The opinion of the court was delivered by: Hunter
The issue presented by this case is whether complainant may be granted an order for a human leucocyte antigen (HLA) test to establish paternity when paternity has been already acknowledged and admitted as memorialized in a divorce judgment and in judicial orders. For the reasons detailed below, the court denies the motion for a blood test.
The facts of this case are as follows:
Plaintiff C.R. gave birth to two sons: one on October 11, 1979 and the other October 12, 1983. Complainant J.G. claims he has reason to believe the second child (hereinafter the child) is not his and moves for an order for C.R. and the child, along with himself, to take a blood test to establish paternity, and in case J.G. is shown not to be the biological father, for an order ceasing child support payments. J.G. does not dispute the paternity of the eldest child.
On January 25, 1984, Hudson County Division of Welfare, on behalf of C.R., filed a complaint to establish paternity and for child support for both children. On May 7, 1984 the complaint was dismissed for lack of prosecution without prejudice.
The parties married on July 20, 1984 and separated in about a year. C.R. filed a complaint for child support which resulted in an April 24, 1985 order stating a hearing was held; sets a sum of $25 a week per child in child support, payable to the Hudson County Probation Office; schedules visitation on alternate weekends, says "paternity admitted - order of filiation", and is signed by J.G.
On July 15, 1985, C.R. moved to amend support and visitation with the child, stating that Defendant had "minimal contact" with the child; consequently it would be injurious to the child to sustain off premise or overnight visits with J.G. The certification also states that the parties lived together from the time the child was four or five months old until February or March of 1984; that J.G. left C.R. and the children; and since leaving had "rare" contact with the child, and kept himself separate from the child, but had "substantial contact" with the older child.
A July 25, 1985 order states the matter was before the court on April 24, 1985, recites that J.G. acknowledges paternity of the child and recites "adJudged that [J.G.], defendant herein, is the father of said [the name of the child]." A separate order of July 25, 1985, states the same information in regard to the older son.
In March of 1987, J.G. filed a divorce complaint which states there are two children born of the marriage, there was a previous order of child support, wherein paternity was admitted, and asks for visitation with the infant issue of the marriage.
On September 5, 1987, J.G. obtained by default a judgment of divorce, which granted J.G. visitation with the infant issue of the marriage and ordered $50 a week child support.
On January 29, 1996, the parties appeared before a hearing officer on a motion to enforce child support. The resulting order dismissed the motion for enforcement of child support, put the payment of child support monies on hold; referred issues of custody, visitation and paternity to a Judge; stated that J.G. was advised to file a formal motion on the issue of paternity; and recited that according to his mother the child was at that time in Columbia, South America.
Complainant J.G. claims that the child is not biologically his. Attached to the certification accompanying his motion, filed September 9, 1996, is a letter dated August 1, 1995 addressed to the Hudson County Probation Department in which he states that the child has been out of the country since 1993 and has been living in Columbia with his "real father and grandparents." J.G. also certifies that the older child "recently" told J.G. that he is not the child's father and that he, the older child, was told this by C.R. The certification also states that the child has been in Colombia since July of 1995, and that the mother will not let J.G. see the child.
J.G., claiming he was defrauded into believing he was the father of the child, moves for an HLA blood test, and in the event the test reveals he is not the natural father, for an order ceasing support. C.R. opposes defendant's motion for testing on the grounds of res judicata; collateral estoppel; that defendant is barred from raising this issue since it was not raised at the time of divorce pursuant to N.J.S.A. 9:17-46(a) of the Uniform Parentage Act, N.J.S.A. 9:17-38 to -59; laches; judicial estoppel; and that the motion does not comport with the requirements of R. 4:50-1 (c) or (f) for opening final judgments, in this case the divorce judgment and paternity adjudications.
Oral argument, on November 21, 1996, was attended by the parties and a representative from Hudson County Welfare who contended that a blood test should not be allowed because if it revealed that J.G. was not the father, the state would be burdened with the support of the child.
Two separate yet intertwined issues are presented here. The first is whether complainant should be allowed the blood test. The second is if the test shows he is not the biological father of the child, whether he should be allowed to stop paying child support.
At the outset, the court notes: J.G. has not told the court when he was informed he was not the father of the child, except that his certification says such information was "recently" obtained; and C.R. has nowhere stated that J.G. is the natural father of the child.
1. Does complainant's motion present sufficient justification for a blood test?
The Uniform Parentage Act expressly provides that a presumption of paternity may be rebutted. N.J.S.A. 9:17-43 b. J.G. is a presumptive father; thus; the analysis of law will proceed according to the guidelines set down in the Act.
The procedure to declare the existence or nonexistence of a father and child relationship requires a consent conference to be held by the Superior Court, county probation department, or county welfare agency. N.J.S.A. 9:17-48a. If a consent agreement cannot be reached and blood tests or genetic tests have not been taken, the court shall order such tests if it determines there is an "articulable reason" for suspecting the alleged father is the natural father. N.J.S.A. 9:17-48(d).
For the purposes of the present case, the articulable reason of N.J.S.A. 9:17-48d must address the claims of an individual who, without a blood test being taken, has previously admitted fatherhood, been adjudicated as such, and is also presumed to be the father.
Presumptions of paternity under the Uniform Parentage Act are addressed by N.J.S.A. 9:17-43. A man is presumed to be the natural father of a child if after the child's birth he and the child's natural mother marry and he openly holds out the child as his natural child, or is obligated to support the child under a written voluntary agreement or court order. N.J.S.A. 9:17-43a(3).
In addition, a man is presumed to be the father if he receives the child into his home and openly holds out the child as his natural child, N.J.S.A. 9:17-43a(4); or if while the child is under the age of majority, he provides support for the child and openly holds out the child as his natural child. N.J.S.A. 9:17-43a(5).
J.G. is clearly presumed to be the father of the child, under N.J.S.A. 9:17-43a(3). He and C.R. married after the child was born and he is obligated to support the child under a court order.
A presumption of paternity may be rebutted only by clear and convincing evidence, and is rebutted by a court order terminating the presumed father's paternal rights or by establishing that another man is the child's natural or adoptive father. N.J.S.A. 9:17-43 b.
A putative father could not be to take a blood test, unless the presumption of the mother's former husband's paternity was rebutted, documentary submissions or testimony warranted the Conclusion that there was articulable reason for suspecting the putative father's paternity, and the blood test was in the best interest of the child. N.M. v. J.G., supra, 255 N.J. Super. at 433-435; and see Camden County v. Yocavitch, 251 N.J. Super. 24, 32, 596 A.2d 769 (Ch. Div. 1991).
The Appellate Division held that a man's request for HLA testing was barred because the child, now fifteen, had considered him as her father her entire life; and the man's conduct estopped him from denying paternity; that the issue was not only financial support for the child, but also an established parent-child relationship; and that it was not in the child's best interest to now upset this, there being no other father figure. T.W. v. A.W., 224 N.J. Super. 675, 684-685, 541 A.2d 265 (App. Div. 1988).
In M.F. v. N.H., 252 N.J. Super. 420, 599 A.2d 1297 (App. Div. 1991), a man claiming to be the father and wishing to establish paternity, filed a complaint asking that the mother and child, born during the mother's marriage to another man, submit to a blood test. Neither the mother or her husband disavowed the ...