Delaware domestic relations statutes provide that paternity may be established by genetic testing. The statute that governs genetic testing requires DNA testing of paternity. It is not clear that a DNA test of siblingship is directly interchangeable with a test of paternity.

Although the DNA test report concludes that the findings support the assertion of a half-sibling relationship, the probability of such finding does not meet the threshold level to establish paternity under Delaware law. Absent genetic test results of the type and probability required under Delaware law, a court will likely find that the remaining evidence is insufficient to establish paternity by a preponderance of the evidence.

This memorandum is in response to your request for our advice on whether a parent-child relationship can be established under Delaware law between D~, the deceased NH, and J~, a minor child, based upon a November XX, 2018 report of DNA sibling test results on the child and a putative half-sibling, where the child’s birth certificate does not include the name of a father and the child bears the surname T~ of the mother’s husband at the time of the child’s birth.

We have reviewed the information you provided and researched the relevant provisions of Delaware law. It is our opinion that a court will likely find that there is insufficient evidence to establish a parent-child relationship between the NH and the child under Delaware law. Because the child’s mother cannot establish a parent-child relationship between the NH and the child, she has not established the child’s entitlement to benefits on this record.

You have indicated that the NH was a resident of Delaware at the time of his death on November XX, 2006. The information you provided shows that the child was born on June XX, 2007, seven months after the NH’s death, in the state of Maryland. The child’s birth certificate identifies H~as the child’s mother, using her name prior to her first marriage. The birth certificate does not identify the child’s father. You have indicated that the child’s Numident record also does not include the name of the father.

You have informed us that the child’s last name of T~ was the name of the mother’s spouse at the time of the child’s birth. You have also informed us that this marriage has since dissolved.

You have further informed us that, on December XX, 2018, H~, formerly H ~, the child’s mother, filed an application for surviving child’s benefits on the NH’s record on behalf of the minor child, alleging that the NH was the father of the child. With the application, the mother submitted a Relationship Report of genetic test results from Laboratory Corporation of America (LabCorp), signed and notarized on November XX, 2018. The genetic test report shows a 98.94% probability that the minor child and M~, an alleged child of the NH, are half siblings. The report also shows a sibling index for half sibling versus unrelated of 93 to 1. Based on these results, the report concludes that the likelihood ratio from this sibling index indicates that the child and M~ are 93 to 1 times more likely to be half siblings than unrelated. The report also concludes that the findings support the assertion that the child and M~ are half siblings. Attached to the genetic test report is a client authorization form signed by the applicant on behalf of the minor child, and by M~. Also attached is a signed certification by Labcorp personnel verifying chain of custody of the DNA specimens.

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 the NH was domiciled in Delaware when he died, we look to Delaware 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 Delaware intestacy law, a person born out of wedlock is a child of the mother. That person is also the child of the father if he or she is legitimated pursuant to Chapter 13 of Title 13, (that is, the parents marry before the birth of the child or marry after adjudication or acknowledgement of parentage after the birth of the child, or upon acknowledgment of paternity made in writing by the parents, 13 Del. Code § 1301) or, if:

(a) the natural parents participated in a marriage ceremony before or after the birth of the child, even though the attempted marriage is void; or

(b) the paternity is established by an adjudication before the death of the father or is established thereafter by a preponderance of the evidence; except, that the paternity established under this paragraph is ineffective to qualify the father or his kindred to inherit from or through the child unless the father has openly treated the child as his, and has not refused to support the child. 12 Del. Code § 508.

As referenced above, Delaware law provides for legitimating a child born out of wedlock. More fully, the statute explains that “[a] child conceived out of wedlock shall be legitimate if the parents shall marry before the birth of the child or if they shall marry after adjudication or acknowledgement of parentage after the birth of the child, or upon acknowledgement of the paternity made in writing by the parents, if both are living or by the father if the mother is not living and filed in the Office of Vital Statistics.” 13 Del. Code § 1301. A person legitimated as provided by 13 Del. Code § 1301 shall inherit from the father under the inheritance laws of Delaware to the same extent as a child conceived in wedlock of that father. 13 Del. Code § 1304.

