Utah law does not distinguish between legitimate and illegitimate children. Once paternity is established by clear and convincing evidence, the child has the same rights as a child born to married parents, including the right to inherit through intestate succession. This means an adjudication of paternity relates back to the child’s birth.

Question Presented

You have asked whether T~ would be considered the child of NH C~ under Utah intestacy laws for purposes of establishing eligibility for survivor’s benefits based on a report of genetic testing. If so, you have also asked what date to use for eligibility since genetic testing occurred after the NH’s death.

Short Answer

To inherit under Utah law, a child must establish paternity by clear and convincing evidence. We believe the evidence provided is sufficient to satisfy that standard because:

(1) the report of genetic testing appears to satisfy certain statutory requirements for admissibility, and it shows a probability of relatedness as full siblings of over 99% between T~ and K~, who was born during the marriage of the NH to T~’s mother; and

(2) T~’s Utah birth certificate lists the NH as his father and, when a child is born to an unmarried mother, the NH’s name could have only been included by either a court adjudication or a voluntary acknowledgment of paternity. Lastly, under Utah law, the determination of the father-child relationship relates back to the child’s date of birth.

Background

The NH was domiciled in Utah when he died (also in Utah) in December 2016. He was divorced at the time of his death. The NH reported a previous marriage to D~, which lasted from June 1995 to July 1998. K~ was born during the marriage in March 1998; K~’s birth certificate names D~ as his mother and the NH as his father. When the NH applied for DIB in 2005, he identified K~ as his child.

The claimant, T~, was born in June 2007, after the couple’s divorce and after the NH’s 2005 application for DIB. T~’s Utah birth certificate names D~ as his mother and the NH as his father. D~ was not married at the time of T~’s birth.

In an effort to establish paternity, T~ submitted a January 2017 report of genetic testing showing a 99.9853% “probability of relatedness as full siblings” between T~^[1] and K~.

Discussion

In determining the father-child relationship status for purposes of survivor’s benefits, the agency looks to the intestate succession laws of the state in which the NH was domiciled when he died. 42 U.S.C. § 416(h)(2)(A); 20 C.F.R. § 404.355(b); POMS GN 00306.001(C)(1)(a). In this case, the NH died while domiciled in Utah. Utah’s probate code provides that for purposes of intestate succession, the parent and child relationship may be established pursuant to Utah’s Uniform Parentage Act (UPA). See Utah Code Ann. § 75-2-114(1) (West 2017), citing id. § 78B-15-201.

Under the Utah UPA, a father-child relationship may be established by an adjudication of paternity.^[2] Id. § 78B-15-201(2)(c). The agency does not require an actual court adjudication, but will instead resolve the paternity question using the same standard a Utah court would apply. 20 C.F.R. § 404.355(b)(2). That means T~ must prove he is the NH’s child by clear and convincing evidence. See Utah Code Ann. § 78B-15-112 (standard of proof in a trial to determine paternity is clear and convincing evidence). Clear and convincing evidence “implies something more than the usual requirement of a preponderance, or greater weight, of the evidence; and something less than proof beyond a reasonable doubt.” Essential Botanical Farms, LC v. Kay, 270 P.3d 430, 438 (Utah 2011); see also Greener v. Greener, 212 P.2d 194, 205 (Utah 1949) (“[F]or a matter to be clear and convincing to a particular mind it must at least have reached the point where there remains no serious or substantial doubt as to the correctness of the conclusion.”).

Genetic testing can provide clear and convincing evidence of paternity. See Utah Code Ann. § 78B-15-505(1); State ex rel. S.H., 119 P.3d 309, 312 (Utah. Ct. App. 2005) (“Genetic testing is capable of determining paternity with a high percentage of accuracy and will generally satisfy any evidentiary standard employed by the court.”). However, under Utah’s UPA, genetic testing must meet certain standards to be admissible:

• •

  First, it must be of a type reasonably relied upon by experts in the field of genetic testing, and be performed in an accredited laboratory;

• •

  Second, the report of genetic testing must be signed by a laboratory designee under penalty of perjury; and

• •

  Third, where the laboratory provides documentation establishing a reliable chain of custody for the testing, the results are admissible without the need for testimony.

Utah Code Ann. §§ 78B-15-503, -504.

