TN 94 (12-23)
Effective 01/01/76, a child can inherit from his/her parent only if a parent-child relationship can be established under California law.
A parent-child relationship extends equally to every child and to every parent, regardless of the parents' marital status. A parent-child relationship may be established as follows:
Between a child and the natural mother:
By proof of her having given birth to the child; or
Under the provisions in GN 00306.430A.1.b.
Between a child and the natural father (or mother, if applicable) if one of the following applies:
Notwithstanding any other provisions, the child of a wife cohabiting with her husband, who is not impotent or sterile, is "conclusively" presumed to be a child of the marriage. This presumption cannot be rebutted (except as noted below) and the child cannot be considered the natural child of any other parent for purposes of inheritance rights under California law. (See NOTE after (2) below for rebuttal of presumption.)
Effective 01/01/95, the child of a woman and a man who have voluntarily executed a declaration of paternity that is filed with the California State Office of Vital Records and Statistics is "conclusively" presumed to be the man's child. A voluntary declaration that has been rescinded by either parent, or set aside by a court, is not valid.
This presumption overrides all other presumptions in b.(1) above, or as noted below. If the voluntary declaration was signed on or before 12/31/96, submit the case to the Office of the General Counsel (OGC) per GN 01010.815 ff.
NOTE: Effective 09/30/80, the "conclusive" presumptions in b.(1) and (2) above may be rebutted in cases where experts performing blood tests pursuant to the Uniform Act on Blood Tests to Determine Paternity conclude that the husband is not the child's father, in which case he must be determined not to be the child's father. However, genetic test evidence does not negate or overcome the presumption in b.(1) above if the case had reached a final judgment of paternity on or before 09/30/80, or the case involves artificial insemination or conception by surgical procedures with the husband's consent.
He and the child's natural mother are or have been married to each other and the child is born during the marriage, or within 300 days after the marriage is terminated by death, annulment, declaration of invalidity, or divorce, or after a decree of separation is entered by a court. This presumption is rebuttable. See NOTE after (6) below.
Before the child's birth, he and the child's natural mother have attempted to marry each other by a marriage solemnized in apparent compliance with the law, although the attempted marriage is or could be declared invalid; and either:
If the attempted marriage could be declared invalid only by a court, the child is born during the attempted marriage, or within 300 days after its termination by death, annulment, declaration of invalidity, or divorce; or
If this attempted marriage is invalid without a court order, the child is born within 300 days after the termination of cohabitation.
This presumption is rebuttable. See NOTE after (6) below.
After the child's birth, he and the child's natural mother have married, or attempted to marry each other by a marriage solemnized in apparent compliance with law, although the attempted marriage is or could be declared invalid; and either:
With his consent, he is named as the child's father on the child's BC; or
He is obligated to support the child under a written voluntary promise or by a court order.
He receives the child into his home and openly holds out the child as his natural child. This presumption is rebuttable. See NOTE below.
NOTE: The presumptions in (3), (4), (5), and (6) above are rebuttable only by clear and convincing evidence. The presumptions are also rebutted by a court decree establishing paternity of the child by another man. If two or more presumptions arise, the controlling presumption is the one which, on the facts, is founded on the weightier considerations of policy and logic.
He died on or after 01/01/85 and paternity was established by a court* in an action brought under the Uniform Parentage Act (section 7630 of the California Family Code) and one of the following applies:
The court order declaring paternity was entered during the father's lifetime*; or
Paternity is established by clear and convincing evidence that the father has openly held out the child as his own; to establish holding out, the putative father must have incurred some potential cost, or an actual cost, in proclaiming the child as his own (e.g., ordinarily, statements to friends and family impose no potential cost and do not constitute holding out) (NOTE: In the case where a putative father has died while the child is in utero, affirmative efforts to hold out the unborn child shall be credited in the child's favor); or
For paternity determinations after 09/26/93, it was impossible for the father to hold out the child as his own and paternity is established by clear and convincing evidence. (NOTE: In the case where a putative father has died while the child is in utero, and where paternal efforts are insufficient to establish holding out under (B) above, holding out shall be deemed impossible and the child shall be permitted to present other clear and convincing evidence of paternity.)
*For claims filed on or after 11/27/98, or pending on that date, a court determination is no longer required; SSA may make the determination after the father's death based on clear and convincing evidence. For court orders entered, or SSA determinations made, after the father's death, the claimant must also meet the requirements in (B) or (C) above.
He died prior to 01/01/85, and paternity is established by a superior court order before or after the father's death. For claims filed on or after 11/27/98, a court determination is no longer required. SSA may make the determination based on a preponderance of the evidence.
