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T.A. v. A.M.M.

February 6, 2008

T.A., PLAINTIFF-APPELLANT,
v.
A.M.M. AND J.P., DEFENDANTS-RESPONDENTS.
A.M.M., PLAINTIFF-RESPONDENT,
v.
J.P., DEFENDANT-RESPONDENT.



On appeal from Superior Court of New Jersey, Chancery Division-Family Part, Essex County, Nos. FM-07-363-06; FD-07-802-07.

Per curiam.

RECORD IMPOUNDED

NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION

Argued November 8, 2007

Before Judges Wefing, Parker, and Lyons.

T.A. appeals from trial court orders; one dismissed his complaint to establish paternity and the other denied his motion to intervene in ongoing post-judgment litigation between J.P. and A.M.M. After reviewing the record in light of the contentions advanced on appeal, we have concluded that we are constrained to reverse the trial court's order dismissing T.A.'s paternity complaint and remand for further proceedings.

J.P. and A.M.M. were married to one another on June 4, 1995. On June 30, 2002, A.M.M. gave birth to a son, J. According to J.P.'s certification, he and A.M.M. had engaged in a course of fertility treatments, seeking to have a child, and he was thrilled when he learned she was pregnant.

During the time A.M.M. was married to J.P., she engaged in an affair with T.A. who was, himself, at the time married to another woman. According to the certification of T.A., his affair with A.M.M. ended when she discovered that she was pregnant.

Despite the end of their affair, T.A. and A.M.M. saw each other occasionally. J. was approximately six to seven months old when T.A. saw the boy for the first time, and T.A. then asked A.M.M. whether he was the boy's father. She assured him he was not. According to the record before us, her assurances were based upon the fact she and T.A. had practiced contraception during their affair and the further fact that she had continued to engage in marital relations with J.P. while conducting her affair with T.A. Despite these assurances, T.A., according to his certification, provided regular gifts for the baby and in May 2005 established a college fund for his benefit.

At some point after the boy's birth, J.P. and A.M.M. separated, and they eventually divorced pursuant to a judgment of divorce entered September 21, 2005. In connection with the divorce proceedings, J.P. and A.M.M. negotiated an agreement for support, custody, and visitation with respect to the child.

Unfortunately, entry of that divorce judgment did not entirely end the acrimony between J.P. and A.M.M. There have been repeated post-judgment applications. In addition, A.M.M. filed several domestic violence complaints against J.P.; none of these, however, have been sustained or resulted in the entry of a final restraining order against J.P.

In January 2006 T.A. separated from his wife and in February 2006 resumed his intimate relationship with A.M.M. According to T.A., his opportunity to spend more time with the child strengthened his suspicions that he could be the boy's father, and he again raised the issue with A.M.M. The two agreed between themselves to have a DNA test performed upon the boy but never sought the consent of J.P. nor the sanction of a court order. Armed with the results of the test, T.A. filed a complaint in August 2006, seeking to establish himself as J.'s father, terminating J.P.'s parental rights to J., and changing the child's last name.*fn1 At that point, J. was four years old and had spent his entire life as the unquestioned son of J.P. and a member of J.P.'s extended family.

When T.A. filed this paternity complaint, post-judgment litigation between J.P. and A.M.M. was pending, in which A.M.M. alleged that J. had been the victim of sexual abuse at the hands of the teenage son of J.P.'s girlfriend.*fn2 The trial judge handling that post-judgment litigation contacted the judge to whom the paternity matter had been assigned. As a result, the judge handling the paternity matter instructed T.A. that he was to attempt to obtain the consent of A.M.M. and J.P. to his intervention in the post-judgment matrimonial litigation, and if he were unable to obtain that consent, to file a motion seeking leave to intervene.

Not surprisingly, J.P. refused to consent to such intervention, and T.A. in due course filed a motion seeking leave to intervene. On the return date of the motion, the trial court, after hearing oral argument, denied T.A.'s motion and dismissed his paternity complaint, even though no one had filed a motion seeking such relief. This appeal followed.*fn3

In 1983, New Jersey adopted the Uniform Parentage Act, which had been promulgated in 1973 by the National Conference of Commissioners on Uniform State Laws; it is codified at N.J.S.A. 9:17-38 to -59. N.J.S.A. 9:17-45(a) provides in pertinent part that a man "alleging himself to be the father . . . may bring or defend an action . . . for the purpose of determining the existence or nonexistence of the parent and child relationship." N.J.S.A. 9:17-43 sets forth a series of presumptions guiding such paternity proceedings. Under N.J.S.A. 9:17-43(a)(1), a man is presumed to be a child's biological father if:

[h]e and the child's biological mother are or have been married to each other and the child is born during the marriage, or within 300 days after the marriage is ...


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