Paternity

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Today was a good day.  For me and for my client.  It fills me with hope that tomorrow will also be a good day.  Why you ask?  After 36 years of wondering, guessing, dreaming, frustrating, I brought my client one step closer to knowing, for certain, who she is.

You see, this client found me about 3 months ago.  After speaking to several attorneys, all of whom told her she had no case because of her age, she found me.  We had a lengthy phone call where she shared her life story with me.  What brought her to the point of seeking legal recourse was simple – she was facing a variety of medical issues, the causes of and exact diagnosis difficult to know without having a full medical history, including that of her natural birth parents.  And here her problem lied.

My client, a 36 year old woman residing outside the state of New Jersey had no way to provide that information to her doctors.  Her mother was deceased.  And she had no confirmation of exactly who her biological father was.  She did have a solid suspicion based on information and stories she was told growing up, but her birth certificate was devoid of this.

We talked about her medical challenges in great detail.  We mulled over the options.  Ultimately, we decided to file a Complaint to Establish Paternity, despite the fact that we were 13 years pass the statute of limitations (technically) to bring such a claim.  But as with many areas of the law, there is gray and our facts fit squarely into the gray.

To give some perspective, the New Jersey Parentage Act, N.J.S.A. 9:17-38 et seq., provides the legislative mechanism by which parties may seek to establish paternity for a child in the state of New Jersey.  The Act establishes a twenty-three (23) year statute of limitations on bringing actions to establish parentage thereunder, as no action shall be brought more than five (5) years after the child reaches the age of majority, which is eighteen (18) years of age.   The Act permits the child to bring the action on his or her own behalf.  In reality, any interested party has until the child reaches the age of twenty-three (23) to bring the action.

However, in certain circumstances, the twenty-three year statute of limitations may be equitably tolled.  The seminal case on this issue is the New Jersey Supreme Court opinion in R.A.C. v. P.J.S., Jr., 192 N.J. 81 (2007).  In that case, the child’s mother’s husband (who believed he was the child’s father) brought a reimbursement action against the alleged biological father.  The action was brought past the statute of limitations, when the child was over thirty (30) years old.  The trial court in R.A.C. decided that the “[s]tatute of Limitations should not frustrate [the son’s] right to know his own potential genetic make-up,” particularly in light of the “serious medical condition” he may have inherited from his biological father.  The appellate court affirmed, finding that the “application of the doctrine of equitable tolling in this case [did] not undermine the purposes of the Parentage Act” because allowing the claim to proceed would not “disrupt fragile familial relationships,” thus “leav[ing] a young child bereft of required paternal guidance,” but rather lead to “a reconciliation of obligations.”  The appellate court went on to note that although statutes of limitations generally protect a party from having to defend against stale claims, when that party induces or tricks a putative plaintiff into letting the deadline pass, equitable tolling may apply. In R.A.C., the appellate court determined that the mother and biological father engaged in a pattern of deception, concealing from plaintiff his son’s true parentage and did not time-bar the claim.

The New Jersey Supreme Court reversed this decision, finding that the plain language of the Parentage Act and the legislative intent barred such actions beyond the twenty-three (23) year time limit.  The Supreme Court noted that the tendency in New Jersey has been to reject the discovery rule for statutes of limitations that run from a fixed, specified event.  The Court found that: “the question here is whether equitable tolling can ever apply to a repose statute…we believe that it can.  However, in light of the purpose of a repose statute, which is to set a fixed end to the limitations period regardless of when the cause of action accrues, we expect that equitable tolling will arise only in extraordinary circumstances consistent with legislative intent.” (emphasis added).

