Family Law/Genetic Testing - In re Gendron, 2008 N.H. LEXIS 64 (N.H. 2008).

The New Hampshire Supreme Court Holds that New Hampshire Must Give Full Faith and Credit to Other States’ Acknowledgements of Paternity. In re Gendron, 2008 N.H. LEXIS 64 (N.H. 2008).

In December 2004, Jody gave birth to a child in Massachusetts. Both Jody and Kevin signed a Voluntary Acknowledgement of Parentage ("Acknowledgement"), acknowledging that they were the child’s biological parents.

Two-and-a-half years later in New Hampshire, Kevin obtained a domestic violence protective order against Jody and filed a petition seeking custody of the child. In response, Jody asserted that Kevin was not the child’s biological father and requested paternity testing.

The trial court in New Hampshire ordered Kevin to submit to genetic marker testing. The court reasoned that it was in the child’s best interests to know his parentage and have rapid closure on the issue.

Kevin moved for reconsideration, arguing that his paternity was established in Massachusetts when he and Jody signed and filed the Acknowledgement and that New Hampshire was required to give full faith and credit to Massachusetts’s determination of paternity.

New Hampshire statute RSA 168-A:2, II provides, "the courts of this state shall give full faith and credit to a determination of paternity made by another state, whether established by court or administrative order, through voluntary acknowledgement of paternity, or by operation of another state’s laws."

Under Massachusetts General Law, the signed Acknowledgement constitutes a "legal document with the same binding effect as a court judgment of paternity." Either signatory may rescind the Acknowledgment within 60 days of the date of signing by filing a petition in the probate and family court in which the child and one of the parents resides. Either signatory may also challenge the Acknowledgment on the basis of fraud, duress, or material mistake of fact within a year of signing by petitioning a court to order genetic marker testing.

When Jody signed the Acknowledgment, she, by her own volition, accepted Kevin as the child’s biological father. Accordingly, Kevin’s paternity was established in December 2004, was never rescinded or challenged, and therefore must be recognized by the New Hampshire courts as a final judgment.

The issue before the Court was whether the doctrine of res judicata barred the mother from challenging the paternity of the child’s father.

Jody argued that the signed Acknowledgement did not produce a final judgment, but rather created only a rebuttable presumption of paternity. She asserted that she may challenge that presumption pursuant to New Hampshire statute RSA 5-C:28, III (Supp. 2007), which permits a court of competent jurisdiction to resolve a challenge to an affidavit of paternity after the 60-day recession period.

Although New Hampshire law reads that "a court may order genetic paternity testing upon the motion of any party or upon its own initiative," a mother, child, and putative father are required to submit to such testing only in civil actions "in which paternity is a constant and relevant issue."

Here, the Court found that the unchallenged Acknowledgement established Kevin’s paternity. Genetic marker testing was thus irrelevant to a ruling on the father’s request for custody.

The New Hampshire Supreme Court noted that a child’s best interests should generally be given consideration in determinations of whether to order genetic marker testing; it disagreed with the trial court’s assessment of what was best for the child. The Court cited Tregoning v. Wiltscek, 782 A.2d 1001, 1004 (Pa. Super. Ct. 2001) in reasoning that "if a certain person has acted as the biological parent and bonded with the child, the child should not be required to suffer the potentially damaging trauma that may come from being told that the father he has known all is life is not in fact his father."