New Jersey-2010-S479-Introduced

An Act concerning the parent and child relationship and blood or genetic testing, amending and supplementing P.L.1983, c.17 and Title 26 of the Revised Statutes.

Be It Enacted by the Senate and General Assembly of the State of New Jersey:

1. Section 6 of P.L.1983, c.17 (C.9:17-43) is amended to read as follows:

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

(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); or

(7) Blood or genetic tests have been administered in accordance with the provisions of section 5 of P.L. , c. (C. )(pending before the Legislature as section 5 of this bill) and the results show that the alleged father is not excluded as the probable father and that the probability of his parentage is 95% or greater.

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 blood or genetic testing pursuant to section 5 of P.L. , c. (C. )(pending before the Legislature as section 5 of this bill), fraud, duress, or misrepresentation by the biological mother concerning the paternity or birth of the child. This claim [of ] based on blood or genetic testing pursuant to section 5 of P.L. , c. (C. )(pending before the Legislature as section 5 of this bill), fraud, duress, or misrepresentation must be asserted prior to the finalization of the adoption.

(cf: P.L.1998, c.20, s.4)

2. Section 8 of P.L.1983, c.17 (C.9:17-45) is amended to read as follows:

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, any person related to the child, natural mother, the alleged father or the man alleged or alleging himself to be the father who would be harmed or deprived of a benefit under a will, trust or the laws of intestacy by the existence or nonexistence of a parent and child relationship or by a determination of parentage, or a trustee, executor or administrator of such a will, trust or intestate estate or any person with an interest recognized as justiciable 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 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] or section 6 of P.L. , c. (C. )(pending before the Legislature as section 6 of this bill) after the child attains the age of 23 except under the following circumstances:

(1) if the child is 23 years of age or older, then no action may be brought more than two years after the date on which a person who may bring or defend an action or be made a party to an action, as set forth in subsection a. of this section, first discovered or had a reasonable opportunity to discover the existence or nonexistence of a parent and child relationship; or

(2) if a person who may bring or defend an action or be made a party to an action, as set forth in subsection a. of this section, would be harmed or deprived of a benefit under a will, trust or the laws of intestacy by the existence or nonexistence of a parent and child relationship or by determination of parentage, or a trustee, executor or administrator of such a will, trust or intestate estate, then an action may then be brought at any time.

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 or other than a certificate of parentage in accordance with section 4 of P.L.1983, c.17 (C.9:17-41), section 7 of P.L.1994, c.164 (C.26:8-28.1) or R.S.26:8-30 or other than an agreement to adopt a child or conceive a child by artificial insemination in compliance with the provisions of section 7 of P.L.1983, c.17 (C.9:17-44), 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.

(cf: P.L.1998, c.1, s.39).

3. Section 11 of P.L.1983, c.17 (C.9:17-48) is amended to read as follows:

11. a. As soon as practicable after an action to declare the existence or nonexistence of the father and child relationship has been brought, a consent conference shall be held by the Superior Court, Chancery Division, Family Part intake service, the Probation Division or the county welfare agency. At the request of either party, the determination of paternity may be referred directly to the court in lieu of the consent process. A court appearance shall be scheduled in the event that a consent agreement cannot be reached.

b. On the basis of the information produced at the conference, an appropriate recommendation for settlement shall be made to the parties, which may include any of the following:

(1) That the action be dismissed with or without prejudice; or

(2) That the alleged father voluntarily acknowledge his paternity of the child.

c. If the parties accept a recommendation made in accordance with subsection b. of this section, which has been approved by the court, judgment shall be entered or a Certificate of Parentage shall be executed accordingly.

d. If a party refuses to accept a recommendation made under subsection b. of this section or the consent conference is terminated because it is unlikely that all parties would accept a recommendation pursuant to subsection b. of this section, and blood tests or genetic tests in accordance with the provisions of section 5 of P.L. , c. (C. )(pending before the Legislature as section 5 of this bill) have not been taken, the county welfare agency shall require or the court shall order the child and the parties to submit to blood tests or genetic tests in accordance with the provisions of section 5 of P.L. , c. (C. )(pending before the Legislature as section 5 of this bill) unless a party claims, and the county welfare agency or the court finds, good cause for not ordering the tests. The court may hear and decide motions to challenge a directive issued by the county welfare agency requiring a party to submit to blood or genetic tests in accordance with the provisions of section 5 of P.L. , c. (C. ) (pending before the Legislature as section 5 of this bill). A genetic test in accordance with the provisions of section 5 of P.L. , c. (C. )(pending before the Legislature as section 5 of this bill) shall be ordered upon the request of either party, if the request is supported by a sworn statement by the requesting party which alleges paternity and sets forth the facts establishing a reasonable possibility of the requisite sexual contact between the parties or denies paternity and sets forth the facts establishing a reasonable possibility of the nonexistence of sexual contact between the parties or the reasonable possibility of the existence of sexual contact between the mother and another man. If a party refuses to acknowledge paternity based upon the blood or genetic test results, the action shall be set for a hearing.

