Under the New Jersey Parentage Act, N.J.S.A. 9:17-38 to -59, a natural mother may file an action to determine paternity at any time until five years after the child reaches the age of majority. N.J.S.A. 9:17-45(b). If the putative father contests paternity, the court shall order genetic testing “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.” N.J.S.A. 9:17-48(d).

“`Best interest of the child’ always remains the fundamental guiding principle of any decision affecting children in the family court,” including matters of paternity. D.O. v. R.B., 317 N.J. Super. 367, 373 (Ch. Div. 1997), aff’d o.b., 317 N.J. Super. 323 (App. Div. 1998). However, “forcing a putative father to give a blood sample to adjudicate a paternity issue implicates his Fourth Amendment right to be free of unreasonable searches,” M.A. v. Estate of A.C., 274 N.J. Super. 245, 248 (Ch. Div. 1993), even if the test constitutes only a “minimal intrusion,” State v. O’Hagen, 189 N.J. 140, 162 (2007). Courts must therefore balance the putative father’s privacy expectations and individual liberty against the compelling public interest of child welfare. S.S. v. E.S., 243 N.J. Super. 1, 11-12 (App. Div. 1990), aff’d, 124 N.J. 391 (1991).

We have achieved this balance by holding that, as a prerequisite to genetic testing, the individual alleging paternity must posit “an articulable reason” for suspecting that the putative father is the child’s biological father. Id. at 12. This standard requires “something more than the filing of a complaint containing highly conclusory allegations,” ibid., and may be satisfied using either documentary submissions or testimony, id. at 13. Although the required showing is limited, we believe it to be a “constitutional imperative.” Ibid.

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A natural mother may file an action to determine paternity at any time until five years after the child reaches the age of majority originally appeared on NJ Family Issues on November 9, 2011.

The question presented to the court in this case is whether two parties can enter into a private contract regarding a self-administered “artificial insemination” procedure whereby one party may contract with another to terminate their parental rights.

This court has determined, first, that parties cannot by contract terminate their parental rights under common law. Rather, the termination of parental rights is controlled by statute. Second, the Legislature did not intend for this type of procedure to lead to the termination of parental rights under the New Jersey Artificial Insemination statute N.J.S.A. 9:17-44, and therefore the parental rights of the donor in this matter will not be terminated.

Under New Jersey law, a child has the right to the security of two parents at the time of birth. C.M. v. C.C., 152 N.J. Super 160, 167 (Ch. Div. 1977). The Supreme Court of New Jersey noted that parental rights can be legally terminated under New Jersey law only when a parent has been declared unfit, an adoption has taken place, or if [the Division of Youth and Family Services] has removed a child from a parent. Monmouth County Div. of Soc. Serv. for D.M. v. G.D.M., 308 N.J. Super 83, 90 (Ch. Div. 1997) (citing In re Baby M, 109 N.J. 396, 426 (1988)). Accordingly, the parental rights of one parent may not be terminated by consent except when it is accompanied by the adoption of the child by another party. See, e.g., R.H. v. M.K., 254 N.J. Super. 480, 484 (Ch. Div. 1991).

A detailed consent agreement designed to terminate a biological father’s parental rights and spell out the mother’s ability to fully care for the child was definitively struck down by the court in R.H., supra, 254 N.J. Super. at 484. The parties in R.H., with the help of counsel, entered into a comprehensive agreement, whereby the biological father fully and unequivocally gave up his rights to the child that the parties had conceived. Id. at 483. The parties argued, under the adoption procedure then in effect, that a natural parent may consent to an adoption of a child conceived per N.J.S.A. 9:3-48.

By analogy, the parties argued, since they both consented to the termination of plaintiff’s parental rights, their agreement should be upheld by the court. Id. at 486. The court did not find the analogy persuasive and held the agreement invalid. The court reasoned, first, the adoption statute provides for an approved agency investigation, a preliminary hearing and a finding of fitness. Ibid. Secondly, the court reasoned that an adoptive parent is a second parent to the child noting “[t]he adopted child will be raised (presumably) by two individuals with different (perhaps complementary) strengths and weaknesses.” Id. at 487.

A permanent contractual surrender of parental rights is not provided for under New Jersey law. In re Baby M, supra, 109 N.J. at 433. The Court has unequivocally stated that a child’s relationship with his or her parents is so significant that all doubts are to be resolved against the destruction of that relationship. Ibid.; see also In Re N., 96 N.J. Super. 415, 425 (App. Div. 1967). Rather, the case law demonstrates that the termination of parental rights is strictly governed by statute. In re Baby M, supra, 109 N.J. at 425-26. Where there is no second party to adopt the child, the termination of one parent’s rights cannot be accomplished by contract.

