A NEW GENETIC TESTING STANDARD OR “BEST INTEREST” OF THE CHILD BY ANOTHER NAME?
The New Jersey Parentage Act, N.J.S.A. 9:17-38 to 9:17-59, (hereinafter “the Act”) provides a method by which an individual may seek reimbursement for money they have paid on behalf of a child’s parent for that subject child’s various educational, medical and other support expenses. An action may be brought by the child, their legal representative(s), the natural mother, a man alleged or alleging himself to be the father, either of their estates if deceased, Human Services, or “any person with an interest recognized as justiciable by the court.” N.J.S.A. 9:17-45.
Because parents have a legal duty to support their children through emancipation, one of the primary purposes of the Act is to ensure that children get from their parents the financial support to which they are entitled. In support of this, the Act also provides a means by which to identify a child’s parents, specifically the father, so that that parent can fulfill their child-support obligations. This is done through blood or genetic testing. N.J.S.A. §9:17-48(d).
Since it was decided, M.F. v. N.H., 252 N.J. Super 420 (App. Div. 1991) had been regarded as the principle case on determining when such testing could be compelled. M.F. presented the less common situation of a biological father seeking to establish parentage over and above objections by the biological mother and her husband. In that case, plaintiff filed a complaint alleging that he believed he was the biological father of the subject child and requesting parenting time. Pursuant to his complaint, he subsequently filed a Motion to Compel Paternity Testing pursuant to the Act. His complaint stated that since the child’s birth he had periodically visited with the child at the defendant’s residence. Defendant answered that she and her husband were legally married at the time of conception and birth of the child, and, thus, the child was presumed to be the product of their marriage pursuant to the Act. In response, plaintiff contended that he and defendant had engaged in sexual intercourse “an average of one or two times per week” since September 1986, which overlapped with the period of conception. Id. at 423.
The trial court granted an order compelling defendant and the child to submit to paternity testing, but denied the request for parenting time. Id. On appeal, the Appellate Division stayed and then reversed the trial court order compelling testing. In its reasoning, the Appellate Division found that plaintiff’s matter had not yet risen to the level of a “contested case” as contemplated by N.J.S.A. 9:17-51, and, therefore, the trial court was not compelled to order blood testing. Id. at 424.[1] The court did find that, as plaintiff was alleging himself to be the biological father, he had standing under the Act to commence an action. Id. at 424-5.
However, as the court further opined, this fact standing alone, “does not ensure that [an] action may proceed and that blood tests may be ordered.” Id. at 425. Returning to the language of the Act, the court found that, given the presumption of defendant’s husband as the child’s father, absent some other presumption of paternity as enumerated in N.J.S.A. 9:17-43(a)(2) –(a)(6) favoring plaintiff as the father, “something more must be demonstrated, beyond the mere assertion of paternity, before plaintiff may be permitted to intrude upon the existing relationships between mother, her husband, and their child.” Id. at 426.
Referencing Justice Handler’s observation in Adoption of a Child of Indian Heritage, 111 N.J. 155, 173 (1988) that “[p]arental rights do not spring full-blown from the biological connection between parent and child. They require relationships more enduring,” the court concluded that a finding must be made, on appropriate proofs, that establishment of plaintiff’s paternity and rebuttal of husband’s paternity will serve the best-interests of the child.” M.F., supra, at 427.
Addressing the competing interests of the parties and subject child as it relates to the ordering of paternity testing (i.e. the rights of an unwed biological father against the presumption of paternity of a biological mother’s husband), the Appellate Division ultimately determined that a putative father needed to succeed in showing by clear and convincing evidence that establishing his paternity, and rebutting a biological mother’s husband’s paternity, will be in the best-interests of the child. Id.
Speaking broadly that a Family Part court should consider all the factors that weigh upon the child’s best-interest, or lack thereof, the Appellate Division listed the following eight as among those factors to be considered:
Harm to the child such as emotional injury, distrust, and possible confusion of knowing the parenting father is not the biological father;
Protection of the child’s physical, mental and emotional needs;
The stability of the family relationship and extent of the intrusion that will result from a paternity determination;
The consistency of the putative father’s interest in the child;
Societal stigma that may result of be perceived by establishing relationship, including placing the child’s birth outside the traditional wedlock setting;
Continuity of established relationships;
Any extent to which uncertainty of parentage already exists in the child’s mind;
The child’s interest in knowing family and genetic background, including medical and emotional history.
