PR 01005.002 Alaska

A. PR 98-500 Rebuttal of Paternity Under Alaska Law

DATE: June 30, 1998

1. SYLLABUS

Under Alaska law, a determination as to based on blood genetic testing is admissible in a judicial or administrative proceeding to disestablish paternity. It would also be admissible in a judicial proceeding in 0regon. Thus, where the results show that the NH is not the biological father, SSA may rely on the genetic testing to reopen its earlier decision and terminate auxiliary benefits, subject to the rules on reopening.

2. OPINION

You wish to know whether Alaska law provides for rebuttal of the number holder's paternity in order to reopen and terminate child's benefits.

FACTUAL BACKGROUND

You provided the following facts to us in the opinion request:

The Number Holder (N/H), Steven J. C~, contacted the Fairbanks, [Alaska] field office and requested that Kristina C~'s auxiliary benefits terminate on his Social Security disability record. He presented a DNA Test, dated 10/07/97, which stated that he cannot be the biological father of Kristina. The N/H listed Kristina as his dependent child on both of his disability claims[.] (His first claim was denied through the reconsideration level, but his second claim was allowed.) The document presented for natural legitimate relationship and age for Kristina was an Alaska birth certificate. Also, the N/H was and is paying child support for Kristina through Child Support Enforcement. The N/H married Kristina's mother 15 days after her birth.

You further indicated to us that the N/H and the mother of the child are currently divorced.

DISCUSSION

Section 216(h)(2)(A) of the Act provides that

In determining whether an applicant is the child ... of a[n] ... individual, the [Commissioner] shall apply such law as would be applied in determining the devolution of intestate personal property by the courts of the State in which such insured individual is domiciled at the time such applicant files application.

42 U.S.C. § 416(h)(2)(A). Since the N/H was domiciled in Alaska at the time of his application, Alaska law applies.

AS 13.12.114(a) provides that "for purposes of intestate succession by, through, or from a person, an individual is the child of the individual's natural parents, regardless of their marital status, and the parent and child relationship may be established as indicated under AS 25.20.050." AS 25.20.050(a) provides that

A child born out of wedlock is legitimated and considered the heir of the putative parent when: (1) the putative parent subsequently marries the undisputed parent of the child; (2) for acknowledgments made before July 1, 1997, the putative parent acknowledges, in writing, being a parent of the child; (3) for acknowledgments made on or after July 1, 1997, the putative father and the mother both sign a form for acknowledging paternity under AS 18.50.165; or (4) the putative parent is determined by a superior court without jury or by another tribunal, upon sufficient evidence, to be a parent of the child. Acceptable evidence includes evidence that the putative parent's conduct and bearing toward the child, either by word or act, indicates that the child is the child of the putative parent. That conduct may be construed by the tribunal to constitute evidence of parentage. When indefinite, ambiguous, or uncertain terms are used, the tribunal may use extrinsic evidence to show the putative parent's intent.

Kristina was born out of wedlock on May 10, 1991. Fifteen days later, Kristina's mother married the N/H. Kristina's birth certificate showed the N/H as the father. The N/H listed Kristina as his dependent child on his first application, which was filed on October 6, 1992, and on his reapplication filed on December 20, 1994. He has been paying child support to a child support enforcement agency. Based on these facts, Kristina would be treated as a legitimated child and considered the heir of her putative father, the N/H, under AK 25.20.050.

However, several years later, on September 17, 1997, the N/H provided a blood specimen for genetic testing. On October 7, 1997, Ruth P. K~, Ph.D., determined that the N/H could not be Kristina's biological father. This determination is admissible in a judicial or administrative proceeding in Alaska to disestablish paternity. See AK 25.20.050(d) and AS 25.27.166(c). It would also be admissible in a judicial proceeding in Oregon, where Kristina and her mother now reside. See 1997 Oregon Law Ch. 746 (H.B. 2324), Note (1997) (Domestic Relations Child Support Program Changes), which addresses the admissibility of genetic test results, and authorizes a male party to apply to an Oregon court for an order of nonpaternity if genetic tests exclude him as the possible father of the child. Thus, we believe that SSA may rely on the genetic testing to reopen its earlier decision that Kristina is N/H's child, and to terminate auxiliary benefits to Kristina. See 20