Bill > S479

Introduced Session

In the recent case of R.A.C. v. P.J.S., 380 N.J.Super. 94 (App. Div. 2005) the court noted that parentage statutes should not be used as shields by presumed fathers to protect them from liability nor by those parties whose deceptive conduct deserves no such protection. In that case, the court applied the doctrine of equitable tolling of the statute of limitations to allow a presumed father to bring an otherwise untimely action against the biological father for reimbursement of child support. In the R.A.C. case, the biological father and the biological mother concealed the truth about the childs parentage until the child was nearly 30 years old (seven years after the statute of limitations for a parentage case had expired). Despite the expiration of the statute of limitations, the court allowed the presumed father to recover funds he had expended to support and educate the child. The court noted that the presumed father learned that he was not the biological father only when his wife, the biological mother, deemed it appropriate for the truth to come out. In its strongly worded opinion, the court stated that: "...the purpose of the Parentage Act is to ensure that each child may establish and enjoy the rights inherent in a parent-child relationship. ... To this end, the Parentage Act assures equal rights to all children and parents with respect to each other, a procedure to establish parentage, and financial support. Allowing plaintiff [presumed father] to pursue defendant [biological father] does no violence to these statutory purposes. Plaintiffs action allows an acknowledgment of responsibilities and a reconciliation of obligations. It is not calculated to disrupt fragile familial relationships or to leave a young child bereft of required paternal guidance. In these circumstances, resort to the statutory limitations period acts as a shield rather than the sword for a party whose conduct deserves no such protection." (Citation omitted) Id. at 109. It is the sponsors intent to take into consideration the courts suggestion to facilitate the use of DNA testing to resolve parentage disputes early on. Public policy should not protect anyone who engages in deceptive behavior especially when the person harmed is a child. The policy of the State to protect children should not be mangled into deformity by using a statute against the same children the statute was meant to protect. Science now allows a child to know the truth concerning his paternity on the basis of scientific certainty. DNA testing of the parties involved resolves most of the issues which may arise in a paternity action. Therefore, paternity laws must be revised to take into account these recent scientific advances while at the same time balancing the interests of all the individuals involved, especially the children. Public policy should promote a whole family unit which is not bound together by lies or mistruths, but a unit which acknowledges biological realities. The family involved would then have the freedom to choose either to continue as is or to expand and include new members who have a biological connection to the child. Insuring a childs right to know who his biological parents are protects the rights of that child. What better understanding can a child have of himself than the understanding he gains by learning his own personal history? "Protecting" a child by either falsifying birth records or knowingly withholding information concerning the childs ancestry can have serious ramifications such as affecting the childs ability to obtain an accurate medical history and lawfully receive an inheritance or health benefits. Determining paternity does not destroy families. It allows the child to create a new family or to continue to exist in the current relationship if the parties so desire. Moreover, if the intention is to continue with that family unit, it allows the unit to continue not based on lies or mistruths but to continue in spite of lies and mistruths. Paternity laws should protect families and children. Preventing a child from knowing who his biological parent is does not protect the child or the family. Prohibiting the child from attaining this knowledge only serves one purpose: to protect the person who lied. Protecting that individual is not in the best interest of the child; it does not protect the family unit. To hinder a child from obtaining information concerning who his biological parents are only fosters resentment and only serves to dissolve the family unit. There is no feasible reason why DNA testing should be ignored in favor of a legal "presumption" of paternity. DNA testing transcends "presumptions" and provides us with a biological certainty as to the identity of a childs biological parent. This bill provides us with a framework whereby we can begin to streamline paternity procedures and provide for one procedure to disestablish or establish paternity. This bill provides that the blood or genetic testing be conducted upon the filing of the complaint and upon the request of the complainant. There would limited exceptions to this general rule. The pertinent provisions of the bill are as follows: Section 1. This section of the bill amends N.J.S.A.9:17-43 concerning presumptions. That section provides that a rebuttable presumption exists when a blood or genetic test, administered in accordance with the provisions of the bill, indicates a 95% or greater probability that the alleged father is not excluded as the probable father of the child. This presumption, along with all the other presumptions listed in this section, may