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Law Educator, Esq.
Law Educator, Esq., Lawyer
Category: Family Law
Satisfied Customers: 118674
Experience:  Experienced attorney: Family law, Estate Law, SS Law etc.
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I live in nj. I just got divorced. I have a 5 yr son. My ex

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I live in nj. I just got divorced. I have a 5 yr son. My ex husband signed the birth certicant. 2 years later we separated and took a DNA test that proved he was not the father. When I went for the divorce hearing the judge ordered my ex to pay child support. I got nervous and didn't tell the judge about the paternity test but I said we are pretty sure he's not the father. I do not know who the actual biological father is. Is it possible to file a motion to vacate child support and disestablish paternity. My ex lives in another state since 2015. He has not acted as a father
JA: Because family law varies from place to place, can you tell me what state this is in?
Customer: Nj
JA: Have you talked to a lawyer yet?
Customer: No
JA: Anything else you want the lawyer to know before I connect you?
Customer: I also want to take his name off the birth cert
Thank you for your question. I look forward to working with you to provide you the information you are seeking for educational purposes only.
Under NJ law, the husband of the mother is deemed to be the father of the child unless credible scientific evidence proves someone else is the father. Since you are married to him and had the child, the court will impute paternal rights and responsibilities to him and this is why they made him liable as putative father based on the NJ laws. You can seek to terminate his parental rights with a petition to terminate rights and claim significant parental disinterest However, generally unless you identify who the father is they will leave his name on the birth certificate and will not change that.
You have a chance to terminate parental rights though and that would allow you to cut off contact with him and you can ask him to voluntarily terminate his right in exchange for you agreeing to terminate or waive support and if he agrees then your petition to terminate rights would include a written agreement stating that you agree to waive support in consideration of his voluntary terminating his parental rights.
So yes, it is possible to terminate support and parental rights, but just not removing the name from the birth certificate without identifying the biological father.
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Customer: replied 1 month ago.
After the judge ordered him to pay child support in the hearing. I filed a motion to disestablish paternity and vacate child support and attached a copy of the DNA test. Will this be enough
Thank you for your reply.
It should be sufficient, but the problem is even if they disestablish paternity they can make him a putative father, so you need to file to terminate parental rights, not just to disestablish paternity. Remember the law says the husband of the mother is the LEGAL father of the child.
Please do not forget to leave positive feedback by clicking on the 5 stars at the top of your page, as the experts are not employees of the site and get no credit for spending time with customers unless they leave positive feedback. Thank you.
Customer: replied 1 month ago.
In my divorce papers I asked for sole legal and physical custody. However in the default judgement of divorce it is not type up
Customer: replied 1 month ago.
Here is the default divorce paper
Thank you for your reply.
You are going to have to still file a motion to terminate parental rights together with what you already filed, because again the law statutorily makes him the father by virtue of marriage to the mother, even if he is not the biological father, so you have to ask the court to terminate those rights too.
Customer: replied 1 month ago.
Since I already filed 1 motion after the divorce (the one to vacate child support and disestablish paternity) - can I file another motion to terminate paternity? Also is it possible the court will find him to be the psychocological father. We separated when my son was 2 and has not acted as a father since .
Customer: replied 1 month ago.
terminate parental rights not terminate paternity (typo)

Than you for your reply.

Yes you need to file a motion to terminate parental rights. I already said he is deemed to be the statutory or putative father (you can call it psychological father if you like, but that is not what the court will call it). Even though you separated when the child was two, the husband is presumed to be the father under NJSA 9:17-43 so in addition to trying to disestablishing paternity you need to terminate parental rights based on his statutory grant of paternity along with your motion to terminate support.

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