NOTE: My legal and mediation services are offered to Polish-speaking and other clients in Union, Middlesex, Somerset, Essex, Hudson, Bergen, and Morris counties in NJ.

Technorati Tags: , and easy technorati tags for wordpress plugin

The New Jersey Parentage Act of 1983 (the Act), N.J.S.A. 9:17-38 to -59, “was intended to establish the principle that regardless of the marital status of the parents, all children and parents have equal rights with respect to each other and to provide a procedure to establish parentage in disputed cases.” Id. at 94. To that end, the Act “provides the means for legally identifying the father by granting the ‘alleged’ father or ‘any person with an interest recognized as justiciable by the court’ standing to bring an action ‘for the purpose of determining the existence or nonexistence of the parent and child relationship.’” Id. at 94-95 (quoting N.J.S.A. 9:17-45a). A “child” alleging that a man is his or her father is among the persons who may invoke the Act to establish the parental relationship. N.J.S.A. 9:17-45a.

Regardless of the status claimed by the person seeking to establish parentage, “[n]o action shall be brought under [the Act] more than five years after the child attains the age of majority.” N.J.S.A. 9:17-45b. It is well-settled that N.J.S.A. 9:17-45b “establishes a ‘twenty-three-year statute of repose,’ commencing from the date of the child’s birth.” R.A.C. v. P.J.S., Jr., 192 N.J. 81, 95 (2007) (quoting Wingate v. Estate of Ryan, 149 N.J. 227, 233 (1997)).

“The primary consideration underlying a statute of repose is ‘fairness to a defendant,’ the belief that there comes a time when the defendant ‘ought to be secure in his reasonable expectation that the slate has been wiped clean of ancient obligations.’” Id. at 96-97 (quoting Rosenberg v. Town of N. Bergen, 61 N.J. 190, 201 (1972). Although the Supreme Court has concluded that principles of “equitable tolling” can be applied to the Act’s statute of repose, “in light of the purpose . . . , which is to set a fixed end to the limitations period,” the Court indicated its expectation that “equitable tolling will arise only in extraordinary circumstances consistent with legislative intent.” Id. at 100-01.

NOTE: My legal services include family law, divorce, child support, litigation, arbitration, mediation, child custody and visitation, alimony, equitable distribution, separation agreements, palimony, PSA, property settlement agreement, premarital and prenuptial agreements, midmarriage and marital agreements.

Technorati Tags: , and easy technorati tags for wordpress plugin

DNA testing provides answers — BUT, are you ready to deal with those answers?

Read: Who Knew I Was Not the Father? by Ruth Padawer, published in The New York Times.

See some of my related Blog Posts.

NOTE: Adwokat / Prawnik Pawel Kostro mowi po polsku.

Technorati Tags: dna, paternity, paternity testing, and easy technorati tags for wordpress plugin

In this case, despite having some doubts about paternity, defendant did not pursue DNA testing until 2006, after the parties and their child had been living as a family for over a decade. If defendant had doubts about paternity, which he admittedly did, he should have pursued the issue when his doubts arose. Instead, he waited more than a decade, raising the child as his own, inducing plaintiff and the child to become economically dependent on him, and becoming the child’s psychological parent. Due to the passage of time, there is no realistic possibility of finding the child’s biological father or of obtaining economic support from him. Accordingly, the court affirm the judgment awarding child support. See Miller v. Miller, 97 N.J. 154, 167-68 (1984); Ross v. Ross, 126 N.J. Super. 394, 398-99 (J.D.R. Ct. 1973), aff’d o.b., 135 N.J. Super. 35 (1975); Monmouth County Div. of Social Services v. R.K., 334 N.J. Super. 177, 195-96 (Ch. Div. 2000).

See related Blog Post, published in the New Jersey Family Law blog.

NOTE: My legal and mediation services are offered to Polish-speaking and other clients in Union, Middlesex, Somerset, Essex, Hudson, Bergen, and Morris counties in NJ.

Technorati Tags: , and easy technorati tags for wordpress plugin

Challenging DNA in Paternity Cases: Finding Weaknesses in an Evidentiary Goliath, by Carl W. Gilmore, Esq.

[Special than you to Marvin Eric Wolf, Esq. for bringing this article to my attention.

NOTE: My legal and mediation services are offered to Polish-speaking and other clients in Union, Middlesex, Somerset, Essex, Hudson, Bergen, and Morris counties in NJ.

Technorati Tags: , and easy technorati tags for wordpress plugin

DNA testing to conclusively establish paternity requires samples from both putative parents. M.A. v. Estate of A.C., 274 N.J. Super. 245, 247 (Ch. Div. 1993); N.J.S.A. 9:17-51(a) (upon the request of a party to a paternity suit, the court shall “require the child, mother and alleged father to submit to blood tests or genetic tests”). Although child support is an obligation to the child payable through the parent with primary physical custody, the failure of the custodial parent to cooperate with court-ordered DNA testing gives “rise to the presumption that the results of the test would have been unfavorable to” the custodial parent’s interests and warrants termination of support payments to the custodial parent. N.J.S.A. 9:17-48(h).

