You have requested a legal opinion on whether genetic testing performed on Diane (hereinafter
“paternal grandmother”) the mother of deceased NH James (hereinafter “NH”) constitutes
viable proof of a father-child relationship between the NH and his alleged child Ryan
(hereinafter “the child”).
Initially, there is insufficient information to conclusively determine which state’s
law should be applied to this analysis. However, based on available information, the
NH was domiciled in either Utah or China at the time of his death. Under the laws
applied for either jurisdiction, the genetic testing results from Affiliated Genetics
do not establish a reliable chain of custody, and would not be admissible evidence
According to the information you provided, the child was allegedly born to the NH
and Collett (hereinafter “mother”) in Millcreek Utah in 2004. The birth certificate
listed the mother’s information, but provided no information about the child’s father.
You stated that you have no information regarding the marital status of the NH and
the mother, whether the child has inheritance rights from the NH, and whether the
child was adopted by the NH. You indicated that the child’s birth certificate was
never amended to show information regarding the father, and there was never a court
order of support for the NH to support the child. On March XX, 2007, the NH died while
teaching in China.
The mother made a previous application for surviving child’s benefits on September
28, 2007, which was denied for lack of relationship.
The mother filed this application on July XX, 2013. The mother provided a statement
that she had not engaged in a sexual relationship with the NH’s brother. Also included
in the application were test results from Affiliated Genetics dated July XX, 2013,
showing that the mother, the alleged paternal grandmother, and the child underwent
genetic testing. The genetic test reported a cumulative relationship index of 902.5909,
and the probability that the alleged paternal grandmother was related to the child
as a second-degree relative was 99.8893%.
Affiliated Genetics also provided a statement that noted that the collection of specimens
for the genetic test “was not in compliance with established sample collection guidelines
for a legally binding test,” and the results of the test cannot be considered legally
admissible for use in a court of law. We contacted Affiliated Genetics to determine
why the test was not in compliance, and a representative confirmed that they could
not establish a chain of custody for the specimens as required for legally admissible
Domicile is the place where a person has his true, fixed, and permanent home to which
he intends to return whenever away. POMS GN 00305.001(B)(2). The agency applies the law of the state where the NH was domiciled at the
time of his death. 42 U.S.C. § 416(h)(2)(A)(2010); 20 C.F.R. 404.355(b)(4) (2010);
POMS GN 00306.001(C)(2)(a)-(b). Pursuant to the POMS, if the NH was domiciled in a jurisdiction not
defined in the Act as a State, the agency applies the law that the courts of District
of Columbia (D.C.) would apply. See POMS GN 00305.001(A)(2)(b); 00306.001(C)(2)(b). The agency applies the version of the state’s law that
is in effect when the child’s claim is adjudicated, unless the version in effect when
the NH died would be more beneficial to the child. See POMS GN 00306.075(B)(2)(b).
The records that you provided indicate that the NH died while teaching in China, but
he previously resided in Utah. There is no additional information regarding whether
the NH intended to return to Utah as his true, fixed, and permanent home, even though
he was living in China at the time of his death. Thus, the following analysis of this
issue applies both the laws of the state of Utah, and the laws of D.C. Because under
either jurisdiction’s law, no relationship can be established based on the genetic
test results provided, there is no need to resolve the question of domicile at this
2. Validity of Genetic Testing Under Utah Law
The agency applies the intestate succession laws of the appropriate state to determine
a child’s relationship to the NH. 42 U.S.C. § 416(h)(2)(A); POMS GN 00306.001(C)(1)(a). The Utah Uniform Probate Code provides that the parent and child relationship
is established as provided in the Utah Uniform Parentage Act. Utah Code Ann. § 75-2-114(1)
(2014). Under the Utah Uniform Parentage Act, the father-child relationship can be
established in a number of ways. See Utah Code Ann. § 78B-15-201(2) (2008). As applicable here, the relationship can be
established by an adjudication of paternity. Id. at § 78B-15-201(2)(c). Even though Utah law requires an actual adjudication of paternity,
an adjudication is not required 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 (2008).
A genetic test may be used as clear and convincing evidence of paternity when it is
a reliable report issued with results meeting the statute’s presumption of paternity.
Utah Code Ann. §§ 78B-15-503 (2008), 78B-15-505 (2008). 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. Id. at § 78B-15-503. If a genetic testing specimen is not available from a man who may
be the father of a child, for good cause and under extraordinary circumstances, the
Court may order genetic testing of the parents of the man. Id. at § 78B-15-508(1)(a).
The report of the genetic testing must sufficiently demonstrate a reliable chain of
custody to be admissible without testimony. Utah Code Ann. § 78B-15-504 (2008). The
testing laboratory must provide documentation including names, photographs and fingerprints
of the individuals whose specimens were taken, the places and dates of the collection,
and the names of the individuals who collected the specimens and received the specimens
in the testing laboratory. See id. at § 78B-15-504(2)(a)-(f).
