TN 36 (11-11)

Child or father acquires status of child or parent if:

1. parents intermarry and father recognizes the child; or

2. (I) prior to 04/18/79, there is clear and convincing evidence that the man was the child's father; or

3. effective 04/18/79, at least one of the conditions described in 3. a.–g. is satisfied. Prior to 11/27/98, the child was required to assert his or her claim against the alleged father's estate in a court of competent jurisdiction within 180 days of the alleged father's death. For child benefit claims on or after 11/27/98, or pending on that date, a court order is not required; SSA may make a determination of paternity with no time limit, using the standard of proof set forth in the applicable provision below:

   1. A court of competent jurisdiction has determined the legitimacy of the child pursuant to one of the following provisions (for claims filed on or after 11/27/98, or pending on that date, a court determination is no longer required; SSA may make the determination using a preponderance of the evidence standard of proof in cases where the putative father is still living, and a clear and convincing evidence standard of proof in cases where the putative father is deceased):

      1. A child is deemed the legitimate child of both parents for purposes of intestate succession if the parents lived together as man and wife and, before the birth of the child, participated in a marriage ceremony in apparent compliance with the law although the attempted marriage is void. A child born or conceived during a marriage is presumed to be the legitimate child of both spouses for the same purposes.

      2. A child is considered legitimate if the father married the child's mother and recognized the child as his.

      3. Any child conceived following artificial insemination of a married woman with the consent of her husband shall be treated as their child. Consent of the husband is presumed unless the contrary is shown by clear and convincing evidence. Children conceived before the father's death but born thereafter shall inherit in the same manner as if born in their father's lifetime; or

   2. (I) A court of competent jurisdiction has established the paternity of the child (for claims filed on or after 11/27/98, or pending on that date, a court order is no longer required; SSA may make the determination using a preponderance of the evidence standard of proof in cases where the putative father is still living, and a clear and convincing evidence standard of proof in cases where the putative father is deceased):

      1. Scientific testing, including DNA and blood testing, in the form of a written report certified by a notarized affidavit and prepared by

         1. the duly qualified expert conducting the test or

         2. a duly qualified expert under whose supervision or direction the test and analysis have been performed.

         The report should be such as would be introduced in evidence in paternity actions without calling the expert as a witness.

         Note: A DNA test report with a certified affidavit from the laboratory directory is not admissible evidence unless the director was

         1. the duly qualified expert who conducted the test or

         2. the duly qualified expert who supervised the testing.

      2. Prior to 1981, such DNA tests were admissible evidence only where the tests results definitely excluded the alleged father.

      3. Starting in 1981, if the tests establish a 95% or more probability of inclusion that the alleged father is the biological father of the child, after corroborating testimony concerning the conception of the child, the test constitutes prima facie proof of paternity, and the burden shifts to the alleged father to rebut such proof. Submit cases involving questions about these issues to the RCC per GN 01010.815 ff.

      4. Effective 4/8/91, the DNA report must also document the chain of custody of the genetic samples in contested actions. Consistent with agency policy we treat all actions as contested and require affidavits to document the chain of custody from

         1. a person witnessing the extraction, packing, and mailing of the samples to the testing laboratory and

         2. a person signing for the samples at the testing laboratory; or

   3. (I) The man has made a written acknowledgment that he is the child's father; or

   4. (I) The man's name appears with his written consent on the BC as the child's father; or

   5. (I) The mother and father intermarry before the child's birth; or

   6. (I) The mother and putative father attempted to marry each other before the child's birth by a marriage solemnized in apparent compliance with law, although the attempted marriage is or could be declared invalid; or

   7. (I) The putative father is obligated to support the child under a written voluntary promise or by court order.