Noting the scant legislative history, the Court found that:

The twenty-three-year timeframe for filing a paternity action coincides with the recognized period when a child is in need of financial support and a parent legally bears a financial obligation to provide that support. See Wingate, supra, 149 N.J. at 239, 693 A.2d 457. In most cases, a parent will no longer be bound to support a child who reaches the age of majority. Newburgh v. Arrigo, 88 N.J. 529, 543, 443 A.2d 1031 (1982). Therefore, the “major concern” of the Parentage Act, the financial support of children, is no longer an issue after children have reached the age of twenty-three and presumably are capable of supporting themselves….By setting a fixed time period, the Legislature evidently understood that there would be cases, perhaps many cases, in which paternity would not be established within the twenty-three-year timeframe and that a biological father who bore the responsibility of raising and supporting a child would be relieved of his obligation. The Legislature did not create a scheme providing for an indefinite liability period,  but instead created one that allowed persons to reasonably expect that the slate would one day be “wiped clean.” The Legislature evidently knew what has been known since time immemorial that children would be born of adulterous relationships and that the true identity of the father might not be known for more than twenty-three years. The repose statute does not contain any carve out for such situations.

I must point out that the Court was addressing an action for support (or more specifically, reimbursement for support).  The prayers for relief in R.A.C. were financial in nature.  In a footnote, the Court stated that:

In light of the muscular dystrophy gene that afflicted Patrick’s family, we do not doubt that Darren’s need to know his biological background for health and family planning purposes might have been an “extraordinary” circumstance warranting the tolling of the statute to allow for DNA testing to establish paternity. See generally Fazilat, supra, 180 N.J. at 88, 848 A.2d 761 (commenting that “confirmation of one’s lineage may also provide `medical benefits’ by allowing the child to learn of the potential diseases and abnormalities he or she may inherit from parents and their forbears”). In this case, Darren was not a named plaintiff, and therefore this lawsuit is not about Darren’s right to know his genetic make-up. Id. (emphasis added).

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This footnote became highly relevant to my client’s argument and helped to establish the “extraordinary circumstances” we believed the court intended.

She will now, by virtue of court Order get paternity and genetic testing.  If the information she was provided her entire life regarding the identity of her biological father was correct, she will have confirmation and peace of mind.  Even now she feels legitimized and well on her way to finding the missing piece of her puzzle.  After all, should we not all have that?

I love the practice of law.  My specialty area gives me opportunities to impact people’s lives in a way that other attorneys may never experience in their career.  Today some lost idealism was returned to me and for that, it was a good day.

 

gavel A recent decision handed down by the Appellate Division in an estate litigation matter serves as a reminder of the all-too-frequent intersection of family law and trusts and estates law. The fact that this case, In the Matter of the Estate of Douglas Castellano and the Parentage of Gregory Bock, is a published decision only further underscores its importance in matters related to paternity, divorce, adoption and intestacy.

I am particularly fond of cases with fact patterns that read more like an episode of Jerry Springer than something you’d typically find in a legal text.  In this case, a woman, Elisa, ended a two year relationship with her partner, Douglas, and married a man named Gregory two months later.  Seven months after the marriage, Elisa gave birth to a child, Greg, Jr.  The child was named after Greg, Sr., who was listed as the father on the child’s birth certificate, despite the fact that Greg, Sr., knew he was not the father and that Douglas was well aware he was the father.

When Greg, Jr., was barely three years old, Greg, Sr., and Elisa divorced.  Greg, Sr., was granted visitation of the child and paid Elisa $80 per week in support.  Even so, Greg, Sr.’s relationship with Greg, Jr., tapered off and he only saw the child approximately two times per year until Greg, Sr., died when the child was a teenager. The child only learned the identity of his biological father from his mother at the age of 30. Following that reveal, Greg, Jr., and Douglas had a casual relationship, consisting of occasional phone calls and even fewer visits.  The relationship never blossomed further and Douglas was tragically murdered 8 years later in 2016.  Given his unexpected and untimely death, Douglas passed without a will.

Aside from Greg, Jr., Douglas’ only living relatives were his siblings. When they sought letters of administration for Douglas’ estate, Greg, Jr., filed a caveat which prompted their lawsuit. Under the intestacy laws, if Douglas died with no spouse, no children, and no living parents, his estate would pass to his siblings. If, however, Douglas was found to have descendants (in this case, children) the siblings would not be entitled to inherit.

