T.A. v. A.M.M. and J.P.

 

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-3232-06T2; A-3233-06T23232-06T2

A-3233-06T2

T.A.,

Plaintiff-Appellant,

v.

A.M.M. and J.P.,

Defendants-Respondents.

__________________________________

A.M.M.,

Plaintiff-Respondent,

v.

J.P.,

Defendant-Respondent.

__________________________________

 

Argued November 8, 2007 - Decided

Before Judges Wefing, Parker, and Lyons.

On appeal from Superior Court of New Jersey,

Chancery Division-Family Part, Essex County,

Nos. FM-07-363-06; FD-07-802-07.

Andrea J. Sullivan argued the cause for

appellant (Greenbaum, Rowe, Smith & Davis,

attorneys; Margaret Goodzeit, of counsel and

on the brief; Michelle M. Sekowski, on the brief).

Lynne M. Machtemes argued the cause for respondent

J.P. (Iacullo, Martino & Marzella,

attorneys; Ms. Machtemes, on the brief).

No brief was filed by respondent A.M.M.

PER CURIAM

T.A. appeals from trial court orders; one dismissed his complaint to establish paternity and the other denied his motion to intervene in ongoing post-judgment litigation between J.P. and A.M.M. After reviewing the record in light of the contentions advanced on appeal, we have concluded that we are constrained to reverse the trial court's order dismissing T.A.'s paternity complaint and remand for further proceedings.

J.P. and A.M.M. were married to one another on June 4, 1995. On June 30, 2002, A.M.M. gave birth to a son, J. According to J.P.'s certification, he and A.M.M. had engaged in a course of fertility treatments, seeking to have a child, and he was thrilled when he learned she was pregnant.

During the time A.M.M. was married to J.P., she engaged in an affair with T.A. who was, himself, at the time married to another woman. According to the certification of T.A., his affair with A.M.M. ended when she discovered that she was pregnant.

Despite the end of their affair, T.A. and A.M.M. saw each other occasionally. J. was approximately six to seven months old when T.A. saw the boy for the first time, and T.A. then asked A.M.M. whether he was the boy's father. She assured him he was not. According to the record before us, her assurances were based upon the fact she and T.A. had practiced contraception during their affair and the further fact that she had continued to engage in marital relations with J.P. while conducting her affair with T.A. Despite these assurances, T.A., according to his certification, provided regular gifts for the baby and in May 2005 established a college fund for his benefit.

At some point after the boy's birth, J.P. and A.M.M. separated, and they eventually divorced pursuant to a judgment of divorce entered September 21, 2005. In connection with the divorce proceedings, J.P. and A.M.M. negotiated an agreement for support, custody, and visitation with respect to the child.

Unfortunately, entry of that divorce judgment did not entirely end the acrimony between J.P. and A.M.M. There have been repeated post-judgment applications. In addition, A.M.M. filed several domestic violence complaints against J.P.; none of these, however, have been sustained or resulted in the entry of a final restraining order against J.P.

In January 2006 T.A. separated from his wife and in February 2006 resumed his intimate relationship with A.M.M. According to T.A., his opportunity to spend more time with the child strengthened his suspicions that he could be the boy's father, and he again raised the issue with A.M.M. The two agreed between themselves to have a DNA test performed upon the boy but never sought the consent of J.P. nor the sanction of a court order. Armed with the results of the test, T.A. filed a complaint in August 2006, seeking to establish himself as J.'s father, terminating J.P.'s parental rights to J., and changing the child's last name. At that point, J. was four years old and had spent his entire life as the unquestioned son of J.P. and a member of J.P.'s extended family.

When T.A. filed this paternity complaint, post-judgment litigation between J.P. and A.M.M. was pending, in which A.M.M. alleged that J. had been the victim of sexual abuse at the hands of the teenage son of J.P.'s girlfriend. The trial judge handling that post-judgment litigation contacted the judge to whom the paternity matter had been assigned. As a result, the judge handling the paternity matter instructed T.A. that he was to attempt to obtain the consent of A.M.M. and J.P. to his intervention in the post-judgment matrimonial litigation, and if he were unable to obtain that consent, to file a motion seeking leave to intervene.

Not surprisingly, J.P. refused to consent to such intervention, and T.A. in due course filed a motion seeking leave to intervene. On the return date of the motion, the trial court, after hearing oral argument, denied T.A.'s motion and dismissed his paternity complaint, even though no one had filed a motion seeking such relief. This appeal followed.

In 1983, New Jersey adopted the Uniform Parentage Act, which had been promulgated in 1973 by the National Conference of Commissioners on Uniform State Laws; it is codified at N.J.S.A. 9:17-38 to -59. N.J.S.A. 9:17-45(a) provides in pertinent part that a man "alleging himself to be the father . . . may bring or defend an action . . . for the purpose of determining the existence or nonexistence of the parent and child relationship." N.J.S.A. 9:17-43 sets forth a series of presumptions guiding such paternity proceedings. Under N.J.S.A. 9:17-43(a)(1), a man is presumed to be a child's biological father if:

[h]e 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.

J.P. is thus presumed to be J.'s biological father since J. was born during J.P.'s marriage to A.M.M. Further, this presumption may be rebutted only by "clear and convincing evidence." N.J.S.A. 9:17-43(e).

It is clear from a review of the trial court's oral opinion that it bottomed its decision to dismiss T.A.'s paternity complaint on the ground that it was not in the boy's best interest to let the litigation continue. While we sympathize with the trial court's desire to protect the child from any further upset in his young life, we are satisfied that the trial court did not have a sufficient record before it to permit a full analysis of how to balance the competing rights of these parties in a manner that will recognize and advance the child's best interests.

