By Amy Cores and Marisa Baker
Recently one of the Fellows on the Legislation Committee raised a question regarding the paternity laws of the various states. The query related specifically to an issue related to the voluntary acknowledgment of paternity. If you have served on a committee (which I highly recommend) you know what came next. A flurry of responses from Fellows across the country with information about “how it's done” in their respective states. This prompted me to partner with a local attorney to write about paternity laws in New Jersey and how they compare to the laws across the country.
Every state has a different method of establishing and challenging paternity. In fact, it is so critical an issue that all cases referred to a IV-D agency are mandated to “establish paternity by legal process established under State law.” Justia actually provides a great summary of Paternity Laws and Forms, including links to resources in all states.
Another great resource tracking the history of paternity presumptions is an article by James J. Vedder and Britnney Michelle Miller written for the Family Advocate in 2018. Vedder and Miller focus on a broad overview of legal approaches to the establishment and contesting of paternity, as well as the impact of modern technology (DNA testing) and newly recognized legal relationships on paternity. They ultimately come to the conclusion that all of us have likely drawn from our own practices: “Significant rights and obligations attach to parentage presumptions. It is precisely because of these rights and obligations that parents and third parties are motivated to establish parentage or attempt to disestablish parentage. In such cases, the courts must look beyond a child’s biological connections and consider the parental rights and financial obligations at stake, the intended family structure, and the child’s best interests.”
There is another critical component of establishing paternity that is child focused. By establishing paternity, the child gains legal rights and privileges relative to the parent beyond the scope of what we deal with in the family courts. These rights include, but are not limited to: the right to inherit; rights to the father’s medical or life insurance benefits; rights to social security; veterans’ benefits. Thus, the determination of paternity is more than simply giving a parent and child the right or ability to develop a relationship, or for a parent to pay/receive child support.
By operation of law in New Jersey, a woman is considered the legal mother of a child if she gave birth to the child or if she adopted the child. When a woman who is in a civil union or marriage with another woman gives birth by artificial insemination, her female partner or spouse is presumed to also be the legal parent of the child. Notably, this is an important point because the parent-child relationship is established through the legal presumption that the spouse of the birth mother is the other legal parent.
How do we establish “paternity” or the legal establishment of the identity of a child’s father in NJ? Well, it depends. Generally, there are two ways to ‘legally’ establish paternity and several legal presumptions of paternity.
A court may enter a Judgment of Paternity or Judgment of Adoption declaring a man to be the child’s father. This could come under the laws governing probate or by giving full faith and credit to a paternity ruling from another state. The second is for both parents to sign a Certificate of Parentage (COP). Most states have a similar procedure and the COP may be called for example: Voluntary Acknowledgement of Paternity (VAP) in Massachusetts; Recognition of Parentage (ROP) in Minnesota; Acknowledgement of Paternity in Delaware. A COP is a sworn statement that both parties believe that the man is the biological father of the child.
In New Jersey, applications for birth certificates are generally processed at the hospital before the child is discharged. The COP will be provided to unmarried parents. If not, one can obtain the form at the Office of Vital Statistics and Registry, the local registrar, or in a child support agency office. The COP carries the same weight as a court order of paternity. However, the COP can be rescinded within 60 days of the date of signing so long as there is not a child support order.
If paternity is not established by court order or COP then certain legal presumptions apply. “Legal presumptions are a useful and efficient way to deal with legal questions. A legal presumption is essentially a legal shortcut. It allows the court to reach a conclusion once a specific set of facts is established. The burden of proof then shifts to the other party to rebut the presumption. See Fed. R. Evid. 301. The legal system uses presumptions to increase efficiency and certainty. As Justice Byron White observed in Stanley v. Illinois, “it is more convenient to presume than to prove.” 405 U.S. 645, 658 (1972).”
The New Jersey Parentage Statute defines the parent and child relationship as “the legal relationship existing between a child and the child’s natural or adoptive parents” (N.J.S.A. 9:17-39). When there are challenges to parentage, there are a number of presumptions of paternity that come into play. The presumption that the parents are married at the time of the child’s birth is a common presumption across the United States.
If the parties are married within 300 days of a child’s birth there is a legal presumption in New Jersey that they are the child’s parents. If a husband and wife get divorced and the former wife gives birth within 300 days the former husband will be presumed to be the biological father. Notably, human gestation is only 280 days.
If a child is born during a marriage or within 300 days of the divorce, then there is a procedure to legally identify the actual biological father. First, the parties sign a COP. The “husband” and the mother must also sign a form called a Denial of Parentage. This document acknowledges that the husband is not the biological father. Finally, both of these documents must be filed with the state Registrar. This arises in a situation where the wife gets pregnant by another during a pending divorce matter. As family law attorneys, we are all too aware of this reality.
Another presumption under the statute relates to parents who attempted to marry in “apparent compliance with law, although the attempted marriage is or could be declared invalid.” If the marriage is invalidated later and the child is born within 300 days after the parties ceased cohabitation, the child is presumed to be a child of the attempted marriage. A second provision relates to a child born within 300 days after the termination of the marriage by death, annulment or divorce.
If the parents are not married at the time of the child’s birth, but later marry a presumption of paternity will attach if certain steps are taken. First, the father must acknowledge paternity in a writing filed with the local registrar. The father’s name must be placed on the child’s birth certificate. The father must hold himself out as the child’s father. Or, he is obligated to pay support for the child. This arises in situations where the child is born, the parties marry, and later, there is a dispute over the child’s paternity.
If the parents are not married at the time of the child’s birth, then the legal presumption of paternity will only attach if: 1) the father holds himself out as the father of the child and “receives the child into his home”; and, 2) he provides financial support for the child prior to the child’s 18th birthday and holds himself out as the father of the child.
As noted above, if a woman is in a civil union or marriage with another woman then NJ law treats this couple the same as if a marriage between a man and a woman. Section 9:17-44 of the New Jersey Parentage Statute provides that a husband will be the legal father of a child if: the parents are married; the husband consents to the procedure; and, his wife is artificially inseminated with donated semen under physician supervision.
In a contested paternity case, the parties must submit to a genetic test upon the request of either. If a State IV-D agency requires, or the court orders, genetic testing, the agency will advance the costs, subject to reimbursement from the purported father, if paternity is established.
A case to challenge paternity must be instituted before the child turns 23. The legal standard is that a person challenging paternity must present evidence that is clear and convincing to overcome a legal presumption of paternity. The New Jersey Supreme Court has held that the legislature did not intend to make genetic testing overly burdensome to obtain or open the door to genetic testing without clear and convincing evidence being submitted.
Ultimately an order establishing paternity may contain additional provisions including but not limited to: child support; custody; parenting time; payment of genetic testing. Once paternity is established, parents in New Jersey are equal in the eyes of the law. Both have the duty to support the child and both have the ability to exercise legal and physical custody.
There is a Uniform Parentage Act (UPA). It has been revised several times with the most recent revisions in 2017. As of the drafting of this article only 8 states had adopted the most recent version. The prior versions have been enacted in 22 states. New Jersey is one of the states to have enacted a prior version of the UPA. Like many other areas of family law, there are stark differences between the various states' approaches to dealing with paternity.
Despite efforts to streamline laws and provide more stability for the ever-increasingly mobile modern family, the various states remain resistant to change. It is therefore important to understand the implications of how paternity may be established if a family crosses state lines.
If you have questions about paternity, custody, or your parental rights in New Jersey, our family law attorneys are here to help—contact us today.
