New Jersey Family Law Blog

Judge Judy on Child Support

I enjoyed watching this video excerpt from the Judge Judy show that features a Trenton, NJ woman and a claim for repayment of child support by a man who turned out not to be the father of her child – it has many important lessons in it:

1. If you are served with court papers about child support – don’t ignore them
2. If you think the baby is not yours – have a paternity test, it’s a lot cheaper than paying child support for 21 years
3. If you pay child support for a child that’s not yours, you may be able to obtain the money back

As always, Judge Judy deals with a real life human problem with her unique blend of wit, compassion and common sense. Well worth watching!

A claim for reimbursement of child support by the biological father must be brought within 23 years under the Parentage Act

In the recent NJ Supreme Court opinion in R.A..C. v. P.J.S. et. al the plaintiff raised a child as his son, but subsequently found out he was not the biological father and sought repayment from the biological father of the $109,696 that he had provided in court ordered child support prior to emancipation.

The Supreme Court reversed the appellate division and denied his claim for reimbursement since he did not bring it within the 23 years from date of birth as required by the New Jersey Parentage Act, N.J.S.A. 9:17-38 to 59. Under the Parentage Act any person who provides financial support including payment for educational, medical and child support expenses can claim the money back from the biological father, even if the non-biological parent had brought up the child as their own son or daughter.

However, the act requires any claim to be made within twenty three years from the child’s date of birth. N.J.S.A. 9:17-45b. In this case, the plaintiff did not find out he was not the biological father until the child was aged thirty one.

As Justice Albin stated in the opinion:

“[b]y setting a fixed time period, the Legislature evidently understood that there would be cases, perhaps many cases, in which paternity would not be established within the twenty-three year timeframe and that a biological father who bore the responsibility of raising and supporting a child would be relieved of his obligation.”

The Court held that the doctrine of “equitable tolling” did not apply as there was no overt trickery or deception on behalf of the biological father to induce the plaintiff into not bringing a child support action earlier. Therefore, the Court reluctantly concluded the claim for reimbursement must be denied as time-barred.

It is hard not to be sympathetic to the husband who thought the child was his and paid for child support as a result. However, the opinion does comment that the "son" reaffirmed his love for his non-biological father and they ended up closer as a result of this experience.

Is the Presumption of Paternity An Anachronism?

Sherry Colb, Professor of Law at Rutgers-Newark, in her excellent findlaw column of April 18 discusses the rebuttable presumption of paternity i.e. when a woman gives birth to a child, it is presumed the husband is the father. Colb asks the question whether this presumption is an anachronism in today’s society when DNA testing is readily available, making the presumption rebuttable? She discusses the issue of whether it is fair for husbands to have to support potential illegitimate children that may have been conceived as a result of an affair. However, she notes a biological father who subsequently appears has no constitutional rights of visitation, according to the Supreme Court in Michael H. v. Gerald D. Indeed, many may not be aware of the existence of “their” child. In answering the question of whether husbands should be able to challenge the presumption of paternity, she states the practical reality that:

If a man lives in the house with mom and a child and is called "Daddy," he is - for all practical purposes - the child's father. After forming such a bond, the child grows attached and accordingly - perhaps - entitled to the father/child relationship on which he has come to rely.

Colb goes on to say:

From the child's perspective, it is fundamentally an act of betrayal for his "dad" to go into a court of law to prove that the relationship between them has been fraudulent. The state may accordingly have a compelling interest in protecting the rights of a child to his presumed father

The best interests of the child may require the State to uphold the presumption of paternity. Unfortunately, this was not the case in the recent published decision in J.R. v. L.R.. In J.R., the parties' daughter Jessica only knew J.R. as her father for nine and half years until her mother (L.R.) told J.R. in an argument that S.G. was the biological father.

J.R. subsequently refused to pay for Jessica’s support and L.R. brought a paternity suit against S.G. who knew nothing about the child he had fathered and in the meantime now had a wife and children to support from his marriage. An order that S.G. submit to genetic testing was vacated when S.G. brought a motion that it was not in Jessica’s best interests that the presumption of paternity be pierced.

However, there followed a plenary hearing in which Jessica was required to testify as was S.G. and J.R.. The family part judge concluded that it was in Jessica’s best interests that S.G. submit to testing. At a subsequent hearing on support both J.R. and S.G. were each required to pay $75 towards Jessica’s support. J.R. has lost the relationship with his daughter of nine and half years, while S.G. never had any relationship with Jessica, nor sought one and has to explain to his new wife and family that he has another child. Meanwhile Jessica has no father in her life.

August J. Landi who represented S.G. on appeal, brought up in S.G.'s appeal how much trauma Jessica had suffered by having to testify along with S.G, J.R., an issue the published opinion does not to address. The appellate division in affirming the trial judge's decison, concludes by stating that it is “legally correct and equitably just.” While it may be indeed be fair that both 'fathers' pay $75 and legally sound, something is missing here. No mention is made of the high price the judicial process has taken on Jessica. Did the State fail by not making more of an effort to protect the rights of the child and preserve the relationship with the only father she had every known ? I'll let you read Sherry Colb's article and J.R. and reach your own opinion.