If the results of the blood test or genetic test indicate that the specific threshold probability, as set by subsection i. of this section to establish paternity has been met or exceeded, the results shall be received in evidence as a rebuttable presumption of paternity without requiring any additional foundation testimony or proof of authenticity or accuracy of the paternity testing or results. In actions based on allegations of fraud or inaccurate analysis, the court or the county welfare agency shall require that additional blood or genetic tests be scheduled within 10 days of the request and be performed by qualified experts. Additional blood or genetic tests shall be paid for in advance by the requesting party.

If a party objects to the results of the blood or genetic tests, the party shall make the objection to the appropriate agency, in writing, within 10 days of the consent conference or hearing.

e. The guardian ad litem may accept or refuse to accept a recommendation under this section.

f. (Deleted by amendment, P.L.1994, c.164).

g. No evidence, testimony or other disclosure from the consent conference shall be admitted as evidence in a civil action except by consent of the parties. However, blood tests or genetic tests ordered pursuant to subsection d. of this section shall be admitted as evidence.

h. The refusal to submit to a blood test or genetic test required pursuant to subsection d. of this section, or both, shall be admitted into evidence and shall give rise to the irrebuttable presumption that the results of the test would have been unfavorable to the interests of the party who refused to submit to the test. Refusal to submit to a blood test or genetic test, or both, is also subject to the contempt power of the court.

i. Blood test or genetic test results indicating a 95% or greater probability, that the alleged father is the father of the child shall create a presumption of paternity which may be rebutted only by clear and convincing evidence that the results of the test are not reliable in that particular case.

j. If a party refuses to acknowledge paternity or does not appear at a consent conference conducted by the county welfare agency, the county welfare agency shall refer the matter to the court for adjudication. For purposes of establishing paternity, the blood or genetic test results shall be admitted into evidence at the hearing without the need for foundation testimony or other proof of authenticity or accuracy, unless an objection is made.

(cf: P.L.1998, c.1, s.40)

4. Section 16 of P.L.1983, c.17 (C.9:17-53) is amended to read as follows:

16. a. [The] Except as provided in section 6 of P.L. , c. (C. ) (pending before the Legislature as section 6 of this bill), 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, reimbursement of child support expenses, reimbursement of health coverage, medical, financial and educational expenses for the child, including post-emancipation expenses when applicable, and any other expenses the court deems proper to take into consideration 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.

(cf: P.L.2005, c.171, s.3)

5. (New section) a. In any action to establish or disestablish paternity pursuant to the provisions of P.L.1983, c.17 (C.9:17-38 et seq.) or section 6 of P.L. , c. (C. )(pending before the Legislature as section 6 of this bill), where the court has ordered the parties to submit to blood or genetic testing, the tests shall be of a type generally acknowledged as reliable by an accredited body designated by the Secretary of the United States Department of Health and Human Services. The tests shall be conducted promptly and be performed by a qualified technical laboratory approved by such an accredited body.

b. The test results, together with the opinions and conclusions of the test laboratory, shall be filed with the court. Any objection to the test results shall be made in writing and filed with the court at least 10 days prior to the hearing. If no objection is filed, the test results shall be admitted into evidence as a rebuttable presumption of paternity without requiring any additional foundation testimony or proof of authenticity or accuracy of the paternity testing or results. Nothing in this section prohibits a party from calling an outside expert witness to refute or support the testing procedure or results, or the mathematical theory on which they are based. Upon the entry of the order for scientific testing, the court shall inform each person to be tested of the procedure and requirements for objecting to the test results and of the consequences of the failure to object.

c. Test results are admissible in evidence and shall be weighed along with other evidence of the paternity of the alleged father unless the statistical probability of paternity equals or exceeds 95%. A statistical probability of paternity of 95% or greater creates a rebuttable presumption, pursuant to section 6 of P.L.1983, c.17 (C.9:17-43), that the alleged father is the biological father of the child. If a party fails to rebut the presumption of paternity which arose from the statistical probability of paternity of 95% or greater, the court may enter a summary judgment of paternity.

d. Subject to the limitations in subsection b. of this section, if the test results or the expert analysis is disputed, the court, upon reasonable request of a party, shall order that an additional test be made by the same laboratory or an independent laboratory at the expense of the party requesting the additional testing.

e. Verified documentation of the chain of custody of the blood or other specimen is competent evidence to establish a chain of custody.

f. The fees and costs for the tests shall be paid by the parties in proportions and at times determined by the court unless the parties reach a stipulated agreement which is adopted by the court in
accordance with the provisions of section 17 of P.L.1983, c.17 (C.9:17-54).

g. As used in P.L.1983, c.17 (C.9:17-38 et seq.) or section 6 of P.L. , c. (C. )(pending before the Legislature as section 6 of this bill):

"Genetic test" means a test for determining the presence or absence of an inherited genetic characteristic in an individual, including tests of nucleic acids such as DNA, RNA and mitochondrial DNA, chromosomes or proteins or any other medically recognized test which may be developed and become available in order to identify a predisposing genetic characteristic.

"Genetic characteristic" means any inherited gene or chromosome, or alteration thereof, that is scientifically or medically believed to predispose an individual to a disease, disorder or syndrome, or to be associated with a statistically significant increased risk of development of a disease, disorder or syndrome.

