On appeal from Superior Court of New Jersey, Chancery Division, Family Part, Monmouth County, FD-13-1117-03.
The opinion of the court was delivered by: Collester, J.A.D.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Submitted February 15, 2006
Before Judges Coburn, Collester and Lisa.
The focus of this case is fifteen-year-old Jessica, who has been denied love, comfort and support by two fathers: her biological father, who was unknown to her until these proceedings, and the man she called Dad for almost ten years. Following two plenary hearings Judge Daniel M. Waldman directed that each pay $75 per week for Jessica's support. Only S.G., the biological father, has appealed.
J.R. and L.R. were married on November 5, 1988. Two children were born during the marriage: Nicholas, born June 20, 1989, and Jessica, born January 19, 1991. The relationship between their parents was stormy and at times violent. After an argument in April 1990, L.R. went to a bar and met S.G., whom she had known before. Later they engaged in sexual intercourse. When she discovered she was pregnant, L.R. did not tell J.R. about her brief affair. J.R. raised Jessica as his daughter and had no reason to doubt he was her biological father until nine and one-half years later when L.R. said during an argument that S.G. was the father. J.R. called S.G. and told him what L.R. had said. Taken aback by the call, S.G. said he had no idea what L.R. was talking about.
J.R. and L.R. separated. L.R. remained in Florida with the children while J.R. moved to North Carolina. Later that summer Jessica, then nine years old, was on her computer conversing with J.R. on a live, on-line computer service called AOL Instant Messenger when he typed her a message saying she should find her real father and tell Nicholas that his father was dead. L.R. was in the same room with Jessica and told her that J.R. was just angry about the separation.*fn1 When Jessica continued to press her mother on the subject, L.R. told her there was a possibility that J.R. was not her father.
Despite all their problems, J.R. and L.R. reconciled in the fall of 2000, in North Carolina. The subject of whether J.R. was Jessica's "real father" was not discussed. The reconciliation failed, and in July 2001, L.R. moved with the children to Brick Township. A month later J.R. relocated to Brick and lived with his sister, hoping to reconcile with L.R. once again. But L.R. refused, and they remained separated while living in the same municipality.
During this time L.R. abused alcohol and was unable to support her children financially or emotionally. She applied for and received public assistance, and as a result, the Ocean County Board of Social Services, together with L.R., filed a complaint against J.R. for support of the two children. At an appearance before a hearing officer, J.R. raised the issue of paternity of the children and requested they be tested. The hearing officer explained she had no jurisdiction to decide the matter and submitted a recommendation that J.R. pay $193 per week for both children, which was adopted by the judge.
J.R. then filed a separate motion for paternity testing of the children using the docket number of the support action. Even though a paternity complaint had not been filed, an order was signed by the Family Part judge for genetic testing of J.R., Nicholas and Jessica. The results disclosed that J.R. was the biological father of Nicholas but not Jessica. The judge then modified the support order to require that J.R. only pay support for Nicholas.
Five days later J.R. left New Jersey. He has lived outside this state since that time. While he has stayed in contact with Nicholas, his relationship with Jessica completely deteriorated. At Christmas in 2003 he sent her a gift with a note telling her he was sorry, that he loved her and wanted to be her friend. Jessica crumpled up the note. She has not seen or spoken to J.R. since early 2002.
After she received the order eliminating J.R.'s obligation to support Jessica, L.R. called S.G. She told him that the test showed J.R. was not Jessica's father and that she believed S.G. was the biological parent. She asked him to contribute money for her support, but he refused. L.R. then filed a paternity complaint in Monmouth County claiming that S.G. was Jessica's father and demanding he submit to genetic testing and pay support. An order for S.G. to submit to testing was entered by the Monmouth County judge but later was vacated after S.G. made a motion to vacate under R. 4:50-1(f) and raised the issue of whether such testing was in Jessica's best interests. See M.F. v. N.H., 252 N.J. Super. 420, 429-30 (App. Div. 1991). Meanwhile, J.R. filed a motion for a reduction in child support, for joint custody of both Jessica and Nicholas and for an order compelling L.R. to produce Jessica's biological father for a support hearing. The motion was consolidated with the paternity action and transferred to Monmouth County where the children lived. Judge Waldman appointed counsel to represent Jessica's interest on the issues of paternity and support. He also appointed Lillian Haber Gordon, L.C.S.W., to interview all parties to the action and submit a report as to whether Jessica's best interests would be served by the genetic testing. Gordon interviewed S.G. who told her that he wanted no relationship with Jessica under any circumstances and believed his other ...