If the genetic test complies with these requirements, a man is presumed to be identified
as the father of the child if the results disclose that the man has a probability
of paternity of 99% or higher, and a combined paternity index of at least 100. Utah
Code Ann. § 78B-15-505(1) (2008). 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). Id. at § 78B-15-505(b); see also POMS GN 00306.645 (presumption of paternity created by genetic test yielding paternity index of at
least 100). We note that this POMS provision does not accurately reflect current Utah
law, which requires both a combined paternity index of at least 100 and at least a
99% probability of paternity. See Utah Code Ann. § 78B-15-505(a)-(b). The POMS refers only to the paternity index requirement. See POMS GN 00306.645. Further, we note that Utah statutes refer to the requirement for a “combined paternity
index,” while the POMS only references “paternity index.” In addition, the POMS fails
to note the statutes discussing chain of custody requirements. See id. We recommend that the POMS be updated to track the statutory language and reflect
the current statutory requirements for a presumption based on genetic testing.
Here, the genetic test results do not meet the statutory requirements for reliability
under Utah law. Affiliated Genetics, the testing laboratory, was accredited by the
American Association of Blood Banks. The test report reflected that there was a cumulative
relationship index of 902.5909, and that there was a 99.8893% probability that the
paternal grandmother was related to the child as a second-degree relative. However,
the test results indicated that the collection of specimens “was not in compliance
with established sample collection guidelines for a legally binding test,” and did
not include documentation showing chain of custody as required under Utah law. Utah
Code Ann. § 78B-15-504(2)(a)-(f). Further, Affiliated Genetics stated that they could
not confirm the identity of the individuals providing the specimens. See id. at § 78B-15-504(2)(a). Thus, the report of genetic testing does not establish a reliable
chain of custody, and is not of a type reasonably relied upon by experts in the field
of genetic testing. See id. at §§ 78B-15-503; 78B-15-504.
3. Validity of Genetic Testing Under D.C. Law
The D.C. child inheritance statute provides that children may inherit from their mother
or their father if parenthood has been established. D.C. Code § 19-316 (2014). Under
D.C. law, a father-child relationship is established by an adjudication of a man’s
parentage. D.C. Code § 16-909 (2013); POMS GN 00306.450. We note that this POMS provision does not accurately reflect current D.C. law, which
has been substantially revised. See POMS GN 00306.450(1)(b); D.C. Code § 16-909 (2013) (noting that D.C. Law 18-33 § 3(d) (2008) removed
the language requiring preponderance of the evidence). We recommend that the POMS
be updated to reflect the current statutory requirements. As noted above, even though
D.C. law requires an actual adjudication of paternity, an adjudication is not required
for Social Security purposes if paternity can be established under the standard of
proof D.C. courts would apply. 20 C.F.R. § 404.355(b)(2). If there is no presumption
of paternity established through marriage or a written statement from the putative
father acknowledging paternity, a conclusive presumption of parentage can be created
upon a result of a genetic test and an affidavit from a laboratory generally acknowledged
as reliable by accreditation bodies designated by the Secretary of the U.S. Department
of Health and Human Services. Id. at § 16-909(b-1)(1). The test must indicate a 99% probability that the putative father
is the father of the child. Id.; D.C. Code § 16-909.01(a)(2) (2009).
When a genetic test result indicates a 99% probability that the putative father is
the father of the child, and the test result is of the type generally acknowledged
as reliable by an accreditation body, there is a conclusive presumption of paternity
upon submission of the result and a certifying affidavit from the laboratory. D.C.
Code § 16-2343.01(e)(1) (2009). Test results may be admissible, and competent evidence
of the chain of custody of the test specimens is established through certified documentation.
Id. at § 16-2343.01(a)(1)-(2); POMS GN 00306.450(4)(c). It is unclear under D.C. law whether the Court would accept genetic testing
on the putative paternal grandparents when a specimen from the putative father is
unavailable, but it seems likely that courts would accept such evidence since parenthood
determinations may be made subsequent to the death of a putative father. See D.C. Code § 19-316 (1981).
Here, the genetic test results do not meet the statutory requirements for reliability
under D.C. law. Affiliated genetics did not provide a certifying affidavit, and in
fact provided a letter stating that the collection of specimens “was not in compliance
with established sample collection guidelines for a legally binding test.” Further,
Affiliated Genetics stated that it did not confirm the identity of those providing
specimens. Thus, there was no competent evidence of the chain of custody of the test
specimens as required under D.C. law. See D.C. Code § 16-2343.01(a)(2).
Under both Utah and D.C. law, genetic testing results must be reliable. See Utah Code Ann. § 78B-15-503 (2008), D.C. Code § 16-2343.01(e)(1) (2008). Test results
are only admissible in evidence when a reliable chain of custody has been established.
Utah Code Ann. § 78B-15-504 (2008); D.C. Code § 16-2343.01(a)(2) (2008). Here, though
the genetic testing was performed in an accredited laboratory, no reliable chain of
custody was established, and the test would not be reasonably relied upon to establish
paternity in the courts of either jurisdiction.
John Jay Lee
Regional Chief Counsel
By: Keeya Jeffrey
Assistant Regional Counsel