In New Jersey, a woman is considered the legal mother of a child if she gave birth to the child or if a she adopted the child. For a man, creating a legal parent-child relationship with a child (called “paternity”) can be a little more complicated.
Legally Established Paternity
Paternity can be legally proven in two ways:
Legal Presumption of Paternity
If paternity is not legally established, certain legal presumptions apply. A “legal presumption” is a fact that a court will assume to be true unless evidence admitted in court proves it untrue. For example, in criminal cases, the court presumes that the defendant is innocent until there is sufficient evidence to prove the defendant is guilty.
There are a number of situations that result in a presumption of paternity.
Parents who were married within 300 days of the child’s birth. The husband of the child’s mother at the time of birth is presumed to be the father of child. The law also presumes paternity for a man who was married to the mother but either divorced her or died within 300 days before the birth.
Couples who marry after the birth of the child. If a man marries the mother after the child is born, a legal presumption arises only if
Unmarried parents. A man not married to the mother is legally presumed to be the father of the child if he both tells people that he is the father of the child and he provides support for the child, before the child turns 18.
Husband who is not biological father. If a child is born during a marriage, but the biological father is not the husband, paternity will be presumed if
Artificial Insemination. New Jersey law provides a path for a married couple to be named the legal parents of a child created through artificial insemination if
When a woman who is in a civil union or marriage with another woman gives birth by artificial insemination, her female partner or spouse is presumed to also be the legal parent of the child.
Warning about informal insemination and parental rights. Some women or couples have chosen to use donated sperm, either from a sperm bank or from someone they know, to become pregnant without medical supervision. In New Jersey, when a woman becomes pregnant from artificial insemination, the legal presumptions do not apply
In that case, the sperm donor, who is the biological father, is considered the legal father of the child, even if that is not what the donor or mother intended.
Challenging a Legal Presumption
When a man is legally presumed to be the father of a child, the mother, the child, or another man who believes himself to be the father may ask the court to decide paternity. Paternity challenges must take place before the child turns 23. The person challenging a legal presumption of paternity must present evidence that is “clear and convincing.” Clear and convincing is a legal standard of evidence that is higher than that required in most civil cases, but lower than the standard of evidence required in criminal cases.
DNA/Genetic Paternity Testing
In a contested paternity case, the court may order the child and other parties to submit to a DNA test. The results will determine the likelihood that the presumed father is, in fact, the biological father of the child. DNA paternity tests often result in greater than 95% certainty of paternity. Note that a home paternity test kit is generally not admissible evidence in court. A home test kit requires collection of samples (usually by swabbing the inside of the cheek) and mailing the samples to a lab. Court-ordered DNA testing requires the parties and the child to go to a lab to have the sample (swab) collected and tested.
In deciding whether to order DNA testing, a court will consider a number of factors:
The parties should focus on these factors in either seeking DNA testing or asking the court to deny DNA testing.
No Legal Presumption
When there is no legal presumption of paternity, the legal standard to establish paternity is preponderance of the evidence. “Preponderance of the evidence” means that when all of the sworn testimony and items admitted into evidence are taken into consideration, a fact is more likely to be true than untrue. This is the typical civil court standard of evidence.
This information last reviewed: Jan 19, 2017