Can the married man I had an affair with take me to court for a paternity test?
Full Question:
Answer:
If the parents of a child were not married when the mother became pregnant or when the child was born, the child does not have a legal father until paternity is established. Children born out of wedlock are entitled to the same rights and protections as children born in wedlock. Unmarried fathers have rights and duties similar to those of married fathers. For a father who wishes to establish that he is the biological parent, he can do so with relative ease of procedure. The father may believe that he has been unjustly denied knowledge of, or access to, children he may have fathered. This may occur following a contentious parting of ways between parents, and the mother wants no further involvement or contact with the father, and does not want the father involved in the child's life.
Since there is no requirement that a father sign a birth certificate, a mother may list anyone whom she believes is, or wants to be, the father. The father will be shown on the birth certificate if he acknowledges paternity when or close in time to the birth, or the court orders the birth certificate to be changed to reflect the father’s name. A father can acknowledge paternity by signing a written admission or voluntary acknowledgment of paternity or paternity may be established by filing a civil lawsuit. A court will not automatically order paternity tests simply because a paternity action has been filed. It will review the petition to determine if there is sufficient information contained therein to warrant or justify the compelling of such a test. If the court orders a paternity test, the mother, child, and alleged father will be tested at a court-designated facility.
In most states, when a child is born to an unmarried mother, if there is no adjudication or registration of paternity, the mother has custody. Even after paternity has been adjudicated or registered, as long as there is no court order on custody, many states presume that the mother has custody of the child. Unmarried parents without custody, however, are entitled to the same visitation rights as divorced parents, absence extraordinary factors such as abuse or domestic violence. Once paternity has been established, a father has the right to seek custody of or visitation with his child. In determining custody issues, the court will generally consider the best interest of the child and may consider such factors as parental unfitness or the potential harm to the child. If the parties cannot agree to visitation rights, the court may be petitioned to request visitation rights. If the parties cannot agree on paternity, custody and child support, they should seek the assistance of an attorney who routinely handles paternity matters.
The following are New Jersey statutes:
9:17-40. Extent of parent and child relationship
The parent and child relationship extends equally to every child
and to every parent, regardless of the marital status of the
parents.
9:17-41. Proof of parent-child relationship; termination
of natural parental rights; action.
4. The parent and child relationship between a child and:
a. The natural mother, may be established by proof of her having
given birth to the child, or under P.L. 1983, c. 17 (C. 9:17-38 et
seq.);
b. The natural father, may be established by proof that his
paternity has been adjudicated under prior law; under the laws
governing probate; by giving full faith and credit to a
determination of paternity made by any other state or
jurisdiction, whether established through voluntary acknowledgment
or through judicial or administrative processes; by a Certificate
of Parentage as provided in section 7 of P.L. 1994, c. 164
(C. 26:8-28.1) that is executed by the father, including an
unemancipated minor, prior to or after the birth of a child, and
filed with the appropriate State agency; by a default judgment or
order of the court; or by an order of the court based on a blood
test or genetic test that meets or exceeds the specific threshold
probability as set by subsection i. of section 11 of P.L. 1983,
c. 17 (C. 9:17-48) creating a rebuttable presumption of paternity.
In accordance with section 331 of Pub.L.104-193, a signed
voluntary acknowledgment of paternity shall be considered a legal
finding of paternity subject to the right of the signatory to
rescind the acknowledgment within 60 days of the date of signing,
or by the date of establishment of a support order to which the
signatory is a party, whichever is earlier.
The adjudication of paternity shall only be voided upon a
finding that there exists clear and convincing evidence of: fraud,
duress or a material mistake of fact, with the burden of proof
upon the challenger;
c. An adoptive parent, may be established by proof of adoption;
d. The natural mother or the natural father, may be terminated by
an order of a court of competent jurisdiction in granting a
judgment of adoption or as the result of an action to terminate
parental rights;
e. The establishment of the parent and child relationship
pursuant to subsections a., b., and c. of this section shall be
the basis upon which an action for child support may be brought by
a party and acted upon by the court without further evidentiary
proceedings;
f. In any case in which the parties execute a Certificate of
Parentage or a rebuttable presumption of paternity is created
through genetic testing, the presumption of paternity under
section 6 of P.L. 1983, c. 17 (C. 9:17-43) shall not apply;
g. Pursuant to the provisions of section 331 of Pub.L.104-193,
the child and other parties in a contested paternity case shall
submit to a genetic test upon the request of one of the parties,
unless that person has good cause for refusal, if the request is
supported by a sworn statement by the requesting party:
(1) alleging paternity and setting forth the facts establishing a
reasonable possibility of the requisite sexual contact between the
parties; or
(2)denying paternity and setting forth the facts establishing a
reasonable possibility of the nonexistence of sexual contact
between the parties;
h. In a contested paternity case in which the State IV-D agency
requires or the court orders genetic testing, the State IV-D
agency shall:
(1)pay the costs of the genetic test and may recoup payment from
the alleged father whose paternity is established; and
(2)obtain additional testing if the initial test results are
contested, and upon the request and advance payment for the
additional test by the contestant.
