Paternity Rights

I'm very pleased with the response I got here.

Hi Gareth - First, let me say that you are one of my favorite NZ politicians.
So I've just read this article:

http://www.canadiancrc.com/Newspaper_Articles/Globe_and_Mail_Moms_Little_secret_14DEC02.aspx

And it gets me thinking, as you do. (What do you think about it? Do you think that it has substance?).

What are the laws in NZ regarding paternity testing and men's obligations to child support?

- Do men have the right to get a paternity test on a child they is believe is theirs when it's born?

- Are children born in marriage assumed to be the man's?

Does the Green party have any policy on this issue? Any suggestions of law reform?What are you personal views here? Or is this something you haven't considered/ aren't interested in? (I think it's OK for one person to not have to cover every single issue).

If you can answer my questions, or point me in the right direction?

Warm regards
David Johnston

I’ve had a look into your questions around paternity and men’s obligations. Firstly, this seems to be an area that the Green Party haven’t really looked in to. It’s also a bit unclear about whose portfolio these issues would come under - and therefore, who would explore this in relation to Green Party policy. This is something I will continue to look in to. In the meantime, below you should find answers to your non-Green Party specific questions. I hope they help.

- Laws in New Zealand regarding paternity testing

The main law in New Zealand regarding paternity testing is:Family Proceedings Act 1980, Sections 54-59

This Act can be accessed on the New Zealand legislation website at:

http://www.legislation.govt.nz/act/public/1980/0094/latest/DLM39723.html

Courts may recommend that parentage tests be carried out, but cannot order that parentage tests be carried out.

If a person refuses to give a blood or buccal sample for a parentage test, the Court may “draw such inferences (if any) from the fact of refusal as appear to it to be proper in the circumstances.”

The Status of Children Act 1969, Sections 7-10 has information on the Recognition of Paternity, but these sections do not mention paternity or parentage tests.

The Status of Children Act 1969 can be accessed on the New Zealand legislation website at:

http://www.legislation.govt.nz/act/public/1969/0018/latest/DLM390654.html

- Laws in New Zealand regarding men’s obligations to pay child support

The law in New Zealand which obligates parents to pay towards the living costs of their children is the Child Support Act 1991.

This Act can be accessed on the New Zealand legislation website at:

http://www.legislation.govt.nz/act/public/1991/0142/latest/DLM253151.html

- Prospective Father’s Right to Paternity Testing

It is very difficult for a man to get a paternity test performed unless the mother agrees to her child submitting a DNA sample (blood or buccal).

If the mother agrees, a paternity test is no problem.

Currently a mother can usually overrule a man's request for DNA testing. But in December of 2004 (T v S), a man successfully won a Court of Appeal battle to have a child DNA tested despite the mother's refusal. This case set a precedent that Family Court judges can now enforce.

A Law Commission report (New issues in Legal Parenthood, New Zealand Law Commission, April 2005) has also boosted fathers' rights by recommending all judges should have the ability to overrule a mother's opposition to DNA testing. The report estimated doubts over paternity existed in up to 30 per cent of children.

If a man feels he is being asked to pay child support for a child he has not fathered a complaint can be lodged with IRD. The Commissioner of Inland Revenue has the discretion to decide whether a man is the parent and can consider evidence such as travel documentation to prove one of the parties was overseas at the time of conception, DNA tests or an admission of paternity from another person in court. If the complaint is not successful, the commissioner's decision can be appealed in the Family Court.

Please see the Maxim Institute Policy Paper, October 2006, Paternity Testing in New Zealand, for further information on this issue.

This is available at:www.maxim.org.nz/files/pdf/policy_paper_paternity_testing.pdf

- Are children born in marriage assumed to be the husband’s?

Yes, children born in marriage are assumed to be the husband’s children, unless there is evidence to the contrary.

This is spelt out in the Status of Children Act 1969, Section 5 which can be accessed on the New Zealand legislation website at:

http://www.legislation.govt.nz/act/public/1969/0018/latest/DLM390675.html

Section 5 reads: Presumptions as to parenthood·

(1) A child born to a woman during her marriage, or within 10 months after the marriage has been dissolved by death or otherwise, shall, in the absence of evidence to the contrary, be presumed to be the child of its mother and her husband, or former husband, as the case may be.

(2) Every question of fact that arises in applying subsection (1) of this section shall be decided on a balance of probabilities.

(3) This section shall apply in respect of every child, whether born before or after the commencement of this Act, and whether born in New Zealand or not, and whether or not his father or mother has ever been domiciled in New Zealand.

- The Law Commission on these issues

The Law Commission’s 2005 paper:

New Issues in Legal Parenthood can be accessed at:

http://www.lawcom.govt.nz/project/status-parenthood-0?quicktabs_23=report#node-628

The Government response to this paper is available on the Ministry of Justice website at:

http://www.justice.govt.nz/publications/global-publications/g/government-response-to-law-commission-report-on-new-issues-in-legal-parenthood-march-2006

Thanks, Holly(Executive Assistant to Gareth Hughes)