On a motion for summary judgment, the trial court declared that as a matter of law, Greg, Jr. was Douglas’ sole descendant and therefore entitled to inherit from the estate. The siblings appealed, asserting that the trial judge failed to give sufficient weight to a presumption under the New Jersey parentage act, which declares a “man is presumed to be the biological father of a child if… [h]e and the child’s biological mother are or have been married to each other and the child is born during the marriage”.  The Appellate Division rejected this argument and affirmed the ruling below.

In so holding, the court found that the only question was whether Greg, Jr., was Douglas’ descendant.  Because a DNA test conclusively established paternity as such, the case could have been rather simple. However, the siblings raised the novel argument that given the statutory presumption that Greg, Sr., was the child’s father, representations about the child’s paternity during Elisa and Greg, Sr.’s divorce, and principles of equitable adoption, summary judgment was premature and improper.

As far as the statutory presumption of parentage, the court found that it was unequivocally overcome by the DNA test.  Moreover, the parentage act was designed to “facilitate the flow of benefits from the father to the child,” and not sever a biological link.

Under the theory of equitable adoption as argued by the siblings, Greg, Jr., should have been considered “equitably adopted” by Greg Sr., and therefore not the descendant of Douglas, given the the child’s treatment and representation as Greg, Sr.’s child at birth and during the divorce.  The court found this argument unconvincing and concluded that this case lacked the gravitas found in earlier cases which have utilized the remedy of equitable adoption.  Specifically, the court found that while Greg, Jr., took Elisa’s husband’s name, who was listed on the birth certificate, none of that was within Greg, Jr.’s control. Moreover, he was a toddler when Elisa divorced and had no input in the content of her judgment of divorce.  Indeed, the court found that the child’s fleeting relationship with Greg, Sr., after the divorce was insufficient to sever the irrefutable, biological link to Douglas. Moreover, the court opined that principles of equitable adoption have been historically employed to protect and enforce inheritance rights between parent and child, not destroy them.

The court boiled down the siblings’ case to the argument that the principles of intestacy should not apply because they had a stronger relationship with Douglas than Greg, Jr., did.  In a wholesale rejection of this argument, the court made plain that the laws of intestacy do not make such an exception simply because one relative knows the deceased better than the other.  The court concluded its opinion with the oft-cited reminder in estate litigation matters that if the decedent had intended a different result than that which the law provides, he could have (and should have) executed a will to that effect.

This case provides a cautionary tale for anyone who desires to have their estate pass in a manner inconsistent with the default rules laid down by the legislature. This is especially true for individuals who know they have legally unrecognized children who might pose an unwelcome surprise for loved ones in the event of an untimely death. For everyone else, it is a reminder that compelling circumstances are required to apply the principles of equitable adoption and formalizing relationships is the best way to predict how your relatives will be treated in family law and estate matters.

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Katherine A. Nunziata, Associate, Fox Rothschild LLPKatherine A. Nunziata is an associate in the firm’s Family Law practice, based in the Morristown, NJ office. You can reach Katherine at (973-548-3324) or at knunziata@foxrothschild.com.

Last year I blogged on tri-parenting, or the concept whereby three parents agree to raise a child or children together as a family, with regard to the published New Jersey trial court decision of D.G. and S.H. v. K.S. My previous blog post can be found here.

In that matter, D.G. and his husband, S.H., along with their friend K.S. embarked on a journey of conceiving and raising a child together. The parties agreed to use D.G.’s sperm and K.S.’s egg, as they had known each other longer, and they would give the child S.H.’s surname. All three parties parented the child and were effectively able to do so for most of the child’s early life, until K.S. announced that she had fallen in love with A.A., who she intended to marry, and that she wanted to relocate with the child to California where A.A. resided. When the parties’ could not agree on a “tri-parenting plan”, D.G. and S.H. filed a Complaint seeking legal and physical custody of the child, parenting time, and that S.H. (who did not have any biological ties to the child), was the child’s legal and psychological parent.