9:17-43 Presumptions.
6. a. 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 agreement or court order;
(4) While the child is under the age of majority, he receives the
child into his home and openly holds out the child as his natural
child;
(5) While the child is under the age of majority, he provides
support for the child and openly holds out the child as his
natural child; or
(6) He acknowledges his paternity of the child in a writing filed
with the local registrar of vital statistics, which shall promptly
inform the mother of the filing of the acknowledgment, and she
does not dispute the acknowledgment within a reasonable time after
being informed thereof, in a writing filed with the local
registrar. If another man is presumed under this section to be the
child's father, acknowledgment may be effected only with the
written consent of the presumed father. Each attempted
acknowledgment, whether or not effective, shall be kept on file by
the local registrar of vital statistics and shall entitle the
person who filed it to notice of all proceedings concerning
parentage and adoption of the child, as provided in section 10 of
P.L. 1983, c. 17 (C. 9:17-47) and pursuant to section 9 of P.L.
1977, c. 367 (C. 9:3-45).
b. A presumption under this section may be rebutted in an
appropriate action only by clear and convincing evidence. If two
or more presumptions arise which conflict with each other, the
presumption which on the facts is founded on the weightier
considerations of policy and logic controls. The presumption is
rebutted by a court order terminating the presumed father's
paternal rights or by establishing that another man is the child's
biological or adoptive father.
c. Notwithstanding the provisions of this section to the
contrary, in an action brought under this act against the legal
representative or the estate of a deceased alleged father, the
criteria in paragraphs (4) and (5) of subsection a. of this
section shall not constitute presumptions but shall be considered
by the court together with all of the evidence submitted. The
decision of the court shall be based on a preponderance of the
evidence.
d. In the absence of a presumption, the court shall decide
whether the parent and child relationship exists, based upon a
preponderance of the evidence.
e. There is a rebuttable presumption that a man has knowledge of
his paternity and the birth of a child if he had sexual
intercourse with the biological mother within 300 days of the
child's birth. This presumption may be rebutted only by clear and
convincing evidence in an appropriate action based on fraud,
duress, or misrepresentation by the biological mother concerning
the paternity or birth of the child. This claim of fraud, duress,
or misrepresentation must be asserted prior to the finalization of
the adoption.
9:17-45. Parties; limitations of action;
death of alleged father; agreement between mother and alleged father;
actions brought before birth; inheritance
8. a. 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 in the Department of Human
Services, or the county welfare agency, or any person with an
interest recognized as justifiable by the court may bring or
defend an action or be made a party to an action at any time for
the purpose of determining the existence or nonexistence of the
parent and child relationship.
b. No action shall be brought under P.L. 1983, c. 17 (C. 9:17-38 et
seq.) more than five years after the child attains the age of
majority.
c. The death of the alleged father shall not cause abatement of
any action to establish paternity, and an action to determine the
existence or nonexistence of the parent and child relationship may
be instituted or continued against the estate or the legal
representative of the alleged father.
d. Regardless of its terms, an agreement, other than an agreement
approved by the court in accordance with subsection c. of
section 11 of P.L. 1983, c. 17 (C. 9:17-48) between an alleged or presumed
father and the mother of the child, shall not bar an action under
this section.
e. If an action under this section is brought before the birth of
the child, all proceedings shall be stayed until after the birth,
except service of process and the taking of depositions to
perpetuate testimony. The court may consider the issue of medical
expenses and may order the alleged father to pay the reasonable
expenses of the mother's pregnancy and postpartum disability.
