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N.M. v. J.G.

Decided: March 30, 1992.

N.M., PLAINTIFF-RESPONDENT,
v.
J.G., DEFENDANT-APPELLANT



On appeal from Superior Court, Chancery Division, Family Part, Monmouth County.

Antell, Long and Thomas. The opinion of the court was delivered by Long, J.A.D.

Long

LONG, J.A.D.

Defendant, J.G. appeals from a Family Part order directing him to submit to a Human Leucocyte Antigen (HLA) test to determine whether he is the father of plaintiff N.M.'s sixteen year old son, K.R., who was born during her marriage to R.R. We have been called upon here to determine the procedures necessary to order blood testing under the New Jersey Parentage Act (Parentage Act), N.J.S.A. 9:17-38 to -59, in a case in which there is a presumption as to parentage and the party from whom blood testing is sought is not the presumptive parent. We will also address the legal concepts applicable to a belated paternity action against a third party by the parent of a child born of a valid ceremonial marriage and the right of the child to pursue that action independently.

I

The case arose as follows: N.M. and R.R. were lawfully married on February 1, 1972. During the course of their union, plaintiff gave birth to two children, S.R. and R.R., Jr. Although the parties separated in August 1974, K.R. was born on November 17, 1974. His birth certificate lists R.R. as his father.

Plaintiff filed and served a complaint for divorce on R.R. in September 1976. R.R. failed to answer, and a default judgment was ultimately entered in February 1977. In July 1977, a judgment of divorce was entered reflecting that three children (including K.R.) had been born of the marriage. Plaintiff was awarded custody of R.R., Jr., and K.R. R.R. was awarded custody of S.R., presumably pursuant to the agreement of the parties. R.R. was ordered to pay plaintiff the sum of $10.00 per week for alimony and an additional $10.00 per week per child for the support and maintenance of R.R., Jr., and K.R. By June 1979, R.R.'s payments had fallen into arrears. The Probation Department, on plaintiff's behalf, sought enforcement of the judgment.

After the divorce from R.R., plaintiff married E.L. and had two additional children. During their marriage, which ended in divorce in 1984, plaintiff told K.R. that E.L. was his father. By 1987 K.R., then age thirteen, began to have doubts about who his father really was. At that time, plaintiff told him that defendant was his father. In so doing, she explained that she had had an extra-marital affair with defendant resulting in pregnancy. Sometime thereafter, plaintiff married her third husband T.M.

In May 1990, plaintiff filed a complaint for support against defendant, alleging him to be K.R.'s father. The complaint was originally assigned to a hearing officer whose report, referring the case to the trial Judge, reflected defendant's denial of paternity and K.R.'s birth during plaintiff's marriage to R.R.

On November 2, 1990, the trial Judge heard argument of counsel. R.R., who had consented to submitting to a blood test, was also present. At the hearing, defendant's denial of paternity was reiterated. Defendant also asserted that at the time of K.R.'s conception, plaintiff was having sexual liaisons with two other individuals, R.C. (deceased) and M.H. Plaintiff acknowledged that she had previously sworn before another Judge that K.R. was R.R.'s son. Defendant also argued that plaintiff had the initial burden of proving that K.R. was not R.R.'s child and that R.R. should be tested before any further action took place. The trial Judge ordered plaintiff, defendant, K.R., and R.R. to submit to an HLA test to establish paternity of K.R. Defendant was granted leave to join R.R. as a party.

On November 14, 1990, defendant filed an Order to Show Cause contesting paternity and requesting a stay of the blood testing. In his supporting certification, he pointed out the prior judicial proceedings in which R.R. was named as K.R.'s father; that R.R. was listed as the father on K.R.'s birth certificate; that defendant had never been contacted by plaintiff and was unaware of her claim as to K.R.'s parentage until he received the complaint, and argued that plaintiff should be estopped from claiming paternity sixteen years after the fact.

On November 15, 1990, the trial Judge stayed his order pending the outcome of an argument which was eventually held on March 5, 1991. At the Conclusion, the trial Judge dismissed plaintiff's complaint on entire controversy grounds. In addition, sua sponte, he amended the complaint to include K.R. as a plaintiff and appointed James M. Newman as guardian ad litem for the child. The guardian ad litem was ordered to prepare a report regarding the paternity and blood testing.

On April 9, 1991, the guardian ad litem presented his report. The report was based upon interviews with plaintiff, K.R., and K.R.'s therapist. The guardian ad litem stated that until the age of thirteen, K.R. was not aware that E.L. was not his father. K.R. had been enrolled in school under E.L.'s last name

and had always been known by that name. According to the guardian ad litem, K.R. "expressed . . . a true sincere desire to know . . ." his true father. K.R.'s ongoing therapist, Judy Rothrock, an employee at Bayshore Youth and Family Services, confirmed "that K.R. is basically a good kid, but is having some real teenage problems, as well as identity crisis problems." The guardian ad litem reported that:

K.R. has had some severe psychological problems associated with, -- and including some real expressions of a desire to take his life or not being happy with his existence, et cetera, et cetera. Not attributable solely to this problem, but certainly a contributing factor.

After reviewing that and becoming aware that K.R. had been aware of the allegations of J.G., of his father for quite a number of years, I came to the Conclusion that it would be in his best interests for this issue to be resolved once and for all, to ...


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