be rebutted by clear and convincing evidence. Section 2. This section of the bill amends N.J.S.A.9:17-45 concerning when a paternity action may be brought and by whom. Under the current provisions of the law the following parties may bring an action: a child; a legal representative of the child; the natural mother, the estate or legal representative of the mother, if the mother has died or is a minor; a man alleged or alleging himself to be the father, the estate or legal representative of the alleged father, if the alleged father has died or is a minor; the Division of Family Development (DFD) in the Department of Human Services (DHS), or the county welfare agency; or any person with an interest recognized as justiciable by the court. The amendments would add one more party: "any person related to the child, natural mother, the alleged father or the man alleged or alleging himself to be the father who would be harmed or deprived of a benefit under a will, trust or the laws of intestacy by the existence or nonexistence of a parent and child relationship or by a determination of parentage, or a trustee, executor or administrator of such a will, trust or intestate estate." The bill would amend the statute of limitations provision, subsection b., to provide two exceptions to the general rule that a paternity action cannot be brought after a child reaches age 23. The first exception provides that if a child is 23 years of age or older, then an action can be brought two years after the date on which a person who may bring an action or defend an action or be made a party to the action first discovered or had a reasonable opportunity to discover the existence or nonexistence of the paternity. The second exception provides that an action may be brought at any time if a person who is authorized to bring or defend an action or may be made a party to an action would be harmed or deprived of a benefit under a will, trust or the laws of intestacy by the existence or nonexistence of a parent and child relationship or by determination of parentage, or a trustee, executor or administrator of such a will, trust or intestate estate. This section would also amend the current law, in accordance with 42 U.S.C.A. s.666, to clarify that the existence of certain agreements would bar an action under the bill: (1) an agreement approved by the court pursuant to a consent conference in accordance with N.J.S.A.9:17-48; (2) a certificate of parentage issued in accordance with N.J.S.A.9:17-41, N.J.S.A.26:8-28.1 or N.J.S.A.26:8-30; or (3) an agreement to adopt a child or conceive a child by artificial insemination. Section 3. This section of the bill amends N.J.S.A.9:17-48 concerning consent conferences, settlements, testing and presumptions in order to cross-reference section 5 of the bill which establishes the procedures for blood or genetic testing. Section 4. This section of the bill amends N.J.S.A.9:17-53 to make it consistent with section 6 of the bill which establishes procedure for disestablishment and establishment actions. The bill provides that a judgment or order under this section may provide for reimbursement of child support, medical, educational, and financial expense. Section 5. This section of the bill provides for the procedures to be followed with regard to blood or genetic testing. Tests have to be conducted by a qualified technical laboratory and the test results filed with the court. Any objection to the test results could be made in writing and filed with the court at least 10 days prior to the hearing. If no objection is filed, the results are admitted into evidence as a rebuttable presumption of paternity without requiring any additional foundation testimony or proof of authenticity or accuracy. A party may call an outside expert witness. Test results would be admissible in evidence and weighed with other evidence of paternity unless the statistical probability of paternity equals or exceeds 95% which creates a rebuttable presumption that the alleged father is the biological father of the child. If a party fails to rebut the presumption of paternity, the court may enter a summary judgment of paternity. If a party disputes the test results or the expert analysis, the court would order an additional test by the same laboratory or an independent laboratory at the expense of the party requesting the additional testing. Fees and costs for scientific tests would be paid by the parties in proportions and at times determined by the court, unless the parties otherwise stipulate in an agreement. In addition, the bill defines "genetic test" and "genetic characteristic." Section 6. This section of the bill establishes the procedures for an action to establish or disestablish paternity. Under the provisions of this section, the following individuals, who may be affected by a paternity determination, may bring an action to establish or disestablish paternity action: a child or a legal representative of the child; the natural mother, the estate or legal representative of the mother, if the mother has died or is a minor; the man alleged or alleging himself to be a father, the estate or legal representative of the alleged father, if the alleged father has died or is a minor; the Division of Family Development (DFD) in Department of Human Services (DHS), or the county welfare agency; or any person who would be harmed or deprived of a benefit under a will, trust or the laws of intestacy by the existence or nonexistence of a parent and child relationship or by a determination of parentage, or a trustee, executor or administrator of such a will, trust or intestate