TN 18 (06-13)

PR 01105.051 Virgin Islands

A. PR 13-079 Jeffrey - Child Relationship with contrary evidence of paternity - Virgin Islands

DATE: May 9, 2013

1. SYLLABUS

On June 6, 2012, the mother of the claimant filed an application for surviving child’s benefits on behalf of the claimant on the record of the deceased NH. The NH had been receiving Social Security disability benefits and had died on June 24, 2003.

The application for survivor’s benefits was originally denied. The claimant’s mother filed a request for reconsideration and submitted evidence to support the allegation that the NH is the claimant’s father.

Under Virgin Island law the following evidence may be considered in determining whether a child is entitled to survivors benefits.

  • Certificate of Live Birth for the claimant, filed November , showing that claimant was born on November in Charlotte Amalie, St. Thomas, V.I., listing another individual as her father and the applicant as her mother, and signed by the mother;

  • Acknowledgment of Paternity signed by the other individual, dated December 10, 1998, affirming that he is the father of the female child born to the mother on November 21, in St. Thomas, U.S. Virgin Islands;

  • Certificate of Birth for the claimant, issued April , showing that claimant was born on November in Charlotte Amalie, St. Thomas, V.I., listing the other individual as her father and the applicant as her mother;

  • Death certificate for the NH, filed with the local registrar on July 2, 2003, showing that he died on June 24, 2003 in Charlotte Amalie, St. Thomas;

  • Motion to Establish Support submitted by the Government of the Virgin Islands with respect to claimant’s half- sibling, filed July 29, 2003, stating that paternity genetic test results show that the NH is the claimant’s half sisters’s father;

  • Form SSA-5002, dated September 26, 2003, requesting the Agency to consider the above Motion to Establish Support for purposes of awarding § 216(h)(3) child’s benefits to the claimant’s half sister on the NH’s record;

  • DNA Test Report by the DDC, dated May 10, 2012, comparing claimant and her half- sibling and concluding that the probability of half-siblingship is 99.7%;

  • Form SSA-2519 Child Relationship Statement, completed November 20, 2012;

  • Form SSA-795 Statement from the claimant’s mother in support of the allegation of paternity, dated November 20, 2012;

  • Form SSA-795 Statement from Janice in support of the allegation of paternity, dated November 20, 2012; and

  • Special Determination from the Claims Representative summarizing the case.

Virgin Islands Intestacy Law

Virgin Islands intestacy law provides that the “children” of a deceased person are eligible to inherit the decedent’s property. The statute goes on to provide that an “illegitimate” child may have the same status as a child born in lawful wedlock; provided that the father had acknowledged paternity in writing during his lifetime, or was adjudged the father of such child by a court of competent jurisdiction.

It is the Regional Attorney’s opinion that the claimant is not entitled to survivor’s benefits on the NH’s account because the claimant cannot inherit personal property from the NH under the Virgin Island laws of intestacy.

2. OPINION

QUESTIONS PRESENTED

Whether Julia (the claimant) is entitled to survivor’s benefits as the child of deceased number holder, Jeffrey (the NH).

OPINION

An existing Acknowledgment of Paternity lists an individual other than the NH as the claimant’s father. Under Virgin Islands law, the other individual is presently considered to be the legal father of the claimant. There are currently no grounds on which this Acknowledgement could successfully be challenged. Additionally, even if the Acknowledgment could be challenged, a preponderance of the evidence, the standard used by Virgin Island courts in paternity determinations, would not establish that the NH is legally the claimant’s father. Accordingly, the claimant is not entitled to survivor’s benefits on the NH’s account because the claimant cannot inherit personal property from the NH under Virgin Islands law.

BACKGROUND

On June 6, 2012, Denise filed an application for surviving child’s benefits on behalf of the claimant on the record of the deceased NH. The NH had been receiving Social Security disability benefits and had died on June 24, 2003. The application for survivor’s benefits was originally denied. Denise filed a request for reconsideration and submitted a report of DNA test results showing that the claimant and another known child of the NH had a 99.7% probability of being half-siblings.

