Date: October 19, 2018
Under Colorado’s law of intestate succession, the number holder (NH) is presumed to
be the child’s father because (a) she was born during the NH’s marriage to her mother;
(b) her birth certificate states that the NH was her father; and (c) the evidence
establishes that the NH received her into his home for a period of time and held her
out as his daughter. These presumptions can be rebutted only by clear and convincing
evidence, and the DNA test results and other evidence presented fail to rebut these
You have asked whether H~ is properly entitled to surviving child benefits on the
record of her purported father, the deceased NH T~, in light of an appeal by the NH’s
mother. She contests the NH’s paternity of H~primarily based on DNA test results showing
that there was a 0% probability that the NH’s parents are H~’s biological grandparents.
Under Colorado’s law of intestate succession, the NH is presumed to be H~’s father
because (a) H~ was born during the NH’s marriage to H~’s mother; (b) H~’s birth certificate
states that the NH was her father; and (c) the evidence establishes that the NH received
H~ into his home for a period of time and held her out as his daughter. These presumptions
can be rebutted only by clear and convincing evidence, and the DNA test results and
other evidence presented by the NH’s mother fail to rebut these presumptions. The
DNA test results are not compliant with the Colorado laws governing genetic tests,
and the NH’s mother has failed to present any other clear and convincing evidence
that the NH was not H~’s father. The tests also do not establish a competing presumption
that another man, S~, is H~’s father.
The NH was domiciled in Colorado when he died in May 2015. He married H~'s mother,
B~, approximately 18 months before H~’s October 2013 birth in Colorado, and H~’s birth
certificate lists the NH as her father. According to H~’s mother, the NH believed
that H~ was the NH’s daughter, and H~ was the sole offspring of their relationship.
The NH’s mother, M~, is the representative payee for the NH’s son by another mother,
D~. After the agency awarded D~ a monthly child’s benefit, the NH’s mother filed a
request for reconsideration of the award of benefits to H~ based on the DNA test results.
H~ and the NH’s mother and father submitted to testing. The results showed a 0% probability
that the NH’s parents were H~’s biological grandparents.
The NH’s mother has alleged that another man, S~, is H~’s biological father. S~ is
the father of M2~, a child that H~’s mother had approximately three years prior to
marrying the NH. The NH’s mother said that a court ordered that the genetic tests
be conducted because she and S~ wanted to know if H~ was the grandchild of the NH’s
mother. The NH’s mother has not provided a copy of the court order. The NH’s mother
also claimed that the NH was unsure if H~ was his daughter.
1. The Facts Establish Three Separate Circumstances Where the NH Is Presumed to
Have Been H~’s Father.
In determining the father-child relationship status for purposes of survivor’s benefits
and a lump sum death payment, the agency looks to the intestate succession laws of
the state where the NH was domiciled when he died. See 42 U.S.C. § 416(h)(2)(A); 20 C.F.R. § 404.355(b); POMS GN 00306.001(C)(1)(a). The NH was domiciled in Colorado when he died.
The Colorado Probate Code sets forth a number of circumstances in which a father-child
relationship is established for the purpose of intestate succession, and the circumstances
in this matter invoke the Probate Code’s definition of a “genetic father.” C.R.S.
§ 15-11-115(5); see also C.R.S. § 15-11-116 (providing the statutory mechanism for establishing the parent-child
relationship). This term is defined as the man whose sperm fertilized the egg of the
child’s mother, or if the father-child relationship is established under the Colorado’s
presumption of paternity statute, C.R.S. section 19-4-105, “only the man for whom
that relationship is established.” C.R.S. § 15-11-115(5).
Colorado’s presumption of paternity statute list six circumstances where a man is
presumed to be the natural father of a child. See C.R.S. § 19-4-105(1). Two presumptions of paternity readily exist here: (1) the NH
was married to H~’s mother when H~ was born, see C.R.S. section 19-4-105(1)(a), and (2) the NH acknowledged paternity by listing himself
as H~’s father in her birth certificate, see C.R.S. section 19-4-105(1)(e).
The following facts, although disputed, also tend to establish a third presumption
of paternity, which arises when a man receives a child into his home while the child
is under the age of majority and openly holds out the child as his natural child.
See C.R.S. § 19-4-105(1)(d). H~ was approximately 19 months old when the NH died, and
thus under the age of majority. The NH acknowledged paternity in H~’s birth certificate;
told his family, friends, and the family of H~’s mother that he was H~’s father; posted
on Facebook that H~ was his daughter; and listed her as a dependent on his tax return.
