New Jersey Divorce and Family Lawyer Blog
Maury says you are NOT the father! Actually, after getting the results of a genetic or DNA test, you 
discover that you are not the father of the child you were led to believe was yours and had been supporting. Rather, the child you have been supporting was the offspring of an extramarital affair between your ex-wife and another man conceived during your marriage. Once you get past the shock of such a disclosure, you question to what extent you may have an ability to seek reimbursement from the biological father for the support you had already paid on behalf of that child.
If you turned to the internet for an answer to that question, you might not only have been led to believe you had no right to do so, but that you were a selfish, horrible and “grotesque” person for even raising the issue. This was essentially the exchange highlighted on my browser’s home page a few weeks back. As a lawyer, it is obvious that such “advice” would be legally erroneous, certainly under New Jersey law. However, I wondered how many people may have relied upon this response as opposed to discussing the matter with an attorney.
Before commenting on whether it is wise or prudent to rely upon “Ask the Internet” to get answers to significant legal questions, I will address whether under New Jersey law a claim for reimbursement of child support can be brought against one determined to be the biological father of a child. The applicable statute as well as our courts have answered yes. Situations such as these are governed by the provisions of the New Jersey Parentage Act, N.J.S.A. 9:17-38 to 59, enacted in 1983, and modeled after the Uniform Parentage Act 1973. The Parentage Act was intended to establish the principle that regardless of the marital status of the parents, all children and parents have equal rights with respect to each other and to provide procedures to establish parentage in disputed cases, as well as to ensure that children receive their statutory right to financial support and to facilitate payment by fathers who refused to admit paternity and/or fail to pay. To that end, the Parentage Act not only provides all children with a judicially enforceable right to such support, regardless of their parents’ marital status, it affords to “any person” who has furnished financial support to a child the ability to institute a proceeding seeking reimbursement for reasonable educational, medical or other support-related expenses from the biological father where the existence of the father/child relationship has been declared or paternity is acknowledged or adjudicated. N.J.S.A. 9:17-55(a).
This ability to pursue such reimbursement claims was confirmed by our Supreme Court in R.A.C. v. P.J.S., 192 N.J. 81 (2007) – with the caveat that in the absence of extraordinary circumstances such claims must be brought before the child’s 23rd birthday.
In this case Roy was married to Bonnie. At some point Bonnie had an extramarital affair with Patrick, someone with whom they had been social friends. Bonnie became pregnant, recognized the strong possibility that Patrick was the father, and discussed this with Patrick, and both of whom decided not to share this with Roy. After the child was born, Roy and the child enjoyed a typical father – son relationship. At some point, Roy and Bonnie divorced, and Roy not only paid child support on behalf of the child, but paid for his college education expenses, having never been informed as to the questions concerning the child’s paternity. Ultimately, when the child was 26 years of age, and out of concern over a genetic illness which had afflicted Patrick’s children, Bonnie told the child that Patrick, and not Roy, was his father. However, it was not until the child was 30 years old that Bonnie finally broke this news to Roy as well. Roy thereafter filed an action against Patrick under the Parentage Act to declare Patrick as the biological father, to seek reimbursement for child support and college expenses provided to the child, as well as to assert a claim for fraudulent concealment and intentional infliction of emotional distress. DNA tests confirmed Patrick as the child’s father. Nevertheless, Patrick moved to dismiss the action as time-barred, asserting that N.J.S.A. 9:17-45(b) prohibited such claims under the Parentage Act after the child’s 23rd birthday. The trial court rejected Patrick’s position, found that Roy was entitled to reimbursement from Patrick for the court-ordered child support and college expenses he paid through the time of the child’s emancipation, but dismissed Roy’s fraud and emotional distress claims as well as denied his request for damages, counsel fees and pre-judgment interest. The Appellate Division affirmed, except as to the counsel fee issue, which it remanded. The Supreme Court granted certification as to whether the Appellate Division properly applied the doctrine of “equitable tolling” to the limitations period contained in N.J.S.A. 9:17-45(b).
While the Supreme Court affirmed that a person such as Roy had the right under the Parentage Act to pursue a claim against the biological father for reimbursement of support paid on behalf of the child, it nevertheless held that the requirement that actions under the Parentage Act be brought before the child’s 23rd birthday was a statute of repose, and that in the absence of extraordinary circumstances such as overt trickery or active deception (as opposed to mere silence as the Court viewed had been the case here) to induce one into not bringing an action, the doctrine of equitable tolling would not apply. Since in this specific case Roy did not bring his action until the child was almost 31 years of age, his action was deemed barred and the award of child support reimbursement hence reversed.
Simply stated, contrary to the advice offered by “Ask the Internet”, as long as it is timely brought, a claim for reimbursement of child support against the biological father is legally recognized in New Jersey. While the decision whether to pursue such a claim is certainly a personal one, weighing all of the facts and circumstances involved in an individual case, doing so is neither immoral nor grotesque. Just as people should not rely upon sites like WebMD to self-diagnose in lieu of going to a doctor, it is neither wise nor prudent to rely upon “Ask the Internet” websites to seek answers to significant legal questions in lieu of consulting with and/or seeking the advice of an attorney. Personal views and opinions often masquerade as legal advice. They are not the same. The circumstances of each case are unique. So too the application of the law.
If you have questions concerning any area of family law, don’t simply “Ask the Internet”. Rather, turn to the experienced attorneys of the Law Firm of James P. Yudes, PC to assist you in getting answers to those questions.