TN 27 (12-00)

GN 00306.585 North Dakota Intestacy Laws

  1. 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.)

    1. Under the UPA, a man is presumed to be the natural father of a child if:

      1. 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

      2. 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:

        1. 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

        2. if the attempted marriage is invalid without a court order, the child is born within 300 days after the termination of cohabitation; or

      3. 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:

        1. he has acknowledged his paternity of the child in a writing filed with the division of vital statistics of the state department of health;

        2. with his consent, he is named as the child's father on the child's BC; or

        3. he is obligated to support the child under a written voluntary promise or by court order; or

      4. 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;

      5. 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

      6. 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.

    1. 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.

    2. 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:

      1. Evidence of sexual intercourse between the mother and alleged father at any possible time o