Edward R. Weinstein, Esq.

Child Custody & Paternity Tests

In negotiating child custody and support arrangements, there are many unfortunate and often heartbreaking discoveries made. Most commonly affairs and financial deceit are uncovered. But few things are as painful as a client learning that they are in fact not the biological parent of the child they raised as their own. Legally, these fathers may be able recover money spent raising that child if we come to learn of the mistaken paternity. With reasonable doubt a father can petition the court to mandate a paternity test. But what if the mother and now adult child object to the test? The New Jersey State Supreme just ruled on such a case involving a family in Morristown, NJ.

After a marriage lasting decades, the husband, Richard, discovered inappropriate text messages on his wife Diane’s phone from her boyfriend. The marriage unraveled and the husband became suspicious that their youngest child (Mark) may not be his. An at-home paternity test confirmed his suspicions and the wife then admitted that at the time of Mark’s conception, she had an affair (with her brother-in-law) calling the child’s paternity into question.

As you can imagine, the husband was devastated and felt he was entitled to recover the money he had put into the child since his birth. The only legal recourse is to sue the wife, a process that would start with a legitimate paternity test. Mom and son refused so the issue headed to court.

Two lower courts had ruled that the genetic testing was not allowed because it was not in the best interest of the child who was now 22. Richard pushed maintaining that he had the right to know if Mark was in fact his biological child “the inherent right to know if [Mark] is his biological child.” Additionally, “he indicated that if Donald were found to be the biological father, Donald should be made to financially reimburse him for the twenty years he spent raising Mark.”

The case then landed at the New Jersey Supreme Court which ruled last week “this case is not about the wisdom” of the husband’s case, the majority wrote, “but about his legal right to do so.” In their decisions the judges continued genetic tests are “perhaps the most effective method” of answering paternity questions. Anyone who can show the courts a “reasonable possibility” that a child isn’t theirs can request a DNA test.”We believe that even under the most generous view of the facts from Mark or Diane’s perspective, there is an absence of good cause to deny genetic testing,” Judge Albin wrote in the decision. So, Richard could have his test.

Just because the paternity test may show that Richard is in fact not Mark’s biological father, he may not have legal recourse to recover his money based on the legal workings of “in loco parentis” or “in place of a parent.” While Richard may not be the biological parent, he did assume a parental role in Mark’s life providing for his care including emotional and financial support, and the court may view that as reasonable. So, if the Court determines that the child relied on Richard as his/her father both emotionally and financially, there is a chance he will not have a case. You can never say with great certainty how the courts are going to rule on issues of child custody, and these are very complicated legal matters to explore. We will keep you posted on the case as we hear of updates. In the meantime, if you have questions regarding paternity, custody, or child support, please give our office a call.