The claimant was born to Denise, then known as Denise, on November in Charlotte Amalie, St. Thomas, Virgin Islands. On November 25, 1998, the Registrar of the Virgin Islands Department of Health filed a Certificate of Live Birth, listing Denise as the claimant’s mother and Thomas as her father. Denise signed the Certificate of Live Birth, and she certified that the personal information provided on the certificate was correct to the best of her knowledge and belief. On December 10, 1998, Thomas signed an Acknowledgment of Paternity, affirming that, to be best of his knowledge, he was the father of the female child born to Denise on November. 1

Denise and Thomas married in August of 2001.

Denise now contends that the NH is the biological father of the claimant, despite Denise’s having identified Thomas as the father on the birth certificate and despite Thomas’s having signed the Acknowledgment of Paternity.

According to a written statement Denise submitted to the Agency, she was in a brief relationship with the NH before the claimant was born.2 Denise states that by the time of claimant’s birth, her relationship with the NH had ended and Denise had resumed her relationship with Thomas. According to Denise’s statement, Thomas was willing to acknowledge the claimant as his child even though he knew that he was not the biological father.

During the course of his lifetime, the NH appears to have been completely absent from the life of the claimant. No court ever adjudged the NH to be her parent, nor ordered him to contribute to her support. See Form SSA-2519 (the Child Relationship Statement). Denise stated that she had no contact with the NH after she left the Virgin Islands in 2000.

The NH died on June 24, 2003 in Charlotte Amalie, St. Thomas, Virgin Islands.

In April 2012, Denise and the claimant returned to the Virgin Islands to look for the NH, prompted by the claimant’s questions about her true biological father. Denise then found the NH’s mother and sister, who told her that the NH had died several years before.

In her own statement, the NH’s sister, Janice, stated that the NH had never mentioned that the claimant was his child, but did admit, more generally, that he had “other children.” Janice stated that she did not know of the claimant’s existence until April 2012.

Denise and Janice then arranged for a genetic test comparing claimant and Aaliyah , who is known to be a biological child of the NH.3 DNA Diagnostics Center (DDC) performed the test on May 10, 2012. 4 The results show that the probability of half-siblingship is 99.7%.

The evidence presented includes:

  • Certificate of Live Birth for the claimant, filed November , showing that claimant was born on November in Charlotte Amalie, St. Thomas, V.I., listing Thomas as her father and Denise as her mother, and signed by Denise;

  • Acknowledgment of Paternity signed by Thomas, dated December 10, 1998, affirming that he is the father of the female child born to Denise on November in St. Thomas, U.S. Virgin Islands;

  • Certificate of Birth for the claimant, issued April , showing that claimant was born on November in Charlotte Amalie, St. Thomas, V.I., listing Thomas as her father and Denise as her mother;

  • Death certificate for the NH, filed with the local registrar on July 2, 2003, showing that he died on June 24, 2003 in Charlotte Amalie, St. Thomas;

  • Motion to Establish Support submitted by the Government of the Virgin Islands with respect to Aaliyah, filed July 29, 2003, stating that paternity genetic test results show that the NH is Aaliyah’s father;

  • Form SSA-5002, dated September 26, 2003, requesting the Agency to consider the above Motion to Establish Support for purposes of awarding § 216(h)(3) child’s benefits to Aaliyah on the NH’s record;

  • DNA Test Report by the DDC, dated May 10, 2012, comparing claimant and Aaliyah and concluding that the probability of half-siblingship is 99.7%;

  • Form SSA-2519 Child Relationship Statement, completed November 20, 2012;

  • Form SSA-795 Statement from Denise in support of the allegation of paternity, dated November 20, 2012;

  • Form SSA-795 Statement from Janice in support of the allegation of paternity, dated November 20, 2012; and

  • Special Determination from the Claims Representative summarizing the case.

ANALYSIS

A. Federal Law

The Social Security Act (the Act) requires that a person be the dependent “child” (as defined in Section 416(e) of the Act) of an insured individual to qualify for benefits as a surviving child of such individual. Act § 202(d)(1); 42 U.S.C. § 402(d)(1). For purposes of such child’s benefits under the Act, a “child” is defined as the child, legally adopted child, stepchild, or, in limited circumstances, grandchild of an insured individual. Act § 216(e); 42 U.S.C. § 416(e).

The Act and the implementing regulations provide that in determining whether a claimant will be deemed the surviving “child” of an insured individual for purposes of child’s benefits, 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 the insured wage earner was domiciled at the time of his death. Act § 216(h)(2)(A); 42 U.S.C. § 416(h)(2)(A); 20 C.F.R. § 404.355. 5 Thus, because the NH was domiciled in the Virgin Islands when he died, Virgin Islands law regarding the devolution of intestate personal property applies.

