Sometimes, often several years after the birth of a couple’s child, the parties suspect or learn that the husband is not their child’s biological father. The Supreme Court of New Jersey confronted this very issue in the October 2012 decision D.W. v. R.W., 212 N.J. 232. In D.W., the parties were married in 1979 and three children were born during their marriage. However, their youngest child was conceived as a result of the wife’s affair with her brother in law. The wife filed for divorce in 2006. Therein, the husband moved to compel his wife and the child (who was 19 years old at the time) to submit to genetic testing (the husband had already obtained results from a privately commissioned DNA test that excluded him as the child’s biological father). The husband also sought reimbursement from the biological father for the monies the husband spent raising the child. This was an issue of first impression for the New Jersey Supreme Court.
The New Jersey Parentage Act, N.J.S.A. 9:17-38 to -59 ensures that children receive the financial support from their parents to which they are entitled. A husband is presumed to be the father of a child born during the parties’ marriage. This presumption “may be rebutted in an appropriate action only by clear and convincing evidence.” N.J.S.A. 9:17-43(b). A genetic test demonstrating non-paternity would meet the aforesaid “clear and convincing evidence” standard. If a party to a paternity action requests genetic testing and submits a sworn statement establishing a reasonable possibility that he is or is not the father of a child, then the Court must order a genetic test unless the party opposed to such testing presents “good cause” for not ordering the test. Whether “good cause” is shown depends on a balancing between the child’s best interests and the interests of the party seeking genetic testing.
The factors that must be considered in a court’s good-cause determination whether to grant or deny genetic testing are as follows:
•1) Length of time between proceeding to adjudicate parentage and time that the presumed or acknowledged father was placed on notice that he might not be the genetic father;
•2) Length of time during which the presumed or acknowledged father has assumed the role of father of the child;
•3) Facts surrounding the presumed or acknowledged father’s discovery of his possible non-paternity;
•4) Nature of relationship between the child and the presumed or acknowledged father;
•5) Nature of relationship between the child and any alleged father;
•6) Age of child;
•7) Degree of physical, mental, and emotional harm that may result to the child if presumed or acknowledged paternity is successfully disproved;
•8) 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) Extent, if any, to which uncertainty of parentage exists in the child’s mind;
•10) Child’s interest in knowing family and genetic background, including medical and emotional history;
•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.
In D.W., the Supreme Court held that the only way to overcome the presumption of paternity was through genetic testing and the Court ordered the testing to be completed.