8 FAM 304
Evidence of Relationship to U.S. Citizen/Non-Citizen U.S. National Parent(s)
8 FAM 304.1
birth in wedlock, of wedlock, void and voidable marriages
(CT:CITZ-1; 06-27-2018)
(Office of Origin: CA/PPT/S/A)
8 FAM 304.1-1 REBUTTABLE
PRESUMPTION OF PATERNITY
(CT:CITZ-1; 06-27-2018)
a. All presumptions of paternity are rebuttable in
appropriate circumstances. (Uniform Parentage Act (1973), Prefatory Note, 9B
U.L.A. 379 (2001).)
b. Many states have enacted paternity statutes
establishing a rebuttable presumption of paternity where genetic test results
report a paternity equal to or greater than a designated percentage. (See 8 FAM 304.2
for guidance about DNA testing.)
c. When the mother is living with her husband at the
time of the childs conception, and the husband is not impotent or sterile,
there is a conclusive presumption under the laws of some states that the
husband is the father of the child. However, DNA tests along with other
credible evidence can possibly result in a finding of non-paternity.
d. If there are indications that call into question the
filiations, despite the existence of a marriage, the consular officer must
consult the fraud prevention manager and CA/FPP (see 8 FAM 301.4
and 8 FAM
304.2). If doubt arises that the citizen putative "parent" is
related by blood to the child, the consular officer is expected to investigate
carefully. Circumstances that might give rise to such a doubt include:
(1) Conception or birth of a child when either of the
alleged biological parents was married to another;
(2) Naming on the birth certificate, as father and/or
mother, person(s) other than the alleged biological parents; and
(3) Evidence or indications that the child was
conceived at a time when the alleged father had no physical access to the
mother.
e. If the child was conceived or born when the mother
was married to someone other than the man claiming paternity, a statement from
the man to whom the mother was married disavowing paternity, a divorce or
custody decree mentioning certain of her children but omitting or specifically
excluding the child in question, or credible statements from neighbors or
friends having knowledge of the circumstances leading up to the birth may be
required as evidence bearing on actual natural paternity. If Consular Affairs
(CA) is not satisfied by a preponderance of the evidence that filiation exists,
the putative parent(s) may submit DNA evidence following procedures in 8 FAM 304.2
and the CA Internet page on DNA and parentage testing. See 8 FAM 303.1-4
for further guidance on adjudication.
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NOTE:
CA/FPPs CAWeb Intranet Relationship Fraud feature.
CA/FPPs Intranet Fraud Digest includes other
information about relationship fraud. For example: Relationship Fraud in
Yemen; Marriage Fraud Dangerous and Pervasive.
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8 FAM 304.1-2 In Wedlock and
Of WedlocK
(CT:CITZ-1; 06-27-2018)
a. The term birth in wedlock has been consistently
interpreted to mean birth during the marriage of the biological parents to each
other.
b. This includes a child conceived before the marriage
but born during the marriage.
c. To say a child was born "in wedlock"
means that the childs biological parents were married to each other at the
time of the birth of the child.
d. In the case of a marriage terminated by dissolution,
death, or annulment, the term of wedlock still includes a biological child
conceived during the marriage and born within 300 days after termination of the
marriage.
e. If a married woman and someone other than her spouse
have a biological child together, that child is considered to have been born
out of wedlock. The same is true for a child born to a married man and a
person other than his spouse.