Here, the report of testing was done by LabCorp, which is accredited by the American Association of Blood Banks. See id. § 78B-15-503(1)(a);^[3] Model UPA § 503 cmt. (2002) (“The accreditation requirement assures that the testing will ‘be of a type reasonably relied upon by experts in the field of genetic testing.’”). The report was also signed by a LabCorp designee under penalty of perjury. Finally, the lab documentation is also sufficient to establish a reliable chain of custody because it includes:

1. 1. 

   The names, fingerprints, and photographs^[4] of the individuals whose specimens were taken: T~ and K~;

2. 2. 

   The name of the individuals who collected the specimens: K~;

3. 3. 

   The place and date where the specimens were collected: a LabCorp address in O~, Utah, on January XX, 2017;

4. 4. 

   The name of the individual who received the specimens in the testing lab: [illegible];

5. 5. 

   The date the specimens were received: January XX, 2017.

Utah Code Ann. § 78B-15-504(2). Thus, the genetic testing report appears to meet the Utah UPA’s standards for admissibility.

Turning to the actual results of the testing, the lab reported that the sibling index for full versus half sibling is 6,786 to 1, for a “probability of relatedness” as full siblings of 99.9853%. This is insufficient to establish a presumption of paternity based on genetic testing under Utah’s UPA, which specifically limits the presumption to testing that shows a 99% probability of paternity (rather than mere relatedness). See id. § 78B-15-505(1). However, because K~ was born during the marriage of D~ and the NH, he is presumed to be the NH’s child. See id. § 78B-15-204(1)(a). Further, the NH acknowledged K~ as his child in his 2005 DIB application. Because K~’s relationship as the natural child of the NH is well established, the genetic test results are compelling evidence of the NH’s paternity of T~. See, e.g. id. § 78B-15-508 (providing for genetic testing of other family members, including “other children of the man and their mothers,” where a genetic-testing specimen is not available from the putative father).

T~’s birth certificate, which lists the NH as his father, further supports this conclusion. Under Utah law, where a child is born to an unmarried mother, a father’s name can only appear on the birth certificate by court order or by the written consent of the declarant father. See id. § 26-2-5(5)-(7). In light of these requirements, it is likely the NH acknowledged paternity.^[5]

We believe that the genetic testing results and birth certificate provide clear and convincing evidence that the NH is T~’s father for purposes of Utah intestacy laws. In addition, under Utah law, this determination is retroactive to the date of the child’s birth since Utah does not distinguish between legitimate and illegitimate children. See, e.g., id. § 78B-15-202 (once paternity is established under the Utah UPA, the child has the same legal rights as a child born to parents who are married to each other, including the right to inherit through intestate succession).

Conclusion

The evidence provided is sufficient to establish that T~ is the NH’s child under Utah law, and that determination relates back to the time of T~’s birth.

Under Utah law effective 7/1/97, a man is presumed to be the natural father of a child if genetic testing results in a "paternity index" of a least 150 so long as the testing meets certain reliability standards. The University of Utah DNA Diagnostic Laboratory has been accredited for paternity testing by the American Association of Blood Banks. Therefore, test results from that laboratory may be accepted as reliable. Paternity established as a result of genetic test results meeting the threshold index of at least 150 legitimate the child from birth.

This memorandum addresses three virtually identical requests for opinions regarding the use of genetic testing to establish paternity in Utah. Specifically, you have asked whether genetic test results that appear to establish the number holders (NHs) as the fathers of children who have applied for child's benefits meet the requirements of Utah law, and if so, whether the children were "legitimate" from birth. As discussed below, we believe the answer to both of your questions is "yes" in each of the three cases.

Facts

Based on the information you have provided, the facts of these three situations appear to be as follows.

L~, alleged child of NH T~. L~ (a female) was born May XX, 1991, to K~. At the time of her birth, her mother was unmarried and the father apparently was not named on the birth certificate. Accordingly, she was given her mother's surname.

In March 1995, the NH was found eligible for disability benefits as of January 1995. The NH died June XX, 1999, while domiciled in Utah. Following his death, genetic testing by the University of Utah DNA Diagnostic Laboratory (hereafter, DNA Lab) established a paternity index of 12,543, which meant there was a 99.992 percent probability that the NH was L~'s father. Based on these test results, on August 25, 1999, the Utah Bureau of Vital Records amended L~'s birth certificate to show the NH as her father.

