The Virginia statute does not address DNA testing that establishes the likelihood of paternity based on a grandparent relationship. While there is no case law directly on point, we believe that, in light of the statutory recognition granted to DNA testing, a Virginia court would consider the results of DNA testing on a paternal grandparent along with all of the other evidence presented to determine if a paternal relationship could be established.

In this case, it is recommended that additional documentation be obtained to rule out the possibility that a brother of number holder (NH) fathered Minor Child.

You asked us to determine if, under Virginia law, minor child K~ (Minor Child) qualifies for surviving child’s insurance benefits on the record of the deceased Number Holder, D~ (NH), where genetic testing was conducted on Minor Child, Minor Child’s Mother (Claimant), and NH’s biological mother.

Based on our review of the facts of this case and our research of relevant law, we believe additional factual information is needed to rule out any likelihood that a brother of NH fathered Minor Child. In particular, we recommend that you obtain additional documentation showing that NH had no brothers or that, if he had a brother or brothers, there was no possibility that one of them could have fathered Minor Child. If such evidence can be obtained, we believe that, based on the DNA test results of Applicant, Minor Child, and NH’s biological mother, and the additional information you provided, a Virginia court would likely find that NH was Minor Child’s father and that Minor Child is therefore entitled to benefits on NH’s record. On the other hand, if such evidence cannot be obtained, we believe that a Virginia court would likely not find that NH was Minor Child’s father and that Minor Child is therefore not entitled to benefits.

NH passed away on April XX, 2019 and was domiciled in Virginia at the time of his death. Minor Child was born on September XX, 2011. Minor Child’s Numident record did not list a name for a biological father. NH and the Claimant were not married at any time prior to NH’s death.

In May of 2019, Claimant applied for surviving child’s benefits on behalf of Minor Child on the record of NH. At this time, Claimant did not provide any evidence in support of her claim that NH was the father of Minor Child. SSA therefore denied benefits for Minor Child. On September 8, 2020, Claimant filed another application and, in support thereof, submitted a Relationship Report from DNA Paternity Testing Centers signed and notarized on August 5, 2019. The report compared DNA samples collected from Minor Child, Claimant, and NH’s biological mother. Following testing, NH’s biological mother “could not be excluded as a biological grandparent of the child . . . since they share genetic markers. Using the genetic markers found in the testing of the alleged biological grandmother, the probability she is the biological grandmother is 99.3119% as compared to untested, unrelated persons of the African American population. This study supports the allegation that a son of the grandmother is the biological father of the child” (emphasis added). In further support of her application, Claimant also submitted a notarized statement in which NH’s mother attested that NH is her son and the father of Minor Child.

To qualify for child’s insurance benefits on the earnings record of an insured individual who has died, a claimant must be that individual’s “child.” See Social Security Act (Act) § 202(d); 20 C.F.R. § 404.350(a)(1). A claimant can qualify as the insured individual’s natural child if the claimant could inherit from the insured individual as his child. See Act § 216(h)(2)(A); 20 C.F.R. § 404.355(a)(1), (b). To determine if a claimant could inherit from the insured individual, the Social Security Administration applies the intestacy laws of the state where the insured had his permanent home when he died. See Act § 216(h)(2)(A); 20 C.F.R. § 404.355(a)(1), (b)(1). Because NH was domiciled in Virginia when he died, we look to Virginia law to determine whether the minor child could inherit from the NH as his child. Act § 216(h)(2)(A); 20 C.F.R. § 404.355(b)(4).

Under Virginia intestacy law, the paternity of a child born out of wedlock must be established by clear and convincing evidence, which may include the following:

1. That he cohabited openly with the mother during all of the 10 months immediately prior to the time the child was born;

2. That he gave consent to a physician or other person, not including the mother, charged with the responsibility of securing information for the preparation of a birth record that his name be used as the father of the child upon the birth record of the child;

3. That he allowed by a general course of conduct the common use of his surname by the child;

4. That he claimed the child as his child on any statement, tax return or other document filed and signed by him with any local, state or federal government or any agency thereof;

5. That he admitted before any court having jurisdiction to try and dispose of the same that he is the father of the child;

6. That he voluntarily admitted paternity in writing, under oath;

7. The results of scientifically reliable genetic tests, including DNA tests, weighed with all the other evidence; or

8. Other medical, scientific, or anthropological evidence relating to the alleged parentage of the child based on tests performed by experts.

Va. Code Ann. § 64.2-103(A)(7); see also Va. Code Ann. § 64.2-102(3)(b).

