8 FAM 304
Evidence of Relationship to U.S. Citizen/Non-Citizen U.S. National Parent(s)
8 FAM 304.1
(Office of Origin: CA/PPT/S/A)
8 FAM 304.1-1 PRESUMPTION OF PATERNITY
a. All presumptions of paternity are rebuttable in appropriate circumstances. (Uniform Parentage Act (1973), Prefatory Note, 9B U.L.A. 379 (2001).) Questions involving a rebuttable presumption of paternity can be complex. Contact AskPPTAdjudication@state.gov with questions.
b. Many states and foreign jurisdictions 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 a mother is living with her husband at the time of her child’s 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. When adjudicating acquisition claims under INA 301, you may learn that only one of the spouses is genetically or gestationally related to the child. A genetic or gestational relationship may not be required between the U.S. citizen parent and their child. In these cases, the presumption of paternity may not be relevant. (See 8 FAM 301.7-6 on INA 301 and 8 FAM 304.3 for guidance on assisted reproductive technology).
e. If there are indications that call into question blood relationship (if such a relationship is required), despite the existence of a marriage, you must satisfy this concern by using available resources or by requesting additional evidence of relationship from the applicant, and you may refer the case to the fraud prevention unit (FPU) (see 8 FAM 301.4 and 8 FAM 304.2). If doubt arises that the U.S. citizen putative parent is genetically or gestationally related to the child, you must investigate carefully. Circumstances that might give rise to such a doubt include:
(1) Conception or birth of a child when either of the putative parents was married to another person;
(2) Naming on the birth certificate, as father and/or mother, person(s) other than the putative parents; and
(3) Evidence or indications that the child was conceived at a time when the putative genetic father had no physical access to the mother.
f. If the child was conceived or born when the mother was married to someone other than the man claiming paternity, you must be satisfied by clear and convincing evidence that filiation exists (see 8 FAM 303.4-2(B) for further guidance on adjudication).
NOTE: CA/FPP's "Overseas Consular Fraud Reports" are country fraud summary reports updated on an annual basis which contain relevant information on fraud trends in each country, including parental relationship fraud. This can be found on FPP’s Intranet Page under 'Fraud Trends'.
8 FAM 304.1-2 “In Wedlock,” and “Of WedlocK,” and "Out of Wedlock"
a. The term “in wedlock” has been interpreted to mean birth during the legally recognized marriage of the parents to each other:
(1) This includes a child conceived before the marriage and born during the marriage;
(2) To say a child was born "in wedlock" means that the child’s parents were married to each other at the time of the child's birth; and
(3) See 8 FAM 304.3 for guidance on assisted reproductive technology (ART) and wedlock.
b. The term "of wedlock" includes a child conceived during the marriage and born within 300 days after termination of the marriage by dissolution, death, or annulment. Such a child may have been conceived using assisted reproductive technology (see 8 FAM 304.3).
c. The term "out of wedlock" refers to a child that was neither conceived nor born while the parents were married to each other:
(1) For guidance on legal custody of children born out of wedlock, please refer to the U.S. Out-of-Wedlock Custody Laws Chart and the Foreign Out-of-Wedlock Custody Laws Chart, available on the CAWeb; and
(2) See 8 FAM 304.3 for guidance on assisted reproductive technology (ART).
8 FAM 304.1-3 Void Marriages
a. A marriage that does not conform to the laws of the country or state in which it was performed generally is void.
b. In determining the validity of the marriage, you must look to the law of place where the marriage occurred. Except as otherwise noted below, if the marriage was properly and legally performed in the place of celebration and legally recognized, then the marriage is deemed to be valid for U.S. citizenship adjudication purposes. In keeping with the U.S. policy against polygamy, any prior marriages of either party must be legally terminated before the parties may enter a subsequent marriage, regardless of the law of the place of where the marriage occurred (see 8 FAM 304.1-3(d)).
c. Except where Federal statute provides to the contrary, the U.S. Supreme Court held that marriages (except 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 (1877); Travers v. Reinhardt, 205 U.S. 423, 440 (1907)).
