I have a US citizen friend who married a non-USA citizen woman in a foreign country a few years ago. 5 months and 9 days after their marriage a foreign born little boy was born in a hospital in the same foreign country.

So obviously the child was born within wedlock with 5 months and 9 days to spare.

How does my friend go about obtaining US citizenship for his son without having to submit to a DNA test because of the 5 months and 9 days born after marriage situation? Is this possible? It seems like based on these circumstances and based on https://travel.state.gov/content/travel/en/legal/travel-legal-considerations/us-citizenship/US-Citizenship-DNA-Testing.html a DNA test may be required, if not likely be required, and he refuses to submit to this.

Does this mean the child cannot become a US citizen?

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    The thing to do is to apply for a consular report of birth abroad. Is your friend listed on the birth certificate as the father? Maybe the consulate won't ask for genetic testing. – phoog Mar 13 at 3:12

First of all, if the child is really this friend's biological child, and your friend met the requirements under US law to transmit citizenship to a child born abroad, the child is already a US citizen under US law, from birth, and thus cannot "obtain" it. The question is only whether they will be able to prove this citizenship.

Acquisition of US citizenship by birth abroad from a parent requires blood relationship*. A child who is born while the mother is married (as in this case) is generally presumed to be the biological child of that couple, but this is not determinative, and the consulate has discretion to investigate and request additional evidence if they suspect the child might not be the biological child.

d. Children born in wedlock are generally presumed to be the issue of that marriage. This presumption is not determinative in citizenship cases, however, because an actual biological relationship to a U.S. citizen parent is required. If doubt arises that the U.S. citizen "parent" is biologically related to the child, the consular officer is expected to investigate carefully. Circumstances that might give rise to such a doubt include, but are not limited to:

(1) Conception or birth of a child when either of the alleged biological parents was married to another person during the relevant time period;

(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.

(4) 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.

(5) The child was born through surrogacy or other forms of assisted reproductive technology. (8 FAM 304.3 provides guidance about acquisition of U.S. citizenship by birth abroad and assisted reproductive technology.)

e. In such cases, it is within the consular officer's discretion to request additional evidence pursuant to 22 CFR 51.45.

When there is doubt about the paternity, some things the consulate can do include obtaining records of the periods of time the father had physical access to the mother, interviewing the mother and father separately about when and where the child was conceived, interviewing neighbors and friends, and, if the parents want to pursue the claim even if the facts don't seem to support it, they can advise the parents to do a DNA test.

We don't know whether the consulate will find the other evidence of paternity for this child sufficient, or whether they will deem it necessary for your friend to do a DNA test. If the consulate deems a DNA test necessary and your friend doesn't do it, they can't prove the US citizenship of the child. In that case, if your friend and the child are moving to the US, maybe your friend can petition the child to immigrate (i.e. to become a US permanent resident); this doesn't require a blood relationship -- stepparents can petition as long as the child was under 18 when the marriage occurred. But I am not sure whether the consulate will issue the immigrant visa in such a case where the child's US citizenship isn't proved only due to the parent's refusal to do DNA test.

*Update: Recent case law has thrown some doubt onto whether a blood relationship is really required. The 2nd Circuit court of appeals (which covers Connecticut, New York, and Vermont) ruled in the case Jaen v. Sessions (2018) that someone who was born to a married couple but who was not the biological child of his legal father nevertheless did acquire US citizenship from his legal father at birth. I don't know if this will be appealed and whether it will apply to other circuits. If blood relationship isn't required, then perhaps a DNA test won't be necessary.

  • Thanks for posting the update. "Whether it will apply to other circuits": it does not apply to other circuits directly, but its reasoning may influence other appeals courts deciding similar cases. If another appeals court finds differently, the supreme court will be more likely to take up the case. If other appeals courts agree with the 2nd circuit, the Supreme Court would be less likely to do so. – phoog Oct 11 at 16:21

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