H~’s mother stated that the NH lived with her, H~,and M2~ in an apartment for approximately
nine months after H~’s birth and then the whole family moved into the home of H~’s
maternal grandparents. H~’s mother also said that the NH spent every day with H~ and
was involved in her care, including changing diapers, giving H~ baths, playing with
her, taking her to the doctor’s office, and contributing to H~’s child support when
he was able.
The NH’s mother partly contradicted this evidence, stating that the NH was unsure
if H~ was his daughter and reported that he intended to go to rehab but was not in
a stable living situation “towards the end,” and “was living wherever he could,” including
with her and finally with his father. Assuming that these facts are true, they do
not outweigh the other unrebutted facts establishing that the NH held out H~ as his
daughter and received her into his home for a period of time before his living situation
Thus, the evidence establishes three presumptions of paternity in favor of the NH.
2. The Remaining Record Evidence Neither Sufficiently Rebuts the Three
Presumptions of Paternity in Favor of the NH, Nor Creates a Competing Presumption
Paternity in Favor of S~.
The agency does not require a court adjudication of paternity, but will make paternity
determinations based on state standards, in this case Colorado’s. See 20 C.F.R. § 404.355(b)(2). Under POMS GN 00360.020(B)(1), the contesting claimant must submit evidence to support the allegations of
paternity, and the NH’s mother has primarily submitted the DNA test results. As set
forth below, the results do not meet Colorado’s standards, and other evidence does
not sufficiently rebut the three presumptions of paternity established in favor of
the NH. Nor do the DNA tests results establish a competing presumption of paternity
in favor of S~.
a) The presumptions of paternity in favor of the NH are not sufficiently
Presumptions of paternity may be rebutted only by clear and convincing evidence. See
C.R.S. § 19-4-105(2)(a). In general, clear and convincing evidence is “proof which
persuades the trier of fact that the truth of the contention is ‘highly probable.’”
People v. Taylor, 618 P.2d 1127, 1136 (Colo. 1980) (citing Page v. Clark, 592 P.2d
792, 800 (Colo. 1979)). It is also free from serious or substantial doubt. See, e.g.,
M.W. v. D.G., 710 P.2d 1174, 1175 (Colo. App. 1985). Clear and convincing evidence
is stronger than a preponderance of the evidence and is intended to minimize the risk
of error. See Taylor, 618 P.2d at 1136.
As explained above, the NH’s mother presented genetic tests to support her claim that
the NH is not H~’s father. C.R.S. section 13-25-126 describes how genetic tests may
be used to determine parentage, and specifies the standards they must satisfy. The
presumed parents and child must be tested, and the results can overcome a “presumption
of a child born during a marriage [i.e., that the NH is H~’s father] . . . [if] the conclusion of the experts conducting
the tests, as disclosed by the evidence based upon the test, shows that one of the
spouses is not the parent of the child.” C.R.S. §§ 13-25-126(1)(a)(I), 13-25-126(1)(i).
But here, since neither the NH nor H~’s mother submitted to testing, the results cannot
overcome the presumption that the NH is H~’s father. In addition, the laboratory report
does not include requisite evidence (e.g. photographs of the individuals tested, names
of the laboratory technicians) of a reliable chain of custody. See C.R.S. § 13-25-126(1)(c)(I)-(V). Consequently, the results are not admissible evidence—much
less clear and convincing evidence—to rebut a presumption that the NH is H~’s father.
The only other evidence submitted by the NH’s mother are her statements that the NH
was not sure if H~ was his child, S~ is H~’s real father, the NH did not live with
H~ or her mother “towards the end,” and the NH was unable to provide for H~’s support.
H~’s mother, however, has disputed this evidence—stating that H~ is the NH’s child,
the NH believed that H~ was his biological child, he provided support to H~ to the
extent he was able, and he held out H~ as his child. In light of H~’s mother’s contrary statements, the statements from the NH’s mother
do not appear to be clear and convincing evidence (i.e. highly probably or without
serious or substantial doubt) that the NH is not H~’s father.
b) The DNA test results do not create a competing presumption of paternity in
favor of S~.
A presumption of paternity is created in favor of an alleged father if the tests of
the alleged father (in this case, S~), mother, and child are conducted in accordance
with C.R.S. section 13-25-126, and the results establish that he is not excluded as
the probable father and that the probability of his parentage is 97% or higher. See
C.R.S. §§ 13-25-126(1)(g), 19-4-105(1)(f). There was, however, no genetic testing
of S~ or H~’s mother. Thus, the DNA test results do not create a presumption of paternity
in favor of S~.
The DNA test results and other evidence submitted by the NH’s mother are not sufficient
under Colorado law to rebut the presumptions of paternity in favor of the NH, or to
create a competing presumption in favor of S~.