In the wake of M.F.’s decision, “best-interest” became the bellwether analysis in determining when genetic testing could be compelled for the purposes of seeking relief pursuant to the Act. However, the facts of M.F. were unique in that they involved efforts by an “outsider” seeking to establish parentage, and, in so doing, destabilize an intact family.
For the better part of two decades, a question remained as to how the best-interest framework would function in a different scenario - such as where a presumptive father, like a legally married husband to a biological mother, learns that he is not the biological father of a child. Given best-interest’s obvious bias toward the child, would such a standard preclude a “wronged” husband from asserting a claim by forcing parentage on him?
In October 2012 the Supreme Court clarified this gray-zone with D.W. v. R.W., 212 N.J. 232 (2012). The facts of this case seem tailor made to expose the weakness of the best-interest standard in evaluating the paternity testing provision of the Act. This case presented the issue of a “wronged” father looking to overcome the presumption of his paternity, and who could really only do so through testing.
In this case, the plaintiff-wife had given birth to three children during the marriage. The youngest, Mark, was born in April 1987. Around April 2006, the parties’ marriage began to undergo some difficulties. Contributing to that stress, Mark, now just under 20 years old, was struggling with alcohol and substance addiction. At some point, defendant saw what he believed were “inappropriate” text messages on plaintiff’s cell phone, which aroused his suspicions about her having an affair. Id. at 238. When defendant confronted plaintiff about the messages, he questioned whether defendant’s infidelity was because of their son Mark. That is, that the stress had led her to cheat. Id. The next day, plaintiff broke down in tears and told defendant that she was “so sorry for what [she] did to [him] twenty years ago.” Id. A few months later, at a family gathering, plaintiff witnessed his ex-brother-in-law reach for his defendant and overheard him question, “do you think he knows something?” Id. After moving out of the marital house, in conversation with defendant, plaintiff cryptically alluded to her and defendant’s ex brother-in-law having an affair. Eventually, plaintiff admitted that she and defendant’s brother-in-law had had sex on several occasions in the late summer of 1986. Id. at 239.
At the time of plaintiff’s confession, Mark was living with defendant and struggling with his sobriety. Under the guise that Mark needed to remain clean while living with him, defendant obtained a DNA sample, which defendant sent to a lab for paternity testing. Id. Results confirmed that defendant was not Mark’s biological father. Id. Around the same time, seemingly coincidentally, Mark learned from his uncle, defendant’s ex- brother-in-law, that he might be Mark’s biological father. Id. Despite this revelation, defendant and Mark initially continued to have and maintain a good relationship. Defendant even drove Mark to and from work daily, as Mark had lost his license in a DWI conviction. After an emotional conversation, Mark texted defendant “I love you and always will.” Id. Due to a business trip, and not wanting to leave Mark alone in the house given his struggles, defendant asked him to temporarily leave. Mark obliged, but he would never return. Id.
The relationship between Mark and defendant began to deteriorate following defendant’s motion to compel genetic testing as part of a paternity action against plaintiff and the ex-brother-in-law. Id. Perhaps oddly, Mark’s relationship with his uncle/putative biological father was on good terms. Such was the breakdown that, a year or so after his heartfelt text, Mark was texting defendant such hostile messages as, “You are a bad father and you were a bad husband. That’s why you are alone … I will testify against you so you don’t win … [Y]ou bitter piece of sh*t. I pray to God I’m not your kid.” Id. at 240.
Defendant asserted that he had a legal right to know if Mark was his biological child and that he was entitled to reimbursement from the ex-brother-in-law for the cost of raising Mark for the last twenty years. Id. This was opposed by plaintiff, the ex-brother-in-law, and Mark. Mark testified as to his rationale for not wanting testing as because, “he was going through a lot in [his] life right now.” Id. at 241. He further stated, “I feel like it’s my decision. If I want to know, I should be able to decide on my own time.” Id. He confirmed that he might want to know who his father is at some point. Id.
