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B. v. O.

Decided: July 25, 1967.


For reversal and remandment -- Chief Justice Weintraub and Justices Jacobs, Francis, Proctor and Hall. For affirmance -- None. The opinion of the court was delivered by Proctor, J.


[50 NJ Page 95] This case arises under N.J.S.A. 9:16-1 et seq. (Chapter 16) which provides for the support and education of children born out of wedlock. Plaintiff alleged that defendant was the natural father of her infant twin sons. The Hamilton Township Municipal Court dismissed the claim. The Mercer County Court affirmed the dismissal on the ground that plaintiff was a married woman living in Pennsylvania when the children were conceived and born, and under Pennsylvania law a woman could not sue to bastardize children conceived or born during her marriage. On this finding of Pennsylvania law the County Court believed that the holding of Kowalski v. Wojtkowski, 19 N.J. 247 (1955) required a dismissal of plaintiff's complaint for lack of jurisdiction.

We certified plaintiff's appeal on our own motion prior to argument in the Appellate Division.

The parties have stipulated certain facts: 1) that the plaintiff was a resident of Bucks County, Pennsylvania at the time of the conception and birth of the twins and at the time when this action was instituted;*fn1 2) that the twins were born in Bucks County, Pennsylvania and lived there with their mother at the time this suit was instituted; 3) that the defendant has at all times been a resident of New Jersey but that his employment took him to Bucks County, Pennsylvania, five days a week; 4) that the twins were born on December 23, 1963; 5) that plaintiff's marriage to one B. was terminated by decree of divorce by the Court of Common Pleas, Bucks County, Pennsylvania on December 24, 1963, one day after the twins were born; and 6) that B. is listed on the Pennsylvania birth certificates of the twins as the father. Also, the parties stipulated that on this state of facts the substantive law of Pennsylvania was controlling.

New Jersey statutory law gives every child the right to be supported and educated by his natural mother and father. Chapter 16 of Title 9 expressly extends this right to children born out of wedlock:

"A child born out of wedlock shall be entitled to support and education from its father and mother to the same extent as if born in lawful wedlock." N.J.S.A. 9:16-2.

An action to enforce this right need not be brought by a governmental agency; rather, one parent can sue the other, or the person having custody of the child may sue one or both parents:

"Proceedings to enforce the obligations imposed by section 9:16-2 of this Title may be maintained by one parent against the other, or by the person having physical custody of the child, or, if the child

is or is likely to become a public charge, the proceedings may be instituted by the director of welfare of the municipality or municipalities where the father and mother, or either of them, reside. In such proceedings consideration shall be given to the age of the child and the ability and financial condition of the parent or parents. * * *" N.J.S.A. 9:16-3.

This proceeding, although brought by a parent or one having custody, plainly is for the benefit of the child. Kopak v. Polzer, 4 N.J. 327, 331 (1950). If the suit is by the mother against the natural father, she need not have a legal settlement in the county to bring the action. M. v. F., 60 N.J. Super. 156, 162 (App. Div. 1960) and Jessen v. DeBernardo, 52 N.J. Super. 227 (Juv. and Dom. Rel. Ct. 1958). The legitimacy of a child conceived by a married woman, though strongly presumed, may be rebutted. Wallace v. Wallace, 73 N.J. Eq. 403 (E. & A. 1907); In re Rogers' Estate, 30 N.J. Super. 479, 485-486 (App. Div. 1954). Of course, a proceeding under Chapter 16 would not preclude the rights of the husband who is not a party to it. Cf. In re Adoption of K, 92 N.J. Super. 204 (Cty. Ct. 1966).

The determinative factual issue in a suit brought under Chapter 16 is whether defendant is the natural father. If so, his duty to support and educate under New Jersey law is the same regardless of legitimacy.

Defendant here claims that, even if plaintiff's allegations are true, the action should still not be allowed because it could bastardize the children contrary to the public policy and law of Pennsylvania. Defendant, the party sought to be charged, at all times was domiciled in New Jersey; and this in itself seems a sufficient basis for adjudicating his duty of support under New Jersey law. See Restatement, Conflict of Laws ยง 457(b) and Comment (a), pp. 546-547 (1934). However, accepting the stipulation of the parties that the substantive law of Pennsylvania applies, we find no reason to bar the present action. ...

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