Program Operations Manual System (POMS)
TN 27 (12-00)
GN 00306.585 North Dakota Intestacy Laws
Effective 07/01/75, the child and father acquire the status of child and parent if the paternity of the child is established under the North Dakota Uniform Parentage Act (UPA) by court order before or after the death of the father, or if the parent-child relationship may be presumed under the UPA. (For child claims filed on or after 11/27/98, or pending on that date, a court order is not required; SSA may make an adjudication of paternity using a "preponderance of the evidence" standard of proof. See 3. below.)
Under the UPA, a man is presumed to be the natural father of a child if:
he and the child's natural mother are or have been married to each other and the child is born during the marriage, or within 300 days after the marriage is terminated by death, annulment, declaration of invalidity, or divorce, or after a decree of separation is entered by a court; or
before the child's birth, he and the child's natural mother have attempted to marry each other by a marriage solemnized in apparent compliance with law, although the attempted marriage is or could be declared invalid, and:
if the attempted marriage could be declared invalid only by a court, the child is born during the attempted marriage or within 300 days after its termination by one of the events specified in a. above; or
if the attempted marriage is invalid without a court order, the child is born within 300 days after the termination of cohabitation; or
after the child's birth, the man and the child's natural mother have married, or attempted to marry, each other by a marriage solemnized in apparent compliance with law, although the attempted marriage is or could be declared invalid; and:
he has acknowledged his paternity of the child in a writing filed with the division of vital statistics of the state department of health;
with his consent, he is named as the child's father on the child's BC; or
he is obligated to support the child under a written voluntary promise or by court order; or
while the child is under the age of majority, he receives the child into his home and openly holds out the child as his natural child;
he acknowledges his paternity of the child in a writing filed with the division of vital statistics of the state department of health, which shall promptly inform the mother of the filing of the acknowledgment, and she does not dispute the acknowledgment within a reasonable time after being informed thereof, in a writing filed with the division of vital statistics of the state department of health. If another man is presumed under this section to be the child's father, acknowledgment may be effected only with the written consent of the presumed father or after the presumption has been rebutted; or
if genetic tests show that he is not excluded and the statistical probability of his parentage is 95% or higher. If the probability is less than 95%, there is no presumption of paternity (see 3. below.)
State law does not specify who may provide the blood or tissue samples used for genetic testing; rather, the emphasis is on the reliability of the test results. Therefore, if the wage earner/putative father is deceased and blood or tissue samples from him are not available, a court would likely rely on the results of genetic testing that used blood and tissue samples from members of the deceased wage earner's family.
A presumption of paternity under the UPA may be rebutted in an appropriate action only by clear and convincing evidence. Clear and convincing proof will be shown where the truth of the facts asserted is "highly probable." The North Dakota Supreme Court has further defined the phrase, stating: "Not only does the weight of evidence required to meet the clear and convincing standard not rise to the level of that required to meet the standard of beyond a reasonable doubt, but also the evidence need not be undisputed to reach the clear and convincing standard. Rather, under the clear and convincing standard, the evidence must be such that the trier of fact [SSA] is reasonably satisfied with the facts the evidence tends to prove as to be led to a firm belief or conviction." If there are two or more conflicting presumptions, the presumption that is founded on the weightier considerations of policy and logic (based on the facts) will be the controlling presumption. The presumption is rebutted by a court decree establishing paternity of the child by another man.
If there is no presumption of paternity, any evidence relevant to the issue of the child's paternity may be considered using a preponderance of the evidence standard, such as:
Evidence of sexual intercourse between the mother and alleged father at any possible time of conception;
An expert's opinion concerning the statistical probability of the alleged father's paternity based upon the duration of the mother's pregnancy;
Blood test results, weighted in accordance with evidence, if available, of the statistical probability of the alleged father's paternity; and
Medical or anthropological evidence relating to the alleged father's paternity of the child based on tests performed by experts. (Submit the case to the RCC per GN 01010.815 ff. in the absence of a legal precedent opinion.)
Prior to 07/01/75, the child and father acquire the status of child or parent if:
(I) the natural parents participated in a marriage ceremony before or after the child's birth even though the attempted marriage is void; or
(I) paternity is established by an adjudication before the father's death or is established thereafter by clear and convincing proof, except paternity established under this provision is ineffective to confer the status of parent unless the father has openly treated the child as his and has not refused to support the child.
Every child born in North Dakota before 01/17/45 or after 06/30/69, but before 07/1/75, is the legitimate child of his/her natural father under North Dakota law. If the child was not born in North Dakota but the father is domiciled in North Dakota at the time of the child's application or was domiciled there at the time of his death, the child has legitimate status with regard to the father.
If the child was born after 01/16/45 but before 07/01/69 and his/her father was domiciled in North Dakota at the time of the child's application or at the time of his death, the child acquires the status of child if:
The parents intermarry; or
The father publicly acknowledges the child as his own, receives it as his child into his family (with his wife's consent if he is married), and otherwise treats it as his legitimate child; or
(I) The father acknowledges the child in a writing signed before a competent witness.
Submit the case to the RCC per GN 01010.815 ff. to determine the status of a child or father under North Dakota law if:
In a child's claim, the child cannot acquire the status of child under the above rules, or
in a father's claim, the father has not acknowledged or adopted the child.