Superior Court of New Jersey, Chancery Division, Passaic
Approved for Publication March 10, 2014.
[Copyrighted Material Omitted]
Laura Nunnink for plaintiff (November & Nunnink, LLC, attorneys).
Joanna Brick for defendant.
[434 N.J.Super. 601] PROCEDURAL HISTORY & FACTUAL FINDINGS
This matter is before the court on plaintiff's application for an order to show cause, which was filed on November 14, 2013. In [434 N.J.Super. 602] the application, plaintiff, a putative father, seeks a temporary mandatory injunction order that: 1) he be notified when the mother, defendant, enters labor; 2) he can be present at the delivery of the child; 3) he be able to sign the birth certificate the day of the child's birth; 4) his surname is included on the birth certificate; and 5) a parenting-time order be issued. Defendant filed a short letter brief on November 15, 2013. Because this action involves a potential challenge to one or more statutes of the State of New Jersey or Agency determination, the Attorney General was notified of this action. Although the Attorney General filed a letter brief, it elected not to appear at the hearing. On November 19, 2013, plaintiff appeared before the court. Defendant appeared telephonically on the same date from the hospital due to health issues related to her pregnancy. Defendant objects to the putative father's presence at the child's birth, citing her own right of privacy. According to the court's research, the issues of whether a putative father has a right to be notified when a woman enters labor, and whether a father has a right to be present at the child's birth over the mother's objection, have never been litigated in New Jersey or the United States.
The central facts of this case are not in dispute. Plaintiff and defendant were never married. The parties entered into a relationship in late 2012 and defendant
discovered she was pregnant in February 2013. Shortly after the parties discovered that defendant was pregnant, plaintiff proposed to defendant and she accepted. In early summer 2013, or September 2013, defendant ended the engagement. Plaintiff states that he went with defendant to two doctor appointments.
On or about October 10, 2013, plaintiff's attorney wrote a letter to defendant stating plaintiff's desire to be involved with the pregnancy and the child's life after her birth. On or about [434 N.J.Super. 603] November 1, 2013, defendant obtained counsel. Through November 8, 2013, both attorneys exchanged a series of letters on the subject of the birth certificate, plaintiff's presence at the hospital, and the use of litigation to resolve the matter if it could not be resolved amicably.
On November 14, 2013, plaintiff filed an order to show cause application and his accompanying certification with the court. The certification states that defendant will not permit him to sign the birth certificate, and will not notify him when she is in labor or allow him to enter the delivery room. On November 15, 2013, defendant filed a brief certification. She disputes that she will forbid plaintiff's name from being included on the birth certificate or that she will not notify plaintiff when she enters labor. However, defendant does state she will request her privacy in the delivery room. Defendant testified that she would include his name on the hospital visitor list.
Defendant argues that the order to show cause should be denied because the issue is not yet ripe, but does not elaborate. As a threshold issue, the court addresses the ripeness of the claim of a putative father before the child is born. A case's ripeness depends on two factors: " ‘ (1) the fitness of issues for judicial review and (2) the hardship to the parties if judicial review is withheld at this time.’ " K. Hovnanian Cos. of N. Cent. Jersey, Inc. v. N.J. Dep't of Envtl. Prot., 379 N.J.Super. 1, 9-10, 876 A.2d 847 (App.Div.2005) (quoting 966 Video, Inc. v. Mayor & Twp. Comm. of Hazlet Twp., 299 N.J.Super. 501, 515-16, 691 A.2d 435 (Law Div.1995)). The court notes that in cases involving a woman's right to choose, federal and state courts allow litigation to commence before the potential birth of a fetus. Similarly, federal courts will not render a woman's choice issue moot if the alleged wrong is capable of repetition but evades review because of its inherently limited time duration. Furthermore, New Jersey [434 N.J.Super. 604] courts have permitted cases concerning parentage rights to commence before the birth of a fetus. In re T.J.S., 212 N.J. 334, 54 A.3d 263 (2012) (ripeness was not challenged when before the child's birth husband and wife sought a court order declaring their parentage under the New Jersey Parentage Act, and that their names be listed on the birth certificate).
First, this case is ripe for review. The issues in dispute are " purely legal," and thus " appropriate for judicial resolution" without developing additional facts. Abbott Labs. v. Gardner, 387 U.S. 136, 149, 87 S.Ct. 1507, 18 L.Ed.2d 681 (1967); see also Whitman v. Am. Trucking Ass'ns, 531 U.S. 457, 121 S.Ct. 903, 149 L.Ed.2d 1 (2001). There is no New Jersey statute or case that addresses plaintiff's request to be present at the child's birth over the mother's objection. This application is akin to a facial challenge of a law, which " is generally ‘ ripe’ much earlier than a claim that the [law] is void as applied " challenge. Trombetta v. Mayor & Comm'rs of Atl. City, 181 N.J.Super. 203, 223, 436 A.2d 1349 (Law Div.1981), aff'd
o.b., 187 N.J.Super. 351, 454 A.2d 900 (App.Div.1982).
Second, there is a sufficient showing of potential harm that the parties may suffer if the court were to abstain from resolving some of the issues raised in this case. A delay on resolving the issue of plaintiff's presence during the fetus's birth would cause potential harm if the court were to decide the case in his favor after the birth had already occurred.
