The New Jersey Supreme Court has upheld a lower court decision against a father who claimed that he should not have to pay child support to his ex-wife after discovering that the child was not his own. It is only the latest in a string of such cases.
The case involves a 10-year-old girl and a divorced couple in Hunterdon County New Jersey. The father submitted evidence that paternity tests showed that his ex-wife had misled him and that she had conceived the child with another man. He wanted to compel the disclosure of the true father and to end his child support payments. Yet, in the lower court decision, New Jersey Superior Court Judge Stephen Rubin ruled that such changes would not be in the child’s best interest — the standard in such cases.It is a tough standard since it will often be in the child’s best interest to have no change in his or her recognized parent — or possibly replacing a paying “father” or a non-paying real father.
We have seen a spate of such cases over custody and support involving frozen embryos (here) and sperm donors (here).
What is troubling is that public policy demands that fathers and mothers support their offspring. Yet, the true father and this ex-wife may have succeeded in forcing such costs on a third party. Indeed, it is conceivable that the true father and ex-wife could get married, raise the daughter, and still force this man to support the child. That does not seem quite equitable.
The father in this case may have been hurt by simply waiting too long. Presumably, if such questions were raised earlier (and hopefully near the time of the birth) the result would have been different. Courts are reluctant to make such changes after the passage of such significant amounts of time.
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As the perpetrator of a fraud against the cuckolded husband perhaps the mother and biological father are liable to the husband for damages. If so, the husband might do well to sue the biological father for permitting this fraud to occur if the facts bear that out. (The mother is likely off the hook since any claim against her bears directly on the child assuming she is the custodian and public policy would likely bar that kind of claim).Certainly though the husband he should be able to recoup something from the biological father even under an unjust enrichment or contribution theory in equity. Perhaps he even has claim for interference in the marital contract. Another interesting issue is during the inevitable divorce, would the husband have a claim for legal and physical custody of the child given the court’s enforcement of the presumption that children born during the marriage are of the marriage. What a law school question this might be!