6. (New section) a. Notwithstanding any other provision of law to the contrary, the following individuals may bring an action to establish or disestablish paternity:

(1) a child or a legal representative of the child;

(2) the natural mother or the estate or legal representative of the natural mother if the mother has died or is a minor;

(3) the man alleged or alleging himself to be a father or the estate or legal representative of the alleged father if the alleged father has died or is a minor;

(4) the Division of Family Development in the Department of Human Services, or the county welfare agency; or

(5) any person related to the child, natural mother, the alleged father or the man alleged or alleging himself to be the father who would be harmed or deprived of a benefit under a will, trust or the laws of intestacy by the existence or nonexistence of a parent and child relationship or by a determination of parentage, or a trustee, executor or administrator of such a will, trust or intestate estate.

b. No action shall be brought under this section if the child has been adopted or was conceived by artificial insemination in compliance with the provisions of section 7 of P.L.1983, c.17 (C.9:17-44).

c. 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 or other than a certificate of parentage in accordance with section 4 of P.L.1983, c.17 (C.9:17-41), section 7 of P.L.1994, c.164 (C.26:8-28.1) or R.S.26:8-30 or other than an agreement to adopt a child or conceive a child by artificial insemination in compliance with the provisions of section 7 of P.L.1983, c.17 (C.9:17-44), shall not bar an action under this section.

d. An individual may commence an action under the provisions of this section by filing a complaint. The complaint shall be accompanied by a sworn statement alleging paternity and setting forth facts establishing a reasonable possibility of the requisite sexual contact between the parties or providing a sworn statement denying paternity and setting forth facts establishing a reasonable possibility of the nonexistence of sexual contact between the parties or the reasonable possibility of the existence of sexual contact between the mother and another man. The court shall order the parties to submit to blood or genetic testing pursuant to the provisions of subsection e. of this section.

e. Once an action has been commenced the court shall immediately order the child, the mother, the alleged father and any other parties to submit to blood or genetic testing. The court shall direct that the tests be conducted in accordance with the provisions of section 5 of P.L. , c. (C. )(pending before the Legislature as section 5 of this bill).

f. The court shall not suspend the legal responsibilities of any party, including, but not limited to, the obligation to pay child support, during the pendency of this action. Except for the provisions of subsection h. of this section, if the parties refuse to submit to a blood or genetic test, the court shall order the immediate termination of any and all rights, benefits, privileges, duties and obligations conferred or imposed upon the parties as a consequence of that parent and child relationship under the law, by court order, by agreement or otherwise, or incident to, by virtue of or which flow directly or indirectly from any prior adjudication, judgment or order that determined that the excluded individual was the father of the child, except for the obligation to pay child support on behalf of the child.

g. If the blood or genetic test results demonstrate that the alleged father is the biological father of the child, the court shall issue an order establishing paternity which shall state that the man alleged or claiming to be the father is the father of the child. This order adjudicating parentage shall identify the mother, father and child by name, birth date and social security number. The order establishing paternity may provide for the continuation of child support payments and for the continuation of any duty of support, custody and guardianship of the child or the repayment of any public assistance grants on behalf of the child. The court may limit a parent's liability for past support of the child to a proportion of the expenses already incurred. In determining the amount to be paid by the parent for the support of the child and the period during which 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).

h. If the blood or genetic test results demonstrate that the alleged father is not the biological father of the child and the child is 23 years of age or older and does not suffer from a severe mental or physical incapacity that causes the child to be financially dependent on a parent as defined in section 16 of P.L.1983, c.17 (C.9:17-53) and the biological father is unknown or the biological father's parental rights have been or may be terminated pursuant to Titles 9 and 30 of the Revised Statutes, the court shall issue a paternity disestablishment order which shall state that the man alleged or claiming to be the father is not the father of the child. The paternity disestablishment order shall provide for the immediate termination of any and all rights, benefits, privileges, duties and obligations conferred or imposed upon the parties as a consequence of that parent and child relationship under the law, by court order, by agreement or otherwise, or incident to, by virtue of or which flow directly or indirectly from any prior adjudication, judgment or order that determined that the excluded individual was the father of the child. The paternity disestablishment order shall also require either the biological father or biological mother or both to provide reimbursement for any child support, medical, health coverage, financial and educational expenses for the child, including post-emancipation expenses when applicable, and any other expenses the court deems proper to take into consideration. In determining whether the biological father or the biological mother or both should be required to provide reimbursement, the court shall take into consideration the financial resources of each of the parties.

If the blood or genetic test results demonstrate that the alleged father is not the biological father of the child and the child is less than 23 years of age or suffers from a severe mental or physical incapacity that causes the child to be financially dependent on a parent as defined in section 16 of P.L.1983, c.17 (C.9:17-53) and the biological father is unknown or the biological father's parental rights have been or may be terminated pursuant to Titles 9 and 30 of the Revised Statutes, the court shall determine whether issuing a paternity disestablishment order pursuant to this subsection is in the best interests of the child.

