TN 8 (05-10)

PR 01115.009 Delaware

A. PR 10-095 Reply to Your Request for a Legal Opinion on Whether a Conclusive Presumption of Paternity May Be Created through DNA Testing in the State of Delaware

DATE: May 6, 2010

1. SYLLABUS

In Delaware, a parent-child relationship may be established solely through DNA test results. Neither home test kits nor mail order tests are acceptable for DNA testing. Delaware statues outline the requirements for the accreditation requirements of DNA testing laboratories. The DNA tests results alone do not legitimize a child. However, an illegitimate child has some inheritance rights.

2. OPINION

QUESTIONS PRESENTED

On April 7, 2010, you made a general inquiry about whether a parent-child relationship may be established through DNA testing alone or if, in addition to the DNA test results, other evidence is required before paternity is established by clear and convincing evidence under the laws of Delaware. You further questioned the accreditation requirements for DNA testing laboratories and whether home test kits and mail order tests are acceptable. Additionally, you asked whether proof of paternity through DNA testing legitimizes a child. Finally, if the child is not legitimated, you asked whether the child has inheritance rights under Delaware’s intestacy laws.

SUMMARY

In Delaware, a parent-child relationship may be established solely through DNA test results. Neither home test kits nor mail order tests are acceptable for DNA testing. Delaware statues outline the requirements for the accreditation requirements of DNA testing laboratories. The DNA tests results alone do not legitimize a child. However, an illegitimate child has some inheritance rights.

DISCUSSION

Delaware state law reflects that paternity may be established through genetic testing results. DEL. CODE ANN. tit. 13, § 8-505 (2004). A number holder may be rebuttably identified as the father of a child if the genetic testing complies with Section 8-505 and the results disclose that:

(1) The man has at least a 99 percent probability of paternity, using a prior probability of 0.50 as calculated by using the combined paternity index obtained in the testing; and

(2) A combined paternity index of at least 100 to 1. DEL. CODE ANN. tit. 13, § 8-505(a) (2004). Once identified as the child’s father under this subchapter, the number holder may rebut the genetic testing results with other genetic testing. DEL. CODE ANN. tit. 13, § 8-505(b) (2004). Additionally, if “more than 1 man is identified by genetic testing as the possible father of the child, the court shall order them to submit to further genetic testing to identify the genetic father.” DEL. CODE ANN. tit. 13, § 8-505(c) (2004).[1]

Home test kits or mail order tests are not acceptable forms of genetic testing in Delaware. Acceptable genetic testing must be of a type reasonably relied upon by experts in the genetic testing field and performed in a testing laboratory accredited by:

(1) The American Association of Blood Banks, or a successor to its functions;

(2) The American Society for Histocompatibility and Immunogenetics, or a successor to its functions; or

(3) An accrediting body designated by the federal Secretary of Health and Human Services.

DEL. CODE ANN. tit. 13, § 8-503(a) (2004). The genetic testing report must be in a record and signed under penalty of perjury by a designee of the testing laboratory. DEL. CODE ANN. tit. 13, § 8-504(a) (2004). The report is self-authenticating if it is made under the requirements of subchapter V. Id. Documentation from the testing laboratory of the following information is sufficient to establish a reliable chain of custody and will allow the results of genetic testing to be admissible without testimony:

(1) The names and photographs of the individual whose specimens have been taken;

(2) The names of the individuals who collected the specimens;

(3) The places and dates the specimens were collected;

(4) The names of the individuals who received the specimens in the testing laboratory; and

(5) The dates the specimens were received.

DEL. CODE ANN. tit. 13, § 8-504(b) (2004).

In Delaware, DNA test results alone are insufficient to legitimize a child. A child conceived out of wedlock is legitimate if the parents marry before the child is born; if the parents marry following the adjudication or acknowledgment of parentage after the child is born; or upon the parents’ acknowledgment of the paternity made in writing, which must be filed in the Office of Vital Statistics, if both are living or by the father if the mother is not living. DEL. CODE ANN. tit. 13, § 13-1301 (2004).

An illegitimate child cannot inherit from the father in Delaware. DEL. CODE ANN. tit. 13, § 13-1303 (2004). In order to inherit from the father, the child must be legitimated, as provided by Section 1301. DEL. CODE ANN. tit. 13, § 13-1304 (2004). Once legitimated, the child’s inheritance rights from the father shall be the same as a child conceived in wedlock of that father. Id. However, an illegitimate child may inherit from the mother in the same manner as a legitimate child. DEL. CODE ANN. tit. 13, § 13-1303 (2004).

Eric P. K~
Regional Chief Counsel
By:_____________
Quinn N. D~

Assistant Regional Counsel


Footnotes:

[1]

In cases involving identical brothers, if each brother satisfies the requirements as the identified father under Section 8-505 without consideration of another identical brother being identified as the father of the child, a court may rely on nongentic evidence to adjudicate which brother is the father of the child. DEL. CODE ANN. tit. 13, § 8-510(6) (2004).


To Link to this section - Use this URL:
http://policy.ssa.gov/poms.nsf/lnx/1501115009
PR 01115.009 - Delaware - 06/07/2010
Batch run: 11/29/2012
Rev:06/07/2010