estate. This section provides that a person may bring a paternity disestablishment action by filing a complaint accompanied by a sworn statement alleging paternity and setting forth facts establishing a reasonable possibility of the requisite sexual contact or denying paternity and setting forth facts establishing a reasonable possibility of the nonexistence of sexual contact or the reasonable possibility of sexual contact between the mother and another man. The bill provides that once an action has been commenced the court shall order the parties to submit to blood or genetic testing. Under the provisions of this section the court would apply the best interest standard after the tests have been conducted. (See: subsection h.) Subsection g. of section 6: This subsection provides that if the test demonstrate that the presumed father is the biological father of the child, then an order establishing paternity may provide for the continuation of the child support payments and for the continuation of any duty of support, custody and guardianship of the child or the repayment of any public assistance grants on behalf of the child. The court may limit a parents liability for past support of the child to the proportion of the expenses already incurred. In determining the amount to be paid by the parent for the support of the child and the period during which support is owed, the court shall apply the child support guidelines as defined in section 3 of P.L.1998, c.1 (C.2A:17-56.52). Subsection h. of section 6: This subsection provides that if the results demonstrate that the presumed father is not the biological father, and except in the case where the child is under 23 years of age or suffers from a severe mental or physical incapacity that causes the child to be financially dependent on the parent, the paternity disestablishment order shall require either the biological father or biological mother or both provide reimbursement for any child support, medical, health coverage, financial and educational expenses for the child, including post-emancipation expenses when applicable, and any other expenses the court deems proper to take into consideration. In determining whether the biological father or the biological mother or both should be required to provide reimbursement, the court shall take into consideration the financial resources of each of the parties. If the results demonstrate that the presumed father is not the biological father and the child is less than 23 years of age or suffers from a severe mental or physical incapacity that causes the child to be financially dependent on a parent as defined in section 16 of P.L.1983, c.17 (C.9:17-53) and the biological father is unknown or the biological fathers parental rights have been or may be terminated pursuant to Titles 9 and 30 of the Revised Statutes, the court shall determine whether issuing a paternity disestablishment order pursuant to this subsection is in the best interests of the child. If the court determines that it is in the best interests of the child to issue an order, the court shall issue a paternity disestablishment order. The court shall order the immediate termination of any and all rights, benefits, privileges, duties and obligations conferred or imposed upon the parties as a consequence of that parent and child relationship under the law, by court order, by agreement or otherwise, or incident to, by virtue of or which flow directly or indirectly from any prior adjudication, judgment or order that determined that the excluded individual was the father of the child, except the obligation to pay child support on behalf of the child. If the court determines that it is not in the best interests of the child to issue an order, the court shall not issue the paternity disestablishment order and may dismiss the action. Subsection i. of section 6: motion to set aside a final judgment or order awarding child support. This subsection of the bill provides that once a paternity disestablishment order has been issued, which establishes the exclusion of the individual named in the adjudication, judgment or order, the following individuals may file a motion to set aside a final judgment or order awarding child support: a child, a legal representative of the child, the natural mother, the estate or legal representative of the mother, if the mother has died or is a minor, a man alleged or alleging himself to be the father, the estate or legal representative of the alleged father, if the alleged father has died or is a minor, DFD in DHS or the county welfare agency. If this motion is granted, the court would grant the following relief: (1) the obligation to pay support on behalf of the child and all parental rights would be terminated; (2) if past-due child support is owed, the obligor may be required to pay the arrearages; and (3) if any child support was paid prior to the date of the order granting relief, that amount would not be reimbursed. Subsection j. of section 6: motion for relief from a final adjudication, judgment or order. This subsection of the bill provides that once a paternity disestablishment order has been issued the same parties who may bring a motion under subsection i. concerning child support may file a motion for relief from a final adjudication, judgment or order, but additionally any person related to the child, natural mother, the alleged father or the man alleged or alleging himself to be the father who would be harmed or deprived of a benefit under a will, trust or the laws of intestacy by the paternity determination, or a trustee, executor or administrator of such