The Virginia Supreme Court has also found clear and convincing evidence of paternity based upon evidence not specifically listed in the statute. See, e.g., Jones v. Eley, 501 S.E.2d 405, 407 (Va. 1998) (clear and convincing evidence supported a finding of paternity where father acknowledged his paternity to others, including his doctor, had interactions with the child indicative of a father and child relationship, and contributed to the support and maintenance of the child). Moreover, Virginia courts have considered factors such as whether a purported father was sterile or “had access to” the mother within the “window of conception.” See, e.g., Hankerson v. Moody, 329 S.E.2d 791, 7994 (Va. 1985) (uncontradicted evidence of results of blood test from mother, child, and putative father, plus mother’s testimony as to nonaccess by other men established defendant’s paternity); Brooks v. Rogers, 445 S.E.2d 725, 727 (Va. Ct. App. 1994).

Virginia courts have defined clear and convincing evidence as “[t]hat measure or degree of proof which will produce in the mind of the trier of facts a firm belief or conviction as to the allegations sought to be established. It is intermediate, being more than a preponderance, but not to the extent of such certainty as is required beyond a reasonable doubt as in criminal cases. It does not mean clear and unequivocal.” Commonwealth v. Dep’t of Soc. Serv. v. Flaneary, 469 S.E.2d 79, 84 (Va. Ct. App. 1996). The Virginia Supreme Court has stated that the clear and convincing standard “has placed a heavy burden on people who undertake to prove that they are the paternal children of a decedent.” Jones, 501 S.E.2d at 408.

When considering the sufficiency of DNA testing specifically, Virginia courts look to another section of the Virginia Code pertaining to domestic relations proceedings, which provides that blood test results that affirm at least a 98% probability of paternity are sufficient to establish a parent-child relationship. Va. Code Ann. § 20-49.1(B)(1); see Veeney ex rel. Strother v. Sullivan, 973 F.2d 326, 331 (4th Cir. 1992) (examining the intersection of the intestacy and domestic relations statutes); Flaneary, 469 S.E.2d at 82–83 (uncontroverted evidence that genetic blood tests resulted in 99.92% probability of paternity was clear and convincing evidence of paternity).

The Virginia statute does not address DNA testing that establishes the likelihood of paternity based on a grandparent relationship. While there is no case law directly on point, we believe that, in light of the statutory recognition granted to DNA testing, a Virginia court would consider the results of DNA testing on a paternal grandparent along with all of the other evidence presented to determine if a paternal relationship could be established. Moreover, DNA evidence is generally recognized as a reliable method of establishing paternity. See, e.g., Buckland v. Commonwealth of Virginia, 329 S.E.2d 803, 807 (Va. 1985) (holding that a blood test of a father and child, which showed a 99.27% probability of paternity, standing alone, proved paternity beyond a reasonable doubt). Without other evidence supporting paternity, however, we do not believe that grandparent DNA testing alone would satisfy the clear and convincing evidence standard under Virginia law.

Here, the unrebutted DNA test results establish that the probability that the alleged paternal grandmother is, in fact, the Minor Child’s biological grandmother is “99.3119% as compared to untested, unrelated persons of the African American population. This study supports the allegation that a son of the grandmother is the biological father of the child” (emphasis added). Significantly, the results do not rule out the possibility that a brother of NH could be the natural father. Indeed, no evidence was presented on this point. And, although NH’s biological mother attested that she is the grandmother of Minor Child through her son, NH, no other evidence was presented to bolster that conclusion such as any evidence that NH acknowledged paternity, contributed to the child’s support, or had a relationship with Claimant prior to Minor Child’s birth, factors routinely considered by Virginia courts when assessing paternity. Given that the DNA test results do not rule out a brother as the natural father, along with the absence of additional evidence that favors a finding of paternity, in order to meet the “clear and convincing” standard, we believe that additional evidence must be collected, such as statements or affidavits from NH’s brother(s), if any, Claimant, and/or other family members, eliminating the possibility that such brother(s) could be Minor Child’s father. After additional evidence is secured, if it appears to establish by clear and convincing evidence that no other relative of NH is likely to be the father, then a Virginia court would likely find that Minor Child is NH’s child.

Under Virginia law, it is unlikely the “clear and convincing” evidence standard proving paternity has been met. Therefore, it is recommended that additional documentation be obtained to rule out the possibility that a brother of NH fathered Minor Child. If additional evidence eliminates the possibility that a brother of NH is Minor Child’s father, that evidence, along with the evidence provided in support of this application, would likely be sufficient for a Virginia court to find that NH was Minor Child’s father. Therefore, it is our opinion that Minor Child can be considered NH’s child for the purpose of receiving surviving child’s benefits on NH’s record if adequate evidence, as described above, is obtained. On the other hand, if such evidence cannot be obtained, we believe that a Virginia court would likely not find that NH was Minor Child’s father and that Minor Child is therefore not entitled to benefits.