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Navigating the Paternity Test Process

Posted by Matt Rooney | Sep 23, 2013 | 0 Comments

NEW JERSEY COURTS ROUTINELY USE GENETIC TESTING TO DETERMINE A FATHER'S IDENTITY

For many of our clients, the dreaded “paternity suit” is easily the most sensitive area of any family law practice. Such disputes usually arise in one of three ways:

(1) the alleged father suspects, for one reason or another, that he is not the child's biological parent;

(2) the mother files an application with the court for child support and accompanying that motion is a request to establish paternity; or

(3) the custodial parent applies for public assistance benefits with the county social services (welfare) office; welfare, in turn, files an application on the child's behalf to collect child support from the non-custodial parent.

The process of establishing or ruling-out paternity is essentially the same no matter how a paternity test comes to pass. In brief, the first step is the filing of a so-called FD application (the non-dissolution docket reserved for disputes between parents who were never married). When the Family Law Judge orders a paternity test, both parties are given a date to show up at the courthouse when a genetic testing organization is available. The mother must bring the child with her, too, so that a DNA sample can be taken from both the child and the alleged father with a cotton swab brushed across the inside of the mouth or check; the collected cells are subsequently analyzed and compared at a laboratory. Results are typically available in a couple to a few weeks, at which time the Court will bring the parties back to Court to dispose of the case depending upon the results of the test. A parent who can demonstrate a  “reasonable possibility” that the child at issue isn't theirs is entitled to a paternity test. That was the ruling of New Jersey's Supreme Court in the 2012 D.W. v. R.W. decision.

Writing the majority opinion in D.W. v. R.W., Justice Barry Albin declared “[t]his 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.” The case itself began with a Morris County divorce battle. The male litigant found out that his youngest child was actually the biological son of his spouse's paramour (who also happened to be his sister's ex-husband) conceived approximately two decades prior. The mother did not deny the affair nor the fact that it occurred around the time of the youngest child's conception. The male litigant confirmed his suspicions with a home paternity test and, subsequently, went before the trial-level court seeking reimbursement of the costs expended raising the youngest son. The Superior Court and Appellate Division both refused to order a paternity test on the grounds that it wouldn't be in the child's best interest. Citing the New Jersey Parentage Act, Justice Albin dismissed the lower courts' hesitation as “a thinly veiled displeasure” inconsistent with New Jersey law and the alleged father's rights pursuant to the Act.

The Burlington County Courthouse in Mt. Holly, NJ. This area of the law continues to evolve as genetic testing and related technologies develop and enter the mainstream. Certain related topics including “psychological parenting” are simply too expansive for one post. I recommend checking out a recent unpublished and therefore non-binding decision from the New Jersey Superior Court which nevertheless provides a very insightful discussion of paternity laws in the State of New Jersey. The good news is that you don't have to navigate any of this alone. Compassionate, experienced and zealous representation is only an email or phone call away. If you or someone you know is grappling with questions concerning paternity genetic testing or the closely related issues of child support, custody, or parenting time in New Jersey, then please don't hesitate to contact the family law attorneys at DeMichele & DeMichele online today. Your confidential initial consultation can also be scheduled by calling our family law attorneys directly: (856) 546-1350.

About the Author

Matt Rooney

Practice Areas: Family Law (including Divorce, Alimony, Child Support, and Domestic Violence); Municipal Court; Personal Injury; Residential Real Estate; Civil Litigation; Collections.

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