After 19 days of trial, the Court found that S.H. was in fact the child’s psychological parent (although K.S. also stipulated to this on the eve of trial), and concluded that D.G., S.H. and K.S. should have equal legal and residential custody of the child, and the court established a 50/50 parenting time schedule. However, the court denied S.H.’s request for legal parentage as a matter of law on the basis that the court does not have jurisdiction to create a new recognition of legal parentage other than what already exists—genetic contribution, adoption, or gestational primacy. Further, although the best interest of the child standard is used for various family law determinations, it is not a factor in defining parenthood under the Parentage Act. (N.J.S.A. 9:17:38 through 9:17-59).

I concluded my prior post by stating that

With the evolution of today’s family, “tri-parenting” and other, similar custody and parenting time situations will emerge, creating a new, unique set of issues for families who are dissolving/separating. As the role of “parent” expands, it will be interesting to see how the courts will progress to handle these delicate issues.

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On March 8, 2017, The New York Supreme Court of Suffolk County also granted tri-legal custody and visitation, in the matter Dawn M. v. Michael M.

In that matter, Dawn and Michael, a married couple, began a polyamorous relationship with Dawn’s friend, Audria. All three parties considered themselves a family and decided to have a child together. Since Dawn was unable to have a child, the parties decided that Michael and Audria would try to conceive. The credible evidence presented to the Court established that all three parties agreed, prior to a child being conceived, that they would raise the child together as tri-parents.

Audria became pregnant and gave birth to a boy, J.M.; however shortly thereafter the relationship between the parties became strained and Dawn and Audria moved out together with J.M. Michael commenced a divorce action against Dawn, and asserted he no longer considered Dawn to be J.M.’s parent.

The court found credible the testimony of Audria and Dawn that J.M. was raised with two mothers and that he continues to the present day to call both “mommy.” The court further found that in all respects, during the first eighteen months of J.M.’s life when Dawn, Michael and Audria all lived together, and thereafter after their separation, Dawn acted as a joint mother with Audria and that they all taught the child that he has two mothers. The Court also conducted an in camera interview with J.M., which left no doubt in the Court’s mind that he considered both Dawn and Audria to be equal “mommies” and that he would be devastated if he were not able to see Dawn.

Although not a biological parent or an adoptive parent, Dawn argued that she has been allowed to act as J.M.’s mother by both Audria and Michael, that she has always lived with J.M., J.M. has known her as his mom since his birth and that the best interest of J.M. dictates that she be given shared legal custody and visitation with him. Audria, J.M.’s biological mother, strongly agrees. Dawn further argued, along with the child’s attorney, that Michael should be estopped from opposing this application because he has created and fostered this situation by voluntarily agreeing, before the child was conceived, to raise him with three parents, and that Michael has acted consistent with this agreement by allowing the child to understand that he has two mothers.

The Court found that the best interests of J.M. would be served by granted Dawn shared legal custody, stating that “J.M. needs a continuing relationship with the [Dawn] as his mother and that relationship cannot be left to depend on the consent or whim of either his biological mother or father. Anything less will promote great hardship and suffering for J.M.”, and established a tri-custodial arrangement, as Michael and Audria already shared joint legal custody.”

The Court concluded that Dawn, Michael and Audria

created this unconventional family dynamic by agreeing to have a child together and by raising J.M. with two mothers. The Court therefore finds that J.M.’s best interests cry out for an assurance that he will be allowed a continued relationship with [Dawn]. No one told these three people to create this unique relationship. Nor did anyone tell [Michael] to conceive a child with his wife’s best friend or to raise that child knowing two women as his mother. [Michael]’s assertion that [Dawn] should not have legal visitation with J.M. is unconscionable given J.M.’s bond with [Dawn] and [Michael]’s role in creating this bond. A person simply is responsible for the natural and foreseeable consequences of his or her actions especially when the best interest of a child is involved. Reason and justice dictate that [Michael] should be estopped from arguing that this woman, whom he has fostered and orchestrated to be his child’s mother, be denied legal visitation and custody…To order anything other than joint custody could potentially facilitate [Dawn]’s removal from J.M.’s life and that would have a devastating consequence to this child.”

Although the issue of legal parentage was not discussed in the New York Court opinion, it appears that the New York Court is as progressive as the New Jersey Court in moving  towards alternative custody arrangements in light of the evolution of today’s families.