If the court determines that it is in the best interests of the child to issue a paternity disestablishment order, the court shall issue such an order. The order shall provide for the immediate termination of any and all rights, benefits, privileges, duties and obligations conferred or imposed upon the parties as a consequence of that parent and child relationship under the law, by court order, by agreement or otherwise, or incident to, by virtue of or which flow directly or indirectly from any prior adjudication, judgment or order that determined that the excluded individual was the father of the child, except the obligation to pay child support on behalf of the child.

If the court determines that it is not in the best interests of the child to issue a paternity disestablishment order, the court shall not issue the order and may dismiss the action.

i. (1) The following individuals may file a motion to set aside a final judgment or order awarding child support if a paternity disestablishment order has been issued pursuant to this section which establishes the exclusion of the individual named in the adjudication, judgment or order: 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.

(2) If the paternity disestablishment order has been issued pursuant to this section which establishes the exclusion of the individual named in the adjudication, judgment or order, the court shall grant the following relief:

(a) the obligation to pay support on behalf of the child and all parental rights are terminated, as of the date of the order granting such relief;

(b) if past-due child support is owed, the obligor may be required to pay the arrearages as required by the court; and

j. (1) The following individuals may file a motion for relief from a final adjudication, judgment or order which determines that the person referred to in the adjudication, judgment or order is the father of the child if a paternity disestablishment order has been issued pursuant to this section which establishes the exclusion of the individual named in the adjudication, judgment or order:

(a) a child or a legal representative of the child;

(b) the natural mother or the estate or legal representative of the natural mother, if the mother has died or is a minor;

(c) the man alleged or alleging himself to be a father or the estate or legal representative of the alleged father if the alleged father has died or is a minor;

(d) the Division of Family Development in the Department of Human Services, or the county welfare agency; or

(e) any person related to the child, natural mother, the alleged father or the man alleged or alleging himself to be the father who would be harmed or deprived of a benefit under a will, trust or the laws of intestacy by the existence or nonexistence of a parent and child relationship or by a determination of parentage, or a trustee, executor or administrator of such a will, trust or intestate estate.

(2) If a paternity disestablishment order has been issued pursuant to this section which establishes the exclusion of the individual named in the adjudication, judgment or order, the court shall grant the following relief:

(a) the legal relationship of parent and child is terminated;

(b) any and all rights, benefits, privileges, duties and obligations conferred or imposed upon any person by the parent and child relationship under the law, by court order, by agreement or otherwise are terminated, except the obligation to pay child support on behalf of the child; and

(c) any and all rights, benefits, privileges, duties and obligations incident to, by virtue of or which flow directly or indirectly from any final adjudication, judgment or order that determined that the person referred to in the adjudication, judgment or order is the father of the child are terminated, except the obligation to pay child support on behalf of the child.

k. 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 pursuant to section 22 of P.L.1983, c.17 (C.9:17-59) by the State Registrar of Vital Statistics or the local registrar, as the case may be, to correct the birth certificate.

l. The refusal of the child, the mother, the alleged father or any other designated individual to submit to a blood test or genetic test required pursuant to this section shall be admitted into evidence and shall give rise to the irrebuttable presumption that the results of the test would have been unfavorable to the interests of the party who refused to submit to the test. Refusal to submit to a blood test or genetic test, or both, is also subject to the contempt power of the court. The party refusing to submit to the test may be required to pay court costs and reasonable attorney fees pursuant to section 17 of P.L.1983, c.17 (C.9:17-54).

m. Except for 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 or a certificate of parentage in accordance with section 4 of P.L.1983, c.17 (C.9:17-41), section 7 of P.L.1994, c.164 (C.26:8-28.1) or R.S.26:8-30 or other than an agreement to adopt a child or conceive a child by artificial insemination in compliance with the provisions of section 7 of P.L.1983, c.17 (C.9:17-44), the court shall not deny relief on these grounds:

(1) The person married the mother of the child;

(2) The person acknowledged his paternity of the child in a writing sworn to before a notary public;

(3) The person was named as the child's natural father on the child's birth certificate with the valid consent of the person;

(4) The person was required to support the child because of a written voluntary promise or by a court order or an administrative support order;

(5) The person validly signed the child's birth certificate;

(6) The person was named in an acknowledgment of paternity of the child that a court entered prior to an action brought pursuant to this section, except for 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 or a certificate of parentage in accordance with section 4 of P.L.1983, c.17 (C.9:17-41), section 7 of P.L.1994, c.164 (C.26:8-28.1) or R.S.26:8-30 or other than an agreement to adopt a child or conceive a child by artificial insemination in compliance with the provisions of section 7 of P.L.1983, c.17 (C.9:17-44);

(7) The person was named in an acknowledgment of paternity of the child that has become final under the "New Jersey Parentage Act," P.L.1983, c.17 (C.9:17-38 et seq.), except for 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 or a certificate of parentage in accordance with section 4 of P.L.1983, c.17 (C.9:17-41), section 7 of P.L.1994, c.164 (C.26:8-28.1) or R.S.26:8-30 or other than an agreement to adopt a child or conceive a child by artificial insemination in compliance with the provisions of section 7 of P.L.1983, c.17 (C.9:17-44);

(8) The person was presumed to be the natural father of the child under any of the circumstances listed in the "New Jersey Parentage Act," P.L.1983, c.17 (C.9:17-38 et seq.);

(9) The person was determined or adjudged to be the natural father of the child in any action, including any action under the "New Jersey Parentage Act," P.L.1983, c.17 (C.9:17-38 et seq.), unless the adjudication was based on any blood or genetic test; or

(10) The person otherwise admitted or acknowledged himself to be the child's natural father.