The trial court disagreed with defendant’s assertion that he had a right to know whether Mark was his biological son. It found that the principle purpose of the Act was the child and his or her support. The focus was not, in the court’s opinion, to provide a cause of action to seek reimbursement should a husband discover that he is not the biological father to a child. Id. at 243. Reviewing the M.F. factors, the trial court denied defendant’s application, finding that he had not presented clear and convincing evidence that it was in Mark’s best-interest to compel testing. Id. Under the court’s analysis, defendant’s legal right to pursue a claim for reimbursement ended the minute Mark objected. Id. The Appellate Division upheld the trial court’s decision and defendant appealed to the Supreme Court. Id.
Warning that D.W. was “not about the wisdom of a father proceeding with a parentage action … but about his legal right to do so under the statute [the Act],” the Supreme Court identified the primary question as how plaintiff could prove that Mark was the biological son of another man when he, plaintiff, was presumed to be the father. Id. at 237, 247. As the Court later noted, “[w]ithout access to the one piece of evidence necessary to prove his case -- genetic testing – [plaintiff] will be unable to satisfy the substantive demands of the Parentage Act.” Id. at 254. Thus, the Supreme Court made clear that “a genetic test demonstrating non-paternity would meet the clear and convincing standard of [the Act] to rebut the presumption of legitimacy.” Id. at 248.
Turning to the reliance by the lower courts on the best-interest analysis set forth in M.F., supra, the Supreme Court acknowledged that, while the best-interest standard governs “most determinations involving children,” this standard, in the context of paternity testing, would result in such testing almost never being ordered to rebut a presumption of paternity; because testing, by its very nature, inevitably causes at least some destabilization in the child’s life. Id. at 256 (citing Gubernat v. Deremer, 140 N.J 120 (1995)).
The Court unequivocally confirmed that N.J.S.A. 9:17-48(d) and its procedures controlled whether or not paternity testing should be ordered. Resultantly, the Court determined that M.F. was simply irreconcilable with the Act. Id. at 246.
Excusing the M.F. court’s best-interest analysis as a too narrowly defined standard, the Supreme Court found that the court in M.F. had not been constrained by the language of 9:17-48(d) as amended, which further limited a court’s discretion to deny testing to only those situations that are found to have “good cause” for doing so. Id. at 250. As the Court clarified, the plain language of the Act as currently enacted makes clear that, following the failure of parties to reach an agreement concerning parentage, courts are obligated to then order testing absent a “good cause” exception. Id. at 253. Testing under the statute is thus the default position once the threshold of a reasonable possibility of paternity or non-paternity has been established. Id. at 249. The burden then falls to the opponent of testing to make a good cause showing that testing should not go forward. Id.
“Good cause” is notably left undefined by the statute. Seeing the need to establish a standard to evaluate good cause, the Court turned to the Uniform Parentage Act (hereinafter “Uniform Act”), which served as the basis for New Jersey’s original version of the Act. Id. at 255. The 2000 amendment to the Uniform Act adopted Section 608, which sets forth a list of factors to asses in determining when it is appropriate to overcome the presumption of paternity. Id. at 256. The section provides that a court may deny a motion seeking an order for testing if the court finds:
The conduct of the mother or the presumed or acknowledged father estops that party from denying paternity.
It would be inequitable to disprove the father-child relationship between the child and the presumed or acknowledged father.
In making this determination, the Uniform Act notably requires that a court consider the best interest of the child and also lists eight other criteria, many of which overlap with the factors enumerated in M.F. (i.e. age of the child, the nature of the relationship between the child and any alleged father, etc.). This construction of an analysis the D.W Court felt struck the proper balance missing from the M.F. framework, as between a child’s best-interests and the interests of the party seeking testing, and would, therefore, more broadly accommodate, “the endless variety of parentage scenarios that will arise.” Id. at 255-6.