In the recently published 67-page trial court decision of D.G. and S.H. v. K.S., the trial court dealt with the novel issue of custody and parenting time in a “tri-parenting” relationship. In that matter, D.G. and his husband, S.H., along with their friend K.S. embarked on a journey of conceiving and raising a child together. The parties agreed to use D.G.’s sperm and K.S.’s egg, as they had known each other longer, and they would give the child S.H.’s surname. During K.S.’s pregnancy, the parties had two baby showers, one at D.G. and S.H.’s Manhattan apartment, and one at K.S.’s home in Point Pleasant, New Jersey. All three parties attended parenting classes and began preparing both of their homes for the child’s arrival, purchasing everything in duplicate.

After the child, O.S.H., was born in 2009, D.G. and S.H. moved into K.S’s home in Point Pleasant and all three parties co-parented the child. D.G. operated a business at the Jersey Shore and, shortly after giving birth, K.S. returned to her job at her family’s restaurant. S.H., a high-school teacher, undertook the significant portion of the parenting responsibilities as he was on summer recess.

At the end of the summer, D.G. and S.H. rented a home in Point Pleasant to be near K.S. Thereafter, parenting time fluctuated, but was successful. In the summers, D.G. and S.H. undertook the significant portion of parenting time responsibilities due to K.S’s job responsibilities, and in the winters, K.S. undertook the significant portion of parenting time responsibilities, including taking the child to Costa Rica, where she owned a home, for varying amounts of time. In 2012, Superstorm Sandy destroyed D.G. and S.H.’s rental home, so they began enjoying weekend parenting time in New York City.

The parties were able to effectively and efficiently co-parent with one another for most of the child’s early life; however, things broke down when K.S. announced that she had fallen in love with her neighbor in Costa Rica, A.A., who she intended to marry, and that she wanted to relocate with the child to California where A.A. resided. A.A. could not relocate to New Jersey due to parenting obligations to children he had from a prior marriage.

D.G. and S.H. requested that K.S. prepare parenting time proposal for them so they could determine if the relocation would work together with their idea of “tri-parenting”. K.S. prepared a parenting time proposal and after considerable discussion, D.G. and S.H. rejected it. D.G. and S.H. then filed a Complaint seeking to establish 1.) legal and physical custody of O.S.H.; 2.) parenting time; and 3.) that S.H. was the child’s psychological and legal parent. K.S. filed a counterclaim and answer seeking 1.) to establish a legal custodial relationship between the parties, with physical custody vested in K.S.; 2.) to establish a parenting time arrangement; 3.) child support and medical coverage; and 4.) permission to relocate with the child to California.

A plenary hearing was scheduled and took place over 19 days.paper dolls

Psychological Parentage of S.H.

S.H. sought an order declaring him to be the psychological parent of the O.S.H., which was supported by D.G. K.S. stipulated that S.H. was the child’s psychological parent on the eve of trial and the court found that the undisputed facts of this matter supported such a conclusion.

In order for a person to be considered a child’s psychological parent, there must be a finding of “exceptional circumstances” (See V.C. v. M.J.B., 163 N.J. 200, 219 cert. denied. 531 U.S. 926, (2000)). To find that “exceptional circumstances” exists, the Court must find the existence of four elements:

(1) that the biological or adoptive parent consent to, and fostered, the petitioner’s formation and establishment of a parent-like relationship with the child; the legal parent must have fostered the formation of the parental relationship between the third party and the child;

(2) that the petitioner and the child lived together in the same household’

(3) that the petitioner assumed the obligations of parenthood by taking significant responsibility for the child’s care, education and development, including contributing toward the child’s support without expectation of financial compensation [a petitioner’s contribution to a child’s support need not be monetary]; and

(4) that the petitioner has been in a parental role for a length of time sufficient to have established with the child a bonded, dependent relationship parental in nature. (See V.C. v. M.J.B. at 223).

The court detailed at great length, all of the actions undertaken by S.H. and concluded that he is appropriately the child’s psychological parent. Among some of the court’s considerations were the fact that D.G. and K.S. consented to and fostered a parent-like relationship between S.H. and the child,  the idea that all three of the parties would be the child’s parents was formed before the child was even conceived or born, the parties chose to give the child S.H.’s surname, and since the child was born, and over the course of the past six years, S.H. contributed towards the child’s support, both monetarily and otherwise, and established a bond with the child.

