You asked whether Wyoming would recognize Ryan M~ as the child of David C~, the deceased
number holder, based on DNA testing conducted on an alleged uncle. If Wyoming would
recognize Ryan M~ as the child of the number holder, you also asked whether the child
is a legitimated child (under POMS GN 00306.50) or an illegitimate child with inheritance
rights (under POMS GN 00306.55).
Wyoming law does not directly address the question of whether DNA testing conducted
on a male relative is sufficient to establish paternity. However, based on the information
provided, it is likely that a Wyoming court applying the Wyoming Uniform Parentage Act would determine that the number holder is M~’s father. If so, the number holder would
be considered M~’s father effective as of the date of M~’s birth, such that M~ should
be treated like a legitimated child under POMS GN 00306.50.
According to the information you provided, M~ is a child allegedly born to the number
holder and Sherlene M~ in Longview, Texas on January 31, 2008. A father’s name was
not shown on the birth certificate. At the time of M~’s conception and birth, M~ was
legally married to a man other than the number holder. M~ and her husband have never
been legally separated and remain married. However, M~ claims that at the time M~
was conceived, she was not living with her husband, but rather was living and in an
intimate relationship with the number holder. The number holder died on July 13, 2009.
He was domiciled in Wyoming at the time of his death. Although M~ and M~ briefly resided
with number holder in Wyoming, they were not living with him at the time of his death.
In an effort to establish that the deceased number holder was M~’s father, M~ arranged
for DNA testing of the child and of John C~, the brother of the deceased number holder.
The DNA testing did not summarize the probability of parentage since it was not direct
testing on the purported father. However, the Y-chromosome DNA testing indicated that
there is a 99.927% probability that M~ and John C~ share a common patrilineal ancestor.
According to information provided by the laboratory that conducted the testing, when
an alleged father is unavailable for testing or is deceased, the Y-chromosome DNA
of a male child can be tested against any number of his male relatives, including,
but not limited to, other known male children, brothers and half brothers with the
same father, uncles, a grandfather, and grandfather’s brothers. However, the laboratory
noted that such testing is not appropriate to determine paternity in circumstances
where there are two related alleged fathers.
M~ signed a statement indicating that she never met John C~. She also represented
that the number holder’s father was deceased at the time she met the number holder.
She said that she has not met any of the number holder’s relatives, and does not know
if he had any male relatives other than John C~.
Because the number holder was domiciled in Wyoming at the time of his death, the agency
applies Wyoming law to determine the relationship between the number holder and M~.
42 U.S.C. § 416(h)(2)(A); 20 C.F.R. § 404.355(b)(4); Program Operations Manual System
(POMS) GN 00306.001.
Under the Wyoming statute concerning intestate succession, a person born out of wedlock
is a child of the mother. WYO. STAT. ANN. § 2-4-107(a)(iii). Such a person is also
a child of the father “if the relationship of parent and child has been established
under the Uniform Parentage Act.” Id.
Under the Wyoming Uniform Parentage Act, WYO. STAT. ANN. §§ 14-2-401 through 14-2-907, a man is presumed to be the father
of a child if “[h]e and the mother are married to each other and the child is born
during the marriage.” WYO. STAT. ANN. § 14-2-504(a)(i). Here, M~ was married to and
not legally separated from her husband at the time M~ was conceived and born. Thus,
under Wyoming law, M~’ husband is presumed to be M~’s father. 
A father-child relationship is established under the Wyoming Uniform Parentage Act when there is an unrebutted presumption of the man’s paternity under WYO. STAT. ANN.
§ 14-2-504. See WYO. STAT. ANN. § 14-2-501(b)(i). In other words, unless the presumption of paternity
is rebutted, Wyoming would consider M~’ husband to be M~’s father.