B. State Law

  1. Virgin Islands Intestacy Law

Virgin Islands intestacy law provides that the “children” of a deceased person are eligible to inherit the decedent’s property. V.I. Code Ann. tit. 15, § 84 (2013). The statute goes on to provide that an “illegitimate” child may have the same status as a child born in lawful wedlock; provided that the father had acknowledged paternity in writing during his lifetime, or was adjudged the father of such child by a court of competent jurisdiction. V.I. Code Ann. tit. 15, § 84(13) (2013) (emphasis added).

This law has been construed as not permitting posthumous adjudications of paternity for the purpose of inheritance. In re Baby Girl Lake, Nos. FM1/1995, FM5/1995, 1995 WL 789028 at *4-5, 33 V.I. 66, 74-75 (Terr. Ct. St. T. and St. J. 1995) (citing In re: M~, 24 V.I. 234, 240 (Terr. Ct. V.I. 1989)).

Nonetheless, that holding does not apply to this analysis because the Commissioner’s regulations provide that the agency will not apply any State inheritance law requirement that an action to establish paternity must have been started or completed before the worker’s death. 20 C.F.R. § 404.355(b)(2). Thus, in cases where relevant State inheritance laws require a prior court determination of paternity, the agency does not require such prior determination, but instead makes its own determination of paternity, using the standard of proof that the State court would use for such purpose. Id.

  1. Virgin Islands Paternity Law

Virgin Islands Law regarding the establishment of paternity is set forth at V.I. Code Ann. tit. 16, §§ 291-298 (2013). In pertinent part, section 292 provides that paternity may be established voluntarily, through the execution of an Acknowledgment of Paternity, which has the same binding legal effect as a court adjudication of paternity. Section 293 provides for the establishment of paternity through a court proceeding, and discusses the use of a court-ordered genetic test on the mother, the putative father, and the child. Section 295 provides means by which paternity may be proved after the father is deceased.

Virgin Islands law directing the Office of Vital Statistics regarding birth records is set forth at V.I. Code Ann. tit. 19 §§ 831-837 (2013). The pertinent provisions of this statute tie directly to V.I. Code Ann. tit. 16 § 291 et seq. (2013). Section 832 provides that in the case of a child born out-of-wedlock, the name of the father or reputed father shall be placed on the birth certificate only if paternity has been established pursuant to V.I. Code Ann. tit. 16, §§ 292 or 293. Additionally, V.I. Code Ann. tit. 19 § 833(b), which works in conjunction with V.I. Code Ann. tit. 16, §§ 292 and 296, provides that in the case where the natural parents of a child marry subsequent to the birth of the child, such a child is considered “legitimate.” The statute goes on to direct the Registrar of Vital Statistics to correct the birth records only when presented with both a certified copy of the marriage license and an Acknowledgment of Paternity.

In paternity cases, such as proceedings under section 293, Virgin Islands courts generally apply a preponderance of the evidence standard. See, e.g., Hyman v. Prince, 9 V.I. 47, 50 (Terr. Ct. St. T. and St. J. 1971); Gov’t of the V. I. ex rel: C.C. v. A.P., 1995 WL 914523, at *3 (Terr. V.I. 1995) (“all that is required to establish paternity is sufficient evidence to convince the fact finder that the person accused is indeed the father”) (rev’d on other grounds by A.P. v. Gov’t of the V. I. ex rel. C.C., 961 F.Supp. 122 (D.V.I. 1997). Accord POMS GN 00306.655(4). Preponderance of the evidence is defined as evidence which is of greater weight or which is more convincing than the opposing evidence; that is, evidence which as a whole shows that the fact sought to be proved is more probable than not. See, e.g., Gov’t of the V.I. v. A.V., 2001 WL 880771 (Terr. V.I. 2001); POMS GN 00306.655(4).

C. Denise’s claim

Under Virgin Islands Law, Thomas is presently considered the legal father of the claimant. As noted above, Thomas executed an Acknowledgment of Paternity, affirming that he is the father of the female child born to Denise on November. This signed, notarized document is considered a conclusive legal finding of paternity, with the same force and effect as a court adjudication of paternity. See V.I. Code Ann. tit. 16, § 292(a)(6) (2013). 6 Based on this Acknowledgment of Paternity, pursuant to V.I. Code Ann. tit. 19 § 832, the Virgin Islands Department of Health, Office of Vital Statistics, issued a retroactive Certificate of Live Birth in 2008, recording Thomas as the claimant’s legal father.