7. (New section) Notwithstanding the provisions of subsection b. of section 8 of P.L.1983, c.17 (C.9:17-45), any action brought pursuant to P.L.1983, c.17 (C.9:17-38 et seq.) as amended and supplemented by P.L. , c. (C. ) (pending before the Legislature as this bill), which would otherwise be barred on or before the effective date of P.L. , c. (C. ) (pending before the Legislature as this bill) because the applicable statute of limitations has expired, is revived and may be commenced within two years of the effective date of P.L. , c. (C. ) (pending before the Legislature as this bill). Any such actions not commenced within two years of that effective date shall expire two years after the effective date of P.L. , c. (C. ) (pending before the Legislature as this bill).

8. (New section) a. Notwithstanding any other provision of law to the contrary, in any action, other than a paternity action pursuant to section 6 of P.L. , c. (C. )(pending before the Legislature as section 6 of this bill) or pursuant to P.L.1983, c.17 (C.9:17-38 et seq.), where child support is at issue and where the existence or nonexistence of a parent and child relationship is at issue, the court shall order that the child, the mother and the alleged father submit to a genetic test to determine the existence or nonexistence of a parent and child relationship. The court shall not suspend the legal responsibilities of any party, including, but not limited to, the obligation to pay child support, during the testing period.

b. The court shall direct that the test be conducted pursuant to section 5 of P.L. , c. (C. )(pending before the Legislature as section 5 of this bill). The test results, together with the opinions and conclusions of the test laboratory, shall be filed with the court. Upon the entry of the order for scientific testing, the court shall inform each person to be tested of the procedure and requirements for objecting to the test results and of the consequences of the failure to object.

c. If the genetic test results demonstrate that the alleged father is the father of the child, the court shall issue an order establishing paternity pursuant to section 6 of P.L. , c. (C. )(pending before the Legislature as section 6 of this bill).

d. If the genetic test results demonstrate that the alleged father is not the father of the child, the court shall issue a disestablishment order pursuant to section 6 of P.L. , c. (C. )( now pending before the Legislature as section 6 of this bill).

e. If the 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 pursuant to section 22 of P.L.1983, c.17 (C.9:17-59) by the State Registrar of Vital Statistics or the local registrar, as the case may be, to correct the birth certificate.

f. Refusal to submit to a blood test or genetic test, or both, is subject to the contempt power of the court.

9. (New section) a. Notwithstanding any other provision of law to the contrary, the attending physician, midwife or person acting as the agent of the physician or midwife, who was in attendance upon the birth of an infant shall be responsible for the blood or genetic testing of the infant to determine paternity. It shall be the responsibility of personnel at the hospital or birthing facility to inform the mother and father of the requirement for the blood or genetic testing. The test shall be conducted by a qualified and approved technical laboratory. It shall be the responsibility of personnel at the hospital or birthing facility, within five days after the birth, to inform the mother and biological father of the blood or genetic testing. After the biological mother and biological father have been informed of the results, the results shall be filed with the local registrar of the district in which the birth occurred.

b. The Commissioner of Health and Senior Services shall, in accordance with the "Administrative Procedure Act," P.L.1968, c.410 (C.52:14B‑1 et seq.), adopt and promulgate such rules and regulations as may be necessary for the implementation.

10. (New section) If any provision of P.L. , c. (C. ) (pending before the Legislature as this bill) or its application to any person or circumstance is held invalid, the invalidity does not affect other provisions or applications of P.L. , c. (C. ) (pending before the Legislature as this bill) which can be given effect without the invalid provision or application, and to this end the provisions of this act are severable.

11. (New section) Nothing in P.L.1983, c.17 (C.9:17-38 et seq.) as amended and supplemented by P.L. , c. (C. ) (pending before the Legislature as this bill) shall be deemed to conflict with or supersede any provision of the "Uniform Interstate Family Support Act," P.L.1998, c.2 (C.2A:4-30.65 et. seq.) .

12. This act shall take effect on the 90th day after enactment, except prior to the effective date of the act any anticipatory administrative action may be taken to implement the provisions of the act.

STATEMENT

In the recent case of R.A.C. v. P.J.S., 380 N.J.Super. 94 (App. Div. 2005) the court noted that parentage statutes should not be used as shields by presumed fathers to protect them from liability nor by those parties whose deceptive conduct deserves no such protection. In that case, the court applied the doctrine of equitable tolling of the statute of limitations to allow a presumed father to bring an otherwise untimely action against the biological father for reimbursement of child support. In the R.A.C. case, the biological father and the biological mother concealed the truth about the child's parentage until the child was nearly 30 years old (seven years after the statute of limitations for a parentage case had expired). Despite the expiration of the statute of limitations, the court allowed the presumed father to recover funds he had expended to support and educate the child. The court noted that the presumed father learned that he was not the biological father only when his wife, the biological mother, deemed it appropriate for the truth to come out.

