NJ & CT News

Genetic Testing: Best Interest of Child Not Controlling Factor

The New Jersey Supreme Court has overturned a ruling denying a man's request for genetic testing of one of the children of his marriage, after finding that the family court applied the wrong standard to the facts of the case. The couple in D.W. v. R.W., A-4-11 September Term 2011, 068214, were in the process of divorce when the husband asserted a claim against his wife for fraudulent concealment of the true parentage of one of their children. He has good reason ' including DNA evidence ' to believe that he is not the child's true father. (He has also filed a third-party complaint against the alleged biological father, seeking reimbursement for funds expended in raising the child.) In denying the request, the family court used the best-interest-of-the-child standard set out in in M.F. v. N.H., 252 N.J. Super. 420 (App. Div. 1991). However, the Supreme Court pointed out that M.F. v. N.H. predated statutory changes to the New Jersey Parentage Act, N.J.S.A. 9:17-38 to -59. One of those changes is found in N.J.S.A. 9:17-48(d): It says that if a man submits a sworn statement establishing a reasonable possibility that he is or is not a child's father, the courts must order the test unless the party opposing such testing can show good cause not to do so. Thus, once the predicate showing is made that a child's parentage is seriously in question, the person seeking genetic testing should not be required to show that such testing is in the child's best interest; instead, the burden shifts to the party opposing the inquiry to show that there is “good cause” to deny it. As the law does not specifically detail that which will suffice to show good cause to deny genetic testing, the Supreme Court in this case enunciated 11 factors for a court's consideration:

1. The length of time between the proceeding to adjudicate parentage and the time that the presumed father was placed on notice that he might not be the genetic father;
2. The length of time that the presumed father has assumed the role of the child's parent;
3. The facts surrounding the presumed father's discovery that he might not be the biological father;
4. The nature of the presumed father's relationship with the child;
5. The quality of the relationship between the child and the alleged biological father;
6. The child's age;
7. The degree of physical, mental, and emotional harm the child may suffer if the presumed father is proven not to be the biological parent;
8. The extent to which the passage of time reduces the chances of establishing the paternity of another man and a child-support obligation in favor of the child;
9. The extent to which the child suspects that the presumed parent is not the biological parent;
10. The child's interest in knowing family and genetic background, including medical and emotional history; and
11. Other factors that may affect the equities arising from the disruption of the father-child relationship between the child and the presumed or acknowledged father, or the chance of other harm to the child.

CONNECTICUT

Father's Debts in Final Years Trump Dissolution Settlement's Terms

The Superior Court of Connecticut, Judicial District of New Haven, determined in Torla v. Torla, 2012 Conn. Super. LEXIS 2473 (10/2/12), that a woman who cared for her brother in his final, bedridden, years, was entitled to a portion of his life insurance proceeds, notwithstanding the fact that he had promised to maintain his ex-wife and children as beneficiaries of that policy. The case was brought by the former wife of a man who died in 2010. They had been divorced in 1999. A term of their settlement agreement required the man to maintain a life insurance policy naming his ex-wife ' the plaintiff here'and his children as beneficiaries. In the ensuing years, the man's health deteriorated, due in large part to diabetes, and he became unable to care for himself. His sister, the defendant, took him in and cared for him in his final years. As the man had no other assets to leave to her, he named his sister as beneficiary of his life insurance policy, as reimbursement and in gratitude for her help. The court found, contrary to the ex-wife's contention, that the defendant had done nothing to compel or influence the deceased's decision to name her as beneficiary. It ordered the defendant to receive the full amount of the life insurance proceeds, distribute $20,000 to each of the deceased's children, then retain the remainder as reimbursement for the obligations the deceased incurred to her during his final years.

