In a recent New Jersey family law case, a divorced man tried to compel a paternity test to determine whether or not he was the father of his ex-wife’s children. Although he once had an opportunity to file a motion to verify the children’s parentage in the past, he waived that right. As a result, New Jersey legal doctrine and an agreement signed by the ex-husband now bar him from demanding a paternity test. When you are negotiating a child custody issue, it is important to work with a family law attorney who can fully explain the ramifications of a proposed post-separation agreement.
Mark and Jane had been married for seven years, during which time Jane gave birth to two children: Randi and Kim. Mark had often suspected that Jane was having a sexual affair with Mark’s friend Jim. Eventually Jim died in a car accident, but the strain of suspicion lingered ,and Mark and Jane eventually got a divorce.
When filing for divorce, Mark brought up his suspicion that the children were not his. The family law judge even paused the case so that Mark could “amend his divorce complaint and for [an] order to compel a paternity test.” But Mark decided not to pursue a paternity test, and after a contentious period of negotiation, Jane and Mark came to an agreement regarding their divorce. Their Post-Separation Agreement (PSA) mentioned the paternity dilemma several times, noting that Mark was unsure about the children’s parentage, and that he would pay reduced child support and surrender his custody rights due to the uncertainty of the situation.
The PSA also contained clauses declaring that each party expressly waives his or her right to a court determination of all issues, and that the PSA “d[is]poses of all the issues which have divided the parties during the course of their divorce.”
Two years after the case was settled, Mark was still haunted by questions regarding Randi and Kim. Many things didn’t quite add up, and he began to realize that Randi and Kim don’t bear much resemblance to him. Mark filed a motion for post-judgment relief, demanding a genetic test to determine if he was the father of Randi and Kim, asking the court to vacate his child support agreement, and requesting a refund of his past child support payments.
Jane argued against Mark’s motion, insisting that the PSA’s waiver provision forbids Jim from demanding a DNA test. But the trial court said that Jane failed to establish good cause to deny genetic testing under N.J.S.A. 9:17-48. The court ordered Jane, Randi, and Kim to comply with a paternity test, but the test results would be sealed pending appeal. Jane moved to appeal the decision to the Appellate Division of the Superior Court of New Jersey.
The appellate court noted that New Jersey’s Parentage Act requires a party to address the issue of parentage during a divorce action, if a paternity problem is known at the time. The appellate court also noted that Mark had waived his rights “clearly, unequivocally, and decisively” when he signed the PSA. Furthermore, there is a New Jersey court doctrine called “the Entire Controversy Doctrine.” This doctrine says that if there is a controversy between two specific litigants that is settled in court, and a party failed to raise a related controversy involving the same two litigants, that party is not allowed to raise that controversy in a separate or subsequent action or application, at a later date. Here, the appeals court said that Mark knew the parentage question existed, and it was part of the greater controversy of child support. Mark failed to raise the question of parentage while child support issues were being resolved, so he is now barred from raising the issue.
Mark argued that, without a DNA test, the children will go through life not knowing who their father is. But the appellate court noted that under New Jersey law, the children can file their own motions if they wish to verify the identity of their father, until they reach the age of 23. Based on all of these reasons, the appellate court ruled that Mark is barred from demanding a DNA test.
A post-separation agreement can create major problems long after a divorce is finalized. When you are contemplating a divorce, you should talk to a New Jersey family law attorney who understands the intricacies of divorce law. Contact the experienced divorce attorneys at Goldstein Law Group by calling 732-967-6777, or use the contact link on this page to request a consultation.
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