Paternity Testing with Presumed Father

By Peter Van Aulen, Esq.

What happens if a husband sometime during the course of his marriage has reason to believe that he is not the father of a child born during his marriage? Can genetic testing be automatically ordered? Under N.J.S.A 9:17-43(a) (1), the law presumes that a husband is the father of a child born during the course of his marriage. Under the statue this presumption can only be overcome by clear and convincing evidence. In many cases “genetic testing may be the only persuasive evidence to overcome the presumption of paternity” D.W. v. R.W., 212 N.J. 232 (2012). The court in D.W. v. R.W., outlined the standard a court is to follow in determining whether to allow genetic testing of a presumed father. In D.W. v. R.W., the husband came to the conclusion when his marriage was failing that a nineteen year old son born during marriage was not his, but was conceived during an adulterous relationship the wife had with a former brother-in-law. When the wife filed for divorce, the husband filed a third party complaint requesting that the former brother-in-law be declared the father and that he be reimbursed by him for the expenses related to raising the son. The wife and son opposed the testing. The court in D.W. v. R.W., held that if a certification shows a reasonable possibility that the husband is not the father of the child, genetic testing must be allowed unless the party opposing the testing demonstrates good cause for not ordering the same. The court in D.W. v. R.W., held the factors to be considered by a judge in determining good cause are as follows:

• The period of time between the filing of the proceeding to adjudicate parentage and the time that petitioner was placed on notice that he may not be the natural father
• The period of time the petitioner has assume the role of father
• The facts surrounding the petitioner’s discovery of him possibly not being the father
• The nature of the relationship between the petitioner and the child
• The child’s age
• The amount of emotional, physical, and mental damage that could be a consequence of disproving the petitioner’s paternity
• The degree to which the passage of time reduces the possibility of establishing the paternity of another man and a child support obligation for the child
• The quality of the relationship between the other alleged father and the child
• The degree to which the child has uncertainty in his/her mind of the paternity of the petitioner
• The child’s interest in knowing genetic background including emotional and medical family history
• Any other factor that would affect the equities occurring from the disturbance of the parental relationship between the child and the petitioner

The court in D.W. v. R.W., held that genetic testing was warranted. It is important to note that the court in D.W. v. R.W., stated that they were not bound to use the best interest of the child standard which was used in the case M.F. v. N.H., 252 N.J.Super.420, 429-30 (App.Div.1991) to determine if genetic testing should be ordered. . The court in D.W. v. R.W., reasoned that there is no mention of the best interests standard in N.J.S.A. 9:17-48(d) which in its present form did not exist when M.F. v. N.H., was decided. If you are facing a paternity issue in New Jersey, call Peter Van Aulen today at 201-845-7400 for a consultation.