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

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

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. 

 In the unpublished (non-precedential) trial court case of Rendon v. Ale, the Court determined that a biological father, who while married to another woman, donated sperm in order for another woman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.


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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.


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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.

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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.


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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