Here, a court would likely find that there is insufficient evidence to establish that the child is legitimate under Delaware intestacy law. As set forth above, the child has not been legitimated as provided for under chapter 13 of title 13 because the parents did not marry before the child’s birth. Nor could the child be legitimated by his parents’ marriage after his birth, as the NH was deceased at the time of the child’s birth. Because the child is not legitimate and could not be legitimated, in order to be considered a child of the NH with inheritance rights under Delaware law, the child must establish paternity by a preponderance of the evidence.

In addition, even assuming that the child cannot establish inheritance rights under Delaware intestacy law based on legitimation, the applicant may be able to establish that he is the child of the NH (for purposes of inheritance rights) by proving paternity by a preponderance of the evidence. Delaware domestic relations statutes provide that paternity may be established by genetic testing. Specifically, a man is rebuttably identified as the father of a child if genetic test results show at least a 99% probability of paternity and a combined paternity index of at least 100 to 1. 13 Del. Code § 8-505. For genetic testing to be acceptable to establish paternity, it must be of a type reasonably relied upon by experts in the field of genetic testing and performed in a testing laboratory accredited by the American Association of Blood Banks, or a successor to its functions; the American Society for Histocompatibility and Immunogenetics, or a successor to its functions; or an accrediting body designated by the federal Secretary of Health and Human Services. 13 Del. Code § 8-503(a)(1)-(3).

The report of genetic testing must be in a record and signed under penalty of perjury by a designee of the testing laboratory. 13 Del. Code § 8-504(a). Documentation from the testing laboratory of the following information is sufficient to establish a reliable chain of custody and will allow the results of the genetic testing to be admissible without testimony:

(1) The names and photographs of the individual whose specimens have been taken:

(2) The names of the individuals who collected the specimens;

(3) The places and dates the specimens were collected;

(4) The names of the individuals who received the specimens in the testing laboratory; and

(5) The dates the specimens were received.

Id. at § 8-504(6).

Here, the applicant cannot establish the NH’s paternity by a preponderance of the evidence based on DNA test results. As a preliminary matter, the Delaware statute that governs genetic testing requires DNA testing of paternity. It is not clear that a DNA test of siblingship, as present here, is directly interchangeable with a test of paternity. Weighing against such a conclusion, the DNA test report from LabCorp is titled a “Relationship” report and identifies the probability of half siblingship rather than of paternity. Nowhere in the report does it reference the word paternity.

In addition, even if a test of siblingship qualified as a test of paternity, the DNA test results here show only 98.94% probability of siblingship and do not satisfy the 99% probability required under Delaware law. Likewise, the sibling index for half siblings versus unrelated finding of 93 to 1 does not satisfy the statutory requirement for a combined paternity index of at least 100 to 1. Therefore, although the DNA test report concludes that the findings support the assertion that the child and M~ are half siblings, the 98.94% probability of such finding still does not meet the threshold level to establish paternity under Delaware law.

Absent genetic test results of the type and probability required under Delaware law, a court will likely find that the remaining evidence is insufficient to establish paternity by a preponderance of the evidence. The child’s birth certificate does not identify the name of the father, let alone that the NH was the father. In addition, the child’s surname (T~) is that of the mother’s husband at the time of the child’s birth. It is our opinion that none of this evidence establishes by a preponderance of the evidence that the child is the child of the NH. Accordingly, there is insufficient evidence to establish a parent-child relationship between the NH and the child under Delaware law.

Based upon the evidence we received, we believe that the child claimant is not entitled to benefits on the NH’s record under the Social Security Act.

In Delaware, a parent-child relationship may be established solely through DNA test results. Neither home test kits nor mail order tests are acceptable for DNA testing. Delaware statues outline the requirements for the accreditation requirements of DNA testing laboratories. The DNA tests results alone do not legitimize a child. However, an illegitimate child has some inheritance rights.

