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Mercer County Board of Social Services v. J.T.

SUPERIOR COURT OF NEW JERSEY APPELLATE DIVISION


August 25, 2008

MERCER COUNTY BOARD OF SOCIAL SERVICES O/B/O P.H., PLAINTIFF-RESPONDENT,
v.
J.T., DEFENDANT-APPELLANT.

On appeal from the Superior Court of New Jersey, Chancery Division, Family Part, Mercer County, Docket No. FD-11-0031-91.

Per curiam.

RECORD IMPOUNDED

NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION

Submitted August 5, 2008

Before Judges Sapp-Peterson and Baxter.

Defendant, J.T., appeals from the Family Part order denying his motion to vacate child support arrears payable to the Mercer County Board of Social Services (MCBSS). We affirm.

Defendant filed a motion in 2005 seeking a determination of paternity for the minor child purportedly born to him and P.H. on August 30, 1989. By order dated July 15, 2005, the court granted the motion. Notwithstanding the order, P.H. failed to appear for testing or court proceedings, ultimately resulting in an order vacating defendant's child support obligation to her effective June 1, 2005. However, the order directed defendant to continue to pay outstanding arrears to MCBSS, which provided Temporary Assistance for Needy Families (TANF) to P.H. from September 1994 through April 1999. The present appeal followed.

On appeal, defendant claims P.H.'s willful violation of court orders to establish paternity through DNA testing should have resulted in the entry of an order excluding him as the biological father of the minor child and relieving him of all child support obligations.

DNA testing to conclusively establish paternity requires samples from both putative parents. M.A. v. Estate of A.C., 274 N.J. Super. 245, 247 (Ch. Div. 1993); N.J.S.A. 9:17-51(a) (upon the request of a party to a paternity suit, the court shall "require the child, mother and alleged father to submit to blood tests or genetic tests"). Although child support is an obligation to the child payable through the parent with primary physical custody, the failure of the custodial parent to cooperate with court-ordered DNA testing gives "rise to the presumption that the results of the test would have been unfavorable to" P.H.'s interests and warrants termination of support payments to the custodial parent as was done here. N.J.S.A. 9:17-48(h). However, MCBSS was entitled to take action to recoup child support arrears from defendant, who claims he has always suspected that the child was not mine. In hindsight, I realize I should have filed for a modification on my cases, but I was young, ignorant of the system, spent some time incarcerated, and simply overwhelmed by the obligations. Once I realized that I had to get his matter resolved, I decided to establish paternity for [the minor child.]

Because defendant waited fourteen years before seeking a paternity determination, the trial court did not err when it ordered defendant to pay outstanding arrears. See Monmouth County Div. of Soc. Servs. v. D.J.D., 344 N.J. Super. 74 (Ch. Div. 2001). That P.H. failed to comply with orders for DNA testing warrants relief to defendant going forward, but does not negate an obligation he incurred years earlier that he did not timely challenge.

Affirmed.

20080825

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