d. Certain marriages that are legal in the place of celebration are illegal and void ab initio (from the beginning) under U.S. law as contrary to public policy. Such marriages are not considered valid for citizenship adjudication purposes. As noted above, polygamous marriages are not recognized as a matter of federal law because they are against public policy. (Miles v. United States, 103 U.S. 304 (1880) and Section 5352 of the Revised Statutes of the United States.) Any prior marriage, of either party, must be legally terminated before the parties may legally marry.
e. An incestuous marriage includes marriages between parent and child, between grandparent and grandchild, between siblings, and between aunts/uncles and nieces/nephews (whole or half-blood).
f. If you determine the marriage was void, you must analyze whether the child has an alternative citizenship claim.
8 FAM 304.1-4 Voidable Marriages
a. A voidable marriage is a marriage that generally can be canceled by one of the parties and declared void (i.e., voided or annulled) by an appropriate authority, usually a court in the jurisdiction where the marriage occurred.
b. Prior to such a declaration, a voidable marriage usually is considered valid for all purposes. Even after a marriage is voided or annulled, a child's status usually is not affected. In the United States, for example, every state considers a child of a voided marriage to be legitimate or born in wedlock.
c. A law that legitimates 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 304.1-5 Proxy Marriage
a. Some jurisdictions permit proxy marriages, where one individual is present in the place of celebration, but the other individual is in a different state or country. If you have concerns about whether a proxy marriage is valid in the place of celebration, please contact AskPPTAdjudication@state.gov.
b. Under INA 101(a)(35), the parties to a proxy marriages are not defined as spouses unless the marriage has been consummated. See also 9 FAM 102.8-1(D) regarding proxy marriages with visa applications.
8 FAM 304.1-6 Common-Law Marriage
a. A common-law marriage is a legal marriage that may occur in some jurisdictions without a marriage license and/or marriage certificate. In the absence of a marriage certificate, an official verification, or a legal brief verifying full marital rights, a common law marriage or cohabitation is considered to be a valid marriage for purposes of citizenship adjudication only if:
(1) Common-law marriage is recognized as being fully equivalent in every respect to a traditional legal marriage in the place that it is claimed it was created; and
(2) It bestows all of the same legal rights and duties possessed by partners in a lawfully contracted marriage:
(a) The relationship can only be terminated by divorce or death;
(b) There is a potential right to alimony;
(c) There is a right to intestate distribution of an estate; and
(d) There is a right of custody, if there are children.
b. Not all jurisdictions recognize the concept of common-law marriage, and others recognize common-law marriages performed elsewhere, but do not provide for common-law marriage within its jurisdiction.
c. Jurisdictions that permit common-law marriage have different requirements for the common-law marriage. For example, a state may require that the common-law marriage subsequently be registered with the state and a common-law marriage certificate issued. The applicant should submit the common-law marriage certificate in accordance with 8 FAM 303.4-3(A). If the state does not issue common-law marriage certificates, contact AskPPTAdjudication@state.gov for further guidance
8 FAM 304.1-7 ADJUDICATION
a. In most acquisition of U.S. citizenship by birth abroad cases, adjudication of whether a citizenship claim comes within the scope of INA 301 (birth in/of-wedlock, 8 U.S.C. 1401) or INA 309 (birth out-of-wedlock, 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 claim under INA 301 in which a child is born during the course of a marriage but you are advised or discover (see 8 FAM 304.1-1(e)) that only one of the spouses is genetically or gestationally related to the child, while the other genetic or gestational parent is not part of the marriage. This situation would be adjudicated as 'in wedlock' under the Department's interpretation of INA 301 (see also 8 FAM 301.7-6 on INA 301 and 8 FAM 304.3 for guidance regarding assisted reproductive technology). An applicant may have multiple claims to derivative acquisition. If a claim through a married U.S. citizen parent fails, but a secondary claim can be made through the other genetic or gestational parent who is not part of the marriage, this must be considered. The secondary claim could be under either INA 309 or INA 301, depending on the other parent's marital status.