2003 birth death kentucky record
These statements portray Claimant's mother as a drug addict who slept with several other men, including NH's brother and nephew, and left for weeks at a time during her relationship with NH. According to these statements, NH denied being Claimant's father, and Claimant's mother claimed that Arnold was the father. NH's ex-wife and children also describe Shelly as "sneaky" and "Conniving. Shelly obtained custody of Claimant and filed a fourth application for child's benefits on Claimant's behalf on August 18, Shelly also submitted results of a second DNA test conducted in July showing a Shelly also provided handwritten notes purportedly from NH's brother and nephew.
NH's brother claimed he had a vasectomy in and had never had a relationship with Claimant's mother. NH's nephew stated that he "did not have a relationship or anything to do with" Claimant's mother. She also submitted an amended birth certificate reflecting Claimant's name change, but the amended birth certificate still lists Arnold as Claimant's father. For purposes of child's insurance benefits under section d of the Social Security Act Act , 42 U.
Where, as here, a claimant's mother and putative father never married, the child claimant's status as the surviving child of a number holder is governed by either h 2 A of the Act, 42 U. To establish child status under section h 3 C , Claimant must show she is the natural child of the NH and one of the following: 1 NH acknowledged in writing that she is his child; 2 a court decreed NH to be Claimant's father; 3 a court ordered NH to contribute to Claimant's support; or 4 NH is the father and was living with Claimant or contributing to her support at the time of his death.
The acknowledgment, court decree, or court order must have been made or issued before NH's death. Claimant has not satisfied any of the criteria set forth in section h 3 C. To establish her status as the surviving child of NH under section h 2 A , Claimant must show she would be entitled to a child's share of NH's intestate personal property under the law of the state in which NH was domiciled at the time of his death.
According to the record, NH was domiciled in Kentucky when he died. Therefore, Kentucky's law of intestate succession applies in determining Claimant's status as the lineal descendant of NH for purposes of section h 2 A. Because Claimant's mother was married to Arnold at the time of Claimant's birth and he is listed as the father on the birth certificate, we first examined the potential impact of Claimant's mother's marriage to Arnold on Claimant's ability to inherit from NH.
A child born during lawful wedlock is presumed to be the child of the husband and wife. See KY. Although this presumption is one of the strongest known to law, it is rebuttable and may be overcome "by evidence so clear, distinct and convincing as to remove the question from the realm of reasonable doubt. Commonwealth ex rel. Calloway , S. The Commissioner must accept the determination of a state court as proper where, as here: 1 the issue in a claim for Social Security benefits has been previously determined by a state trial court of competent jurisdiction; 2 such issue was genuinely contested before a state court by parties with opposing interests; 3 the issue falls within the general category of domestic relations; and 4 resolution by the state trial court was consistent with the law as enunciated by the highest court in the state.
See Gray v.
Richardson , F. The circuit court had jurisdiction to consider Claimant's custody and paternity given that the affected parties were domiciled in Kentucky, and these issues fall within the category of domestic relations.
Additionally, the issue of whether Arnold should have custody of Claimant was contested by Claimant's mother. Finally, as discussed more fully below, the Kentucky Supreme Court has found that genetic testing can be used to establish that someone other than the mother's husband is the father of a child.
Thus, the presumption of the paternity of the husband Arnold has been rebutted in this case and would not preclude a finding that Claimant may be entitled to a child's share of NH's intestate personal property under Kentucky law. The applicable Kentucky statute regarding the inheritance rights of a child born out of wedlock states, in pertinent part:. For the purpose on intestate succession, if a relationship of parent and child must be established to determine succession by, through, or from a person, a person born out of wedlock is a child of the natural mother.
That person is also a child of the natural father if. The burden of proof rests with the individual claiming the right to inherit from the putative father's estate. See Croucher v. Consequently, Claimant can inherit from the NH only if there is an adjudication of paternity based upon clear and convincing evidence. Although there has not been an adjudication of paternity by a Kentucky court in this case, the Agency does not require that a claimant obtain such a determination but will use the standard of proof that the state court would use as the basis for a determination of paternity.
Under Kentucky caselaw, "clear and convincing does not necessarily mean uncontradicted proof. It is sufficient if there is proof of a probative and substantial nature carrying the weight of evidence sufficient to convince ordinarily prudent minded people. Stewart , S. App citing Fykes v. In this case, NH's ex-wife and other children provided the only statements regarding the relationship between NH and Claimant's mother; and they portrayed Claimant's mother as a drug addict who slept with several other men, including NH's brother and nephew, and left for weeks at a time during her relationship with NH.