By now claiming that the NH, rather than Thomas, is in fact the father of the claimant, it appears that Denise is effectively seeking to: (i) challenge the existing Acknowledgment of Paternity pursuant to V.I. Code Ann., tit. 16, § 292(a)(6) (2013), and (ii) establish that the NH is the claimant’s father, pursuant to V.I. Code Ann., tit. 16, § 293 (2013).7

a. Challenging the Acknowledgment of Paternity

Under V.I. Code Ann. tit. 16, § 292(a)(6) (2013), after an allowable 60-day rescission period, any challenge to an Acknowledgment of Paternity must be filed in the court, and must be based on fraud, duress, or material mistake of fact, with the burden of proof upon the challenger. Id. Here, however, there is no indication of duress, neither Denise nor Thomas appear to have been defrauded, and neither appear to have been operating under any material mistake of fact. Thus, it is unlikely that Denise could successfully challenge the existing Acknowledgment of Paternity. As a result, she most likely could not establish that anyone other than Thomas is the claimant’s legal father. This, in and of itself, would preclude a finding that the claimant is the NH’s child under Virgin Islands law.

b. Application of the Preponderance of the Evidence Standard to the Facts Provided

Further, even if Denise were able to successfully challenge the Acknowledgment of Paternity, thereby removing Thomas from the record as the claimant’s legal father, Denise most likely would not be able to affirmatively establish that the NH is the claimant’s father under V.I. Code Ann., tit. 16, § 293 (2013), applying the “preponderance of the evidence standard.”8

(i) The Genetic Test

Where paternity is contested, it may be established by a court-ordered blood, genetic, or DNA test on the mother, putative father, and child or children. V.I. Code Ann., tit.16, § 293(f) (2013).9 Here, however, the test results provided by Denise do not comport with the requirements of section 293(f). The test was not court-ordered, nor was it one to which the mother or the putative father submitted. See id. Thus, although a test performed within the requirements of section 293(f), showing a statistical probability of paternity of 99% or higher, constitutes a conclusive presumption of paternity, and such outcome shall have the same result as a court or hearing officer’s judgment establishing paternity, see § 293(g), that conclusive presumption would not apply to the test submitted here.

Here, the test would be considered, but its weight would be for the finder of fact. We have found no law specifically discussing genetic tests supplied by the parties. Nor have we found law about genetic testing on any other putative related individual. However, the Territorial Court of the Virgin Islands has found, more generally, that the results of genetic testing, even when not dispositive, have probative value and therefore can serve as a part of the fact finder’s analysis. See, e.g., Virgin Islands ex rel. Lloyd v. Malone, 23 V.I. 11, 14 (V.I. Terr. Ct. 1987) (finding that the results of an HLA blood test were not conclusive evidence of paternity, but were similar to any other evidence to be utilized by the fact-finder in making its determination); See also, Ex rel: C.C., 1995 WL 914523 at *3 (rev’d on other grounds by A.P., 961 F.Supp. 122).

However, in weighing this evidence, the fact-finder would consider that Denise provided no information regarding the circumstances under which the claimant and Aaliyah provided their samples to the laboratory. There is no way to even be certain that the results are truly those of claimant and Aaliyah. Chain of custody of DNA and other biological samples is considered “undeniably material” by Virgin Islands courts in determining the reliability of DNA test results. See e.g., People of the V. I. v. Rodriguez, 2010 V.I. Supreme LEXIS 15, at *11 (V.I. 2010).10 See also H~, 9 V.I. 47 at 57-62 (the questionable manner in which sperm samples were collected and analyzed was one factor in assigning the test results little weight); L~, 23 V.I. 11 at 13-14 (the results of an HLA blood test served as persuasive evidence in a paternity case only when admitted together with the crucial testimony of the biochemist who personally drew the blood).

(ii) Lack of Action by the NH During his Lifetime

V.I. Code Ann. tit. 16, § 295(a) (2013) of the paternity statute designates certain means by which paternity may be evidenced once the father is deceased, none of which have been satisfied here. We note that the NH never publicly acknowledged the claimant as his child, never received the claimant into his family, and never took any other action to treat her as a legitimate. In fact, to the contrary, Janice’s statement provides evidence that the NH never mentioned that the claimant was his child.