Bills for pregnancy, childbirth and genetic testing are admissible
as evidence without requiring third party foundation testimony,
and shall constitute prima facie evidence of the amounts incurred
for such services or for testing on behalf of the child.
f. This section does not extend the time within which a right of
inheritance or a right to succession may be asserted beyond the
time provided by law relating to distribution and closing of
decedents' estates or to the determination of heirship, or
otherwise, or limit any time period for the determination of any
claims arising under the laws governing probate, including the
construction of wills and trust instruments.
9:17-53 Judgment, order of court, certificate of parentage, amendment of
birth record; amount of support.
a. The judgment or order of the court or a Certificate of Parentage
determining the existence or nonexistence of the parent and child
relationship is determinative for all purposes.
b. If the judgment or order of the court is at variance with the
child's birth certificate, the court shall order that an amendment to the
original birth record be made under section 22 of P.L. 1983, c. 17 (C.
9:17-59).
c. The judgment or order may contain any other provision directed
against the appropriate party to the proceeding concerning the duty of
support, the custody and guardianship of the child, parenting time
privileges with the child, the furnishing of bond or other security for
the payment of the judgment, the repayment of any public assistance
grant, or any other matter in the best interests of the child. The
judgment or order may direct the father to pay the reasonable expenses of
the mother's pregnancy and postpartum disability, including repayment to
an agency which provided public assistance funds for those expenses.
Bills for pregnancy, childbirth and blood or genetic testing are
admissible as evidence without requiring third party foundation
testimony, and shall constitute prima facie evidence of the amounts
incurred for these services or for testing on behalf of the child.
d. Support judgments or orders ordinarily shall be for periodic
payments, which may vary in amount. In the best interests of the child,
the purchase of an annuity may be ordered in lieu of periodic payments of
support. The court may limit a parent's liability for past support of the
child to the proportion of the expenses already incurred that the court
deems just.
e. In determining the amount to be paid by a parent for support of the
child and the period during which the duty of 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). In cases in which the court finds that a
deviation from these guidelines is appropriate, the court shall consider
all relevant facts when determining the amount of support, including
the:
(1) Needs of the child;
(2) Standard of living and economic circumstances of each parent;
(3) Income and assets of each parent, including any public assistance
grant received by a parent;
(4) Earning ability of each parent, including educational background,
training, employment skills, work experience, custodial responsibility
for children and the length of time and cost for each parent to obtain
training or experience for appropriate employment;
(5) Need and capacity of the child for education, including higher
education;
(6) Age and health of the child and each parent;
(7) Income, assets and earning ability of the child;
(8) Responsibility of the parents for the support of others; and
(9) Debts and liabilities of each child and parent.
The factors set forth herein are not intended to be exhaustive. The
court may consider such other factors as may be appropriate under the
circumstances.
The obligation to pay support for a child who has not been emancipated
by the court shall not terminate solely on the basis of the child's age
if the child suffers from a severe mental or physical incapacity that
causes the child to be financially dependent on a parent. The obligation
to pay support for that child shall continue until the court finds that
the child is relieved of the incapacity or is no longer financially
dependent on the parent. However, in assessing the financial obligation
of the parent, the court shall consider, in addition to the factors
enumerated in this section, the child's eligibility for public benefits
and services for people with disabilities and may make such orders,
including an order involving the creation of a trust, as are necessary to
promote the well-being of the child.
As used in this section "severe mental or physical incapacity"
shall not include a child's abuse of, or addiction to, alcohol or
controlled substances
f. Upon a motion by a party, the court shall enter a temporary support
order pending a judicial determination of parentage if there is clear and
convincing evidence of paternity supported by blood or genetic test
results or other evidence.
9:17-59. Amended birth record
a. Upon order of a court of this State or upon request of a
court of another state, the local registrar of vital statistics
shall prepare an amended birth record consistent with the findings
of the court.
b. The fact that the father and child relationship was declared
after the child's birth shall not be ascertainable from the
amended birth record, but the actual place and date of birth shall
be shown.
c. The evidence upon which the amended birth record was made and
the original birth certificate shall be kept in a sealed and
confidential file and be subject to inspection only upon consent
of the court and all interested persons, or in exceptional cases
only upon an order of the court for compelling reasons clearly and
convincingly shown.
