minor, default judgment of court, or blood or genetic testing. Once paternity is adjudicated, it can only be voided if there is a finding that there exists evidence of clear and convincing fraud, duress, or material mistake, with the burden on the person challenging the paternity.
The COP is to be attached to the Complaint for support and custody in the non-dissolution matter. If the birth father has not acknowledged paternity, the birth mother completes a Certification in Support of Establishing Paternity.
The “signed voluntary acknowledgment of paternity is a a legal finding of paternity subject to the right of the signatory to rescind the acknowledgment within 60 days of the date of signing, or by the date of establishment of a support order to which the signatory is a party, whichever is earlier.” N.J.S.A. 17-41(a).
Upon filing the Complaint for support and paternity by the birth mother, the Court will initiate to establish paternity by genetic testing. N.J.S.A. 9:17-52(c). However, in the event that the alleged birth father does not appear after having been served, a “default order entered pursuant to this section (N.J.S.A. 9:17-52.1) shall be determinative for purposes of establishing the existence of paternity when proper notice has been served and a sworn statement by the mother indicating the parentage of the child has been executed.” The child’s birth record shall be amended upon a court order, and “the local registrar of vital statistics shall prepare an amended birth record consistent with the findings of the court.” N.J.S.A. 9:17-59.
Either the biological mother or the biological father may request genetic testing, and it will be required unless a party claims good cause for not ordering the tests. The request for genetic testing is supported by a sworn statement by the requesting party which alleges paternity and sets forth the facts establishing a reasonable possibility of the requisite sexual contact between the parties or denies paternity and sets forth the facts establishing a reasonable possibility of the nonexistence of sexual contact between the parties. If a party refuses to acknowledge paternity based upon the blood or genetic test results, the action shall be set for a hearing. When the genetic tests meet the threshold probability to establish paternity, the results are received in evidence as a rebuttable presumption of paternity without requiring any additional foundation testimony or proof of authenticity or accuracy of the paternity testing or results. In actions based on allegations of fraud or inaccurate analysis, the court or the county welfare agency shall require that additional blood or genetic tests be scheduled within 10 days of the request and be performed by qualified experts. Additional blood or genetic tests shall be paid for in advance by the requesting party.
There are presumptions set forth in N.J.S.A. 9:17-43 when an individual is presumed to be the father of the child, including whether he and the biological mother are married or were married within 300 days after the marriage is terminated by death, divorce, or annulment. This presumption also includes if the marriage was declared invalid.
The presumption may be rebutted only by “clear and convincing evidence.” N.J.S.A. 9:17-43(b). In D.W. v. R. W., 212 N.J. 232 (2012) the presumed father of a twenty year old biological child successfully obtained genetic testing to provide that the child’s uncle was the biological father. The trial court and appellate court both denied the request for genetic testing, as the father and birth mother were married when the child was born.
The facts in D.W. bring light to the Court’s holding in granting the genetic testing. The biological father, Richard, suspected that his brother-in-law, Donald, was the biological father of his son, Mark. Richard obtained a genetic test from Mark, under the guise that he was testing Mark for drugs, and the tests confirmed his suspicion: Richard was not Mark’s biological father. The lower courts did not consider the validity of the genetic test, as it was done without Mark’s consent. Richard sought reimbursement from Donald for the support that he had paid for Mark.
In granting Richard’s request for genetic testing, the Supreme Court focused on the language of N.J.S.A. 9:17-48(d). The Court stated that the “Legislature did not open the door to genetic testing every time there is a reasonable possibility that paternity is in dispute. The court may still deny a request for genetic testing for ‘good cause’ under N.J.S.A. 9:17-48(d). D.W., supra 212 N.J. at 250. The court set forth eleven factors to be considered by the court as guideposts to be considered by the court to define “good cause.”
- the length of time between the proceeding to adjudicate parentage and the time that the presumed or acknowledged father was placed on notice that he might not be the genetic father;
- the length of time during which the presumed or acknowledged father has assumed the role of father of the child;
- the facts surrounding the presumed or acknowledged father’s discovery of his possible nonpaternity;
- the nature of the relationship between the child and the presumed or acknowledged father;
- the nature of the relationship between the child and any alleged father;
- the age of the child;
- the degree of physical, mental, and emotional harm that may result to the child if presumed or acknowledged paternity is successfully disproved;
- the extent to which the passage of time reduces the chances of establishing the paternity of another man and a child-support obligation in favor of the child;
- the extent, if any, to which uncertainty of parentage exists in the child’s mind;
- the child’s interest in knowing the family and genetic background, including medical and emotional history; and
- other factors that may affect the equities arising from the disruption of the father-child relationship between the child and the presumed or acknowledged father or the chance of other harm to the child.
Therefore, Richard’s request for reimbursement from Donald went forward.
An action for reimbursement for child support must be filed within five years of the child’s eighteenth birthday, therefore by the time the child is twenty-three. N.J.S.A. 9:17-45(b). The lawsuit for reimbursement may be filed by [a]ny person seeking reimbursement for such support expenses may institute a proceeding against the father if paternity has been “declared,” “acknowledged,” or “adjudicated” under the Parentage Act. N.J.S.A. 9:17-55(a).” D.W., supra 212 N.J. at 247. To succeed in a reimbursement lawsuit, the litigant must first identify the biological father. To that end, the Act allows “any person with an interest recognized as justiciable by the court” the right to bring an action “for the purpose of determining the existence or nonexistence of the parent and child relationship.” N.J.S.A. 9:17-45(a). [citations omitted] However, no action to prove parentage may be instituted “more than 5 years after the child attains the age of majority,” The discovery rule does not apply, so if a parent finds out that their child is actually someone else’s child after the age of 23, they are barred by the statute.