The parental rights of the biological father are presumptively established by the father’s genetic relationship to the child under N.J.S.A. 9:17-41(b). ^[1] However, the New Jersey Legislature has recognized that biology is not always controlling in the area of parentage and has created statutory exceptions to the presumption that the biological father has parental rights in the area of artificial insemination.

N.J.S.A. 9:17-44(b) deals directly with artificial insemination and states in pertinent part that

Unless the donor of semen and the woman have entered into a written contract to the contrary, the donor of semen provided to a licensed physician for use in artificial insemination of a woman other than the donor’s wife is treated in law as if he were not the father of a child thereby conceived and shall have no rights or duties stemming from the conception of a child.

[N.J.S.A. 9:17-44(b).]

The case law favors the application of the statute to limit the rights of the donor when the donor seeks to exercise his parental rights by virtue of his biological relationship. The existence of parental rights and the exercise of those rights are different.

NOTE: This Blog/Blawg, NJ Family Issues, is managed by Paul G. Kostro, Esq., an attorney/lawyer/mediator in Linden, Union County, New Jersey.

1. N.J.S.A. 9:17-41(b) reads as follows: [The parent and child relationship between a child and] [t]he natural father, may be established by proof that his paternity has been adjudicated under prior law; under the laws governing probate; by giving full faith and credit to a determination of paternity made by any other state or jurisdiction, whether established through voluntary acknowledgment or through judicial or administrative processes; by a Certificate of Parentage . . . that is executed by the father, including an unemancipated minor, prior to or after the birth of a child, and filed with the appropriate State agency; by a default judgment or order of the court; or by an order of the court based on a blood test or genetic test that meets or exceeds the specific threshold probability. . . creating a rebuttable presumption of paternity.

   The statute seems to indicate that a biological relationship, although not necessary, leads to the presumption of paternity. An interesting question raised by this case is whether the biological father’s rights existed prior to the filing of this action. Implicit in the motion to terminate parental rights is an acknowledgement of the paternity of the child as the biological issue of plaintiff and defendant. This recognition triggers the existence of parental rights. As noted previously, defendant does not appear on the birth certificate, he did not sign a Certificate of Parentage, and he does not have a legal relationship with plaintiff that would lead to the presumption of parenthood.

Two parties CANNOT enter into a private contract regarding a self-administered artificial insemination procedure whereby one party seeks to terminate that party’s parental rights originally appeared on NJ Family Issues on June 10, 2011.

Issued by the Bureau of Vital Statistics, birth certificates memorialize, among other facts, information concerning the relationship of a child to his or her natural or adoptive parents. N.J.S.A. 26:8-29. A birth certificate simply records the fact of parentage as reported by others; it neither constitutes a legal finding of parentage nor independently creates or terminates parental rights. In order for an individual’s name to appear as a parent on a child’s birth certificate, the Registration of Vital Statistics Act, N.J.S.A. 26:8-1 to -69, requires that a legally cognizable parent-child relationship exist under the Parentage Act.

The Parentage Act, adopted in 1983, is based upon the Uniform Parentage Act of 1973. ^[1] The Act was created to ensure that children born out of wedlock are treated the same as those born to married parents and to provide a procedure to establish parentage in disputed cases. Assembly Judiciary, Law, Public Safety and Defense Committee, Statement to Senate Bill No. 888, at 2 (Oct. 7, 1982). It was designed to “make the identification of a child’s father easier and thereby reduce[] the number of children requiring public assistance.” Fazilat v. Feldstein, 180 N.J. 74, 87 (2004).

The Act defines the “parent and child relationship” as “the legal relationship existing between a child and the child’s natural or adoptive parents, incident to which the law confers or imposes rights, privileges, duties, and obligations. It includes the mother and child relationship and the father and child relationship.” N.J.S.A. 9:17-39. There are several means by which to establish a parental relationship under the Act: (1) genetic contribution, N.J.S.A. 9:17-41; ^[2] (2) gestational primacy, i.e., giving birth, N.J.S.A. 9:17-41(a); or (3) adoption, N.J.S.A. 9:17-41(c). In addition, a rebuttable presumption of paternity derives from the parties’ legal relationship, i.e., marriage or its equivalent, when a child is born during the course of a marriage or within 300 days of its termination. N.J.S.A. 9:17-43(a)(1). ^[3] This presumption, that a man is the father of a child born to his wife, extends to a husband who consents to his wife being inseminated with donor sperm under the supervision of a licensed physician. N.J.S.A. 9:17-44(a) (the Artificial Insemination Statute). ^[4]