Residential and Legal Custody

Once the court has established the existence of a psychological parent, the best interest of the child must be considered when determining custody. The court found that since there was never a written agreement or prior court order regarding custody, the court must determine the custodial relationship that serves the best interests of the child, and evaluate the factors set forth in N.J.S.A. 9:2-4(c). Both Plaintiffs and Defendant hired custody experts, who evaluated each of the parties and the child. The court conducted a detailed, lengthy analysis of the factors set forth in N.J.S.A. 9:2-4(c), and upon doing so, ultimately concluded that D.G., S.H. and K.S. should have equal legal and residential custody of the child, and the court established a 50/50 parenting time schedule. Although rare, joint residential custody is a suitable alternative to sole custody in family law actions, when “joint custody is likely to foster the best interests of the child in the proper case.” See Beck v. Beck, 86 N.J. 480, 488 (1981). The analysis of the factors set forth in N.J.S.A. 9:2-4(c) is quite expansive and delves deep into the loving and caring relationship the parties share with the child.

Relocation and Removal Application by Defendant

The Court reviewed K.S.’s application to relocate with the child to California under the O’Connor standard for relocation, which applies in this situation as the Court determined that all of the parties shall share joint legal and residential custody. “If, the parents truly share both legal and physical custody, an application by one parent to relocate and remove the residence of the child to an out-of-state location must be analyzed as an application for a change of custody, where the partying seeking the change in the joint custodial relationship must demonstrate that the best interests of the child would be better served by residential custody being primarily vested with the relocating parent. O’Connor v. O’Connor, 349 N.J. Super. 381, 385 (App. Div. 2002).

The court opined that K.S.’s reasons for the move to California are at best tentative and speculative, including a major change in her living situation with A.A. (originally K.S. was going to live with A.A. and now is not), her employment and educational plans (K.S. intends to find part-time work and go to school part-time), her availability to care for the child and her lack of family support to help with the child’s care, among other things. Additionally, the child would be uprooted from her long and stable living arrangement with the parties and the distance between California and New Jersey would diminish the child’s ability to maintain her bond with D.G. and S.H., exclude them from her daily life activities and abrogate frequent parenting time. Thus, the court denied K.S.’s application to relocate with the child to California.

Legal Parentage

S.H. also sought to be established as the legal parent of O.S.H., not just the psychological parent. However, this was denied as a matter of law on the basis that the court does not have jurisdiction to create a new recognition of legal parentage other than what already exists—genetic contribution, adoption, or gestational primacy. Further, although the best interest of the child standard is used for various family law determinations, it is not a factor in defining parenthood under the Parentage Act. (N.J.S.A. 9:17:38 through 9:17-59).

While the court was sympathetic to S.H.’s request to establish legal parentage, same is not supported by statute or case law. Since such a determination would likely have far-reaching implications, the court determined that this issue is best addressed by other branches of government, specifically the Legislature.

In a world where the nuclear family has evolved into many different shapes and sizes, the law (and the courts) quite simply cannot keep up. With the evolution of today’s family, “tri-parenting” and other, similar custody and parenting time situations will emerge, creating a new, unique set of issues for families who are dissolving/separating. As the role of “parent” expands, it will be interesting to see how the courts will progress to handle these delicate issues.

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.

 In the unpublished (non-precedential) trial court case of Rendon v. Ale, the Court determined that a biological father, who while married to another woman, donated sperm in order for another woman to be artificially inseminated was not insulated under the protections of the Artificial Insemination Statute.

In Rendon, the parties, who were initially both married to other people, started a romantic relationship. After many years of their on again, off again affair, and notwithstanding that Defendant was still married, Defendant agreed to donate his sperm to Plaintiff for the purposes of artificial insemination.  Five days after his first sperm sample was taken, Plaintiff executed and had notarized a “Resignation Letter of Obligations” which stated:

To whom it may concern: This letter confirms the renunciation of all

kinds of paternal obligations that can have Carlos Ale identified with

Social Security # ***-**-3381 with my son or daughter since his (her)

procreation to his (her) adulthood. This includes maintenance, healthcare,

child support or any other responsibility as a father.