(iii) Denise’s Statements

The weight given to Denise’s statements would also be decided by the fact finder. Virgin Islands law states that “the unsubstantiated testimony of the mother in a paternity action is sufficient evidence, if believed, to establish the paternity of the putative father.” See H~, 9 V.I. 47, at 51-52 (emphasis added). Therefore, it would be for the fact-finder to determine whether Denise’s statements should be believed.

Here, we note that Denise’s statement to the agency that Thomas is not the father contradicts both Thomas’ sworn Acknowledgment of Paternity and Denise’s own attestation to the information on the claimant’s birth certificate, including the statement that Thomas is the father. A fact finder would consider these contradictions in weighing the credibility of Denise’s present assertions. It appears unlikely that here, Denise’s unsubstantiated assertions would be persuasive in establishing paternity by the NH.

CONCLUSION

Applying Virgin Islands law and the standard of proof that would be used by a Virgin Islands Court, we do not believe that paternity would be established under this set of facts. First, Denise could not succeed in challenging the existing Acknowledgment of Paternity, which establishes Thomas as claimant’s legal father, because she could not establish fraud, duress, or mistake of fact. Further, even if Denise could effectively challenge the existing Acknowledgment of Paternity, we do not believe that she could establish, by a preponderance of the evidence, that the NH is the claimant’s father. The DNA test Denise submitted does not meet the requirements of the relevant law and presents chain of custody concerns. Additionally, the NH did not take any action during his lifetime to acknowledge claimant as his child. Finally, Denise’s current statements are contradicted by her prior affirmation on the birth certificate and by Thomas’s signed Acknowledgement, likely diminishing her credibility.

Accordingly, it is our opinion that the claimant is not entitled to survivor’s benefits on the NH’s account because the claimant cannot inherit personal property from the NH under the Virgin Island laws of intestacy.

B. PR 11-073 Relationship of Child to the NH Based on DNA Testing in the State of Utah, NH – Robert — Reply

DATE: March 14, 2011

1. SYLLABUS

A child was allegedly born to the NH, a resident of Logan, Utah, and the mother, on May. The birth certificate listed the mother’s information, but provided no information about the child’s father. No information was provided about the time of conception, and it was understood or assumed that the child was carried to full term. At the time of conception, and at all times afterward, the mother and the NH were not married. On August 24, 2009, less than a month after the child was presumably conceived, the NH died due to liver damage.

During the August 2009 autopsy, a specimen of the NH’s biological material was preserved. On August 3, 2010, biological material was collected from the child and her mother as part of a DNA test intended to establish the NH as Capri’s father. On August 7, 2010, DD DNA Diagnostics Center issued a report describing the paternity test performed on all three parties’ biological material. The DNA test reported a combined paternity index of 1,512,220 and a Probability of Paternity of 99.9999%.

Under Utah state law, a presumption of paternity is established by a reliably administered genetic test which concludes that the presumed father has a combined paternity index of greater than 100 to 1, and a probability of paternity of at least 99%. Here, the test results exceed these requirements, and the NH is the presumed father of the child. We have no information to suggest the presumption could be rebutted, and based on this information, a Utah court would conclude the NH is the child’s father under the Utah Uniform Parentage Act.

2. OPINION

QUESTIONS PRESENTED

You asked whether Utah will accept a paternity probability or if there is an interpretation of the combined paternity index which could be used to establish the paternity of Capri (hereinafter “the child”), the alleged child of Robert (hereinafter “NH”) and Meghan (hereinafter “the mother”). Additionally, you asked whether the child would be a child of the NH based on the results of the genetic testing and Utah state law.

SHORT ANSWER

Under Utah state law, the NH would be presumed to be the father of Capri, unless that presumption of paternity could be rebutted by a different genetic test. Because we have no information indicating the presumption can be rebutted, a Utah court would likely conclude that the NH is the child’s father.

BACKGROUND

According to the information you provided, the child was allegedly born to the NH, a resident of Logan, Utah, and the mother, on May 11, 2010. The birth certificate listed the mother’s information, but provided no information about the child’s father. You provided no information about the time of conception, and you stated that you understood or assumed that the child was carried to full term. At the time of conception, and at all times afterward, the mother and the NH were not married. On August 24, 2009, less than a month after the child was presumably conceived, the NH died due to liver damage.

