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Proving Paternity After Death

by Richard B Bost on Apr. 26, 2013

Divorce & Family Law Family Law 

Summary: A description of three cases where paternity was proven after death using genetic material from the deceased or from the deceased ancestors.

Proving Paternity After Death

At the Family Law Section of the Pennsylvania Bar Association summer conference, I presented on the topic of how to establish paternity when the alleged father is deceased.

Paternity is a very interesting area of the law since "maternity" is practically never disputed, but paternity is often in doubt. After all, the mother has to be there at the birth, but father's only at conception.

Paternity is also an evolving area because of the widespread availability of genetic testing and the fact that more and more children are being born outside of marriage. But the days of holding a child up for a jury to determine if he or she resembles the alleged father are long gone. 

My portion of the conference is going to deal with establishing paternity when the alleged father is already deceased. In almost twenty years I have only done this three times and each time it involved a very interesting and unique set of facts. The three cases all happened within a year or so, and so far I haven’t come across any other attorney who has handled similar cases.

The first case involved a putative – a fancy word for alleged or accused - father who had been the victim of a homicide. My client, the mother, was attempting to obtain Social Security Survivor benefits for her child. There were a number of obstacles to proving paternity; the biggest problem was that the deceased Father’s body had been cremated. An attempt was made to find some genetic material from the coroner who had performed an autopsy, but the Philadelphia coroner had somehow lost or destroyed any samples. I learned most coroners’ only keep genetic material, usually just a drop of blood on a card, for one year.

Since it was not possible to obtain genetic material from the deceased, to prove paternity, my client sought the cooperation of the putative paternal grandmother. Unfortunately, the putative grandfather was dead and he had been cremated.

Despite having mentioned the child in the Father’s memorial book, and photos showing a smiling father with his child and even a “Happy Birthday Son” card, the putative paternal grandmother did not wish to provide a sample for the test. In this case it was a buccal swab of the inside of the cheek, a minimally invasive and pain free test. 

The supervising judge of the Family Division in Philadelphia disagreed with the grandmother and ordered testing. The results were to the best of my recollection 99.27 percent certain that she could not be excluded out as the child’s grandmother. Because she only had one son, the only way for her DNA to be present in this child would be if her son – the deceased - was the child’s father. 

Grandmother strenuously objected to the entry of the test results, and went as far as hiring an independent expert. In the process of preparing for the trial, I was able to speak with the director of the laboratory the court used. This large nationally known lab does most of the genetic testing in the country and its director is an attorney. He really helped me understand the how statistics are used to determine likelihood of paternity. When statisticians say that the results are 99.25% they are comparing that to a neutral or a completely equal value which he compared to “flipping a coin.” We all know that if flip a coin there should be an equal chance of heads and tails - or 50% heads and 50% tails. So when they say the genetic results are 99.25 % certain, it is as if the results are as likely as flipping a coin 10,000 times and 9,925 times it came up that the person was the father.

In trying to come up with a resolution the negotiations involved the possibility of testing the putative father’s other children. I had some concerns about doing that because at least one of the other children’s paternity was based upon an signed acknowledgement and not actual testing. My concern was that the deceased could have agreed to being the father for any number of reasons and might not have actually been the biological father. Those of us who practice in Philadelphia know that many times an acknowledgement of paternity ends up being the poor man’s means adoption.

Ultimately the case settled before trial with paternal grandmother withdrawing her objection. I am not sure why, but hope she did not want to completely cut off her connection with the child. My suspicion—never confirmed - was that the grandmother objected to the testing at least in part because her other grandchildren’s social security benefits would end up being reduced. I believe not only were the monthly amounts reduced, but the other grandchildren’s benefits were being decreased to make up for the “over payment” during the time Social Security believed there was one less survivor. 

My second case was the easiest to resolve. The father had unfortunately had a heart attack approximately six months before the child was born. An autopsy had been performed and the coroner had a sample of the father’s blood on file. A simple uncontested motion produced an Order for the coroner to turn over the sample to the laboratory the court used. 

Knowing that coroner’s don’t always keep samples, the first thing I did –even before I petitioned the court - was to write to the coroner , explain the situation and ask that they hold on to the sample so that I could petition the court. 

In this case the mother was likewise attempting to obtain social security benefits for the child. Because the father had died prior to the child’s birth, his name did not appear on the birth certificate. Consequently, after paternity was established, - this case was something like 99.99% - it was necessary to have the birth certificate amended. It was relatively simple to have this done once the court issued an Order and a common goal in each of the cases.

My most recent case was the most difficult because it involved the death of a father who was soldier killed in action in the war in Afghanistan. 

Having done two similar cases, I felt confident that I could simply seek a court order to obtain the deceased father’s genetic material. I knew that every soldier’s remains ended up at mortuary located at the US Air Force Base in Dover. However this ended up being my most complicated case.

The complication was that the father was married to another woman and had other children at the time of his death. The father was already overseas when the child was born, and had not acknowledged paternity, nor even seen his daughter except in photos. 

The judge assigned to the case had some concerns about issuing an order to release a sample from the deceased which led me to contact the military to inquire about the method for obtain some sort of genetic material. It turns out that the military will only release a sample if there is written consent from the next of kin. In this case the “next of kin” was the putative father’s wife. My attempts to get her permission – letters from me and telephone calls from in-laws- were not successful. 

The military told me that they would not obey either a subpoena or a state court Order and that there was a Department of Justice opinion that supported this position. I eventually spoke to the director of the Depository for Service Member’s Remains, who was very helpful. The conversation was fascinating in part because he told me about the military’s continual efforts to identify the remains of unidentified soldiers. He told me that confidentiality was important because they often uncovered family secrets, for example that a soldier may not have been the son of his mother’s husband or that two siblings did not share the same father. 

Realizing that the military would not be helpful, I was able instead to obtain samples from both of putative father’s parents who were still alive and anxious to help their grandchild. In this case there were a number of important benefits for the surviving child of someone killed in action. But to access those benefits we needed to prove paternity. Luckily I knew we could test his parents because of my first case. In fact having both parents allowed the laboratory to substantially recreate the actual DNA of the deceased father. 

The judge permitted my client to amend the petition to include the putative grandparents. In retrospect, this made complete sense because of Pennsylvania’s recognition of grandparent’s rights. For grandparents to assert their rights – though there was absolutely no antipathy between the parties – we needed to establish paternity since their custodial rights derive from their son’s. Fortunately, in this case the grandparents only had one son together so that when the results came back at more than 99.99% for each of them it was conclusive that the deceased soldier was the child’s father. 

I am pleased that each case ended up proving the relationship between the child and their deceased father and hope some of what I learned will help in similar cases 

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