In its strongly worded opinion, the court stated that: "...the purpose of the Parentage Act is to ensure that each child may establish and enjoy the rights inherent in a parent-child relationship. ... To this end, the Parentage Act assures equal rights to all children and parents with respect to each other, a procedure to establish parentage, and financial support. Allowing plaintiff [presumed father] to pursue defendant [biological father] does no violence to these statutory purposes. Plaintiff's action allows an acknowledgment of responsibilities and a reconciliation of obligations. It is not calculated to disrupt fragile familial relationships or to leave a young child bereft of required paternal guidance. In these circumstances, resort to the statutory limitations period acts as a shield rather than the sword for a party whose conduct deserves no such protection." (Citation omitted) Id. at 109.

It is the sponsor's intent to take into consideration the court's suggestion to facilitate the use of DNA testing to resolve parentage disputes early on. Public policy should not protect anyone who engages in deceptive behavior especially when the person harmed is a child. The policy of the State to protect children should not be mangled into deformity by using a statute against the same children the statute was meant to protect.

Science now allows a child to know the truth concerning his paternity on the basis of scientific certainty. DNA testing of the parties involved resolves most of the issues which may arise in a paternity action. Therefore, paternity laws must be revised to take into account these recent scientific advances while at the same time balancing the interests of all the individuals involved, especially the children.

Public policy should promote a whole family unit which is not bound together by lies or mistruths, but a unit which acknowledges biological realities. The family involved would then have the freedom to choose either to continue as is or to expand and include new members who have a biological connection to the child.

Insuring a child's right to know who his biological parents are protects the rights of that child. What better understanding can a child have of himself than the understanding he gains by learning his own personal history? "Protecting" a child by either falsifying birth records or knowingly withholding information concerning the child's ancestry can have serious ramifications such as affecting the child's ability to obtain an accurate medical history and lawfully receive an inheritance or health benefits.

Determining paternity does not destroy families. It allows the child to create a new family or to continue to exist in the current relationship if the parties so desire. Moreover, if the intention is to continue with that family unit, it allows the unit to continue not based on lies or mistruths but to continue in spite of lies and mistruths.

Paternity laws should protect families and children. Preventing a child from knowing who his biological parent is does not protect the child or the family. Prohibiting the child from attaining this knowledge only serves one purpose: to protect the person who lied. Protecting that individual is not in the best interest of the child; it does not protect the family unit. To hinder a child from obtaining information concerning who his biological parents are only fosters resentment and only serves to dissolve the family unit.

There is no feasible reason why DNA testing should be ignored in favor of a legal "presumption" of paternity. DNA testing transcends "presumptions" and provides us with a biological certainty as to the identity of a child's biological parent.

This bill provides us with a framework whereby we can begin to streamline paternity procedures and provide for one procedure to disestablish or establish paternity. This bill provides that the blood or genetic testing be conducted upon the filing of the complaint and upon the request of the complainant. There would limited exceptions to this general rule.

The pertinent provisions of the bill are as follows:

Section 1. This section of the bill amends N.J.S.A.9:17-43 concerning presumptions. That section provides that a rebuttable presumption exists when a blood or genetic test, administered in accordance with the provisions of the bill, indicates a 95% or greater probability that the alleged father is not excluded as the probable father of the child. This presumption, along with all the other presumptions listed in this section, may be rebutted by clear and convincing evidence.

Section 2. This section of the bill amends N.J.S.A.9:17-45 concerning when a paternity action may be brought and by whom. Under the current provisions of the law the following parties may bring an action: 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 (DFD) in the Department of Human Services (DHS), or the county welfare agency; or any person with an interest recognized as justiciable by the court. The amendments would add one more party: "any person related to the child, natural mother, the alleged father or the man alleged or alleging himself to be the father who would be harmed or deprived of a benefit under a will, trust or the laws of intestacy by the existence or nonexistence of a parent and child relationship or by a determination of parentage, or a trustee, executor or administrator of such a will, trust or intestate estate."

The bill would amend the statute of limitations provision, subsection b., to provide two exceptions to the general rule that a paternity action cannot be brought after a child reaches age 23. The first exception provides that if a child is 23 years of age or older, then an action can be brought two years after the date on which a person who may bring an action or defend an action or be made a party to the action first discovered or had a reasonable opportunity to discover the existence or nonexistence of the paternity. The second exception provides that an action may be brought at any time if a person who is authorized to bring or defend an action or may be made a party to an action would be harmed or deprived of a benefit under a will, trust or the laws of intestacy by the existence or nonexistence of a parent and child relationship or by determination of parentage, or a trustee, executor or administrator of such a will, trust or intestate estate.

This section would also amend the current law, in accordance with 42 U.S.C.A. s.666, to clarify that the existence of certain agreements would bar an action under the bill: (1) an agreement approved by the court pursuant to a consent conference in accordance with N.J.S.A.9:17-48; (2) a certificate of parentage issued in accordance with N.J.S.A.9:17-41, N.J.S.A.26:8-28.1 or N.J.S.A.26:8-30; or (3) an agreement to adopt a child or conceive a child by artificial insemination.