During the August 2009 autopsy, a specimen of the NH’s biological material was preserved. On August 3, 2010, biological material was collected from the child and her mother as part of a DNA test intended to establish the NH as Capri’s father. On August 7, 2010, DD DNA Diagnostics Center issued a report describing the paternity test performed on all three parties’ biological material. The DNA test reported a combined paternity index of 1,512,220 and a Probability of Paternity of 99.9999%.

DISCUSSION

Because the NH was domiciled in Utah at the time of his death, the agency applies Utah state intestacy law to determine the relationship between the NH and the child. 42 U.S.C. § 416(h)(2)(A) (2010); 20 C.F.R. § 404.355(b)(4) (2010); Program Operations Manual System (POMS) GN 00306.001(C)(2)(a). Under the Utah statute concerning intestate succession, an individual is the child of the individual’s natural parents, regardless of marital status, and the parent and child relationship may be established for inheritance purposes as provided in the Utah Uniform Parentage Act. Utah Code Ann. 75-2-114(1).

Under the Utah Uniform Parentage Act, the father-child relationship can be established in a number of ways; as applicable here, the relationship can be established by an adjudication of paternity. Utah Code Ann. § 78B-15-201(2)(c) (2010).11 Even though Utah law requires an actual adjudication of paternity, an adjudication is not require for Social Security purposes if paternity can be established using the standard of proof that a Utah court would apply. 20 C.F.R. § 404.355(b)(2). Under Utah law, the standard of proof in an adjudication of paternity is “by clear and convincing evidence.” Utah Code. Ann. § 78B-15-112.

A genetic test may be used as evidence of paternity when a reliable report is issued with results meeting the statute’s presumption of paternity. UTAH CODE ANN. §§ 78B-15-503, 78B-15-505. A reliable genetic test must be “of a type reasonably relied upon by experts in the field of genetic testing and performed in a testing laboratory accredited by . . . the American Association of Blood Banks” or another accrediting body listed in the statute, and may use a specimen consisting of a variety of bodily tissues or fluids. UTAH CODE ANN. § 78B-15-503(1)(a), (2).

Under section 78B-15 of the Utah Code, “a man is presumed to be identified as the father of a child” if the test results disclose that the man has a probability of paternity of 99% or higher, and a combined paternity index of at least 100. See UTAH CODE ANN. § 78B-15-505(1). Results meeting these two thresholds may be rebutted only by other genetic testing, which either excludes the man as the father of the child, or identifies another man as a possible father of the child (by also meeting the above requirements). UTAH CODE ANN. § 78B-15-505(b); see also POMS GN 00306.645 (presumption of paternity created by genetic test yielding paternity index of at least 100). 12

Here, the DNA test results meet the statutory requirements for reliability. DD DNA Diagnostics Center is a member of the American Association of Blood Banks, and it used tissue samples from the NH, the mother, and the child , as required by Utah Code Ann. § 78B-15-503. The test report reflects that the NH is not excluded as the father, that the NH’s combined paternity index is 1,512,220 (well in excess of the statutory requirement of 100 or greater) and that the NH has a probability of paternity of 99.9999% (well in excess of the statutory requirement of 99% or greater). Thus, the genetic test results are sufficient to establish that the NH is the presumed father of the child under Utah Code Ann. § 78B-15-505(1)(a)-(b). Further, this presumption can be rebutted only by other genetic tests that either exclude the NH as the father, or identify another man as the possible father. We have no information suggesting that there are any other genetic test results that could rebut the presumption of paternity here. And if a presumption of paternity is not rebutted, “the tribunal shall issue an order establishing paternity.” Utah Code Ann. § 75-15-505(4). Based on this information, a Utah court would conclude the NH is the child’s father under the Utah Parentage Act.

CONCLUSION

Under Utah state law, a presumption of paternity is established by a reliably administered genetic test which concludes that the presumed father has a combined paternity index of greater than 100 to 1, and a probability of paternity of at least 99%. Here, the test results exceed these requirements, and the NH is the presumed father of the child. We have no information to suggest the presumption could be rebutted, and based on this information, a Utah court would conclude the NH is the child’s father under the Utah Uniform Parentage Act.

