Judicial Methods in Resolving the Issue of Paternity
In this Topic
Introduction
There are several judicial paths that ultimately resolve the issue of paternity. In all cases, the result is an order establishing paternity or a dismissal of the support action. The judicial process requires a complaint to be filed first. The Confidential LIS is required to be completed by the obligor and obligee with any initial court proceedings involving alimony/spousal or child support. The form should be provided at the time of filing of the first pleading. The information obtained and the document shall be maintained as confidential rather than as a public recordrecord.
Paternity can be established in a court proceeding under the following circumstances:
- Parties fail to appear for court-ordered genetic testing, trial, or a hearing that results in a default order of paternity
- A Consent Order for Paternity is granted
- There is an acknowledgment of paternity by the putative father
- A hearing regarding the issue of paternity after genetic testing or a voluntary acknowledgment of paternity results in a Court Order of Paternity
- Unrebutted presumptions result in a Court Order of Paternity
Scheduling Cases for Resolution
Once an action for paternity has been filed, refer to your supervisor as a reference when following the procedures to schedule a case. Cases can be scheduled for resolution in the following manner:
- A consent conference. The consent conference may be held at the CWA office, as provided at N.J.S.A. 9:17-48(a), or at the Family Division that filed the complaint. At the conference, if all parties agree, a consent order is signed by the parties and referred to a judge for approval and signature, and subsequent proceedings are not required.
- A Child Support Hearing Officer. The Child Support Hearing Officer hears the case, makes findings of fact, and recommends an order. If the parties accept the recommendation of the Child Support Hearing Officer and do not ask to appeal it, an order is prepared, signed by the parties or their attorneys, and submitted for the approval and signature of a judge, and subsequent proceedings are not required.
- A Superior Court Judge is used for specific circumstances.
Conducting a Consent Conference
A consent conference is a meeting scheduled by either the CWA or the Family Division to address paternity and/or support issues. The purpose of a consent conference is to bring the parties together in an effort to reach an agreement, which would then alleviate any further judicial processes. Upon appearance at a consent conference or hearing, the putative father in a support action is first given the opportunity to voluntarily acknowledge paternity by signing a Consent Order for Paternity or admitting paternity in court. If the defendant signs the order or admits paternity, the support action proceeds as in other actions for support.
In conducting a consent conference, staff must successfully communicate with and manage the personalities of those in attendance. It is critical to set a positive environment for the conference. The interviewing techniques presented in Case Initiation have application in a paternity and/or support conference as well. The customer’s nonverbal communication and body language provide the CWA and Family Division staff with clues as to how the conference may proceed. The steps outlined below provide a framework for the conference. In the event that a conference is unsuccessful, refer to your supervisor as a reference.
Steps to Conducting an Office Consent Conference
Click on each step for details:
- Review the complaint/petition before conducting the conferenceReview the complaint/petition before conducting the conference.
Review the complaint/petition before conducting the conference: Read the complaint and supporting documentation submitted by the plaintiff to assess all potential issues that need to be addressed.
Note: This is an important step. If the case is not correctly set up or if information is missing, the case will not be processed successfully.
- For whom is support being sought (number of children)?
- Is paternity an issue for any child for whom support is being requested?
- Is the plaintiff receiving TANF benefits?
- Make note of the filing date of the action. Consistent with current convention policy, the order shall be effective from the filing date of the complaint, unless the order specifies otherwise.
- Verify that the information in the complaint is accurately recorded.
- Make note of any information that is missing or that is in conflict with the complaint/petition so that it can be verified and corrected at the time of the conference.
- Check demographicsCheck demographics.
Check addresses, phone numbers, employers, spelling of names, dates of birth, and Social Security numbers.
- Review scenarios overviewReview scenarios overview.
The action taken first at a consent conference depends on who appears.
- If the defendant fails to appear for a conference, the case will be dealt with at a hearing before a Child Support Hearing Officer or a Superior Court Judge, Family Division.
- If the plaintiff fails to appear for a conference and does not receive TANF, the case will be dismissed.
