In a recent case, Passaic County Board of Social Services on Behalf of T.M. v. A.S., the New Jersey Family Court encountered a unique set of facts.  A mother of two twin girls sought to establish the paternity of her daughters in order that the father would be obligated to commence paying child support.  She named the defendant, A.S., as the father and he submitted to DNA testing.  As it turned out, the DNA test established that A.S. was the father to only one of the twin girls.  The twins had been fathered by two different people, known as “bipaternal twins,” a rare medical phenomenon.

I think most people would agree that the DNA result in this case merits a “huh?” and Judge Mohammed, who rendered the decision in this case, thought so too.   In general, the court observed, the DNA testing process is scientifically sound and very reliable.  However, Judge Mohammed also recognized that under the law, the results of genetic testing create a rebuttable presumption as to paternity.  In other words, even if a DNA test says John Doe is the father, John Doe can still try to disprove those results.  But how do you argue with science?  And should you?

As to the first question, Judge Mohammed’s opinion indicates that you argue with science by questioning the standards and methods used by the DNA specimen collection facility and the testing lab.   Maybe someone along that chain of custody messed up, or maybe the procedures employed by the collection facility or lab are not sound.  Focusing on the sampling, handling, processing, and analysis of DNA, Judge Mohammed set forth several factors to consider when one party questions DNA testing results, as follows:

1) The methods employed and conditions under which the DNA specimen was obtained;

2)  The training, skill, and judgment of DNA handlers;

3)  Whether adequate procedures were in place for specimen collection, storage, transportation, sampling, handling and processing of DNA tests;

4)  “Chain of custody” considerations;

5)  Any evidence of tampering, hacking, user bias, or other external interference calling into question the integrity of the test result;

6)  Whether the testing laboratory adhered to scientifically acceptable, reliable, and established DNA testing and methodology standards;

7)  The ability of the handlers to replicate test results submitted to the court; and

8)  Access to and handling of information regarding abnormal or irregular results, or those collected in error.

If the standards and practices of the collection facility and the lab are sound, and there was no departure from those standards and practices, then the DNA test must be considered reliable evidence.  But maybe the collection facility contaminated the sample, or maybe the lab did not properly store the sample.  Then there might be a good reason for the court to decline to rely on a particular DNA test.

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As to the second question – whether you should argue with a DNA test or not – Judge Mohammed seems to say that, yes you should – but only if the results are cause for a double take.  Generally speaking, Judge Mohammed writes, “a medical or scientific innovation or rarity should not create judicial uncertainty.” In other words, people should trust the results of a DNA test, and if they don’t, then the Court should question the methods used by applying the eight factors listed above.  As Judge Mohammed eloquently put it in the context of the case,

“Given the rarity of this medically acceptable phenomena, coupled with the general public’s lack of awareness, it is not unreasonable to expect that when one is confronted with the DNA test results that show each twin in a given case has a different father, an overwhelming majority will likely express sheer disbelief.  This in turn will give rise to lack of confidence in the results.  One may begin to question whether DNA is truly a valid indicator or “snapshot” of one’s identity.”

And in the context of family law cases – specifically, paternity issues – questioning a curious DNA result will be critical to the child at issue.  As Judge Mohammed emphasized, courts across the country, including New Jersey, “have recognized the profound right of a child to know the identity of his or her parents.”  Our courts have recognized a child’s right to feel “rooted” and know his or her true origins, not only for psychological and emotional reasons, but also for the purpose of medical treatment and genealogical history.  It is the court’s job to ensure that the best interests of the child are served, and it is also the court’s duty to act as gate-keeper of evidence.  The court must question the reliability of DNA testing by evaluating the integrity and reliability of the test results rather than blindly accept DNA results that are cause for skepticism.


headshot_diamond_jessicaJessica C. Diamond is an associate in the firm’s Family Law Practice, resident in the Morristown, NJ, office. You can reach Jessica at (973) 994.7517 or jdiamond@foxrothschild.com.

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