A presumption of paternity that is based on marriage can only be rebutted by an adjudication
under article 8 of the Wyoming Uniform Parentage Act. WYO. STAT. ANN. § 14-2-504(b). Even though Wyoming law requires an actual adjudication
of paternity, M~ need not obtain an adjudication for Social Security purposes if she
can establish paternity using the standard of proof a Wyoming court would apply. 20
C.F.R. § 404.355(b)(2).  WYO. STAT. ANN. § 14_2_817(a)(iii) is silent as to the standard of proof to be applied
when evaluating evidence of paternity, and we have located no Wyoming cases that address
the standard of proof applicable to paternity determinations made under the current
version of the statute. As indicated in POMS GN 00306.680, an earlier version of the Wyoming Uniform Parentage Act required the presumption of paternity to be rebutted by clear and convincing evidence.
However, this language was eliminated in the latest version of the statute.  The commentary to the model Uniform Parentage Act, a model statute that was adopted nearly verbatim (with certain omissions) by the
Wyoming legislature, indicates that this was intentional. The clear and convincing
evidence standard was eliminated because modern genetic testing makes it possible
to resolve competing claims to paternity in most cases. See Commentary to 2000 Uniform Parentage Act (2002 revision) § 204, available at http://www.law.upenn.edu/bll/archives/ulc/upa/final2002.htm#TOC1_1. Moreover, both the model Uniform Parentage Act and the Wyoming Uniform Parentage Act state that a proceeding to adjudicate paternity is a civil proceeding governed by
the rules of civil procedure, and the commentary to the model uniform Parentage Act indicates that the standard of proof for establishing paternity should be a preponderance
of the evidence as it is in other civil cases. 2000 Uniform Parentage Act (2002 revision) § 601; WYO. STAT. ANN. § 14-2-801. Thus, it is likely that a Wyoming
court would apply a preponderance of the evidence standard to this case.
Regardless of the standard of proof, Article 8 of the Wyoming Uniform Parentage Act provides that the paternity of a child having a presumed father “may be disproved
only by admissible results of genetic testing excluding the man as the father of the
child or identifying another man as the father of the child.” WYO. STAT. ANN. § 14-2-817.
There is no indication in the information you provided us that M~’ husband has submitted
to genetic testing that excluded him as M~’s father. Unless such testing exists, the
presumption that M~’ husband is M~’s father can only be rebutted by genetic testing
identifying another man (i.e., the number holder) as M~’s father. Id.
The Wyoming Uniform Parentage Act does not contemplate the establishment of paternity through DNA testing on a relative
of a deceased putative father, and we have not located any Wyoming cases that address
this issue.  Rather, the law requires that in order to rebuttably identify a man as the father
of a child, the results of genetic testing must show:
(i) The man has at least a ninety-nine percent (99%) probability of paternity, using
a prior probability of one-half (1/2), as calculated by using the combined paternity
index obtained in the testing; and
(ii) A combined paternity index of at least one hundred (100) to one (1).
WYO. STAT. ANN § 14-2-705(a). DNA testing on an alleged relative, as was done in this
case, provides only a relationship index; it does not provide a probability of paternity
or a combined paternity index. Thus, genetic testing results on a relative do not
per se overcome or establish a presumption of paternity under the Wyoming Uniform Parentage Act.
However, the Wyoming Uniform Parentage Act also provides that “[i]f the court finds that genetic testing under [WYO. STAT. ANN
§] 14-2-705 neither identifies nor excludes a man as the father of a child, the court
may not dismiss the proceeding.” WYO. STAT. ANN. § 14_2_817(a)(iii). Rather, the results
of genetic testing, and other evidence, are admissible to adjudicate the issue of
paternity. Id. 
Here, the results of genetic testing of the number holder’s brother indicate that
there is better than a 99% probability that M~ and the number holder share a common
male ancestor. These results do not conclusively identify the number holder as M~’s
father, but they also certainly do not exclude him. Thus, it appears that WYO. STAT.
ANN. § 14-2-817(a)(iii) would apply, which would allow a Wyoming court to consider
all of the evidence, including genetic testing, in determining M~’s paternity.
We have identified no Wyoming court decisions addressing what weight would be given
to DNA testing of a sibling or explaining what other facts a court might finding probative
when considering all the evidence of paternity under WYO. STAT. ANN. § 14-2-817(a)(iii).
While the DNA evidence shows that the number holder and M~ share a common male ancestor,
the DNA laboratory stated that this information is not useful to show paternity if
there are related alleged fathers. Thus, a Wyoming court would likely look to the
strength of the evidence that none of the number holder’s relatives was M~’s father.