M~, alleged child of NH W~. M~ (a male) was born October XX, 1996, to S~. The mother apparently was not married at the time of M~'s conception or birth, and the father was not named on the birth certificate. The NH died April XX, 1998, while domiciled in Utah. He was married and had a natural legitimate child who received survivor benefits until March 1999. Genetic testing by the DNA Lab in March 1999 established a paternity index of 1393, which meant there was a 99.928 percent probability that the NH was M~'s father. Apparently the mother did not use this information to amend M~'s birth certificate to show the NH as his father.

H~, alleged child of NH F~. H~ (a male) was born May XX, 1999, to A~. The mother apparently was not married at the time of H~'s conception or birth, and the father was not named on the birth certificate. The NH died July XX, 1999, while domiciled in Utah; he had never married. Genetic testing by the DNA Lab in September 1999 established a paternity index of 565,564, which meant there was a 99.9998 percent probability that the NH was M~'s father. Apparently the mother did not use this information to amend H~'s birth certificate to show the NH as his father.

Discussion

Under a Utah statute that became effective July 1, 1997, a man is presumed to be the natural father of a child if genetic testing results in a "paternity index" of at least 150 so long as the testing meets certain reliability standards. The presumption may be rebutted only by a second similarly reliable test that results in an exclusion. UTAH CODE ANNOTATED (UCA) § 78-45a-10.

The term "paternity index" is defined in the State of California Family Code in the following way:

"Paternity index" means the commonly accepted indicator used for denoting the existence of paternity. It expresses the relative strength of the test results for and against paternity. The paternity index, computed using results of various paternity tests following accepted statistical principles, shall be in accordance with the method of expression accepted at the International Conference on Parentage Testing at Airlie House, Virginia, May 1982, sponsored by the American Association of Blood Banks.

CAL. FAM. CODE § 7555 (West 1999). Under this scheme, a paternity index of 100 is the equivalent of a 99.0 percent "probability of paternity." The index increases exponentially from that point. For example, a paternity index of 178 means a probability of paternity of 99.4, an index of 1359 means a probability of 99.93 percent, and an index of 50,000 means a probability of 99.998 percent. See Christopher L. Blakesley, Scientific Testing and Proof of Paternity: Some Controversy and Key Issues for Family Law Counsel, 57 La. L. Rev. 379, 386 (1997); "Paternity Test Question and Answer," found on the website for the University of Utah DNA Diagnostic Lab

(http://medstat. med. utah.edu/dnadx/).

In each of the cases you have presented, the paternity index and probability of paternity are more than sufficient to establish a presumption that the NH is the child's father. See, e.g., Child Support Enforcement Agency v. Doe, 963 P.2d 1135, 1139 (Haw. App. 1998) (finding that a report indicating a paternity index of 643 and a probability of paternity of 99.84 percent established a presumption of paternity); see also POMS PR 01029.010, PR 93-001 "Use of Genetic Testing to Establish Parent-Child Relationship Posthumously in South Dakota - REGION VIII (stating, without reference to a paternity index, that a 99.99 percent probability of paternity was sufficient to establish "clear and convincing" proof of paternity under South Dakota law); Memorandum, Questionable Child Relationship - Lord Mansfield's Rule - Utah, CC VIII (Prescott) to RC, SSA, Nov. 30, 1994 (noting that a paternity index of 1637 meant a probability of paternity of 99.93 and advising that the genetic evidence established that the deceased wage earner was the father of the child who had applied for benefits) (copy attached).

We are also confident that the University of Utah DNA Diagnostic Laboratory has been properly accredited for paternity testing and therefore the test results may be accepted as reliable. Aside from the fact that the State of Utah itself relied upon the test results in naming Troy T~ as Alex's father on his amended birth certificate, this laboratory has been accredited by the American Association of Blood Banks (AABB), which is the primary accreditor of parentage-testing laboratories. See State of Montana v. Weeks, 891 P.2d 477, 488 (Mont. 1995).

Finally, we agree with your conclusion that the evidence in each case is sufficient to establish paternity as of the date of the child's birth, since the evidence permits the amendment of each child's birth certificate to name the NH as the father, whether or not the amendment was actually made.