Program Operations Manual System (POMS)
TN 72 (11-23)
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A.
Effective 10/01/81, a child can inherit from his/her parent, regardless of the marital
status of the parents, if the parent-child relationship may be established under the
UPA. A parent-child relationship may be established as follows:
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1.
Between a child and the natural mother:
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a.
By proof of her having given birth to the child; or
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b.
under the provisions in 2. below.
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2.
Between a child and the natural father (or mother, if applicable) if one of the following
applies:
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a.
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; or
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b.
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 law, although the
attempted marriage is or could be declared invalid; and
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(1)
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
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(2)
if the attempted marriage is invalid without a court order, the child is born within
300 days after the termination of cohabitation;
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c.
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:
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(1)
he has acknowledged his paternity of the child in writing filed with the department
of health and environmental sciences or with the district court for the county where
he resides; or
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(2)
with his consent, he is named as the child's father on the child's BC; or
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(3)
he is obligated to support the child under a written voluntary promise or by court
order;
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d.
while the child is under the age of majority, he receives the child into his home
and openly holds out the child as his natural child; or
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e.
(1) For acknowledgments of paternity made before 07/01/95, he acknowledged his paternity of the child in a writing filed with the department
of health and environmental sciences or with the district court of the county where
he resides which court or department shall promptly inform the mother of the filing
of the acknowledgment, and she does not dispute the acknowledgment within a reasonable
time after being informed thereof, in a writing filed with the department of health
and environmental sciences or with the district court of the county where the acknowledgment
was filed. If another man is presumed under this section to be the child's father,
acknowledgment may be effected only with the written consent of the presumed father
or after the presumption has been rebutted.
(2) Beginning 07/01/95, any acknowledgment of paternity must be made jointly by the
child's father and mother, on a form provided by the department of public health and
human services.
(3) From 07/01/95 through 06/30/97, the acknowledgment could be filed not only with
the department of health and human services or with the district court where the alleged
father resided, but also in the district court for any county where the child support
enforcement division of the department of public health and human services maintains
a regional office.
(4) Beginning 07/01/97:
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•
An acknowledgment of paternity is to be filed only with the department of health and
human services.
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•
An acknowledgment of paternity may be rescinded by a signatory at any time within
60 days after it was signed by filing a notice of withdrawal with the department of
public health and human services. The notice of withdrawal must include an affidavit
attesting that a copy of the notice was provided to any parent who signed the acknowledgment
form.
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•
Without need for ratification by court or administrative proceedings, an acknowledgment
of paternity becomes, as a matter of law, an irrebuttable presumption on the earlier
of the date the acknowledgment is not timely rescinded as provided above; or a court
or administrative judgment, decree, or order is entered that establishes paternity
or a support order, when that proceeding includes the signatory. An irrebuttable presumption
of paternity as described above may be set aside only for fraud, duress, or material
mistake of fact. The burden of proof is on the person seeking to set the presumption
aside.
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f.
effective 07/01/95, where the scientific evidence resulting from a blood test, whether
ordered by a court or administrative agency of competent jurisdiction or agreed to
by the parties, shows a 95% or higher statistical probability of paternity. (If the
probability is less than 95%, there is no presumption of paternity and the test results
may be weighed in conjunction with other evidence to establish paternity as indicated
under 4. below.) The term "blood test" means a test that demonstrates through examination
of genetic markers either that an alleged father is not the natural father of a child
or that there is a probability that an alleged father is the natural father of a child.
A blood test may include but is not limited to the human leukocyte antigen test and
DNA probe technology.
State law does not specify who may provide the blood or tissue samples used for genetic
testing; rather, the emphasis is on the reliability of the test results. Therefore,
if the wage earner/putative father is deceased and blood or tissue samples from him
are not available, a court would likely rely on the results of genetic testing that
used blood and tissue samples from members of the deceased wage earner's family.
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g.
effective 07/01/97, he is presumed to be the child's natural father under the laws
of the State or Indian territory in which the child was born.
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3.
Except as indicated above, a presumption of paternity under the UPA may be rebutted
by a preponderance of the evidence. A preponderance of the evidence is "that degree
of proof which is more probable than not." The presumption is rebutted by a court
decree establishing paternity of the child by another man.
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4.
If there is no presumption of paternity, any evidence relevant to the issue of the
child's paternity may be considered, using a "preponderance of the evidence" standard
of proof, such as:
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a.
Evidence of sexual intercourse between the mother and alleged father at any possible
time of conception;
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b.
An expert's opinion concerning the statistical probability of the alleged father's
paternity based upon the duration of the mother's pregnancy;
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c.
Blood test results, weighted in accordance with evidence, if available, of the statistical
probability of the alleged father's paternity; and
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d.
Medical or anthropological evidence relating to the alleged father's paternity of
the child based on tests performed by experts. (Submit the case to the Office of the
General Counsel (OGC) per GN 01010.815 ff. in the absence of a legal precedent opinion.)
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B.
On or after 07/01/75 and prior to 10/01/81, a child acquired status of child and a
father acquired status of parent if:
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2.
(I) the natural parents participated in a marriage ceremony before or after the child's
birth even though the attempted marriage is void, or
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3.
(I) paternity is established by an adjudication before the father's death or is established
thereafter by clear and convincing proof.
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C.
Prior to 07/01/75, a child acquired status of child and a father acquired status of
parent if:
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2.
father publicly acknowledged the child, received it as such into his family (with
wife's consent if he was married), and otherwise treated it as his legitimate child.