8 FAM 304.1-3 Void and Voidable
Marriages
(CT:CITZ-1; 06-27-2018)
a. A marriage that does not conform to the laws of the
country or state in which it was performed generally is voidable and may be
declared void by an appropriate authority, usually a court in the jurisdiction
where the marriage occurred.
b. Prior to such a declaration, the marriage usually is
considered valid for all purposes. Even after a marriage is voided, the
children's status usually is not affected. In the United States, for example,
every state considers children of a void marriage to be legitimate.
c. Some marriages are considered void ab initio (from
the beginning), as opposed to voidable. 8 FAM 303.1-4
provides further guidance about adjudication. Questions about this subject
must be referred to AskPPTAdjudication@state.gov.
d. Except where Federal statute provides to the
contrary, the U.S. Supreme Court held that marriages (not polygamous or
incestuous, or otherwise declared void by statute) if valid by the law of the
state where entered into, will be recognized as valid in every other
jurisdiction (Meister v. Moore, 96 U.S. 76 (1878); Travers v. Reinhardt, 205
U.S. 423, 440 (1907).
e. U.S. embassies and consulates abroad must have
available a copy of the consular district's local laws on marriage and
legitimation:
(1) If for any reason a marriage does not appear to
have been valid, legitimation is a determining factor in the citizenship claim
and a U.S. domicile cannot be identified, the consular officer will consult
local law in an attempt to determine if children born of a void marriage are
considered legitimate (see the Foreign Legitimation Law Chart on the CAWeb);
(2) If the child is not considered legitimate, the
consular officer must determine that the marriage was declared void by an
appropriate authority before denying the childs claim;
(3) A post considering a case involving legitimation
in a third country must seek information on the laws of that country from the
embassy of that country or from the U.S. embassy or consulate in that country;
and
(4) If any of the above inquiry are inconclusive or
questionable, posts and passport agency/center management must consult
AskPPTAdjudication@state.gov. 8 FAM 303.1-4
provides further guidance about adjudication.
f. A law that declares legitimate a child born during a
void marriage presumes that the marriage ceremony took place before the child's
birth unless the law specifically mentions children born before the marriage.
Cases that involve void marriages occurring after a child's birth must be
referred to AskPPTAdjudication@state.gov.
8 FAM 304.1-4 ADJUDICATION
(CT:CITZ-1; 06-27-2018)
a. In most acquisition of U.S. citizenship by birth
abroad cases, adjudication of whether a citizenship claim comes within the
scope of the Nationality Immigration Act (INA) 301 (8 U.S.C. 1401) or rather
INA 309 (8 U.S.C. 1409) will be clear. The parents will present a marriage
certificate certified by the civil registry authority responsible for
maintaining marriage certificates as proof of marriage, and adjudication will
proceed in a straightforward way.
b. On rare occasions, you may be confronted with an
acquisition of citizenship adjudication in which a child is born during the
course of a marriage but one or both the spouses advise that the biological
father is another person not married to the biological mother. The following
documents must be submitted:
(1) The childs birth certificate certified by the
civil registry authority responsible for maintaining birth certificates;
(2) Form DS-5507 notarized Affidavit of Parentage, Physical
Presence and Support executed by the mother and the person she claims is the
father;
(3) An notarized affidavit executed by the husband
denying paternity;
(4) Evidence of access by the putative father at
probable time of conception including, for example, entry/exit stamps in
passports, airline/hotel receipts, travel orders, etc.;
(5) Evidence of lack of access by the husband at
probable time of conception. For example, evidence that the husband was not in
the country such as overseas military assignment, imprisonment, etc.; and
(6) In addition, the family may submit DNA tests in
accordance with procedures set forth in 8 FAM 304.2.
c. For posthumous children, see 8 FAM 304.4.
d. If there is indication of fraud, consular officers
must consult posts Fraud Prevention Manager and CA/FPP. Passport agencies and
centers must consult their fraud program managers.
e. If a spouse contacts a post denying paternity after
a passport or Consular Report of Birth of a U.S. citizen abroad has been
issued, obtain a sworn statement from the individual and contact
AskPPTAdjudication@state.gov) for guidance.
f. If the foreign birth certificate lists the husband,
post must include in analysis of the case whether it is possible to obtain an
amended birth certificate. This is not feasible in all cultures. For example,
in some cultures a woman could be killed for such an admission.
g. Questions about void and voidable marriages,
polygamy, and common law marriage are extremely rare but usually complex. They
may be brought to the attention of AskPPTAdjudication@state.gov.