NEW JERSEY

Bill Limiting Prenuptial Agreement Challenges Passed by Assembly Panel

The New Jersey Assembly's Judiciary Committee has voted to recommend passage of a bill that will make it harder to attack a premarital or pre-civil union agreement. At present, a judge is permitted to void such a pact if he or she deems it to be unfair at the time enforcement is sought. The proposed law would make premarital agreements vulnerable only if they are found unconscionable at the time of their making. The bill, S-2151, would require judges who are asked to void a prenuptial agreement to determine whether indicia of unfairness at the time of contracting existed, including a lack of legal representation or a party's failure to disclose assets, earnings or liabilities. Attorney Amanda Trigg, an officer of the New Jersey Bar Association's Family Law Section, says the group opposes the bill. It is “bad for New Jersey families across the board,” said Trigg, because the passage of time and changes in circumstances can render one party more economically dependent on the other at the end of a marriage than was originally envisioned.

Genetic Testing: Best Interest of Child Not Controlling Factor

The New Jersey Supreme Court has overturned a ruling denying a man's request for genetic testing of one of the children of his marriage, after finding that the family court applied the wrong standard to the facts of the case. The couple in D.W. v. R.W., A-4-11 September Term 2011, 068214, were in the process of divorce when the husband asserted a claim against his wife for fraudulent concealment of the true parentage of one of their children. He has good reason ' including DNA evidence ' to believe that he is not the child's true father. (He has also filed a third-party complaint against the alleged biological father, seeking reimbursement for funds expended in raising the child.) In denying the request, the family court used the best-interest-of-the-child standard set out in in M.F. v. N.H. , 252 N.J. Super. 420 (App. Div. 1991). However, the Supreme Court pointed out that M.F. v. N.H. predated statutory changes to the New Jersey Parentage Act, N.J.S.A. 9:17-38 to -59. One of those changes is found in N.J.S.A. 9:17-48(d): It says that if a man submits a sworn statement establishing a reasonable possibility that he is or is not a child's father, the courts must order the test unless the party opposing such testing can show good cause not to do so. Thus, once the predicate showing is made that a child's parentage is seriously in question, the person seeking genetic testing should not be required to show that such testing is in the child's best interest; instead, the burden shifts to the party opposing the inquiry to show that there is “good cause” to deny it. As the law does not specifically detail that which will suffice to show good cause to deny genetic testing, the Supreme Court in this case enunciated 11 factors for a court's consideration:

1. The length of time between the proceeding to adjudicate parentage and the time that the presumed father was placed on notice that he might not be the genetic father;
2. The length of time that the presumed father has assumed the role of the child's parent;
3. The facts surrounding the presumed father's discovery that he might not be the biological father;
4. The nature of the presumed father's relationship with the child;
5. The quality of the relationship between the child and the alleged biological father;
6. The child's age;
7. The degree of physical, mental, and emotional harm the child may suffer if the presumed father is proven not to be the biological parent;
8. The extent to which the passage of time reduces the chances of establishing the paternity of another man and a child-support obligation in favor of the child;
9. The extent to which the child suspects that the presumed parent is not the biological parent;
10. The child's interest in knowing family and genetic background, including medical and emotional history; and
11. Other factors that may affect the equities arising from the disruption of the father-child relationship between the child and the presumed or acknowledged father, or the chance of other harm to the child.

CONNECTICUT

Father's Debts in Final Years Trump Dissolution Settlement's Terms

The Superior Court of Connecticut, Judicial District of New Haven, determined in Torla v. Torla, 2012 Conn. Super. LEXIS 2473 (10/2/12), that a woman who cared for her brother in his final, bedridden, years, was entitled to a portion of his life insurance proceeds, notwithstanding the fact that he had promised to maintain his ex-wife and children as beneficiaries of that policy. The case was brought by the former wife of a man who died in 2010. They had been divorced in 1999. A term of their settlement agreement required the man to maintain a life insurance policy naming his ex-wife ' the plaintiff here'and his children as beneficiaries. In the ensuing years, the man's health deteriorated, due in large part to diabetes, and he became unable to care for himself. His sister, the defendant, took him in and cared for him in his final years. As the man had no other assets to leave to her, he named his sister as beneficiary of his life insurance policy, as reimbursement and in gratitude for her help. The court found, contrary to the ex-wife's contention, that the defendant had done nothing to compel or influence the deceased's decision to name her as beneficiary. It ordered the defendant to receive the full amount of the life insurance proceeds, distribute $20,000 to each of the deceased's children, then retain the remainder as reimbursement for the obligations the deceased incurred to her during his final years.