Further proceedings are necessary, during which such a record may be created. We recognize that management of these further proceedings will require that the trial court possess both a firm hand as well as sensitivity to the emotional issues presented. That significant difficulties may lie ahead does not provide a basis to preclude the suit, however.

We have earlier in this opinion referred to the deficiencies which surrounded the attempt of T.A. and A.M.M. to present to the court the results of a purported DNA test. We are of the view that the trial court correctly rejected as inadmissible the results of the DNA test that T.A. and A.M.M. arranged privately. There was absolutely no evidence of the scientific reliability of these results.

That those results were inadmissible does not, however, lead inexorably to the conclusion that such evidence may never be admitted in connection with the remand proceedings. Within its oral opinion, the trial court referred to M.F. v. N.H., 252 N.J. Super. 420 (App. Div. 1991), as establishing the principle that the statutory presumption set forth in N.J.S.A. 9:17-45(a) must be overcome before a paternity test may be ordered. We do not read M.F. to contain such a blanket statement. In that case, we were dealing with an attempt by a putative father to obtain a blood test of a child born to a married couple who remained married to each other and who both objected to having such a test performed. Id. at 422. Within our opinion we set forth a number of factors to be considered in determining whether it would be in the child's best interests to have such a test performed. We also noted that the trial court should consider the advisability of appointing a guardian ad litem for the child. Id. at 430.

We stated:

(1) Harm to the child such as emotional injury, distrust, and possible confusion of knowing the parenting father is not the biological father;

(2) Protection of the child's physical, mental, and emotional needs;

(3) The stability of the family relationship and extent of the intrusion that will result from a paternity determination;

(4) The consistency of the putative father's interest in the child;

(5) Societal stigma that may result or be perceived by establishing relationship, including placing the child's birth outside of the traditional wedlock setting;

(6) Continuity of established relationships;

(7) Any extent to which uncertainty of parentage already exists in the child's mind;

(8) The child's interest in knowing family and genetic background, including medical and emotional history.

[Id. at 429-30.]

We note in this regard that the Uniform Parentage Act has been amended since its adoption in New Jersey. It now provides a specific section dealing with a court's authority to deny a motion for genetic testing. Uniform Parentage Act (UCA) 608 (2000). This model statute provides:

(a) In a proceeding to adjudicate the parentage of a child having a presumed father or to challenge the paternity of a child having an acknowledged father, the court may deny a motion seeking an order for genetic testing of the mother, the child, and the presumed or acknowledged father if the court determines that:

(1) the conduct of the mother or the presumed or acknowledged father estops that party from denying parentage; and

(2) it would be inequitable to disprove the father-child relationship between the child and the presumed or acknowledged father.

(b) In determining whether to deny a motion seeking an order for genetic testing under this section, the court shall consider the best interest of the child, including the following factors:

(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 nonpaternity;

(4) the nature of the relationship between the child and the presumed or acknowledged father;

(5) the age of the child;

(6) the harm that may result to the child if presumed or acknowledged paternity is successfully disproved;

(7) the nature of the relationship between the child and any alleged father;

(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; and

(9) 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.

(c) In a proceeding involving the application of this section, a minor or incapacitated child must be represented by a guardian ad litem.

(d) Denial of a motion seeking an order for genetic testing must be based on clear and convincing evidence.

(e) If the court denies a motion seeking an order for genetic testing, it shall issue an order adjudicating the presumed or acknowledged father to be the father of the child.

While New Jersey has not enacted this revision of the Uniform Parentage Act, and it is thus not determinative in proceedings in our state, it is appropriate for a court to give it respectful consideration in an area in which our legislature and courts have not yet definitively spoken. See also, Danny R. Veilleux, Annotation, Necessity or Propriety of Appointment of Independent Guardian for Child Who is Subject of Paternity Proceedings, 70 A.L.R. 4th 1033 (1989); Theresa Glennon, Somebody's Child: Evaluating the Erosion of the Marital Presumption of Paternity, 102 W. Va. L. Rev. 547 (2000).

We recognize, as did counsel at oral argument, that the costs of such a remand proceeding, including the appointment of a guardian for J., may not be insubstantial. At oral argument, T.A. did not dispute that as the party seeking a determination of paternity, he would be responsible for the costs attendant to establishing his claim.

We make no attempt to forecast in this opinion whether T.A. should be permitted to continue with his paternity action or be permitted to introduce evidence of genetic testing. Those decisions can only be made by the trial court after a sufficient record has been developed to allow careful consideration of the factors outlined in M.F., supra, and such additional factors contained within 607 of the 2000 revision of the parentage statute as the trial court determines would be appropriate to consider in this context.

Because we have concluded that the order dismissing T.A.'s paternity complaint must be reversed, we do not deem it necessary to address the question whether T.A. should have been permitted to intervene in the post-judgment litigation in progress between J.P. and A.M.M.

 
Reversed and remanded for further proceedings consistent with this opinion. We do not retain jurisdiction.

We shall not set forth within the body of this opinion the results of that test. There is nothing within the record which would establish the identity of the person who obtained the genetic samples, the manner in which the samples were taken, preserved and transported, or the scientific capabilities and qualifications of the laboratory which received and analyzed those samples.

Although not material to the issues before us on appeal, we note that the allegations were strongly disputed. According to J.P.'s certification, J. had told him that he and A.M.M. were "tricking" everyone and had told others that he made up the allegations to make A.M.M. happy.

A.M.M. took no position before the trial court and has not participated in this appeal, evidently correctly recognizing that her agreement with J.P. on terms of custody, visitation and support with respect to J. estops her from asserting a contrary position now.

(continued)

(continued)

11

A-3232-06T2; A-3233-06T2

RECORD IMPOUNDED

February 6, 2008