a will, trust or intestate estate may bring such a motion. The court shall grant the following relief: (1) the legal relationship of parent and child would be terminated; (2) any and all rights, benefits, privileges, duties and obligations conferred or imposed upon any person by the parent and child relationship under the law, by court order, by agreement or otherwise would be terminated, except the obligation to pay child support on behalf of the child; and (3) any and all rights, benefits, privileges, duties and obligations incident to, by virtue or of which flow directly or indirectly from any final adjudication, judgment or order that determined that the person referred to in the adjudication, judgment or order is the father of the child would be terminated, except the obligation to pay child support on behalf of the child. Subsection k. of section 6: This subsection provides that if the disestablishment order is at variance with the childs birth certificate, the court would order that an amendment to the original birth record be made by the State Registrar or the local registrar. Subsection l. of section 6: This subsection provides that if a party refuses to take the test, the refusal would be admitted into evidence and give rise to the presumption that the results of the test would have been unfavorable to that partys interests. The party refusing to submit to the test could be required to pay court costs and reasonable attorney fees in accordance with N.J.S.A.9:17-54. Subsection m. of section 6: This subsection provides that except for those agreements which would bar an action under the bill such as an agreement approved by the court pursuant to N.J.S.A.9:17-48, a certificate of parentage issued in accordance with N.J.S.A.9:17-41, N.J.S.A.26:8-28.1 or N.J.S.A.26:8-30, or an agreement to adopt a child or conceive a child by artificial insemination, the court cannot deny relief on the following grounds: (1) the person married the mother of the child; (2) the person acknowledged paternity in a writing sworn to before a notary public; (3) the person was named as the childs natural father on the childs birth certificate with his valid consent; (4) the person was required to support the child because of a written voluntary promise, a court order or an administrative support order; (5) the person validly signed the childs birth certificate; (6) the person was named in an acknowledgment of paternity that a court entered prior to this action, except for an agreement approved by the court in accordance with N.J.S.A.9:17-48, a certificate of parentage in accordance N.J.S.A.9:17-41, N.J.S.A.26:8-28.1 or N.J.S.A.26:8-30 or an agreement to adopt a child or conceive a child by artificial insemination; (7) the person was named in an acknowledgment of paternity that has become final under the "New Jersey Parentage Act," except for an agreement approved by the court in accordance with N.J.S.A.9:17-48, a certificate of parentage in accordance N.J.S.A.9:17-41, N.J.S.A.26:8-28.1 or N.J.S.A.26:8-30 or an agreement to adopt a child or conceive a child by artificial insemination; (8) the person was presumed to be the natural father under any of the circumstances listed in the "New Jersey Parentage Act;" (9) the person was determined or adjudged to be the natural father in any action, including any action under the "New Jersey Parentage Act" unless the adjudication was based on blood or genetic testing; or (10) the person otherwise admitted or acknowledged himself to be the natural father. Section 7. This section of the bill would allow actions which were time barred on the effective date of the bill to be commenced within two years of the effective date of the bill. Section 8. This section of the bill would require genetic testing in any action, other than a paternity action, where child support is at issue and where the existence or nonexistence of a parent and child relationship is at issue. Section 9. This section of the bill would require the attending physician, midwife or person acting as the agent of the physician or midwife, who was in attendance upon the birth of an infant to be responsible for the blood or genetic testing of the infant to determine paternity. The bill also provides that it shall be the responsibility of personnel at the hospital or birthing facility to inform the mother and father of the requirement for the blood or genetic testing. The test shall be conducted by a qualified and approved technical laboratory. It shall be the responsibility of personnel at the hospital or birthing facility, within five days after the birth, to inform the mother and biological father of the blood or genetic testing. After the biological mother and biological father have been informed of the results, the results shall be filed with the local registrar of the district in which the birth occurred. Section 10. This section of the bill provides for a severability clause to provide that if any provision of the act is held invalid, the invalidity would not affect the other provisions of the act or the application of the act. Section 11. This section of the bill provides that nothing in the bill should be deemed to conflict with or supersede any provision of the "Uniform Interstate Family Support Act," N.J.S.A.2A:4-30.65 et seq. Section 12. This section of the bill provides for a delayed effective date of 90 days after enactment, except that any anticipatory administrative action may be taken prior to the effective date of the bill.

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Raymond Lesniak (D)*, 

Withdrawn from Consideration (on 02/08/2010)