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Divorce FAQ's

Thursday, January 29th, 2009

by Divorce Lawyer

1. What is the Parentage Act?

Pursuant to N.J.S.A. 2A:17-56.7(b), the early establishment of paternity and child support orders creates a basis for individual security and family stability. As a result, the Parentage Act was enacted to address paternity cases N.J.S.A. 9:17-41 et seq. Paternity issues usually arise when child support is sought and the father contests that he is in fact the father of the child. The court’s authority to decide paternity cases is based upon the defendant having sexual intercourse in this State with respect to a child who may have been conceived by that act of intercourse. In addition, the defendant can only be required to come to court if service of the complaint for paternity is served on the defendant in accordance with the rules of the court.

2. Who can file an action for paternity?

Several people can bring about or defend a paternity action at any time: 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, or any person with an interest recognized as justifiable by the court. However, if the issue is raised more than five years after the child attains the age of majority, no such action shall be permitted.

Pursuant to the provisions of section 331 of Pub. L. 104-193, the child and other parties in a contested paternity case shall submit to a genetic test upon the sworn request of one of the parties, unless that person has good cause for refusal. The sworn statement by the requesting party must allege paternity and set forth the facts establishing a reasonable possibility of the required sexual contact between the parties; or in the case of sworn refusal, the refusing party must deny paternity and set forth the facts establishing a reasonable possibility of the nonexistence of sexual contact between the parties;

3. When is a man presumed to be the child’s father?

There are several instances when a man is presumed to be a child’s father. According to N.J.S.A. 9:17-43 a man is presumed to be the biological father of a child if one of the six following events occur:

1. The man and the child’s biological mother are or have been legally and validly 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, the man and the child’s biological mother have attempted to marry each other by a marriage performed in apparent compliance with law, although the attempted marriage is or could be declared invalid, and one of the following conditions is met;
   1. 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
   2. 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, the man and the child’s biological mother have married, or attempted to marry, each other by a marriage performed in apparent compliance with law, although the attempted marriage is or could be declared invalid, and one of the following occurs;
   1. he has acknowledged his paternity of the child in writing filed with the local registrar of vital statistics;
   2. 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
   3. he openly holds out the child as his natural child; or
   4. 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, the man 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, the man provides support for the child and openly holds out the child as his natural child; or
6. The man acknowledges his paternity of the child in a writing filed with the local registrar of vital statistics, which registrar will promptly inform the mother of the filing of the acknowledgment, and the mother does not dispute the acknowledgment within a reasonable time after being so informed, in a writing filed with the local registrar.

4. When is the presumption of paternity rebutted?

A presumption in favor of paternity under this section may be rebutted by the presumed father in an appropriate action only by “clear and convincing evidence such that there exists,” a court order terminating the presumed father’s paternal rights or by establishing that another man is the child’s biological or adoptive father.

In contested matters, a consent conference shall be held by the Superior Court, Chancery Division, Family Part intake service, the Probation Division or the county welfare agency to determine if the matter may be resolved prior to trial.

A trial shall take place in which witnesses and experts may testify and which blood tests may be introduced. Since 1998, trials by jury are no longer permitted in paternity matters. N.J.S.A. 9:17-49(b).