Shelly, NH's sister, originally stated that she did not know if Claimant was NH's child and that NH had refused to allow Claimant's mother's request to allow Claimant to have his last name. Even in her more recent statement, Shelly merely suggested that NH thought he might be Claimant's father and that Claimant resembled members of the Gary family.
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Although Shelly obtained a name change order and amended birth certificate changing Claimant's last name to Gary, these actions would not appear to provide clear and convincing evidence that NH is Claimant's father. Pursuant to KY. In granting Shelly's petition to change Claimant's last name to Gary, the court made a finding of fact that NH was Claimant's father; however, it does not appear that the petition was uncontested or on what evidence the court made this finding.
Moreover, in considering a change in a child's name, the court makes its determination by a preponderance of the evidence rather than by requiring clear and convincing evidence, which is a more stringent standard of proof.
See Likins v. Logsdon , S. The only evidence suggesting Claimant may be NH's child are the results of two DNA tests performed in March and July showing, respectively, a Kentucky law discusses the effect of genetic test results in a paternity context:.
This presumption shall only be rebutted by preponderance of the evidence. However, Kentucky's intestacy statutes and case law do not appear to address the issue of genetic testing of a putative father's relatives, although it appears that results of genetic testing of the putative father's relatives could be considered by the courts in adjudicating paternity.
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See Bartlett v. The court stated "When the advances of science serve to assist in the discovery of truth, the law must accommodate them. The law cannot pick and choose when the truth will prevail. Our review of court decisions in other states reveals that genetic testing of the putative father's relatives is, at a minimum, admissible evidence in inheritance proceedings on the issue of paternity. Based on the case law from other jurisdictions, we believe a Kentucky court would find the genetic testing of NH's relatives probative of the issue of paternity, but not clear and convincing.
As previously noted, however, NH's ex-wife and children provided sworn statements that Claimant's mother had multiple sexual partners and may have had sexual relations with both NH's brother and nephew during her relationship with NH. Although Shelly provided handwritten notes purportedly from NH's brother and nephew denying they had relationships with Claimant's mother, these statements were not sworn under penalty of perjury.
As a result, these notes appear to be of little probative value when weighed against the sworn statements of NH's ex-wife and children. Therefore, the DNA tests of Shelly, when considered with the other evidence, would not provide clear and convincing evidence that NH is Claimant's natural father.
For the foregoing reasons, we do not believe an Agency adjudicator could conclude the evidence in this case, including the DNA test results of NH's sister, satisfies the clear and convincing proof standard of paternity for inheritance purposes under Kentucky law. Therefore, we do not believe an adjudicator could conclude Claimant is NH's child for purposes of child's insurance benefits. Although Kentucky intestacy statutes are silent on the accreditation of out-of-state genetic laboratories, DNA testing performed by such a laboratory whose director is "an expert qualified as an examiner of genetic markers" as outlined in the Kentucky statute can be considered in determining the parent-child relationship.
In this specific case, the DNA testing shows a Since Kentucky treats all parent-child relationships equally the relationship rights are retroactive. We conclude that the DNA testing laboratory meets Kentucky accreditation requirements. We conclude that the DNA testing laboratory used here would meet Kentucky requirements and that Claimant would be eligible for benefits from six months before her application, not from the date of the DNA testing.
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NH died domiciled in Kentucky on November 12, Claimant was born on March. Claimant's mother filed an application for benefits on Claimant's behalf on NH's record on August 9, Claimant's mother submitted a report of DNA testing conducted in September showing a An affidavit establishes the chain of custody of the blood sample. Kentucky apparently does not have a law regarding accreditation of out of state laboratories. The blood test at issue here apparently was arranged by the county attorney child support unit, but was not court-ordered. A court can order such testing when paternity is disputed.
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The statute states that if genetic testing is required, the court "shall direct that inherited characteristics be determined by appropriate testing procedures, and shall appoint an expert qualified as an examiner of genetic markers to analyze and interpret results and report to the court. A verified report from the expert may be used unless the expert is called as a witness. This statute apparently gives the trial court judge discretion to determine whether an expert is qualified.
Although the court did not order the testing here, the county courts may have designated Orchid Genescreen as a qualified expert for use in county child support cases. If so, the laboratory would likely meet accreditation requirements in Kentucky. However, even without the court's designation, the DNA testing could be considered.
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The laboratory director's credentials seem to meet the credentials required for a licensed laboratory director in Kentucky see website, above , and the laboratory has significant experience. Thus, the laboratory appears to be a "qualified" expert. Please search through our full list of Kentucky Newspapers and access their online obituary sections.