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Ross v. Ross

Decided: December 5, 1973.

BEVERLY ROSS, PLAINTIFF,
v.
DAVID J. ROSS, DEFENDANT



Bellfatto, P.J., J. & D.r.c.

Bellfatto

The question presented in this case is whether a mother and her husband are estopped to deny their previous admissions of paternity of the prenuptial child.

The facts, succinctly stated, involve a child of plaintiff-mother born to her about 18 months prior to her marriage to defendant-husband. There is testimony by plaintiff that the parties engaged in prenuptial sex relations (denied by defendant)

as of the time of conception. After the marriage the parties lived together with the child for about four years. There is nothing in the record to indicate that the relationship between the parties during their married life with the child was anything but harmonious. During the course of the marital relationship defendant-husband filed a certificate of admission of paternity with the Bureau of Vital Statistics at Trenton, pursuant to N.J.S.A. 26:8-40, indicating thereon the names of the married couple as the parents of the child. The child entered school at the time plaintiff and defendant lived together. As stated by the mother, the school records of the child indicate that the parties to this action are the parents of the child. The parties became separated and the child remained with the mother. Thereafter, on September 11, 1972 the mother filed a sworn complaint against her husband seeking support for the child and herself and indicating in her affidavit that he was the father of the child. At the hearing in the Domestic Relations Court an order of support for the child and the mother was entered. Neither of the parties at that time disclaimed paternity.

At a subsequent hearing on June 15, 1973 the mother for the first time informed the Court that the child was not that of her husband, and he so indicated. The order of support was continued to include the wife and child, and the matter was adjourned for the filing of briefs by counsel. Defendant-husband has substantially met the order of support. Plaintiff-mother was advised to obtain counsel, which she did.

On the return date of the argument, December 5, 1973, the court interviewed the child, then almost seven years of age, in chambers. After questioning the child as to his residence and school the following questions and answers took place: Q. "Who is your daddy?" This brought a quick response. A. "He's outside." (Defendant was then sitting in the courtroom adjacent to the judge's chambers).

Q. Where is your daddy today? A. He's outside.

Q. Do you love your daddy? A. Yes.

Q. Do you get Christmas presents from your daddy? A. Yes.

Q. Did you get one last year? A. Yes.

Q. What did you get? A. A television [and] he gave me a radio -- its ...


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