With the above as guidance, the Court articulated that a determination of good cause as to whether to deny or grant testing under N.J.S.A. 9:17-48(d) must consider best-interest, but must also consider the following:
(1) the length of time between the proceeding to adjudicate parentage and the time that the presumed or acknowledged father was placed on notice that he might not be the genetic father;
(2) the length of time during which the presumed or acknowledged father has assumed the role of father of the child;
(3) the facts surrounding the presumed or acknowledged father's discovery of his possible non-paternity;
(4) the nature of the relationship between the child and the presumed or acknowledged father;
(5) the nature of the relationship between the child and any alleged father;
(6) the age of the child;
(7) the degree of physical, mental, and emotional harm that may result to the child if presumed or acknowledged paternity is successfully disproved;
(8) the extent to which the passage of time reduces the chances of establishing the paternity of another man and a child-support obligation in favor of the child;
(9) the extent, if any, to which uncertainty of parentage exists in the child's mind;
(10) the child's interest in knowing family and genetic background, including medical and emotional history; and
(11) other factors that may affect the equities arising from the disruption of the father-child relationship between the child and the presumed or acknowledged father or the chance of other harm to the child.
Applying their new analysis to the facts at hand, the Court found weight in Mark’s age (being over 20 at the time), that he could not articulate a specific emotional or psychic harm if the action proceeded, that he was aware that his uncle could possibly be his biological father[2], and that allowing Mark to choose the time for testing would permit him to “run the clock” so as to time-bar defendant’s claim. Id. at 259-60. As balanced against Mark’s best interest, the Court found there was not sufficient good cause to deny testing, reversing the lower courts. Id. at 260.
Judge Wefing, temporarily assigned, authored the lone dissent and argued that, while she agreed in principle with the factor based approach, best-interest of the child should remain the fundamental guide. Id. at 265. In her view, then, any proof, save for the most extraordinary of circumstances, that testing is not in the best-interest of the child would serve as good cause not to order testing. Id. at 265. As she noted, Mark’s wishes, though not controlling, should have been given particular weight. She pondered whether, regardless of his age and given his history of addiction, that there might still be a serious risk of emotional and psychological distress surrounding knowledge arising out of the results of the testing. Id. at 266-7. She found that, in her opinion, “when a child resists pursuing the issue of paternity; the best interests of that child are broader … than a private interest in seeking financial reimbursement … .” Id. at 265.
Judge Wefing’s dissent highlights the unique facts at play in this case, such as the more advanced age of the objecting child, the effects and impact of addiction, a hostile relationship between the presumed father and child, the clear realignment of the child’s allegiances and how those may operate against the child’s best-interests. Judge Wefing noted that the inquiry at the heart of this matter requires “an exquisite balancing.” Id. at 267. The question remains whether the factors, which are purposely broad in scope, can achieve such a fine-tuned result, or if they even should. As the majority highlighted, allowing testing is the default under the Act. But, given the overlap between some of the factors set forth in D.W. and those in M.F., and considering that the child’s best-interests must be considered and given due weight in any analysis, best-interest is well-built into the framework at multiple points. It would seem, then, that concern should stem not from a fear that the child’s well-being will be subjugated for the sake of clarity as to paternity. Rather, should there be room to skew in one direction, it is more likely that best-interest will exert disproportionate influence on the analysis to the detriment of presumptive father’s seeking to disestablish paternity.
However, we may soon enough get a first glimpse of this new analysis in the hands of the trial courts. In the recent unpublished Appellate Division case M.M. v. M.G., 2013 N.J. Super. Unpub. LEXIS 538, which was decided just this past March, a presumed father was provided genetic proof that he was not the biological father by the putative father. The presumed father in this matter was denied multiple requests to disestablish paternity. The Appellate Division remanded the matter to the trial court in light of the D.W. decision, and we wait to see how the trial courts will begin to grapple with the balancing of interests that must necessarily be sussed out of each unique matter.
[1] It is worth noting that N.J.S.A. 9:17-51 has been repealed by the 1994 amendments to the Act.
[2] An uncertainty the Court felt would linger, not disappear, without testing. Id. at 259.