Section 3. This section of the bill amends N.J.S.A.9:17-48 concerning consent conferences, settlements, testing and presumptions in order to cross-reference section 5 of the bill which establishes the procedures for blood or genetic testing.

Section 4. This section of the bill amends N.J.S.A.9:17-53 to make it consistent with section 6 of the bill which establishes procedure for disestablishment and establishment actions. The bill provides that a judgment or order under this section may provide for reimbursement of child support, medical, educational, and financial expense.

Section 5. This section of the bill provides for the procedures to be followed with regard to blood or genetic testing. Tests have to be conducted by a qualified technical laboratory and the test results filed with the court. Any objection to the test results could be made in writing and filed with the court at least 10 days prior to the hearing. If no objection is filed, the results are admitted into evidence as a rebuttable presumption of paternity without requiring any additional foundation testimony or proof of authenticity or accuracy. A party may call an outside expert witness. Test results would be admissible in evidence and weighed with other evidence of paternity unless the statistical probability of paternity equals or exceeds 95% which creates a rebuttable presumption that the alleged father is the biological father of the child. If a party fails to rebut the presumption of paternity, the court may enter a summary judgment of paternity.

If a party disputes the test results or the expert analysis, the court would order an additional test by the same laboratory or an independent laboratory at the expense of the party requesting the additional testing. Fees and costs for scientific tests would be paid by the parties in proportions and at times determined by the court, unless the parties otherwise stipulate in an agreement. In addition, the bill defines "genetic test" and "genetic characteristic."

Section 6. This section of the bill establishes the procedures for an action to establish or disestablish paternity.

Under the provisions of this section, the following individuals, who may be affected by a paternity determination, may bring an action to establish or disestablish paternity action: a child or 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; the man alleged or alleging himself to be a 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 (DFD) in Department of Human Services (DHS), or the county welfare agency; or any person who would be harmed or deprived of a benefit under a will, trust or the laws of intestacy by the existence or nonexistence of a parent and child relationship or by a determination of parentage, or a trustee, executor or administrator of such a will, trust or intestate estate. This section provides that a person may bring a paternity disestablishment action by filing a complaint accompanied by a sworn statement alleging paternity and setting forth facts establishing a reasonable possibility of the requisite sexual contact or denying paternity and setting forth facts establishing a reasonable possibility of the nonexistence of sexual contact or the reasonable possibility of sexual contact between the mother and another man.

The bill provides that once an action has been commenced the court shall order the parties to submit to blood or genetic testing. Under the provisions of this section the court would apply the best interest standard after the tests have been conducted. (See: subsection h.)

Subsection g. of section 6: This subsection provides that if the test demonstrate that the presumed father is the biological father of the child, then an order establishing paternity may provide for the continuation of the child support payments and for the continuation of any duty of support, custody and guardianship of the child or the repayment of any public assistance grants on behalf of the child. The court may limit a parent's liability for past support of the child to the proportion of the expenses already incurred. In determining the amount to be paid by the parent for the support of the child and the period during which 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).

Subsection h. of section 6: This subsection provides that if the results demonstrate that the presumed father is not the biological father, and except in the case where the child is under 23 years of age or suffers from a severe mental or physical incapacity that causes the child to be financially dependent on the parent, the paternity disestablishment order shall require either the biological father or biological mother or both provide reimbursement for any child support, medical, health coverage, financial and educational expenses for the child, including post-emancipation expenses when applicable, and any other expenses the court deems proper to take into consideration. In determining whether the biological father or the biological mother or both should be required to provide reimbursement, the court shall take into consideration the financial resources of each of the parties.

If the results demonstrate that the presumed father is not the biological father and the child is less than 23 years of age or suffers from a severe mental or physical incapacity that causes the child to be financially dependent on a parent as defined in section 16 of P.L.1983, c.17 (C.9:17-53) and the biological father is unknown or the biological father's parental rights have been or may be terminated pursuant to Titles 9 and 30 of the Revised Statutes, the court shall determine whether issuing a paternity disestablishment order pursuant to this subsection is in the best interests of the child.

If the court determines that it is in the best interests of the child to issue an order, the court shall issue a paternity disestablishment order. The court shall order the immediate termination of any and all rights, benefits, privileges, duties and obligations conferred or imposed upon the parties as a consequence of that parent and child relationship under the law, by court order, by agreement or otherwise, or incident to, by virtue of or which flow directly or indirectly from any prior adjudication, judgment or order that determined that the excluded individual was the father of the child, except the obligation to pay child support on behalf of the child.

If the court determines that it is not in the best interests of the child to issue an order, the court shall not issue the paternity disestablishment order and may dismiss the action.

Subsection i. of section 6: motion to set aside a final judgment or order awarding child support. This subsection of the bill provides that once a paternity disestablishment order has been issued, which establishes the exclusion of the individual named in the adjudication, judgment or order, the following individuals may file a motion to set aside a final judgment or order awarding child support: 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, DFD in DHS or the county welfare agency.

