As a lawyer, part of my job is to keep current with changes in the law.  This takes some time, as almost every day there are new court cases that change the status quo.  Sometimes those changes are minute, but other times a case comes along that has broad ramifications.  The case of D.W. v. R.W. is a recent published Supreme Court of New Jersey decision (published October 10, 2012) that may have such broad ramifications.

Paternity Testing for a 20 Year Old?

D.W. v. R.W.  addresses the standard courts should employ in determining whether to grant a supposed biological father’s request for genetic testing.  The issue of the case concerned the “precise standard that must be met to compel genetic testing to prove parentage when there is a presumed father.”  Up until now, courts essentially focused on the “best interests of the child.”  As courts saw genetic testing as upsetting or potentially harmful to most children, genetic testing would often be barred except to first establish paternity.

In D.W. v. R.W., a married man began to suspect that his wife had an affair and that his youngest daughter (then 20 years of age) wasn’t his biological son.  He sought reimbursement from the man he believed to be the father, but the lower courts denied his request for genetic testing.  The Supreme Court ruled that he should be entitled to genetic testing, and set forth a new set of factor to assist courts in determining whether genetic testing should be granted in such a situation.

The New Factors

(1) The length of time between the proceeding to adjudicate parentage and the time that the presumed or acknowledged father was placed on notice that he might not be the genetic father;

(2) The length of time during which the presumed or acknowledged father has assumed the role of father of the child;

(3) The facts surrounding the presumed or acknowledged father’s discovery of his possible nonpaternity;

(4) The nature of the relationship between the child and the presumed or acknowledged father;

(5) The nature of the relationship between the child and the alleged father;

(6) The age of the child;

(7) The degree of physical, mental, and emotional harm that may result to the child if presumed or acknowledged paternity is successfully disproved;

(8) The 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) The extent, if any, to which uncertainty of parentage exists in the child’s mind;

(10) The child’s interest in knowing family and genetic background, including medical and emotional history; and

(11) Other factors that may affect the equities arising from the disruption from the father-child relationship between the child and the presumed or acknowledged father or the chance of other harm to the child.

What Does This Mean?

This case means that fathers have a much better chance at disputing paternity, even when the alleged affair occurred years previously and even when they have cared for the child as their own.  This case also makes an exception from the “best interests of the child standard,” that applies to most issues in New Jersey family courts.  If a father demonstrates a “reasonable possibility” another individual is the biological father, then the other side must prove good cause for denying genetic testing.  Thus, although the law presumes that a husband is the father of a child born during marriage, genetic testing may still be ordered if such a “reasonable possibility” may be demonstrated that the husband is not the father.

It should be noted that a litigant bringing such an action for reimbursement must identify the “true” biological father.  Moreover, such an action may not be instituted “more than 5 years after the child attains the age of majority,” (in other words, after the child reaches 23 years of age).

My Thoughts

In rejecting (in large part) the best interests of the child standard, the Court made it clear its decision would be based on legal reasoning rather than emotional grounds.  In fact, in the decision the judge’s stated that: “This case is not about the wisdom of a father proceeding with a parentage action in the circumstances presented here, but about his legal right to do so under the statute.”

This is a sensitive area of the law because it does seem unfair if a true biological father of a child would not have to pay while another person, unknowingly, believed a child to be his own and supported that child.  At the same time, it could be argued a child has the right to privacy, and shouldn’t be forced to provide genetic materials for testing.  The fact that such litigation will likely destroy any relationship there is between father (whether true biological father or not) and son, must also be considered.

What I dislike is how such an action can be brought up until the child is twenty-three years of age.  I think the populace might be better served by placing a shorter window of opportunity for bringing such an action.  I also think the factors chosen by the court were perhaps too focused on the facts of the case before them.  I do not believe the factors will hold up as well when faced with the wide variety of individual situations and facts that family court’s must address.

What Does This Mean for You?

If you are a father that discovers you are not the biological father to a child (under the age of 23), then you have a substantially greater opportunity to perhaps seek reimbursement for support paid.  This case will likely lead to an increase in such actions being filed.

Your New Jersey Divorce Lawyer:

If you’re considering a New Jersey divorce or Family Law action contact me to discuss your options.  You can schedule an initial consultation by calling my office at 908-237-3096 or by scheduling your own divorce consultation online by clicking here.

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