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M.A. v. Estate of A.C.

Decided: October 21, 1993.

M.A., AN INFANT BY HIS GUARDIAN AD LITEM, PLAINTIFF,
v.
THE ESTATE OF A.C., T.A. AND G.A., DEFENDANTS.



Riva

Riva

OPINION

RIVA, J.S.C.

In this paternity litigation, the infant plaintiff known as M.A. sued to establish a parent-child relationship with A.C., alleged to be his deceased biological father. A.C. died intestate survived by three adult children known as R.C., S.C. and L.C. Their mother is J.C. who was never married to the decedent. M.A. seeks to compel blood testing of decedent's children and their mother to aid in proving that the decedent is his biological father.

This is a case of first impression in New Jersey. It involves balancing the compelling state interest in ensuring and protecting plaintiff's interest by helping him to determine his parentage against the privacy rights of decedent's heirs and their mother to refuse submitting to blood testing.

The statutory authority for blood testing of parties is embodied in N.J.S.A. 9:17-51(a) of the New Jersey Parentage Act, (Parentage Act) adopted in 1983, which states:

The court may, and upon request of a party in any contested case brought under P.L. 1983, c. 17 (C. 9:17-38 et seq.) shall, require the child, mother, and alleged father to submit to blood tests or genetic tests. The tests shall be performed by a qualified expert appointed by the court.

N.J.S.A. 9:17-51(a) is directed at establishing paternity for purposes of establishing a parent-child relationship. It proposes the existence of an alleged living father and does not statutorily authorize the blood testing of siblings and other collaterals.

On the other hand, the statute does not purport to prohibit blood testing in other situations. There is no indication that the statutory language expresses a deliberate policy of limitation. Therefore, this Court concludes that the statute is not controlling in this case, and the general rules of discovery and the court's inherent right to compel the production of evidence must be applied. Sudwischer v. Estate of Hoffpauir, 589 So. 2d 474 (1991) (Lemmon, J., Concurring), cert. denied, U.S. , 112 S. Ct. 1937, 118 L. Ed. 2d 543 (1992).

It has been held that forcing a putative father to give a blood sample to adjudicate a paternity issue implicates his Fourth Amendment right to be free of unreasonable searches. S.S. v. E.S., 243 N.J. Super. 1, 578 A.2d 381 (App. Div. 1990), aff'd 124 N.J. 391, 590 A.2d 1188 (1991). In respect to the necessary prerequisite showing to compel court ordered blood testing, the Appellate Division noted the following:

In determining a putative father's parentage, we are thus persuaded that there should be some reasonable quantum of individualized suspicion to support court ordered blood testing. Stated another way, the plaintiff should be required to show, as a prerequisite to court ordered blood tests, that there is an articulable reason for suspecting the defendant is the father.

We reiterate that we are not requiring a finding of probable cause. A paternity case is not criminal and a defendant should not be afforded a full panoply of criminal procedural protections. However, as a general rule, something more than the filing of a complaint containing highly conclusory allegations is necessary when the defendant denies paternity.

[Id. at 12]

In applying the foregoing standard, it must be noted initially that at the time of M.A.'s birth, his mother, G.A., was married to T.A. Under N.J.S.A. 9:17-43(a)1, a presumption was therefore created that T.A. was M.A.'s natural father. Pursuant to a consent order entered by this Court on March 3, 1992, M.A., G.A. and T.A. submitted to a Human Leucocyte Antigen (HLA) blood test that excluded T.A. as M.A.'s natural father. Based upon this fact, M.A. later asserted that the decedent was his biological father. In support of this contention, M.A. relied upon the certification of his mother G.A., which may be summarized in the following fashion.

She met A.C. in 1971 and became friends with him in 1976. In 1977, she began to have sexual relations with him. In the early part of 1979, she became pregnant with M.A., who was born on November 26, 1979. At the time of M.A.'s birth she was married to T.A.

She identified the biological father of M.A. as A.C. After the birth of M.A., T.A. vehemently insisted that M.A.'s biological father was A.C. After the birth of M.A., A.C. frequently visited G.A. and M.A. at her house. A.C. would bring diapers and baby food for M.A. and fed and cared for him.

In April of 1985, A.C. left his residence and immediately moved into the residence of G.A. and M.A., where he resided until November, 1985. On or about December 1, 1985, A.C., G.A. and M.A. moved to another location where they resided together until A.C.'s death on December 2, 1989.

From the birth of M.A. to the death of A.C., the decedent verbally acknowledged and held himself out to be M.A.'s biological father. Moreover A.C. introduced M.A. as his son to his friends, relatives customers and business associates.

M.A. and A.C. were constant companions. From the time M.A. commenced kindergarten to A.C.'s death, the decedent drove M.A. to and from school. On those days when the decedent was unable to drive M.A. home from school, he made arrangements for a friend to drive him home. In fact, A.C. would arrange his ...


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