To qualify for child’s insurance benefits on the earnings record of an insured individual
who has died, a claimant must be that individual’s “child.” See Social Security Act (Act) § 202(d); 20 C.F.R. § 404.350(a)(1). A claimant can qualify
as the insured individual’s natural child if the claimant could inherit from the insured
individual as his child. See Act § 216(h)(2)(A); 20 C.F.R. § 404.355(a)(1), (b). To determine if a claimant could
inherit from the insured individual, the Social Security Administration applies the
intestacy laws of the state where the insured had his permanent home when he died.
See Act § 216(h)(2)(A); 20 C.F.R. § 404.355(a)(1), (b)(1). Because NH was domiciled in
Virginia when he died, we look to Virginia law to determine whether the minor child
could inherit from the NH as his child. Act § 216(h)(2)(A); 20 C.F.R. § 404.355(b)(4).
Under Virginia intestacy law, the paternity of a child born out of wedlock must be
established by clear and convincing evidence, which may include the following:
1. That he cohabited openly with the mother during all of the 10 months immediately
prior to the time the child was born;
2. That he gave consent to a physician or other person, not including the mother,
charged with the responsibility of securing information for the preparation of a birth
record that his name be used as the father of the child upon the birth record of the
child;
3. That he allowed by a general course of conduct the common use of his surname by
the child;
4. That he claimed the child as his child on any statement, tax return or other document
filed and signed by him with any local, state or federal government or any agency
thereof;
5. That he admitted before any court having jurisdiction to try and dispose of the
same that he is the father of the child;
6. That he voluntarily admitted paternity in writing, under oath;
7. The results of scientifically reliable genetic tests, including DNA tests, weighed
with all the other evidence; or
8. Other medical, scientific, or anthropological evidence relating to the alleged
parentage of the child based on tests performed by experts.
Va. Code Ann. § 64.2-103(A)(7); see also Va. Code Ann. § 64.2-102(3)(b).
The Virginia Supreme Court has also found clear and convincing evidence of paternity
based upon evidence not specifically listed in the statute. See, e.g., Jones v.
Eley, 501 S.E.2d 405, 407 (Va. 1998) (clear and convincing evidence supported a finding
of paternity where father acknowledged his paternity to others, including his doctor,
had interactions with the child indicative of a father and child relationship, and
contributed to the support and maintenance of the child). Moreover, Virginia courts
have considered factors such as whether a purported father was sterile or “had access
to” the mother within the “window of conception.” See, e.g., Hankerson v. Moody, 329 S.E.2d 791, 7994 (Va. 1985) (uncontradicted evidence of results of blood test
from mother, child, and putative father, plus mother’s testimony as to nonaccess by
other men established defendant’s paternity); Brooks v. Rogers, 445 S.E.2d 725, 727 (Va. Ct. App. 1994).
Virginia courts have defined clear and convincing evidence as “[t]hat measure or degree
of proof which will produce in the mind of the trier of facts a firm belief or conviction
as to the allegations sought to be established. It is intermediate, being more than
a preponderance, but not to the extent of such certainty as is required beyond a reasonable
doubt as in criminal cases. It does not mean clear and unequivocal.” Commonwealth v.
Dep’t of Soc. Serv. v. Flaneary, 469 S.E.2d 79, 84 (Va. Ct. App. 1996). The Virginia Supreme Court has stated that
the clear and convincing standard “has placed a heavy burden on people who undertake
to prove that they are the paternal children of a decedent.” Jones, 501 S.E.2d at 408.
When considering the sufficiency of DNA testing specifically, Virginia courts look
to another section of the Virginia Code pertaining to domestic relations proceedings,
which provides that blood test results that affirm at least a 98% probability of paternity
are sufficient to establish a parent-child relationship. Va. Code Ann. § 20-49.1(B)(1);
see Veeney ex rel. Strother v. Sullivan, 973 F.2d 326, 331 (4th Cir. 1992) (examining the intersection of the intestacy and
domestic relations statutes); Flaneary, 469 S.E.2d at 82–83 (uncontroverted evidence that genetic blood tests resulted in
99.92% probability of paternity was clear and convincing evidence of paternity).
The Virginia statute does not address DNA testing that establishes the likelihood
of paternity based on a grandparent relationship. While there is no case law directly
on point, we believe that, in light of the statutory recognition granted to DNA testing,
a Virginia court would consider the results of DNA testing on a paternal grandparent
along with all of the other evidence presented to determine if a paternal relationship
could be established. Moreover, DNA evidence is generally recognized as a reliable
method of establishing paternity. See, e.g., Buckland v. Commonwealth of Virginia, 329 S.E.2d 803, 807 (Va. 1985) (holding that a blood test of a father and child,
which showed a 99.27% probability of paternity, standing alone, proved paternity beyond
a reasonable doubt). Without other evidence supporting paternity, however, we do not
believe that grandparent DNA testing alone would satisfy the clear and convincing
evidence standard under Virginia law.
Here, the unrebutted DNA test results establish that the probability that the alleged
paternal grandmother is, in fact, the Minor Child’s biological grandmother is “99.3119%
as compared to untested, unrelated persons of the African American population. This
study supports the allegation that a son of the grandmother is the biological father of
the child” (emphasis added). Significantly, the results do not rule out the possibility that
a brother of NH could be the natural father. Indeed, no evidence was presented on
this point. And, although NH’s biological mother attested that she is the grandmother
of Minor Child through her son, NH, no other evidence was presented to bolster that
conclusion such as any evidence that NH acknowledged paternity, contributed to the
child’s support, or had a relationship with Claimant prior to Minor Child’s birth,
factors routinely considered by Virginia courts when assessing paternity. Given that
the DNA test results do not rule out a brother as the natural father, along with the
absence of additional evidence that favors a finding of paternity, in order to meet
the “clear and convincing” standard, we believe that additional evidence must be collected,
such as statements or affidavits from NH’s brother(s), if any, Claimant, and/or other
family members, eliminating the possibility that such brother(s) could be Minor Child’s
father. After additional evidence is secured, if it appears to establish by clear
and convincing evidence that no other relative of NH is likely to be the father, then
a Virginia court would likely find that Minor Child is NH’s child.