QUESTIONS PRESENTED

On April 7, 2010, you made a general inquiry about whether a parent-child relationship may be established through DNA testing alone or if, in addition to the DNA test results, other evidence is required before paternity is established by clear and convincing evidence under the laws of Delaware. You further questioned the accreditation requirements for DNA testing laboratories and whether home test kits and mail order tests are acceptable. Additionally, you asked whether proof of paternity through DNA testing legitimizes a child. Finally, if the child is not legitimated, you asked whether the child has inheritance rights under Delaware’s intestacy laws.

SUMMARY

In Delaware, a parent-child relationship may be established solely through DNA test results. Neither home test kits nor mail order tests are acceptable for DNA testing. Delaware statues outline the requirements for the accreditation requirements of DNA testing laboratories. The DNA tests results alone do not legitimize a child. However, an illegitimate child has some inheritance rights.

DISCUSSION

Delaware state law reflects that paternity may be established through genetic testing results. DEL. CODE ANN. tit. 13, § 8-505 (2004). A number holder may be rebuttably identified as the father of a child if the genetic testing complies with Section 8-505 and the results disclose that:

(1) The man has at least a 99 percent probability of paternity, using a prior probability of 0.50 as calculated by using the combined paternity index obtained in the testing; and

(2) A combined paternity index of at least 100 to 1. DEL. CODE ANN. tit. 13, § 8-505(a) (2004). Once identified as the child’s father under this subchapter, the number holder may rebut the genetic testing results with other genetic testing. DEL. CODE ANN. tit. 13, § 8-505(b) (2004). Additionally, if “more than 1 man is identified by genetic testing as the possible father of the child, the court shall order them to submit to further genetic testing to identify the genetic father.” DEL. CODE ANN. tit. 13, § 8-505(c) (2004).^[1]

Home test kits or mail order tests are not acceptable forms of genetic testing in Delaware. Acceptable genetic testing must be of a type reasonably relied upon by experts in the genetic testing field and performed in a testing laboratory accredited by:

(1) The American Association of Blood Banks, or a successor to its functions;

(2) The American Society for Histocompatibility and Immunogenetics, or a successor to its functions; or

(3) An accrediting body designated by the federal Secretary of Health and Human Services.

DEL. CODE ANN. tit. 13, § 8-503(a) (2004). The genetic testing report must be in a record and signed under penalty of perjury by a designee of the testing laboratory. DEL. CODE ANN. tit. 13, § 8-504(a) (2004). The report is self-authenticating if it is made under the requirements of subchapter V. Id. Documentation from the testing laboratory of the following information is sufficient to establish a reliable chain of custody and will allow the results of genetic testing to be admissible without testimony:

(1) The names and photographs of the individual whose specimens have been taken;

(2) The names of the individuals who collected the specimens;

(3) The places and dates the specimens were collected;

(4) The names of the individuals who received the specimens in the testing laboratory; and

(5) The dates the specimens were received.

DEL. CODE ANN. tit. 13, § 8-504(b) (2004).

In Delaware, DNA test results alone are insufficient to legitimize a child. A child conceived out of wedlock is legitimate if the parents marry before the child is born; if the parents marry following the adjudication or acknowledgment of parentage after the child is born; or upon the parents’ acknowledgment of the paternity made in writing, which must be filed in the Office of Vital Statistics, if both are living or by the father if the mother is not living. DEL. CODE ANN. tit. 13, § 13-1301 (2004).

An illegitimate child cannot inherit from the father in Delaware. DEL. CODE ANN. tit. 13, § 13-1303 (2004). In order to inherit from the father, the child must be legitimated, as provided by Section 1301. DEL. CODE ANN. tit. 13, § 13-1304 (2004). Once legitimated, the child’s inheritance rights from the father shall be the same as a child conceived in wedlock of that father. Id. However, an illegitimate child may inherit from the mother in the same manner as a legitimate child. DEL. CODE ANN. tit. 13, § 13-1303 (2004).

Eric P. K~
Regional Chief Counsel
By:_____________
Quinn N. D~

Assistant Regional Counsel