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J.H. v. M.H.

Decided: November 26, 1980.


Tams, J.s.c.


[177 NJSuper Page 437] This divorce action presents the question whether the result of HLA (Human Leukocyte Antigen) blood and tissue testing may be received in evidence on the issue of disputed paternity. Plaintiff wife in the present case first alleged in her complaint that the child born to her during marriage to defendant was his

child; defendant admitted this in his answer. By amended complaint plaintiff later stated that this child was in fact fathered by a third person, not defendant. On motion, plaintiff seeks to have this court order defendant to submit to HLA blood and tissue testing to determine whether he is the father. Plaintiff has submitted the results of HLA testing on herself and the man she claims to be the father; the test report states that this is a 98.7% probability.

Defendant resists being tested on two essential grounds. The first is that the child is presumed to be his, having been born to his wife, the plaintiff, during coverture. Secondly, that N.J.S.A. 2A:83-3 precludes HLA test results from being received as evidence.

Addressing the first ground, there has been since early common-law "an exceedingly sturdy presumption" of the legitimacy of every child born in wedlock, In re Rogers , 30 N.J. Super. 479, 485 (App.Div.1954), certif. denied 16 N.J. 193 (1954). This presumption is rebuttable, B. v. O. , 50 N.J. 93, 97 (1967). "A tendency toward a modification of the burden of the refutory proof to fit the, shall we say, idiosyncrasies of modern life is perceptible. Such is the life of the law." In re Rodgers, supra , 30 N.J. Super. at 485 (Jayne, J.A.D.) Clear and convincing evidence is now the burden, Sarte v. Piduto , 129 N.J. Super. 405, 412 (App.Div.1974), and thus the burden of plaintiff in this case.

Plaintiff seeks to place in her proofs the HLA test results, including HLA testing on defendant which she asks this court to order. There is a statute which addresses this situation, N.J.S.A. 2A:83-3 provides:

"Whenever it shall be relevant in a civil action to determine the parentage or the identity of any child or other person, the court, by order, may direct that any party to the action and the person whose parentage or identity is involved submit to one or more blood grouping tests, to be made by duly qualified physicians under such restrictions and directions as the court shall deem proper. Whenever such test is ordered and made, the testimony of the experts to the results thereof, subject to cross-examination as in section 2A:83-2 of this title, shall be receivable in evidence, but only in cases where definite exclusion is indicated. The order for such blood grouping tests also may direct that the

testimony of such experts and of the persons so to be examined be taken by deposition. The court shall determine how and by whom the costs of such examinations shall be paid."

If this court were to determine that evidence from HLA testing is not a "definite exclusion" under N.J.S.A. 2A:83-3, it would appear that plaintiff would be precluded from introducing such evidence to show that the third party is the father of her child. However, more than the language of the cited statute should be considered in making this determination, and most particularly, the fact that new and more sophisticated scientific testing procedures have been perfected since the time of the passage of the foregoing legislation in 1939. HLA blood and tissue typing has been recognized as such a procedure for proving paternity, and appears to be a valuable tool for the parties and the court in such cases, Malvasi v. Malvasi , 167 N.J. Super. 513, 515 (Ch.Div.1979).

Consideration must also be given to this court's abiding concern with the best interest of the child concerned. Can it be said that an evidential interpretation which might prevent a child from ever knowing its natural parent is consistent with this judicial philosophy? It would seem in logic to be profoundly important for a child to have that right. As stated by Judge Botter in an adoption proceeding,

One would expect that a child has a natural yearning to know his true parentage. Every child has the need to feel rooted, to find himself, and to know his true origins. When such knowledge is denied the child may resort to fantasy to fill the void. As the links to his past disappear with time, the search for his identity will become more difficult. The anxiety to learn what was in his past may be pathological, making it more difficult for the child to lead a useful life and to form meaningful relationships. In re Adoption by K , 92 N.J. Super. 204, 208 (Cty.Ct.1966).

The last cited case held that the issue of paternity should be "resolved early in the life of the child" (p. 209). It would be equally important in the present case, where plaintiff and the man she ...

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