legal suppression of paternity knowledge

The Superior Court of New Jersey decided in 1950 a case concerning contested paternity.  The case arose from a claim for financial child support.  Judge William J. Brennan delivered the opinion of the court.  He observed that in the field of contested paternity, “the truth is so often obscured because social pressures create a conspiracy of silence or, worse, induce deliberate falsity.”[1]  Judge Brennan’s opinion reversed a lower court’s denial of a motion for a paternity blood test. Judge William J. Brennan went on to a long and influential career as a leading justice on the U.S. Supreme Court.  His statement about paternity law was astute.  But as of yet, it has had little influence.

Paternity law has expanded from law regulating legal paternity to law pretending to regulate paternity knowledge.  Consider, for example, a New York State statute concerning contested paternity:

The court, on its own motion or motion of any party, when paternity is contested, shall order the mother, the child and the alleged father to submit to one or more genetic marker or DNA marker tests. . . to aid in the determination of whether the alleged father is or is not the father of the child.  No such test shall be ordered, however, upon a written finding by the court that it is not in the best interests of the child on the basis of res judicata, equitable estoppel or the presumption of legitimacy of a child born to a married woman. [2]

The truth about biological paternity is relevant, but not necessarily decisive, in a reasonable legal determination of legal paternity.  The New York statute, however, positions the suppression of the truth about biological paternity as a step in the process of declaring legal paternity.  That’s the sort of deliberate falsity that Judge Brennan described.

Suppressing true knowledge of biological paternity encourages further falsity.  New York State courts now deliver in contested paternity cases ruling like this:

a social worker who interviewed the child testified that subjecting the adolescent child, who wishes to have a stronger relationship with respondent, to genetic marker testing would be emotionally damaging for her at this age. Under these circumstances, although the relationship between respondent and the child was somewhat limited, the Family Court properly concluded that the best interests of the child require that respondent be estopped from denying paternity. [3]

This case does not concern content-based regulation of a man’s speech.  The man can still tell the adolescent child that he is not her biological father.  Moreover, by affirming the man’s legal status as the child’s father, the court affirms implicitly that the man can legally make medical decisions for the child.  Genetic relationships are medically important.  As a medical matter, the man should be able to decide that the child needs to know whether she is in truth genetically related to him.

Being legally estopped from denying paternity really means being subject to a financial child-support order irrespective of biological paternity.  The court’s opinion falsifies what it really concerns: long-term, monthly monetary payments. The court’s opinion shows a social worker and the judiciary engaged in what Judge Brennan insightfully called a “conspiracy of silence.”

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[1] Cortese v. Cortese, 76 A. 2d 717 – NJ: Appellate Div. 1950 at 156.

[2] New York Family Court Act § 418 (a)N.Y. Family Court Act § 532 (a), and also other sections of N.Y. family law, have similar language.

[3] Matter of Commissioner of Social Services v. Victor C., 91 A.D. 3d 417 (2012) – NY: Appellate Div., 1’st Dept.  For similar decisions, see In the Matter of Glenda G. v. Mariano M. 62 A.D.3d 536 (2009); In the Matter of Smythe v. Worley, 72 A.D. 3d 977 (2010); In the Matter of Dustin G. v. Melissa I., Charles H., 2010 NY Slip Op 46, and In the Matter of Derrick H. v. Martha J., 82 A.D. 3d 1236 (2011).

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