M~ has provided a statement indicating that she was living with the number holder
during the time period when M~ was conceived. She also stated that she has never met
John C~, the brother of the number holder on whom the genetic testing was conducted.
In addition, she said that the number holder’s father was deceased at the time she
met the number holder, and claimed that she did not know whether the number holder
had any other male relatives. If true, M~’ statements would appear to exclude the
number holder’s male relatives as potential fathers of M~, leaving the number holder
as the only potential father in light of the DNA test results. Although the information
you provided to us does not give us any particular reason to question the truth of
M~’s statements, a Wyoming court considering the issue would make its determination
after considering all of the evidence, which may include information beyond that which
has been provided to us. For example, evidence that the number holder’s father was
not deceased at the time M~ met the number holder, or that she in fact met John C~
or another male relative of the number holder, would undermine M~’ credibility. Evidence
that the number holder’s father was deceased at the time M~ met the number holder
or a corroborating statement from John C~ that he never met M~ would enhance her credibility.
It is impossible for us to predict how the evidence would develop if a Wyoming court
were to hold a hearing on this issue. However, assuming that no evidence emerges to
detract from M~’ credibility, it appears likely that a Wyoming court would find that
the number holder was M~’s father based upon the combination of (1) the DNA evidence
establishing the patrilineal link between the number holder and M~; and (2) M~’ testimony
that would appear to exclude any of the number holder’s relatives as other potential
With regard to the question of whether M~ should be considered a legitimized child
under POMS GN 00306.50, or an illegitimate child with inheritance rights under POMS
GN 00306.55, neither POMS provision appears to be directly applicable to the current
Wyoming intestacy laws. A legitimated child is a child who was born illegitimate but
has been legitimated under state law by the acts of his parents. POMS GN 00306.050. Such a child is considered to be legitimate from birth. Id. If an illegitimate child is not legitimated, the child has the status of a “child”
under the Social Security Act if the child has inheritance rights under applicable
state intestacy laws. POMS GN 00306.55. When an illegitimate child has inheritance
rights, an act or event conferring these inheritance rights generally has effect only
from the date of such act or event, not from the date of the child’s birth. Id. Wyoming, however, does not distinguish between legitimate and illegitimate children.
As explained above, the Wyoming intestacy statute provides that a child born out of
wedlock is the child of the father if the relationship of parent and child has been
established under the Wyoming Uniform Parentage Act. WYO. STAT. ANN. § 2-4-107(a)(iii). The Wyoming Uniform Parentage Act further provides that “[a] child born to parents who are not married to each other
has the same rights under the law as a child born to parents who are married to each
other.” WYO. STAT. ANN. § 14-2-502. When a Wyoming court issues an order that a man
not listed on the birth certificate is a child’s father, the court is required to
order the state office of vital records to issue an amended birth certificate naming
the adjudicated father as the child’s father. WYO. STAT. ANN § 14-8-822(f). In other
words, if a paternal relationship is established through the Wyoming Uniform Parentage Act, the child is considered the child of the father from the date of his birth, and has
all the same rights he would have if his parents had been married. Thus, it appears
that if number holder’s relationship to the child were to be established under the
Wyoming Uniform Parentage Act, the situation would be most analogous to that of a legitimated child under POMS GN
Under Wyoming law, the DNA testing of M~’s alleged uncle does not meet the standards
for determining paternity through genetic testing as a matter of law. However, because
the DNA testing on M~’s alleged uncle neither affirmatively established nor excluded
the number holder as M~’s father, a Wyoming court would likely look to all of the
evidence, including the genetic testing. Assuming that a Wyoming court accepted as
true M~’ statements that she never had physical contact with any of number holder’s
male relatives, it would likely conclude that number holder was M~’s father Wyoming Uniform Parentage Act. Thus, if the agency adjudicator finds these statements credible, this would establish
the number holder as M~’s father for all purposes effective at the time of M~’s birth.
As such, M~ should be treated like a legitimated child under POMS GN 00306.
Donna L. C~
Acting Regional Chief Counsel Region VIII
Sandra T. K~
Assistant Regional Counsel