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E.M v. S.L

SUPERIOR COURT OF NEW JERSEY APPELLATE DIVISION


August 29, 2011

E.M., PLAINTIFF-RESPONDENT,
v.
S.L., DEFENDANT-APPELLANT.

On appeal from Superior Court of New Jersey, Chancery Division, Family Part, Bergen County, Docket No. FD-02-1300-10.

Per curiam.

NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION

Submitted May 24, 2011

Before Judges Graves and Waugh.

Defendant S.L. appeals from a Family Part order dated August 2, 2010, directing him to undergo blood tests pursuant to a paternity action brought by plaintiff E.M. The order also stayed enforcement pending appeal. Having reviewed the record and applicable law, we reverse and remand for further proceedings.

Plaintiff, a resident of New York, gave birth to a son, K.M., on July 17, 2006. Almost four years later, on May 12, 2010, she filed a petition alleging that defendant was the child's father and seeking retroactive child support from the date of K.M.'s birth. The petition was accompanied by an affidavit in which plaintiff indicated that K.M. was conceived on October 16, 2005, and that she had not had sexual intercourse with any other man within thirty days of that date. Although plaintiff asserted that defendant admitted to being the child's father, she stated that he was not listed on the birth certificate and had not signed an acknowledgement of paternity. Additionally, where plaintiff was asked to list the names and addresses of the witnesses to her and defendant's relationship as well as the "relevant facts known by each," she wrote only: "My friends and family and his friends."

Defendant was mailed a summons on May 28, 2010, and his attorney appeared in court to dispute paternity on August 2, 2010. After meeting briefly with a hearing officer, defense counsel and an attorney from the Bergen County Board of Social Services (the Board) made oral arguments before the Family Part.

Noting that plaintiff had waited four years to file her application and had made "purely conclusory" allegations, defendant's attorney requested that the court deny the application for blood tests without prejudice so as to avoid a violation of defendant's constitutional rights. He instead requested that the court "give [him] an opportunity to take [plaintiff's] deposition" and "ask her to [provide] the names of her witnesses." Counsel for the Board argued that the four-year gap was irrelevant and that the allegations in plaintiff's affidavit were sufficient to provide reasonable articulable suspicion that defendant was K.M.'s father.

After reviewing the case law presented by the parties, the court ordered defendant to submit to a blood test. It reasoned that plaintiff's sworn statement "that she had not engaged in sexual intercourse with another man during the time frame 30 days before or 30 days after the child was conceived [was] sufficient to satisfy the statutory requirements." Upon defense counsel's request, however, the court granted a stay pending appeal. An order memorializing the decision was entered that day.

Defendant now presents the following arguments for our consideration:

POINT I

THE TRIAL COURT ERRED BY ORDERING THE DEFENDANT-MOVANT TO SUBMIT TO GENETIC TESTING BECAUSE THE RECORD WAS DEVOID OF ANY SUBSTANTIAL OR CREDIBLE EVIDENCE.

POINT II

THE COURT SHOULD APPLY A DE NOVO STANDARD OF REVIEW TO THIS MATTER BECAUSE THE RECORD WAS DEVOID OF ANY SUBSTANTIAL OR CREDIBLE EVIDENCE.

POINT III

THE TRIAL COURT'S ORDER SHOULD BE REVERSED AND VACATED BECAUSE THE PLAINTIFF FAILED TO MEET HER HEAVY BURDEN OF REBUTTING THE STATUTORY PRESUMPTION THAT HER LIVE-IN BOYFRIEND IS THE FATHER.

POINT IV

THE TRIAL COURT ERRED BY ORDERING THE DEFENDANT-MOVANT TO SUBMIT TO GENETIC TESTING BECAUSE (1) THE PLAINTIFF FAILED TO ESTABLISH AN ARTICULABLE REASON FOR SUSPECTING THE DEFENDANT-MOVANT'S PATERNITY AND (II) THE DEFENDANT-MOVANT HAD GOOD CAUSE FOR REFUSAL UNDER NEW JERSEY'S PARENTAGE ACT.

POINT V

THE TRIAL COURT ERRED BY FAILING TO ADDRESS THE MEANING OF THE TERM "GOOD CAUSE FOR REFUSAL" UNDER NEW JERSEY'S PARENTAGE ACT.

Under the New Jersey Parentage Act, N.J.S.A. 9:17-38 to -59, a natural mother may file an action to determine paternity at any time until five years after the child reaches the age of majority. N.J.S.A. 9:17-45(b). If the putative father contests paternity, the court shall order genetic testing "upon the request of either party, if the request is supported by a sworn statement by the requesting party which alleges paternity and sets forth the facts establishing a reasonable possibility of the requisite sexual contact between the parties." N.J.S.A. 9:17-48(d).

"'Best interest of the child' always remains the fundamental guiding principle of any decision affecting children in the family court," including matters of paternity. D.O. v. R.B., 317 N.J. Super. 367, 373 (Ch. Div. 1997), aff'd o.b., 317 N.J. Super. 323 (App. Div. 1998). However, "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," M.A. v. Estate of A.C., 274 N.J. Super. 245, 248 (Ch. Div. 1993), even if the test constitutes only a "minimal intrusion," State v. O'Hagen, 189 N.J. 140, 162 (2007). Courts must therefore balance the putative father's privacy expectations and individual liberty against the compelling public interest of child welfare. S.S. v. E.S., 243 N.J. Super. 1, 11-12 (App. Div. 1990), aff'd, 124 N.J. 391 (1991).

We have achieved this balance by holding that, as a prerequisite to genetic testing, the individual alleging paternity must posit "an articulable reason" for suspecting that the putative father is the child's biological father. Id. at 12. This standard requires "something more than the filing of a complaint containing highly conclusory allegations," ibid., and may be satisfied using either documentary submissions or testimony, id. at 13. Although the required showing is limited, we believe it to be a "constitutional imperative." Ibid.

In this case, we find that plaintiff's affidavit alone was insufficient to establish an articulable reason to believe that defendant was the father of K.M. Although the affidavit indicated that plaintiff did not have sexual intercourse with anyone else near the time of conception, it did not provide any details about her relationship with defendant, including the facts surrounding the conception. Furthermore, plaintiff failed to offer the names and addresses of any witnesses to the relationship, even though the form specifically instructed her to do so. Without any corroborating evidence, plaintiff's allegations alone cannot overcome defendant's Fourth Amendment right to be free from unreasonable searches and seizures.

We are thus persuaded that, at a minimum, some discovery is warranted before the court can compel defendant to submit to a paternity test. Accordingly, the August 2, 2010 order is reversed, and the matter is remanded to the Family Part for further proceedings consistent with this opinion.

Jurisdiction is not retained.


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