Very truly yours, /s Alba Rendon.

Continue Reading Sperm Donation: The Gift that Keeps on Giving?

Typically, when people think of a parentage a dispute, it is the father’s paternity which is at issue. However, with emerging science that paradigm is shifting. Specifically, with assisted reproductive technology on the rise, interesting questions crop up regarding the both of the child’s legal parents. This is because when a surrogate is used, hospital and state birth record procedures mandate that the surrogate’s name is put on the original birth record as the child’s mother simply because she gave birth. If the surrogate is married, her husband’s name is also normally put on the original birth record as the father. Therefore, the surrogate must cooperate in the establishment of parentage as to the intended parents in some sort of legal proceeding, either before or after birth, depending on the state.

This new facet of the law was explored in New Jersey in the Appellate Division’s approved for publication opinion of In the Matter of the Parentage of a Child by T.J.S. and A.L.S., ___ N.J. Super. ___ (App. Div. Feb. 23, 2011). There, the Appellate Division whether the New Jersey Parentage Act (Parentage Act), N.J.S.A. 9:17-38 to -59, recognizes an infertile wife as the legal mother of her husband’s biological child, born to a surrogate, and, if not, whether the statutory omission violates equal protection by treating women differently than similarly-situated infertile men, whose paternity is presumed under New Jersey law when their wives give birth during the marriage. The Appellate Division held that the Parentage Act did not apply to maternity under the circumstances presented by this case and the differing treatment of infertile husbands and wives was not a constitutional violation.

Continue Reading Appellate Division Upholds the Definition of Maternity in the Age of Reproductive Technology

Can a court order a person to take a paternity test? The short answer is – Yes.  Under the New Jersey Parentage Act of 1983, N.J.S.A. 9:17-38 to 59, any person with an interest recognized as justifiable by the court has standing to bring an action for the purpose of determining the existence or nonexistence of the parent and child relationship.  This type of action must be brought within 5 years after the child’s 18th birthday or by 23 years old.  That is, unless there is a justifiable reason for tolling.

In a recent New Jersey unpublished Appellate Division case, R.C. v. L.L., A-3057-08T1, decided December 11, 2009, the Appellate Division affirmed a Monmouth county trial court’s dismissal of a complaint by a 51 year old man against his estranged father to determine a parent/child relationship. RC was born in Germany to an unwed German mother in 1956. RC’s mother had told him when he was a teenager that his father was an American soldier that had been stationed in Germany. In 1987, RC made efforts to find his father to no avail. Finally, in 2006 he was able to contact his alleged father, LL. Although at the time LL agreed to take a paternity test, he subsequently changed his mind. Finally in October 2008, RC filed a complaint seeking among other things an adjudication of LL’s paternity. LL filed and was granted an application for summary judgment dismissing the case. RC appealed the trial court’s order. The Appellate Division affirmed the trial court’s decision and upheld the dismissal, finding that the complaint had been filed 28 years beyond the statute of limitations and allowing it to proceed was unfair.
Continue Reading Can the Court Order a Paternity Test?

We’ve all read the salacious gossip at the local food store news stand when popular celebrities bear children out of wedlock or famous couples battle it out in a nasty divorce and heartless allegations fly.  Even in those widely publicized cases, it can be an uncomfortable and awkward situation for any parent to question the paternity of a child.  I will admit that in my experience it is not a common occurrence for a parent to question the paternity of a child.  That’s not to say it doesn’t happen.  What happens when that question arises?

In NJ and many other states there’s a presumption that the name listed on a birth certificate is the father of a child.  There is also a presumption that a father who assumes paternity by allowing their name to be listed as the father on a birth certificate along with participating in the upbringing of the child, making financial contributions for the child and representing himself to the public as the child’s father is that child’s father, whether DNA says so or not.  These cases are factually sensitive and depend upon a number of factors for consideration, such as:

-When paternity is questioned?