Nowhere in the Act does the presumption of parentage under Section 43(a) extend to a wife whose husband, while married, fathers a child with another woman, N.J.S.A. 9:17-43(a)(1), or to a wife who simply acknowledges in writing her maternity of the child, N.J.S.A. 9:17-43(a)(6). On the contrary, where a husband has a child, born to another woman, while married to his wife, the wife may only establish a parental relationship with the child by adoption. N.J.S.A. 9:3-37 to -56. ^[5]

Similarly, the Act contains no comparable analogue to Section 44 that renders an infertile wife, by operation of law, the natural mother of a child born to another woman artificially inseminated with the husband’s sperm and with the wife’s consent. Indeed, as noted in the adoption context, any such provision would conflict with the express legislative enactment affording a birth mother seventy-two hours to decide whether to relinquish the child before a surrender of her parental rights is deemed valid. N.J.S.A. 9:3-41(e).

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1. Enactment of the Parentage Act was simultaneously accompanied by repeal of the 1929 legislation governing what were known as “bastardy proceedings,” N.J.S.A. 9:16-1 to -4. Common law imposed no legal obligation on the putative father to support an illegitimate child under the doctrine of nullius filius. Borawick v. Barba, 7 N.J. 393, 400 (1951). By repealing the 1929 legislation, the 1983 statutory enactment erased the prior unequal treatment of children born out of wedlock.
2. The natural mother of a child is established by proof of her having given birth to the child or under the Act. N.J.S.A. 9:17-41(a). The natural father is established by various methods, including prior paternity adjudication, execution of a Certificate of Parentage, default judgment, order of the court, or scientific testing. N.J.S.A. 9:17-41(b).
3. A man is also presumed to be the biological father of a child where “[h]e 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.” N.J.S.A. 9:17-43(a)(6).
4. Under N.J.S.A. 9:17-44(b), unless the parties agree to the contrary, the sperm donor “is treated in law as if he were not the father of a child thereby conceived and shall have no rights or duties stemming from the conception of a child.”
5. Adoption establishes the “same relationships, rights, and responsibilities between the child and the adopting parent as if the child were born to the adopting parent in lawful wedlock.” N.J.S.A. 9:3-50(b). Significant for present purposes, however, the wife could not adopt the child until at least seventy-two hours after the birth, which is the period under N.J.S.A. 9:3-41(e) in which the birthing mother or gestational carrier may assert her rights to the child.

Who is a parent originally appeared on NJ Family Issues on March 1, 2011.

Parentage is a fundamental right. N.J. Div. of Youth & Family Servs. v. A.R.G., 179 N.J. 264, 285-86 (2004).

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Parentage is a fundamental right originally appeared on NJ Family Issues on March 1, 2011.

Surrogacy, the substitution of one in bringing a pregnancy to term for another unable to become pregnant, may be of two types: traditional, where the surrogate’s egg is fertilized by artificial insemination and the surrogate therefore bears a genetic relation to the child she carries; and gestational, where no such relationship exists. Charles P. Kindregan, Jr. & Maureen McBrien, Assisted Reproductive Technology: A Lawyer’s Guide to Emerging Law and Science 129-132 (ABA Publishing 2006).

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Surrogacy is the substitution of one in bringing a pregnancy to term for another unable to become pregnant originally appeared on NJ Family Issues on March 1, 2011.

As distinguished from “artificial insemination,” which involves “the introduction of semen into the female reproductive organs without sexual contact,” Webster’s II New College Dictionary 64 (1995), in vitro fertilization is “the procedure whereby an egg is fertilized by sperm outside of a woman’s body and the resulting embryo is then implanted into a woman’s uterus for gestation.” Stedman’s Medical Dictionary 573 (25th ed. 1990).

NOTE: This Blog/Blawg, NJ Family Issues, is managed by Paul G. Kostro, Esq., an attorney/lawyer/mediator in Linden, Union County, New Jersey.

Artificial insemination versus in vitro fertilization originally appeared on NJ Family Issues on March 1, 2011.

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The risks associated with becoming a general contractor to manufacture a baby originally appeared on NJ Family Issues on December 14, 2009.

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.

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The N.J. Parentage 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 originally appeared on NJ Family Issues on December 11, 2009.

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.

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Are You the Father of Your Children? originally appeared on NJ Family Issues on November 21, 2009.

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.

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Wait too long with DNA paternity testing and you may be stuck with child support originally appeared on NJ Family Issues on October 14, 2009.