Sunday, November 25, 2012

When is genetic testing allowed for adult children in New Jersey?


The recent October 2012 Supreme Court of New Jersey decision, D.W. v. R.W., 2012 WL 4795701, looks at the precise standard that must be met in order to compel genetic testing to prove parentage when a presumed father exists. Under New Jersey law, N.J.S.A. 9:17-43(a)(1), the mother’s husband is the presumed father of a child born during the marriage. That presumption can only be overcome by clear and convincing evidence, and, in may cases, genetic testing may be the only persuasive evidence that can overcome the presumption. N.J.S.A. 9:17-43(b), 48(d).



In D.W. v. R.W., after Wife filed a divorce complaint, Husband filed a third-party paternity action seeking to have his former brother-in-law declared the natural father of his 19-year-old child and reimburse him for the expenses related to the child’s upbringing. Both Wife and the former brother-in-law opposed the request for genetic testing. In the lower courts, the application for genetic testing was denied and Husband’s claim was dismissed. Upon review, the New Jersey Supreme Court remanded to the trial court for the entry of an order compelling genetic testing for the reasons discussed below.

Husband and Wife were married in 1979. The child, who was the subject of the paternity action, was the parties’ youngest child and was born in 1987. Wife filed a Complaint for Divorce in 2006. In February 2007, Husband filed an Amended Answer and Counterclaim alleging that Wife concealed that he was not the child’s father. Husband also filed a third-party complaint against his former brother-in-law alleging that the brother-in-law was the child’s father. Husband demanded reimbursement for monies spent raising the child. In May 2007, Husband filed a motion seeking to compel the former brother-in-law and Wife to submit to genetic testing. Additionally, Husband submitted to the court the results of a privately commissioned DNA test that excluded him as the biological father of the child.

The NJ Supreme Court started off its analysis by reviewing the New Jersey Parentage Act (“The Act”), N.J.S.A. 9:17-38, which ensures that children receive the financial support from their parents to which they are entitled. The Act also provides a way for the presumed father to recoup from a child’s biological father the reasonable educational, medical and other related support expenses that were spent  for the child. The Act states that any person seeking reimbursement for expenses can institute a proceeding against the biological father if paternity has been “declared,” “acknowledged,” or “adjudicated” under The Act. N.J.S.A. 9:17-55(a). However, to succeed in this kind of suit, the petitioner must first identify the biological father. 

The issue in this case was to determine how Husband could prove that the child was the biological son of another man when Husband was presumed to be the child’s father. When a parentage action is brought, the most effective method to overcome the presumption is through genetic testing. The Act provides that if the parties cannot reach an agreement concerning parentage and if blood or genetic tests have not been taken, then “the court shall order the child and the parties to submit to blood tests or genetic tests unless a party claims, and . . . the court finds, good cause for not ordering the tests.” N.J.S.A. 9:17-48(d). Therefore, if a party to a paternity action requests genetic testing and submits a sworn statement establishing a reasonable possibility that he is or is not the father, the court must order a genetic test, unless the opposing party presents good cause for not ordering the test. 

Although the best interests of the child usually is the most important factor involved in making decisions for children, courts recognize the gravity and serious impact of these cases. Therefore, courts also must use the eleven “good cause” factors
(1) length of time between the proceeding to terminate parental rights and the time the time the presumed father was placed on notice that he might not be the genetic father; 
(2) length of time during which the presumed father has assumed the role of father of the child; 
(3) facts surrounding the presumed father’s discovery of possible non-paternity; 
(4) nature of the relationship between the child and the presumed father; 
(5) nature of the relationship between the child and any alleged father; 
(6) age of the child; 
(7) degree of physical, mental and emotional harm that may result to the child if presumed paternity is disproved; 
(8) extent to which the passage of time reduces the chances of establishing the paternity of another man and a child-support obligation in favor of the child; 
(9) extent, if any, to which uncertainty of parentage exists in the child’s mind; 
(10) child’s interest in knowing family background, including medical and emotional history; and 
(11) other facts that may affect the equities arising from the disruption of the father-child relationship between the child and the presumed father. 



The party seeking testing also has an interest in the determination of paternity and, in most of these cases, destablization of the child’s life is inevitable. However, if the best interests of the child were the only concern, genetic testing would almost never be ordered to rebut a presumption of paternity because any disruption in the child’s life would be considered not to be in the best interests of the child. The court is required to order genetic testing absent a showing of good cause by son and presumed biological father. 

By the time of the hearing on Husband’s motion for genetic testing, son knew the brother-in-law could be his father and only testing would eliminate that uncertainty. Son had already ended his relationship with Husband and was close to the brother-in-law. Testing would do no additional damage to the family unit that was already destroyed with the revelation that Husband might not be the biological father of son. Additionally, the Acts statute of repose prohibited any action after next year. Additionally, because there is no claim for support as the child is no longer a minor, there is no negative financial impact on the child at issue.

If you have questions regarding genetic testing and claims for parentage, you should contact an attorney.

Written by Allyson Lutley, law clerk at The Law Offices of Linda A. Kerns, LLC.  Edited by Elizabeth A. Bokermann, Esquire, associate attorney.

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