New Jersey Supreme Court Expands Right Of Putative Fathers To Obtain Paternity Tests

In the recent case of D.W. v. R.W., the New Jersey Supreme Court ruled that presumptive fathers who have a reasonable basis to question the paternity of a child can compel genetic testing even if it is contrary to the best interests of the child. The Court's decision reverses 20 years of case law in which the best interest of the child was always held to be the determining factor given the emotional trauma such testing could inflict upon the child. Previously, courts generally only ordered genetic testing upon the showing of clear and convincing evidence that it was in the best interests of the child.

Although the Court acknowledged that the best interests standard controls most decisions involving children in divorce and custody litigation, it deemed that standard inappropriate in the context of paternity challenges because "in many, if not most, cases where genetic testing is ordered to refute a presumption of paternity, some destabilization of the child's life is inevitable." The Court further pointed to several amendments to the New Jersey Parentage Act, N.J.S.A. 9:17-48(d), which governs when genetic testing can be ordered for purposes of proving paternity, that restrict a court's ability to deny it. Significantly, the Act does not mention the best interests standard. Rather, the Act currently states that genetic testing can only be denied for "good cause" without defining what constitutes it.

In an effort to clarify the standard, the Court identified several factors, including the interests of the child, that will determine whether a father's request for genetic testing can be denied. Those factors include: how long the person seeking the test has believed himself to be the father; how the possibility of non-paternity was discovered; the relationship between the child and the presumptive father as well as with the alleged father; the age of the child; and the child's interest in knowing his or her genetic background.

In D.W. v. R.W., the father (R.W.) learned that he might not be the father of the 19 year old he believed was his son when his wife confessed to having had an affair around the time the boy was conceived. The father sought paternity testing the following year in the divorce litigation that followed the disclosure. In the divorce action, the father filed a counterclaim for adultery and emotional distress. He also filed a third-party claim for support against the other man. Weighing all the factors, the Court reversed the prior denial of testing by the trial court and Appellate Division and compelled the son, currently 25, to undergo genetic testing to determine paternity. "This case is not about the wisdom of a father proceeding with a parentage action in the circumstances presented here, but about his legal right to do so under the statute," said Justice Barry Albin writing for the majority.