TN 26 (12-98)

A. Policy — General Rule

In general, the presumption of legitimacy is rebutted if clear and convincing evidence shows that:

• The husband was sterile (unless the child was conceived by artificial insemination); or

• The husband was constantly absent from his wife during the whole period within which the child must have been conceived; or

• The husband was present with his wife only under circumstances which made sexual relations impossible; or

• The child's mother was living in adultery continuously during the time the child must have been conceived and there is no evidence of access by the husband.

NOTES: 

• Additional grounds for rebutting the presumption exist in some States (e.g., blood/genetic tests showing that the wife's husband could not have been the child's father). In the absence of a legal precedent opinion on this issue, submit the case for a regional chief counsel opinion per GN 01010.815 ff.

• Also, see GN 00306.021B. for presumption of legitimacy in Louisiana, California, and Oregon.

B. Policy — Louisiana, California and Oregon

Special rules for the presumption and rebuttal in these three states are as follows:

1. Louisiana

a. Births Prior to 10/01/76

Louisiana law presumes that a child is the natural legitimate child of the man who was the mother's husband at the time of the child'sconception unless the child's legitimacy has been disputed successfully in a statutory action in disavowal.

b. Births On or After 10/01/76

Louisiana law presumes that the husband of the mother at the time of a child's conception or birthis the father unless the child's legitimacy has been successfully disputed by him in a statutory action in disavowal.

If the mother was married to two different men at the times of conception and birth, her husband at the time of birth is presumed to be the child's father unless the husband has successfully disputed the child's legitimacy in a statutory action in disavowal. If so, the husband at the time of conception is presumed to be the father.

c. Simultaneous Inheritance Rights

A child who is presumed to be the natural legitimate child of the mother's husband (or former husband) may establish inheritance rights from its biological father through a filiation action, even if the legal father has not disavowed the child. A successful filiation action gives the child simultaneous inheritance rights from a legal father and a biological father.

2. California and Oregon

a. Presumption

These State laws conclusively presume that a child is the child of the marriage if, during the period of possible conception, the wife was cohabitating with the husband who was not impotent or sterile.

b. Rebuttal

This presumption cannot be rebutted under Oregon law.California law permits rebuttal only if:

• No final judgment of paternity was entered before 10/01/80;

• The child was not conceived by surgical procedure or artificial insemination with the written consent of the husband; and

• Experts conclude, based on properly performed blood tests, that the husband is not the child's father.

Unless the presumption is rebutted or the child is adopted, the child cannot inherit as a “child” from any other man under California or Oregon law.

C. Policy — Acceptable Evidence Rebutting Presumption

1. General

You may use statements from neighbors, friends and relatives of the parties, or other persons who know the facts.

CAUTION: See GN 00306.025 for applicability of Lord Mansfield Rule.

2. What Evidence Should Show

1. Whether the mother and alleged father had a continuous relationship, lived together continuously, and were considered husband and wife in their community.

2. The whereabouts of the mother, her legal husband, and the alleged father during the entire period when the child could have been conceived.

3. The circumstances under which the alleged father and mother were together during the period of conception (in cases where the legal husband was not constantly absent from the mother during the whole period).

4. When pertinent, whether the child was born prematurely or whether the gestation period was normal or abnormal (based on the statement of the physician in attendance).

5. Who was considered the natural father by the family group and those in a position to know the facts when the child was born.

6. Any other information that the situation warrants.

NOTE: The statement of a reputable physician must support any allegation that the mother's husband was sterile at the applicable time. The physician's statement must show the basis of his/her knowledge.

3. When to Submit to RCC

In the absence of a precedent opinion, submit the case to the RCC per GN 01010.815 ff. if there is:

1. A question as to whether certain types of evidence can be used to rebut the presumption; or

2. Evidence that the child was conceived by artificial insemination; or

3. Evidence (not mere suspicion) indicating that the child is illegitimate (and would not be entitled if illegitimate) and there is a question as to whether the evidence is enough to rebut the presumption; or

4. Doubt about what additional development is necessary.

D. Procedure — Louisiana

If the NH, the claimant, an adverse claimant, or information in file suggests that a statutory action in disavowal may have been brought, document the file with a report on the result of the action.