If this motion is granted, the court would grant the following relief: (1) the obligation to pay support on behalf of the child and all parental rights would be terminated; (2) if past-due child support is owed, the obligor may be required to pay the arrearages; and (3) if any child support was paid prior to the date of the order granting relief, that amount would not be reimbursed.

Subsection j. of section 6: motion for relief from a final adjudication, judgment or order. This subsection of the bill provides that once a paternity disestablishment order has been issued the same parties who may bring a motion under subsection i. concerning child support may file a motion for relief from a final adjudication, judgment or order, but additionally any person related to the child, natural mother, the alleged father or the man alleged or alleging himself to be the father who would be harmed or deprived of a benefit under a will, trust or the laws of intestacy by the paternity determination, or a trustee, executor or administrator of such a will, trust or intestate estate may bring such a motion.

The court shall grant the following relief: (1) the legal relationship of parent and child would be terminated; (2) any and all rights, benefits, privileges, duties and obligations conferred or imposed upon any person by the parent and child relationship under the law, by court order, by agreement or otherwise would be terminated, except the obligation to pay child support on behalf of the child; and (3) any and all rights, benefits, privileges, duties and obligations incident to, by virtue or of which flow directly or indirectly from any final adjudication, judgment or order that determined that the person referred to in the adjudication, judgment or order is the father of the child would be terminated, except the obligation to pay child support on behalf of the child.

Subsection k. of section 6: This subsection provides that if the disestablishment order is at variance with the child's birth certificate, the court would order that an amendment to the original birth record be made by the State Registrar or the local registrar.

Subsection l. of section 6: This subsection provides that if a party refuses to take the test, the refusal would be admitted into evidence and give rise to the presumption that the results of the test would have been unfavorable to that party's interests. The party refusing to submit to the test could be required to pay court costs and reasonable attorney fees in accordance with N.J.S.A.9:17-54.

Subsection m. of section 6: This subsection provides that except for those agreements which would bar an action under the bill such as an agreement approved by the court pursuant to N.J.S.A.9:17-48, a certificate of parentage issued in accordance with N.J.S.A.9:17-41, N.J.S.A.26:8-28.1 or N.J.S.A.26:8-30, or an agreement to adopt a child or conceive a child by artificial insemination, the court cannot deny relief on the following grounds: (1) the person married the mother of the child; (2) the person acknowledged paternity in a writing sworn to before a notary public; (3) the person was named as the child's natural father on the child's birth certificate with his valid consent; (4) the person was required to support the child because of a written voluntary promise, a court order or an administrative support order; (5) the person validly signed the child's birth certificate; (6) the person was named in an acknowledgment of paternity that a court entered prior to this action, except for an agreement approved by the court in accordance with N.J.S.A.9:17-48, a certificate of parentage in accordance N.J.S.A.9:17-41, N.J.S.A.26:8-28.1 or N.J.S.A.26:8-30 or an agreement to adopt a child or conceive a child by artificial insemination; (7) the person was named in an acknowledgment of paternity that has become final under the "New Jersey Parentage Act," except for an agreement approved by the court in accordance with N.J.S.A.9:17-48, a certificate of parentage in accordance N.J.S.A.9:17-41, N.J.S.A.26:8-28.1 or N.J.S.A.26:8-30 or an agreement to adopt a child or conceive a child by artificial insemination; (8) the person was presumed to be the natural father under any of the circumstances listed in the "New Jersey Parentage Act;" (9) the person was determined or adjudged to be the natural father in any action, including any action under the "New Jersey Parentage Act" unless the adjudication was based on blood or genetic testing; or (10) the person otherwise admitted or acknowledged himself to be the natural father.

Section 7. This section of the bill would allow actions which were time barred on the effective date of the bill to be commenced within two years of the effective date of the bill.

Section 8. This section of the bill would require genetic testing in any action, other than a paternity action, where child support is at issue and where the existence or nonexistence of a parent and child relationship is at issue.

Section 9. This section of the bill would require the attending physician, midwife or person acting as the agent of the physician or midwife, who was in attendance upon the birth of an infant to be responsible for the blood or genetic testing of the infant to determine paternity. The bill also provides that it shall be the responsibility of personnel at the hospital or birthing facility to inform the mother and father of the requirement for the blood or genetic testing. The test shall be conducted by a qualified and approved technical laboratory. It shall be the responsibility of personnel at the hospital or birthing facility, within five days after the birth, to inform the mother and biological father of the blood or genetic testing. After the biological mother and biological father have been informed of the results, the results shall be filed with the local registrar of the district in which the birth occurred.

Section 10. This section of the bill provides for a severability clause to provide that if any provision of the act is held invalid, the invalidity would not affect the other provisions of the act or the application of the act.

Section 11. This section of the bill provides that nothing in the bill should be deemed to conflict with or supersede any provision of the "Uniform Interstate Family Support Act," N.J.S.A.2A:4-30.65 et seq.

Section 12. This section of the bill provides for a delayed effective date of 90 days after enactment, except that any anticipatory administrative action may be taken prior to the effective date of the bill.