-Who is questioning paternity?

-Is there another man submitting himself as the biological father of the child?

-Does the mother know who the biological father is?

These are just a few factors to consider.  Recently, the Appellate Division, in the unpublished decision of Qian v. Wang, A-1873-08T1, decided October 14, 2009 addressed this issue.

In Qian, the parties had been married for 13 years before the father questioned paternity of the parties’ only child in the midst of their divorce.  After DNA testing, there was no dispute that the child was not the biological child of the father.  The mother testified at trial that she believed the father was the biological parent of the child until the DNA tests revealed otherwise.  The trial judge found this testimony to be credible.  Also at trial, the father testified that at the child’s birth, he had suspicions about paternity but did nothing to pursue those suspicions.

Continue Reading Questions of Paternity

Previously, I blogged on an individual’s right and the implications that may arise out of that right to name a child of their own. This issue arose again in the April 2, 2009 unpublished Appellate Division decision of A.K. v. D.O., A-4326-07T1.

Parents A.K. and D.O. were not married. Plaintiff A.K. filed a motion in 2007 seeking to establish D.O. as the biological father of child, H.R.K. As a result of that motion, the court not only established paternity but also ordered A.K. to amend H.R.K.’s birth certificate to reflect that the child’s father is D.P.O.

Thereafter, another motion was filed as to issues related to child support. D.P.O. also filed a motion seeking to change H.R.K.’s name. Oral argument was heard in October 2007, during which the court inquired as to the status of the birth certificate issue. A.K. stated that she felt that the Order would be insufficient for the Registrar of the birth certificate and also argued that her failure to comply was an “innocent oversight”.

The Court found A.K. in violation of litigant’s rights and assessed counsel fees against her. She did not file a motion for reconsideration or seek leave to file an interlocutory appeal. She retained new counsel who filed a motion seeking to vacate that part of the Order directing that she change the child’s name to H.R.O. In her motion, A.K. argued that the child’s name should be changed to reflect the name H.R.O-K. Defendant sought to change the child’s name altogether. The court found plaintiff in violation of litigant’s rights for failing to comply with the prior Order requiring her to change the child’s name on the birth certificate and provided that she was to complete the necessary forms to accomplish the name change and if she fails to, sanctions and/or counsel fees will be imposed. The appeal followed.

The Appellate Division reversed part of the trial court’s Order and affirmed part of the Order. In refusing to grant A.K.’s request to change the child’s name to H.R.O-K. the court failed to place its reason for denying this request on the record. The court only alleged that no one gave a reason why the prior Order should be changed. A.K.’s Certification filed in support of her application did provide reasons for her request and advised that defendant’s proposed name was only an expressed preference and that her other daughter, M.K., resides with her and the child in question and she felt it was in the child’s best interests to also have the same last name as M.K.

The Court in reaching its decision noted that defendant did not have any significant objection to the use of hyphenated surname. The Appellate Division exercised original jurisdiction to dispose of that issue for the sake of completeness and because the record provided ample basis for disposition without further fact-finding. The Division cited to Gubernat v. Deremer, 140 N.J. 120 (1995), which discusses the history of surnames and the adoption of regulations promulgated by the NJ Department of Health. Under N.J.A.C. 8:2-1.4(a)(1), “where either parent is unavailable, the choice of the child’s name(s) rests with the parent who has custody of the newborn child.”

“The presumption that the parent who exercises physical custody or sole legal custody should determine the surname of the child is firmly grounded in the judicial and legislative recognition that the custodial parent will act in the best interest of the child….The non-custodial parent bears the burden of demonstrating by a preponderance of the evidence that despite the presumption favoring the custodial parent’s choice of name, the chosen surname is not in the best interests of the child…The rebuttable character of the custodial-parent presumption serves two ends: it protects the rights of the custodial parent to make decisions in the best interests of the child; and it permits judicial intervention, on a sufficient showing by the non-custodial parent, when that decision does not reflect the best interests of the child.” Gubernat at 144-45.

In this case, the trial court did not apply the proper legal standard and as such, was reversed.