- If the CP receives TANF, the conference may proceed to establish paternity and support with only the defendant and the CWA present.
- If both parties appear, the conference may proceed.
- Introduce and explain the purpose of the conferenceIntroduce and explain the purpose of the conference.
Advise the parties (and attorneys) of the purpose of the office conference. Explain why the parties are present and what will happen. This step helps establish boundaries for the conference, allowing the CWA and Family Division staff to maintain control and stay on task.
- Obtain financial statementsObtain financial statements.
The parties are to provide certain financial documentation at the time of the conference and are so informed by the CWA and Family Division staff when the conference is scheduled. The parties are directed to bring the following:
- A true copy of the most recent Federal Income Tax Return, including W-2s, as filed
- Pay stubs for the last three pay periods
- Verification of child-care expenses
- Proof of health-care coverage as in effect or as available
- Assess monthly net income for both partiesAssess monthly net income for both parties.
Based on the financial information provided by the parties, assess their net incomes and enter the information for each member. While assessing income, address low- and/or high-income issues.
- Assess substantial or shared custody/split custodyAssess substantial or shared custody/split custody.
Enter shared-custody information, as appropriate, and/or address split custody in the calculation of support.
- Assess additional expenses consistent with Rule 5:6AAssess additional expenses consistent with Rule 5:6A.
- Assess substantial or shared custody/split custody:
- Assess additional expenses consistent with Rule 5:6A:
- Enter child-care expenses
- Assess credits for other dependentsAssess credits for other dependents.
- Other support obligations
- Proof of other biological children living in the home (birth certificates, school records, proof of income of the other parent of children in the home, and so on)
- Complete the guidelines computationComplete the guidelines computation.
Refer to Guidelines.
- Issue a recommendation to the partiesIssue a recommendation to the parties.
The CWA/Family Division staff makes a recommendation to the parties of an amount of support that is calculated in accordance with the guidelines.
- Review final determinationReview final determination.
If the parties agree on the amount of child support and health-care provision (or if the CWA agrees with the defendant in a TANF case), a consent order is signed by the parties. Copies are given to each party, and the original is sent for approval and signature by a Superior Court Judge, Family Division. Once processed, the order is forwarded to the PCSE Unit for enforcement. When a Superior Court Judge signs an order for child support, the order must be placed on NJKiDS within five days of the signing of the orderorder.
Failure to Appear at a Hearing or Conference
Failure to appear at a hearing or a conference can be addressed using the remedies outlined below:
| Remedy | Description |
|
Default order |
Consistent with Rule 5:14-1, if the defendant fails to appear and Service of Process is completed, the court may proceed to establish paternity through the default process and/or enter a support order with sufficient proof (N.J.S.A. 9:17-52.1). |
|
Dismissal of action |
If a non-TANF plaintiff fails to appear, the complaint for support may be dismissed. |
|
Report on noncompliance |
If a TANF plaintiff fails to appear, the conference or hearing proceeds, and a report of noncompliance may be made by the CWA to the customer’s TANF Unit. |
|
Bench warrant |
Consistent with Rule 5:4-1(b), if a defendant fails to appear at a conference and/or hearing as directed by summons, and service was completed, the court may issue a bench warrant for the arrest of the party. Note: Best practice is to issue a default order instead of a bench warrant. |
Genetic Testing
If paternity is an issue (and if the party requesting genetic testing has provided a sworn statement alleging a reasonable possibility of contact between the parties), genetic tests are ordered of the parties and the childrenchildren. This sworn statement need not rise to the level of evidence of paternity; it must merely set forth the “reasonable possibility” that the parties had sexual contact by which the child may have been conceived. The case is relisted pending test results.
- If the genetic test results show a 95% or greater probability (routinely results are 99% or greater) that the defendant is the child’s father, a presumption of paternity is created that can only be rebutted by clear and convincing evidence that the test results are not reliablereliable.
- If the genetic test results show a probability of paternity of 95% or greater and the defendant still refuses to accept a recommendation by the Child Support Hearing Officer that an order establishing him as the child’s father be entered, the case is scheduled before a Superior Court Judge, Family Division, for trial without a juryjury.
