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

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In a recent New Jersey unpublished Appellate Division case, R.C. v. L.L., A-3057-08T1, decided December 11, 2009, the Appellate Division affirmed a Monmouth county trial court’s dismissal of a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