D.W. v. R.W., A-4 September Term 2011; Supreme Court; opinion by Albin, J.; dissent by Wefing, P.J.A.D., temporarily assigned; decided October 10, 2012. On certification to the Appellate Division. [Sat below: Judges Grall and LeWinn in the Appellate Division; Judge Hansbury in the Family Part.] DDS No. 20-1-7924 [56 pp.]
During the course of their marriage, Richard and Diane had three children, including Mark. After Diane filed a complaint for divorce, Richard filed an amended answer and counterclaim, alleging that she fraudulently concealed that he was not Mark’s biological father. He also filed a third-party complaint against his ex-brother-in-law, Donald, alleging that Donald was Mark’s biological father and demanding reimbursement for the monies spent rearing Mark. Donald neither admitted nor denied paternity.
Richard moved to compel Mark and Diane to submit to genetic testing, submitting a certification detailing evidence that suggested that Diane and Donald had had an affair during which Mark was conceived. He also submitted the results of a privately commissioned DNA test that excluded him as Mark’s biological father.
In denying genetic testing, the family court applied the best-interest-of-the-child standard articulated in M.F. v. N.H., 252 N.J. Super. 420 (App. Div. 1991), which predated statutory changes to the New Jersey Parentage Act, N.J.S.A. 9:17-38 to -59. It found that Richard was unable to establish by clear and convincing evidence that genetic testing was in the best interests of then-22-year-old Mark. The Appellate Division affirmed. Without genetic testing, Richard’s parentage claim could not proceed and was dismissed.
Richard contends that the M.F. test should not apply when custody is not at issue and a presumed father seeks reimbursement for child support from the putative biological father of an adult emancipated child.
Held: Neither the trial court nor Appellate Division referenced the applicable statutory provision, N.J.S.A. 9:17-48. Although the standard in M.F. may have been suitable in that case, a wider application of M.F. is inconsistent with the Parentage Act, which governs here. Since Richard presented evidence of a reasonable possibility that Donald may be Mark’s father, the statute requires the court to order genetic testing in the absence of good cause to deny the testing.
One central purpose of the Parentage Act is to ensure that children receive the financial support to which they are entitled from their parents. Richard is presumed to be Mark’s father because Mark was born while Richard was married to Diane. That presumption can be rebutted only by clear and convincing evidence. Under N.J.S.A. 9:17-48(d), 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, the court must order a genetic test unless the party opposed to such testing presents “good cause” for not ordering it. Both the plain language and historical evolution of 9:17-48(d) strongly suggest that the Legislature did not intend to place overly restrictive conditions on the use of genetic testing when parentage is truly in dispute.
However, the Legislature did not open the door to genetic testing every time there is a reasonable possibility that paternity is in dispute as a court may deny a request for testing for “good cause.” However, 9:17-48(d) does not define or set standards for “good cause.”
Here, the trial court did not follow the governing principles in 9:17-48(d). There is no dispute that there is a reasonable possibility that Donald is Mark’s biological father. Under the statute, the burden then shifted to the opponents of genetic testing to show that good cause justified denying such testing. However, the trial court placed on Richard the burden of proving by clear and convincing evidence that genetic testing was in Mark’s best interests. Although the best-interests standard governs most matters involving minors, 9:17-48(d) does not mention it.
In M.F., the plaintiff filed a parentage action to obtain visitation rights to an infant he claimed to have fathered during an adulterous relationship with a married woman. The Appellate Division held that the family court may not order blood tests or permit the action to continue where the plaintiff’s claim of paternity conflicts with the presumption of paternity favoring the husband, “unless the court determines by clear and convincing evidence that it is in the best interests of the child.” The panel set forth a number of factors to guide courts in making such a determination.
The majority says it cannot follow M.F., for several reasons, including that its analysis was not constrained by 9:17-48(d), which clearly controls this case. Also, the standard articulated in M.F. was moored to the facts of that case. The M.F. standard does not serve the overall purposes of the Parentage Act in myriad other scenarios.
Here, because Richard has shown a reasonable possibility that Donald is the biological father, the case turns on whether there is good cause to deny genetic testing. The majority looks to the Uniform Parentage Act, on which the Parentage Act is based, and says § 608 strikes a proper balance between the child’s best interests and the interests of the party seeking genetic testing. The child’s best interests must be considered and given due weight, but the ultimate decision will depend on an appropriate weighing of all relevant factors. The majority sets forth 11 factors that should be considered in determining whether to grant testing.
The majority concludes that weighing those factors — in consideration with Mark’s best interests — would not satisfy the good-cause requirement of 9:17-48(d) for denying genetic testing.
The dissent says that any determination of good cause can only be reached after a full consideration of the best interests of the child and that proof that genetic testing is not in the child’s best interests would, except in the most extraordinary of circumstances, constitute good cause not to order such testing.
Chief Justice Rabner and Justices LaVecchia, Hoens and Patterson join in Justice Albin‘s opinion. Judge Wefing, temporarily assigned, dissents.
For appellant — Thomas J. Snyder (Einhorn, Harris, Ascher, Barbarito & Frost). For respondents: D.B. — John A. Paparazzo; M.W. — Robert Ricci Jr.