Men and women are presumed capable of procreating, regardless of their age.60 By statute, a man is presumed to be the father of a child if he and the child’s mother are or have been married to each other and the child is born either during the marriage or within 300 days after the marriage is terminated by death, annulment, declaration of invalidity, divorce or court-ordered separation.61 The same presumption applies under two circumstances if, before the child’s birth, he and the child’s mother have attempted to marry each other by lawful act of marriage, although the attempted marriage is or could be declared invalid. The first of these circumstances is where the attempted marriage could be declared invalid only by a court and the child is born during the attempted marriage or within 300 days after its termination by death, annulment, declaration of invalidity or divorce. The second of these circumstances is where the attempted marriage is invalid without a court order and the child is born within 300 days after the termination of cohabitation.62 If, after the child’s birth, the man and the mother have married or attempted a lawful marriage, although the marriage is or could be declared invalid, the presumption applies if (a) the man has acknowledged the paternity of the child in writing under oath filed with the clerk of the Family Court, or (b) with his consent the man is named as the child’s father on the child’s birth certificate, or (c) the man is obligated to support the child under a written agreement or by court order.63 In all events the presumption applies if, while the child is under the age of majority, the man receives the child into his home and openly holds out the child as his natural child for a reasonable period of time64 or if, despite a presumption that another man is the father, the man acknowledges his paternity in a writing filed under oath with the clerk of any court with the written consent of that other man or after the presumption attaching to that other man has been rebutted.65 The presumption of paternity is rebuttable, but only by clear and convincing evidence. The presumption will be deemed rebutted by a court decree establishing paternity of the child by another man.66
If a person disappears and there is, no evidence of that person for seven years, that person is presumed to be dead.67 The presumption, of course, is rebuttable. To be entitled to the benefit of this presumption, a party must provide evidence of search and inquiry for the absentee as the nature of the case may reasonably require.68 Further, there is a presumption against suicide or self-inflicted injuries.69
60. P. v. Wilmington Trust Co., 188 A.2d 361, 364 (Del. Ch. 1962); Du Pont v. Du Pont, 159 A. 841, 842 (Del. Ch. 1932); Taylor v. Crosson, 98 A. 375, 377 (Del. Ch. 1916).
61. 13 Del. C. § 804(a)(l); Blake v. Division of Child Support Enforcement, 525 A.2d 154, 159 (Del. 1987).
62. 13 Del. C. § 804(a)(2).
63. 13 Del. C. § 804(a)(3).
64. 13 Del. C. § 804(a)(4).
65. 13 Del. C. § 804(a)(5).
66. 13 Del. C. § 804(b).
67. Garden v. Garden, 7 Del. 574, 2 Houst. 574, (Del. Err. & App. 1863); Bradford v. Culbreth, 10 A.2d 534, 543 (Del. Super. 1939), aff’d, 18 A.2d 143 (Del. 1942); Prettyman v. Conaway, 32 A. 15, 17 (Del. Super. 1891); Crawford v. Elliott, 6 Del. 465, 1 Houst. 465, 467 (Del. Super. 1857).
68. Bradford v. Culbreth, 10 A.2d 534, 543 (Del. Super. 1939), aff’d, 18 A.2d 143 (Del. 1942).
69. Prudential Ins. Co. v. Gutowski, 113 A.2d 579, 586 (Del. 1955).
© 2010 David L. Finger