On the other hand, plaintiff's application for parenting time is not ripe for judicial consideration at this time. Pursuant to N.J.S.A. 9:2-4, the court must conduct a best interest analysis. The statute lists several factors the court must consider:
the parents' ability to agree, communicate and cooperate in matters relating to the child; the parents' willingness to accept custody and any history of unwillingness to allow parenting time not based on substantiated abuse; the interaction and relationship of the child with its parents and siblings; the history of domestic violence, if any; the safety of the child and the safety of either parent from physical abuse by the other parent; the preference of the child when of sufficient age and capacity to reason so as to form an intelligent decision; the needs of the [434 N.J.Super. 605] child; the stability of the home environment offered; the quality and continuity of the child's education; the fitness of the parents; the geographical proximity of the parents' homes; the extent and quality of time spent with the child prior to or subsequent to the separation; the parents' employment responsibilities; and the age and number of the children.
[ N.J.S.A. 9:2-4.]
The factors listed, by their plain and ordinary meanings, do not contemplate a best interest evaluation before the fetus is born. First, the statute uses the word " child" and not " fetus." Secondly, the statutory factors cannot be determined at this time as the facts required to make a determination do not exist before a child is born. For instance, factor number three requires the court to consider " the interaction and relationship of the child with its parents and siblings." This is not possible in the pre-birth scenario as the child has had no independent interaction with the parents. Since the vast majority of the factors by their plain meaning cannot be determined pre-birth, the court finds that the claim is not fit for judicial review at this time.
II. The Definitions of " Parent-Child Relationship" and " Father" under the New Jersey Parentage Act, N.J.S.A. 9:17-39 to 43.
Another threshold issue the court must resolve before addressing plaintiff's current application is whether under the New Jersey Parentage Act plaintiff is deemed a " father."
In New Jersey, at common law, the father of an " illegitimate child [one born out of wedlock]" had no parental rights or responsibility towards the child. F.W. v. D.S., 83 N.J.Super. 144, 146-47, 199 A.2d 60 (Ch.Div.1964). The child was said to be the child of nobody. WILLIAM BLACKSTONE, 1 COMMENTARIES 459; 2 KENT'S COMMENTARIES, 214. See also Wright v. Wright, 2 Tyng 109, 110 (Sup. Jud. Ct. 1806) (" the relative of no one" ); Friesner v. Symonds, 46 N.J. Eq. 521, 527-8, 20 A. 257 (Prerog.Ct.1890). Additionally, at common law, New Jersey courts held that with respect to the rights of a putative father to his illegitimate child: " The father has hardly any right at all of custody, if he has any at all which the law recognizes. His position is largely that of a [434 N.J.Super. 606] stranger, an
outsider, having no natural relation to the child or children. Ousset v. Euvrard, 52 A. 1110, 1111 (Ch.1902)."
As the common law afforded no pre-birth or post birth rights and obligations to a putative father, the relief plaintiff seeks must derive from statute. See generally Splitdorf Electrical Co. v. King, 90 N.J.L. 421, 421-2, 103 A. 674 (Sup.Ct.1917), aff'd, 92 N.J.L. 524, 105 A. 894 (E. & A.1918) (" for at common law [the child] was nullius filius ... except as changed by the statute, the common law prevails." )
The New Jersey Parentage Act, which is modeled after the Uniform Parentage Act of 1973, was enacted " to establish the principle that regardless of the marital status of the parents, all children and parents have equal rights with respect to each other and to provide a procedure to establish parentage in disputed cases." Assembly Judiciary, Law, Public Safety and Defense Committee, Statement to Senate Bill No. 888 (Oct. 7, 1982). The design of the Act is to help families deal with the problems posed by fathers who seek to avoid paying child support. In Re Estate of Kolacy, 332 N.J.Super. 593, 603, 753 A.2d 1257 (Ch.Div.2000). Paternity cannot be simply established by placing a man's name on a birth certificate because a birth certificate does not constitute a legal finding of parentage, nor does it create rights. In Re Parentage of a Child by T.J.S., 419 N.J.Super. 46, 53, 16 A.3d 386 (App.Div.2011), aff'd, 212 N.J. 334, 54 A.3d 263 (2012).
From the New Jersey Parentage Act the relevant terms key for the instant case are the " parent and child relationship" and " father." The " parent and child relationship" is defined as the " legal relationship existing between a child and the child's natural or adoptive parents, incident to which the law confers or imposes rights, privileges, duties, and obligations." N.J.S.A. 9:17-39. The relationship can be established by a certificate of parentage " that is executed by the father ... prior to or after the birth of the child, and filed with the appropriate State agency." N.J.S.A. 9:17-41(b) (emphasis added). As to the finding and presumption [434 N.J.Super. 607] that a person is a biological father, the Act provides in relevant part that:
a. man is presumed to be the biological father of a child if
(1) He 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 terminated by death, annulment or divorce;
(2) Before the child's birth, he and the child's biological mother have attempted to marry each other by a marriage solemnized in apparent compliance with law, although the attempted marriage is or could be declared invalid, and:
(a) If the attempted marriage could be declared invalid only by a court, the child is born during the attempted marriage, or within 300 days after its termination by death, annulment or divorce; or
(b) If the attempted marriage is invalid without a court order, the child is born within 300 days after the termination of cohabitation;
(3) After the child's birth, he and the child's biological mother have married, or attempted to marry, each other by a marriage solemnized in apparent compliance with law, although the attempted marriage is or could be declared invalid, and:
(a) He has acknowledged his paternity of the child in writing filed with the local registrar of vital statistics;
(b) He has sought to have his name placed on the child's birth certificate as
the child's father, pursuant to R.S. 26:8-40; or
(c) He openly holds out the child as his natural child; or
(d) He is obligated to support the child under a written voluntary ...