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M.F. v. N.H.

Decided: December 17, 1991.

M.F., PLAINTIFF-RESPONDENT,
v.
N.H., DEFENDANT-APPELLANT



On appeal from the Superior Court of New Jersey, Chancery Division, Family Part, Atlantic County.

Pressler, Shebell and D'Annunzio. The opinion of the court was delivered by Shebell, J.A.D.

Shebell

This is a case of first impression in this State. It involves the question of whether a man, alleging himself to be the father of a child conceived of an adulterous relationship and born during wedlock, may over the objection of the mother and her husband maintain an action and obtain blood tests for the purpose of establishing his paternity of the child under the New Jersey Parentage Act (Parentage Act) (N.J.S.A. 9:17-38 to 9:17-59).

On March 21, 1991, plaintiff M.F. filed a verified complaint in the Family Part, alleging that he "believes that he may be the father of the child," A.H., the infant daughter of the defendant-mother N.H. Plaintiff alleged that "since the birth of the baby [on August 31, 1990], [he] has periodically visited the child at the residence of the defendant." He requested reasonable visitation with A.H. "in the event the paternity test determines he is the father of the child." Plaintiff also filed a Notice of Motion to Compel Paternity Testing, returnable on April 26, 1991, to compel blood testing and requested pendente lite visitation pending the outcome of blood tests.

The defendant filed an answer on April 11, 1990, raising the following separate defenses:

1. Defendant is lawfully married to [J.H.] and was so at the time of the conception and birth of the child in question, which child is presumed by law to be born of said marriage, because of which plaintiff has no standing upon which to maintain a cause of action herein.

2. Plaintiff has failed to state a claim upon which relief may be granted.

In his certification in support of his application to compel visitation and blood testing, plaintiff stated that, although defendant is married to another man, plaintiff, nonetheless, since September 1986 had been engaging in sexual intercourse with her "an average of one to two times per week." He contended that:

[he] had previously advised [N.H.] when she was pregnant that if I was the father of the child I intended to act as the father of the child, assist in it's support and to have regularly scheduled visitation with the child. I also advised her that I intended to seek paternity blood testing. I waited until the child was approximately six months old, upon the advice of my attorney, who advised that the child should be at least six months old before blood testing is administered.

Both defendant and her husband J.H. filed answering certifications dated April 22, 1991, acknowledging their marriage, that they continue to live together, and that, as evidenced by the birth certificate, J.H. acknowledges A.H. as his daughter.*fn1

On April 26, 1991, the Family Part judge entered an order compelling defendant and her daughter to submit to paternity testing, but denying plaintiff's request for visitation. Defendant did not appear for the blood test scheduled for May 15, 1991; however, on that date, her attorney filed a "notice of motion for leave to appeal from order of April 26, 1991, and for stay of blood testing pending appeal." In connection with the motions for a stay in the Family Part, both plaintiff and defendant filed certifications that revealed deterioration of their

prior relationship. Defendant alleged that plaintiff was attempting to destroy her marriage.

The Family Part judge refused to grant a stay of blood tests but prohibited "disclosure of test results pending Appellate action[;]" however, he ordered that the parties refrain from contact with each other and restrained them from discussing the litigation. We granted defendant's motion for leave to appeal and entered a stay of the order for blood tests. We now reverse the order to compel blood testing and remand for further proceedings.

We do not agree with the conclusion of the Family Part judge that he was required under the provisions of N.J.S.A. 9:17-51 to compel blood testing. Section 51a states that "upon request of a party in any contested case brought under P.L.1983, c. 17 (C. 9:17-38 et seq.) [the court] shall, require the child, mother, and alleged father to submit to blood tests or genetic tests." (Emphasis added). We are convinced that an action does not rise to the level of a "contested case" until it has been judicially so designated after there has been either a consent conference pursuant to N.J.S.A. 9:17-48, a preliminary hearing, or other judicial review resulting in findings as to the appropriateness and validity of the paternity complaint filed. See S.S. v. E.S., 243 N.J. Super. 1, 13, 578 A.2d 381 (App.Div.1990), aff'd o.b., 124 N.J. 391, 590 A.2d 1188 (1991).

We conclude for purposes of this opinion that plaintiff, as one "alleging himself to be the father" of A.H., has standing, pursuant to N.J.S.A. 9:17-45, to commence an action "for the purpose of determining the existence or nonexistence of the parent and child relationship." We recognize that there is merit in the contrary view that New Jersey's enactment of the Uniform Parentage Act (UPA), even with our Legislature's drastic modification of the UPA's provision as to the parties who may maintain an action, does not provide conclusive evidence of an intent to permit ...


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