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  1. #1
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    Feb 2010
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    Default Establishing Somebody Other Than My Husband as the Legal Father

    My question involves paternity law for the State of: New Jersey

    When I was 22 I married a man with whom I had a child. This man and I separated 2 years later mostly due to his cheating and previously undisclosed mental health issues. Since he left me high and dry with a toddler and no income (I was a full-time college student at the time and am just now finishing my degree after a leave of absense) I have had little to no money to get a divorce and he refuses to pay unless I agree to give him joint custody of our daughter. Initially the separation was ugly and involved restraining orders and court ordered psych evals which eventually resulted in our mutual agreement that we would have a civil restraint based on his continuing treatment, and this, along with visitation is on record with the county court but it is my understanding that there is NO legal separation in the state of NJ and this does not count as anything toward the marriage, just the establishment of visitation between father and child.

    Later, I began a relationship with someone else who is ironically in a similar situation with his estranged wife. We have been living together for 3 years and have no real moral or religious obligation to end our marriages and remarry or anything of that sort so while our marriages to other people have been annoying and inconvenient, it has not caused any real problems in our lives and as we are raising multiple children from previous marriages divorce from our prospective spouses is something we've been putting off for a time when we had some extra money especially since neither of our ex's are anxious either (she would lose alimony and mine has an anxiety disorder and thinks he would lose some rights to his daughter even though I and his lawyer have assured him that is not the case). However, my boyfriend and I unexpectedly got pregnant 8 months ago. I recently began the divorce process (just the paperwork portion) in the hopes of having my maiden name at the time of delivery but never thought about legal issues and the divorce will not be final before the birth of my child. I was advised by the county clerk, however, that while in the past my pregnancy might cause problems with my divorce since it blatantly points to adultery on my part, laws have recently changed and the fact that we have not resided together in about 4 years would be taken into consideration.

    However, now I am hearing that since my marriage will not be resolved before birth the baby must have my married name and that the biological father cannot sign the birth certificate.

    My questions are: is it true that there is no legal separation in New Jersey? Since I had a restraining order and then civil restraint filed against my husband does that count for anything and far as the paternity of the father? What, if any, legal rights would the father's wife have over the child? What kinds of legal issues can I expect during my hospital stay?

    I know this is a sticky situation and probably shocking to some people with strong moral and ethical objections to adultery but I appreciate any objective and open-minded feedback I can get.

  2. #2
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    Feb 2010
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    Default Re: Legal Separation in New Jersey and Maternity/ Paternity Rights

    Quote Quoting nadergirl08
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    However, now I am hearing that since my marriage will not be resolved before birth the baby must have my married name and that the biological father cannot sign the birth certificate.
    I'm sorry I have no true legal advice for you in regards to most of your situation.

    However when it comes to this small portion I do know that... your current partner has every right to sign the birth certificate as he is the biological father- no on has any right to say he can not take responsibility for his own child simply because your married to someone else...

    Also when it comes to naming your child... your child can have any last name you chose to give it, and it doesn't have to be your maiden or married or even the last name of it's biological father... You could give him/her the last name of the president just because you like the name and it's perfectly legal.

    (I know this from personal experience with the birth of my son...)

  3. #3
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    Feb 2010
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    4

    Default Re: Legal Separation in New Jersey and Maternity/ Paternity Rights

    Thank you, it will make us feel better just to be able to put his last name on the certificate.

    To anyone with any legal knowledge of this crazy state of NJ: even if there is no legal separation, I have been reading that one can either appear in court or through mediation with an attorney and establish a separation agreement which in many states would change the legal assumption that a legal husband is the bio father of a child born later. My significant other went to court and did so several years ago. I did not officially do this, but as I stated I did go to court and have a custody/ visitation/ civil restraint/ child support agreement filed that was negotiated with the help of legal council. Does this count??

  4. #4
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    Feb 2010
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    Default Re: Legal Separation in New Jersey and Maternity/ Paternity Rights

    To the best of my knowledge the ONLY time they automatically assume husband is the father of a child is if when you file child support, your filing against an ex spouse and that the child was born during your marriage... so the only way they would assume your estranged husband is the father of this new child is if you were to file a child support case against him...(but that wouldn't happen since you are currently with the father of the child, and have no reason to file child support.)