Note: Child Support Hearing Officers do not have the authority to hear disputed paternity cases. At the trial, the genetic test results are entered into evidence without the need for foundation testimony; i.e., expert witnesses are not requiredrequired.
If the action results in paternity being found, an order for paternity is entered that may contain a provision to amend the child’s birth certificate. The finding of paternity creates an obligation for child supportsupport. In most cases, in determining the amount of child support, the court applies the New Jersey Child Support Guidelines in Rule 5:6 A.
Once an order for paternity has been entered, the Superior Court, Family Division, has continuing jurisdiction to modify or revoke that orderorder.
Paternity testing
Paternity testing is often referred to as DNA testing, which requires the collection of tissue samples. The two methods that are used are the “buccal swab” and the HLA test.
- Buccal swab: CWA-contracted labs generally test tissue samples collected from the inner-cheek area with a swab, rather than blood samples. The buccal swab is used because it can be performed on a person of any age and is easy to obtain.
- HLA: A blood test in which the HLA are tested to determine if an individual’s typings match those of another person. This test can be performed on anyone over the age of six months.
DNA testing is the most accurate testing available. Each individual’s DNA makeup is identified from the test, and then a comparison of the characteristics of the children, the mother, and the putative father is performed. DNA testing is currently so accurate that a man will routinely be excluded, or the test will return a probability of 99% or higher that he is the father.
Usually, all of the parties (mother, children], and putative father) are scheduled for genetic testing. In cases where the biological mother is unavailable, testing may be performed with samples from the putative father and child (motherless test), and, if needed, the parents or siblings of the mother or siblings of the child may be tested. For identification purposes, the appointments are usually scheduled at the same time and place for all parties. Parties who live in different counties or states may be scheduled in areas convenient for them. The genetic test (sample collection) is usually conducted in the CWA, a courthouse, a hospital, or a lab. During testing, the parties are photographed and fingerprinted, and signatures may be obtained from the mother and putative father. Protocols performed at each stage keep the chain of custody for the samples intact and ensure that tampering does not occur.
Genetic Test Results
If the test results exclude the defendant as the biological father, the action for paternity is dismissed with prejudice by the court. If the test results indicate a 95% or greater probability of paternity and the parties were previously served to appear at a hearing before a Child Support Hearing Officer, he/she will recommend that the defendant sign a Consent Order for Paternity. If the defendant refuses, the case is scheduled for trial before a Superior Court Judge, Family Division.
Payment for Paternity Testing
Consistent with N.J.S.A. 9:17-41(h), if the court orders genetic testing, the CWA pays the cost of the test, subject to recoupment from the putative father, if paternity is established or as ordered by the court. Fees for testing depend on the current provider contract with a state-approved laboratory.
The CWA and Family Divisions both have the ability to schedule genetic testing. However, in order for the CWA to cover the initial cost of the genetic test, the case must be coded on NJKiDS as a Title IV-D case. To be IV-D, any FM, FV, or FD docketed case that has been granted a request for genetic testing through the court must have a signed IV-D application in the file and a case built on NJKiDS with the case type coded as IV-D. If there is no IV-D application, any Family Division that utilizes the CWA’s test site on the day of court must not refer any parties to that site for testing. If the Family Division is unable to obtain a IV-D application from the parties involved, the court must refer them to a New Jersey State approved laboratory and the cost of the testing will be the responsibility of the litigants.
Maintenance and Verification
In accordance with federal certification requirements, NJKiDS is used to maintain and verify information concerning genetic testing.
Related Information
- Case Initiation
- New Jersey Child Support Guidelines
- Rule 5:4-2(g); Rule 5:7-4(b)
- Rule 5:7-4(b)
- N.J.S.A. 9:17-48(d)
- N.J.S.A. 9:17-48
- N.J.S.A. 9:17-49(b)
- N.J.S.A. 9:17-48(j); Rule 5:25-3(b)(1)
- N.J.S.A. 9:17-55
- N.J.S.A. 9:17-56