John J. Lee
Acting Regional Chief Counsel Region VIII

By:_____________

Thayne Warner

Assistant Regional Counsel


Footnotes:

[1]

In addition, the Virgin Islands Department of Health issued a birth certificate on April 28, 2008, listing Denise as the claimant’s mother and Thomas as her father. V.I. Code Ann. tit. 19, § 837 (2013) provides for such delayed certificates of birth where a birth certificate was not previously registered.

[2]

No dates are provided, but it is implied that this was at the approximate time of conception.

[3]

Aaliyah currently receives surviving child’s benefits on the NH’s record. According to a motion to establish child support, filed on July 29, 2003, genetic testing of paternity ordered by the Government of the Virgin Islands in 2001 shows that the NH is Aaliyah’s biological father.

[4]

According to the DNA test report, The DNA Diagnostics Center is accredited/certified by AABB, CAP, ACLASS-International, ISD/IEC 17025, CLIA, NYSDOH and ASCLD/LAB-International.

[5]

A child who qualifies as a child under § 416(h)(2)(A) is deemed to be the legitimate child of the NH, and therefore deemed dependent, even if the NH was not living with or contributing to the support of the child. 42 U.S.C. 402(d)(3). The Act also provides other alternative ways by which a claimant may be deemed to be the child of the NH. See Act § 216(h)(2)(B); 42 U.S.C. § 416(h)(2)(B) and Act § 216(h)(3)(C)(i); 42 U.S.C. § 416(h)(3)(C)(i). However, none of those mechanisms applies in this case. See responses to Form SSA-2519.

[6]

Here, the Acknowledgment of Paternity signed by Thomas was in fact on an antiquated form and not in the form required by section 292. However, this would not affect our analysis, as the Virgin Islands government has since deemed Acknowledgments signed on this outdated form to nevertheless be enforceable. This has been confirmed by Dean of the Virgin Islands Department of Justice Paternity and Support Division.

[7]

Our research has not disclosed any procedural law on whether such claims (i.e., (i) a challenge to the prior Acknowledgment with respect to Thomas and (ii) the establishment of paternity with respect to the NH) would need to be brought in any particular sequential order, or whether they would be brought concurrently in a single paternity action. The Office of the General Counsel spoke to Dean Barnes, an Assistant Attorney General and Coordinating Attorney at the Virgin Islands Department of Justice Paternity and Support Division, and to Jans , a co-author of the Virgin Islands paternity legislation, now employed at the Department of Health and Human Sources, Administration for Children and Families, in Puerto Rico. Both believed, as a matter of first impression, that the existing Acknowledgment of Paternity by Thomas would need to be successfully challenged before Denise could bring an action to establish that anyone other than Thomas is the father of claimant. Notably, we also considered whether the marriage of Denise and Thomas, subsequent to the claimant’s birth, would create any “presumption of legitimacy” that Denise would also need to overcome, in claiming that Thomas is not actually the claimant’s father. We concluded that no such “presumption” is created by the marriage. We considered V.I. Code Ann., tit. 19, § 833(b), with the subheading of “Presumption of Legitimacy.” Because of its placement within V.I. Code Ann., tit. 19 (Health), and its directive to the Registrar of Vital Statistics to only change the record if an Acknowledgment of Paternity is presented, section 833(b) appears to operate as a procedural directive based on an underlying Acknowledgment of Paternity, and does not appear to actually create any “presumption” of paternity. The subheading of the statute does not add any substantive significance under Virgin Islands law. See V.I. Code Ann., tit.1, § 44.

[8]

We note that Denise’s present residence in New York State would most likely not bar her from brining a paternity action in a Virgin Islands court. V.I. Code Ann., tit.16, § 293 (2013) provides that a paternity proceeding may be instituted by a female resident of the Virgin Islands. Notably, Denise is not a “resident” of the Virgin Islands, as she currently has no physical presence there. See Gov't of V.I. ex rel. Bodin v. Brathwaite, 459 F.2d 543, 544-545 (3d Cir. V.I. 1972). However, we believe that Denise could become a “resident” of the Virgin Islands, for purposes of bringing a proceeding, simply by traveling there for purposes of commencing the action itself. The term “resident,” as applied to section 293(a), has been interpreted broadly by Virgin Islands courts, and may be established based only upon an actual