Legal Precedent for Paternity Fraud Victims???

[joni]

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Duped dad's right to sue is upheld

Thursday, September 1st - 2005

BY MARGARET McHUGH

Star-Ledger Staff

A man who found out 30 years after his youngest child's birth that he was
not the father had the right to sue the biological father for nearly $110,000, the cost of raising the child, an appeals court ruled yesterday.

In the first ruling to extend a statutory deadline in a paternity case, the
appellate panel said the man could collect the money even though he missed the deadline under New Jersey's Parentage Act by eight years. The court said it made sense because the biological father, along with the duped man's wife, never told him he was not the boy's father.

The attorney for the biological father said his client had not decided
whether to appeal to the state Supreme Court.

"The court has finally shed light on the parameters of the Parentage Act and what it covers and how far it can go," said the attorney, Scott Bocker. "Unfortunately, I don't necessarily agree with everything they said, but ... they have the say in how the statute is interpreted."

Family court expert John Paone Jr. called it "a groundbreaking case."

"There is no precedent in New Jersey where a parent has been compelled
to pay child support more than 15 years after the emancipation of a
child," said Paone, who has been practicing family law for more than 20 years.

Paone said he does not expect the ruling to be applied widely.

"I still think it's going to be the rare case that the biological father knows he's the father and participates in the fraud," Paone said. "The facts of this case call out for a remedy you don't normally see in the court."

In a 30-page opinion that does not reveal the identities of either man,
the mother or the son, the appeals court upheld a nearly $110,000 award
granted by a Morris County judge in 2003.

Under the state's Parentage Act, an action to determine paternity could
be filed up until the child in question turns 23. But the man who raised the
boy did not find out until 1999 — when the child was 30 — that his ex-wife
had had an affair with his friend in the late 1960s and had gotten pregnant.
She gave birth to a son in 1969, and as a friend of the family, the
biological father, identified in the ruling as P.J.S. Jr., agreed to be the boy's godfather, the decision said.

Ten years after the child was born, the couple divorced, but the plaintiff,
R.A.C., paid child support and kept a relationship with all three of his
children.

The families had originally lived in Morris County, Bocker said. The
biological father now lives out of state, he said.

In 1996, just before the son was to be wed, his mother, identified in
the decision as B.E.C, told him who his real father was because she wanted him to know his biological father had two children with muscular dystrophy.

Three years later, she told her ex-husband, who has said he was dumfounded and shocked.

"He had difficulty coping with the news and was angry that B.E.C. and
the defendant had deceived him," the decision said.

R.A.C., who says he maintains a good relationship with the boy he raised,
sued P.J.S. Jr. in September 2000 for reimbursement of child support,
fraudulent concealment and intentional infliction of emotional distress.

A DNA test in April 2002 confirmed P.J.S. Jr. was the father.

In February 2003, a Morris County judge awarded R.A.C. $109,697 for
child support reimbursement up until the boy turned 22.

The judge dismissed the claims of fraudulent concealment and intentional
infliction of emotional distress, and said R.A.C. was not entitled to money
he spent on the boy's education between the ages of 22 and 25.

The biological father, however, appealed on the grounds the Paternity Act
does not allow lawsuits to be filed after the child turns 23.

But the appeals court said just as murderers who avoid detection for years
before they are caught can be sued for wrongful death long after the statute of limitation, so too can a duped man sue for child support from a
biological father.

The doctrine of equitable tolling, as it is called, "applies to prevent a
statute of limitations from being used as a sword by a defendant whose
conduct contributed to the expiration of the statutory period," the decision
said.

"Here, not only defendant but also B.E.C., the mother of the child, concealed the true facts of D.C.'s parentage from plaintiff. The duplicity
was enhanced by defendant's agreement to serve as godfather for the
child," the judges said.

The panel ruled R.A.C. was not entitled to interest on the child support,
but they sent the case back to a trial judge to consider awarding him legal
fees.

The court also determined R.A.C could not sue for emotional distress
because his relationship with D.C. "had not been destroyed or negatively
affected in any way. He continues to have a loving and trusting father-son
relationship with him."