In this case, however, the Mercer County Board Of Social Services was entitled to take action to recoup child support arrears from defendant, who claims he has

always suspected that the child was not mine. In hindsight, I realize I should have filed for a modification on my cases, but I was young, ignorant of the system, spent some time incarcerated, and simply overwhelmed by the obligations. Once I realized that I had to get his matter resolved, I decided to establish paternity for [the minor child.]

Because defendant waited fourteen years before seeking a paternity determination, the trial court did not err when it ordered defendant to pay outstanding arrears. See Monmouth County Div. of Soc. Servs. v. D.J.D., 344 N.J. Super. 74 (Ch. Div. 2001). That the cutodial parent failed to comply with orders for DNA testing warrants relief to defendant going forward, but does not negate an obligation he incurred years earlier that he did not timely challenge.

NOTE: My legal and mediation services are offered to clients in Westfield 07090; Berkeley Heights 07922; Clark 07066; Cranford 07016; Hillside 07205; Scotch Plains 07076; Springfield 07081; Union 07083; Winfield; Carteret 07008; South Amboy 08878; South River 08877; Avenel 07001; Colonia 07067; Iselin 08830; Woodbridge 07095; Somerset 08873; Somerville 08876 and Watchung 07069, New Jersey.

Technorati Tags: child-support, paternity testing, and easy technorati tags for wordpress plugin

In the October 2, 2005 issue of The New York Times, there is an article discussing how the truth revealed by a Paternity Test may prove to be painful — however, not knowing may prove to be equally (if not more) painful. For those that are interested, there is a website that claims to be dedicated to: “helping Children and Men discover who’s the biological father, assisting deceived, scammed and hustled paternity fraud victims regain their constitutionally protected freedom and their lawful assets.”

NOTE: My Law Office is located at 726 West Saint Georges [W. St. Georges] Avenue (Route 27), Linden, Union County, NJ. Telephone: 908-486-2200

Technorati Tags: paternity, paternity testing, and easy technorati tags for wordpress plugin

An adjudication of paternity may be set aside upon the presentation of “clear and convincing evidence of: fraud . . . with the burden upon the challenger[.]” N.J.S.A. 9:17-41(b).

Any estoppel, including an estoppel to deny paternity, requires some voluntary action. See Miller v. Miller, 97 N.J. 154, 162 (1984) (obligation to support a child who is not biologically related, “arises from a voluntary assumption . . . .”); Monmouth County Division of Social Services v. R.K., 334 N.J. Super. 177, 196 (Ch. Div. 2000) (duty of support imposed on “a party, other than the biological parent, [who] voluntarily accepts paternity”).

A party’s action in consenting to an adjudication of paternity cannot be considered voluntary so as to bar a later repudiation of the consent. Consent given by virtue of fraud is no consent at all. See 26 Williston on Contracts, §69.1, at 486 (4th ed. 2003) (”One . . . fraudulently induced to enter into a contract has not assented to the agreement . . . .” Nor does the party’s later support of the child prohibit him from seeking relief when the true facts become known. Action induced by fraud cannot be deemed “voluntary” in any real sense of the word.

Child support may be ordered to be paid by one who is not biologically related to the child “when the evidence assessed in accordance with the with principles of equity demand that result.” M.H.B. v. H.T.B, 100 N.J. 567, 578 (1985); N.J.S.A. 9:17-53c.

NOTE: My legal services include family law, divorce, child support, child custody and visitation, alimony, equitable distribution, separation agreements, and marital agreements.

Technorati Tags: child-support, paternity, and easy technorati tags for wordpress plugin

In this case, the court held that parents have a duty to support their children from the date of birth until the date of emancipation; however, when a “father” learns that he has been deceived as to the fact that “his child” had been fathered by another man, then the “father” who had been deceived may seek an award of “reasonable expenses” of “support” of the child against the man who is the biological father — when deception is involved, a claim under the New Jersey Parentage Act, N.J.S.A. 9:17-38 to -59, is not time-barred by the mere passage of time.

NOTE: My legal and mediation services are offered to Polish-speaking and other clients in Fanwood 07023; Garwood 07027; Kenilworth 07033; Mountainside 07092; New Providence 07974; Roselle Park 07204; Roselle 07203; Elizabeth 07201; Linden 07036; Plainfield 07060; Rahway 07065; Summit 07901; Westfield 07090; Berkeley Heights 07922; Clark 07066; Cranford 07016; Hillside 07205; Scotch Plains 07076; Springfield 07081; Union 07083; Winfield; Carteret 07008; Dunellen 08812; East Brunswick 08816; Edison 08817; Jamesburg 08831; Metuchen 08840; New Brunswick 08901; Old Bridge 08857; Perth Amboy 08861; Sayreville 08871; South Amboy 08878; South River 08877; Avenel 07001; Colonia 07067; Iselin 08830; Woodbridge 07095; Somerset 08873; Somerville 08876 and Watchung 07069, New Jersey.

Technorati Tags: , and easy technorati tags for wordpress plugin