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
We don’t typically post about DYFS (now DCPP) or similar type cases on this blog as we usually focus on divorce and related issues. That said, for fun, I was reading the new cases that were decided yesterday and came upon a case that I found compelling, both because it indicated some systemic problems in custody cases and because it had some real strong language about parental rights – that while stating the obvious, perhaps, did so in a powerful way and in a way that needed to be reiterated.
The case I’m talking about is C.D., A.P. and D.D. v. N.D.M. and A.L. which was an unreported (non-precedential) decision released by the Appellate Division on January 8, 2013. In that case, the aunt and grandparents received temporary custody of her niece and a best interest evaluation, to be completed within 90 days, was ordered. The parties ultimately agreed to a joint expert to do the evaluation, That evaluation, which by court order was to be completed in 90 days, took more than a year to complete.
SYSTEMIC ISSUE #1: All custody and best interest evaluations are supposed to take 90 days or so. That almost never happens. Rather, it is not unusual for it to take 6 months or longer to get a report. If it is a joint or court appointed expert, the party who doesn’t like the report has the right to get their own report so add another several months to the process. As in this case, where the mother’s custody with her own child hinged upon this report, the prejudice cannot be quantified.
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.