  5. #5
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    Sep 2005
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    Default Re: Legal Separation in New Jersey and Maternity/ Paternity Rights

    New Jersey law creates a presumption of paternity under the following statute:
    Quote Quoting NJSA 9:17-43 Presumptions.
    a. A man is presumed to be the biological father of a child if:
    (1) He and the child's biological mother are or have been married to each other and the child is born during the marriage, or within 300 days after the marriage is terminated by death, annulment or divorce;

    (2) Before the child's birth, he and the child's biological mother have attempted to marry each other by a marriage solemnized in apparent compliance with law, although the attempted marriage is or could be declared invalid, and:
    (a) if the attempted marriage could be declared invalid only by a court, the child is born during the attempted marriage, or within 300 days after its termination by death, annulment or divorce; or

    (b) if the attempted marriage is invalid without a court order, the child is born within 300 days after the termination of cohabitation;
    (3) After the child's birth, he and the child's biological mother have married, or attempted to marry, each other by a marriage solemnized in apparent compliance with law, although the attempted marriage is or could be declared invalid, and:
    (a) he has acknowledged his paternity of the child in writing filed with the local registrar of vital statistics;

    (b) he has sought to have his name placed on the child's birth certificate as the child's father, pursuant to R.S.26:8-40; or

    (c) he openly holds out the child as his natural child; or

    (d) he is obligated to support the child under a written voluntary agreement or court order;
    (4) While the child is under the age of majority, he receives the child into his home and openly holds out the child as his natural child;

    (5) While the child is under the age of majority, he provides support for the child and openly holds out the child as his natural child; or

    (6) He acknowledges his paternity of the child in a writing filed with the local registrar of vital statistics, which shall promptly inform the mother of the filing of the acknowledgment, and she does not dispute the acknowledgment within a reasonable time after being informed thereof, in a writing filed with the local registrar. If another man is presumed under this section to be the child's father, acknowledgment may be effected only with the written consent of the presumed father. Each attempted acknowledgment, whether or not effective, shall be kept on file by the local registrar of vital statistics and shall entitle the person who filed it to notice of all proceedings concerning parentage and adoption of the child, as provided in section 10 of P.L.1983, c.17 (C.9:17-47) and pursuant to section 9 of P.L.1977, c.367 (C.9:3-45).
    b. A presumption under this section may be rebutted in an appropriate action only by clear and convincing evidence. If two or more presumptions arise which conflict with each other, the presumption which on the facts is founded on the weightier considerations of policy and logic controls. The presumption is rebutted by a court order terminating the presumed father's paternal rights or by establishing that another man is the child's biological or adoptive father.

    c. Notwithstanding the provisions of this section to the contrary, in an action brought under this act against the legal representative or the estate of a deceased alleged father, the criteria in paragraphs (4) and (5) of subsection a. of this section shall not constitute presumptions but shall be considered by the court together with all of the evidence submitted. The decision of the court shall be based on a preponderance of the evidence.

    d. In the absence of a presumption, the court shall decide whether the parent and child relationship exists, based upon a preponderance of the evidence.

    e. There is a rebuttable presumption that a man has knowledge of his paternity and the birth of a child if he had sexual intercourse with the biological mother within 300 days of the child's birth. This presumption may be rebutted only by clear and convincing evidence in an appropriate action based on fraud, duress, or misrepresentation by the biological mother concerning the paternity or birth of the child. This claim of fraud, duress, or misrepresentation must be asserted prior to the finalization of the adoption.
    You can raise the issue of nonpaternity in your divorce, and ask the court to rule that your husband is not the father of the child, or you and your husband can execute an Affidavit of Denial of Paternity such that the biological father's name can be placed on the birth certificate via a Certificate of Parentage form.

    If you're married when the child is born, unless you and your husband execute an Affidavit of Denial of Paternity his name will be placed on the birth certificate. You can later correct that based upon either the divorce judgment establishing nonpaternity, or a later-filed Affidavit of Denial of Paternity together with the appropriate amendment and Certificate of Parentage form (more details here).

  6. #6
    Join Date
    Feb 2010
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    4

    Default Re: Legal Separation in New Jersey and Maternity/ Paternity Rights

    Thank you, I was having trouble locating this for NJ. So just so I'm clear, even though there has been official documentation 4 years ago that my husband and I separated living in separate residences and actually have civil restraints in place there will still be an assumption of paternity? Are there any steps I can take since the divorce will not be final and 300 days out before the baby is born to establish paternity? I am having a c-section and we are concerned about legal issues arising during our hospital stay and having problems with what my boyfriend is going to be able to do as the father of the child. Its just an additional worry we don't need at the moment particularly since we have other children who are heavily involved in this pregnancy.

    Also, an acquaintance of mine is telling me that my significant other's wife will have some sort of legal rights over our child as his legal wife and the legal step-mother of the child. I have a hard time believing that this is law but I obviously know nothing. Is this true, and if so what kind of rights?

    Unfortunately because of our recent bizarre weather in NJ all the courts that I may have contacted about these issues are closed until Tuesday so again I appreciate your help in helping me understand.

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