The Evidence to Establish Paternity
If none of the presumptions in b. (3) through b. (6) above are satisfied, a child may provide other evidence to establish paternity, so long as the child can meet the holding out or impossibility of holding out requirement of b.(7)(b) or b.(7)(c) above. Also, an opponent of a claim of paternity may use evidence to rebut a presumption. This will usually be done by submitting genetic test results, as long as the tests were conducted according to the Uniform Act on Blood Tests to Determine Paternity.
"Genetic tests" means any genetic test that is generally acknowledged as reliable by accreditation bodies designated by the United States Secretary of Health and Human Services. If all the experts conclude that the alleged father is not the father of the child, the issue should be resolved accordingly. If the experts disagree in their conclusions, or if the tests show the probability of the alleged father's paternity, the issue shall be decided on all the evidence.
A rebuttable presumption of paternity is established if the paternity index, as calculated by the expert examiners of genetic markers, is 100 or greater (this equals 99% probability of paternity). This presumption may be rebutted by a preponderance of the evidence. Genetic markers mean separate genes or complexes of genes identified as a result of genetic tests. "Paternity Index" means the commonly accepted indicator used for denoting the existence of paternity. The paternity index shall be in accordance with the method of expression accepted at the International Conference on Parentage Testing, May 1982.
The tests shall be performed by a laboratory approved by any accreditation body that has been approved by the Secretary of DHHS. Adverse parties can submit independent test examined by other experts. The copy of the test results should be accompanied by a declaration under penalty of perjury of the custodian of records or other qualified laboratory employee that conducted the tests. The declarant is the duly authorized custodian of the records or other qualified employee and has the authority to certify the records.
NOTE: The American Association of Blood Banks (AABB) is one widely used accreditation body approved by DHHS. A current list of AABB accredited laboratories is available online at http://www.aabb.org/SA/FACILITIES/Pages/RTestAccrFac.aspx.
In addition, there should be a statement establishing the chain of custody of the genetic samples collected, including the date of collection, the identity of each person from whom the genetic sample was collected, and the identity of the person who performed or witnesses the collecting of the genetic samples and packages them for transmission to the laboratory, the date the laboratory received them, the identity of the person who unpacked the samples, and the identification of the persons who performed the laboratory analysis. The statement should state that the procedures used by the lab to conduct the tests are used in the lab's ordinary course of business to ensure accuracy and proper identification of the genetic samples. The statement should also establish that the results were performed at or near the time of completion of the genetic tests by personnel qualified to perform genetic tests.
If none of the rebuttable presumptions in b.(3) through b.(6) above apply, a man shall not be presumed to be the child's natural father if either of the following is true:
the child was conceived as a result of an act in violation of the California Penal Code, and the father was convicted of that violation; or
the child was conceived as a result of an act in violation of Section 261.5 of the California Penal Code, the father was convicted of that violation, and the mother was under the age of 15 years, and the father was 21 years of age or older at the time of conception.
Submit cases involving conception as a result of such an act to OGC per GN 01010.815 ff.
In the case of a child born after the death of its alleged father, a parent-child relationship may be considered established if:
the father has openly acknowledged paternity in such ways and under such circumstances as could reasonably be expected of a prospective father under similar circumstances, and did not conceal or deny paternity; and
he received the pregnant mother into his home as the mother of his expected child or otherwise demonstrated an intent to receive the child into his home as his natural child.
If it is unclear how these provisions apply in a specific case, submit the case to OGC under GN 01010.815 ff.
Prior to 01/01/76:
a child acquired status of child if:
parents intermarried, or
father publicly acknowledged child as his own, received it as such into his family (with wife's consent if he was married) and otherwise treated it as his legitimate child, or
(I) father acknowledged child in writing signed in presence of competent witness.
Father acquired status of parent if child died on or after 01/01/85 and the parent acknowledged the child and contributed to the support or care of the child.
If the child died prior to 01/01/85, father acquires status of parent if:
father publicly acknowledged child as his own, received it as such into his family (with wife's consent if he was married) and otherwise treated it as his legitimate child.
Where paternity is established by evidence and the child is publicly acknowledged by the father, who is unmarried, and the father had contact with the child and the child's mother but did not bring the child into his home or home of his kindred, fully develop the circumstances of the father's relationship to the child and child's mother (e.g., reasons for not living together; plans for living together later; his contributions to their support; his visits with them; their activities together; their correspondence with one another), and submit the case to OGC per GN 01010.815 ff.