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Appellate Division Assesses the Reliability of DNA Testing to Establish Paternity in New Jersey

In May of this year, my colleague Daniel Burton, Esq. wrote a  blog entitled “One Set of Twins Two Fathers Confirms New Jersey Superior Court Judge” about a trial court level decision of the Honorable Sohail Mohammed, J.S.C., in Passaic County concerning the paternity and related child support obligations to twins, referred to as “AM” and “BM” born to their mother referred to as “TM”.  The Appellate Division has now weighed in and issued a written opinion on this case of first impression in New Jersey.

In the matter of TM-v-AS, the Passaic County Board of Social Services brought an application on behalf of TM, to whom the Board was providing services, seeking to establish the paternity of AS, whom TM named on the birth certificate of her twins, AM and BM, and a child support obligation by AS towards TM’s twins.  The DNA paternity test established that AS was the biological father of only one of the twins, AM, but not the father of the other twin, BM.  Based on these unusual test results, Judge Mohammed ordered a plenary hearing.  TM testified that she had sex with AS and another unnamed man within a week of one another, and then later gave birth to twins.   The Board sought to withdraw its application for establishment of paternity and child support as to BM and to continue its application for child support on behalf of AM.

The Appellate Division in their decision discussed the evolution of DNA testing, and how widespread it has become.  DNA testing is used in criminal matters to identify, convict or exonerate people of crimes.  DNA testing can determine if someone is more likely to have certain diseases, and they are used to determine family ancestry.   The Court noted that DNA is widly considered scientifically reliable and admissible.  Though DNA testing is considered scientifically reliable, New Jersey statutes permit those interests in a paternity action to challenge the validity of DNA test results, which are conducted by private entities in non-criminal matters.

The Appellate Division acknowledged the obligation of the family court to protect the best interests of children, as well as the “profound right of a child to know the identity of his or her parents.”    Based on this obligation, the Appellate Division noted that the courts must then scrutinize the reliability of the DNA test results. At the hearing, the Board’s expert testified that fraternal twins, where the twins are not identical and have different DNA profiles, occur when two different eggs are fertilized in the same menstrual cycle.   Though somewhat rare, the expert testified that it is possible for fraternal twins to have different fathers; in that situation the twins are called bipaternal or heteropaternal twins, as BM and AM are.

N.J.S.A. 9:17-48 provides that “the county welfare agency shall require or the court shall order the child and the parties to submit to blood tests or genetic tests unless a party claims, and the county welfare agency or the court finds, good cause for not ordering the tests. The statute contemplates that genetic material may (and in some cases shall) be collected and tested to help establish a parent-child relationship between a putative father and child.”  The two tests used to achieve this goal of establishing paternity is HLA testing and DNA testing.  New Jersey’s Administrative Code indicates establishes the preferred means to collect a DNA sample and establishes safeguards and procedures to handle the samples, test the DNA and storage of the samples.  N.J.A.C. 13:81-2.1(f); N.J.A.C. at 13.81-2.1(g-j).

Before a paternity test result may be accepted, the court has to consider: (1) the methods employed and conditions under which the DNA specimen was obtained; (2) the training, skill, and judgment of DNA handlers; (3) whether adequate procedures were in place for specimen collection, storage, transportation, sampling, handling and processing of DNA tests; (4) “chain of custody” considerations; (5) any evidence of tampering, hacking, user bias, or other external interference calling into question the integrity of the test result; (6) whether the testing laboratory adhered to scientifically acceptable, reliable, and established DNA testing and methodology standards; (7) the ability of handlers to replicate test results submitted to the court; and (8) access to and handling of information regarding abnormal or irregular results, or those collected in error.  Here, the court accepted the methods employed by the technician that collected, stored and handled the DNA samples were scientifically acceptable.  There was no evidence that the samples were tampered with nor was there interference with the chain of custody.  The Court found no reason not to accept the validity of the DNA test.

The Appellate Division dismissed the Board’s action for child support from AS as to BM given that BM’s father is not AS.