You wish to know whether Alaska law provides for rebuttal of the number holder's paternity
in order to reopen and terminate child's benefits.
FACTUAL BACKGROUND
You provided the following facts to us in the opinion request:
The Number Holder (N/H), Steven J. C~, contacted the Fairbanks, [Alaska] field office
and requested that Kristina C~'s auxiliary benefits terminate on his Social Security
disability record. He presented a DNA Test, dated 10/07/97, which stated that he cannot
be the biological father of Kristina. The N/H listed Kristina as his dependent child
on both of his disability claims[.] (His first claim was denied through the reconsideration
level, but his second claim was allowed.) The document presented for natural legitimate
relationship and age for Kristina was an Alaska birth certificate. Also, the N/H was
and is paying child support for Kristina through Child Support Enforcement. The N/H
married Kristina's mother 15 days after her birth.
You further indicated to us that the N/H and the mother of the child are currently
divorced.
DISCUSSION
Section 216(h)(2)(A) of the Act provides that
In determining whether an applicant is the child ... of a[n] ... individual, the [Commissioner]
shall apply such law as would be applied in determining the devolution of intestate
personal property by the courts of the State in which such insured individual is domiciled
at the time such applicant files application.
42 U.S.C. § 416(h)(2)(A). Since the N/H was domiciled in Alaska at the time of his
application, Alaska law applies.
AS 13.12.114(a) provides that "for purposes of intestate succession by, through, or
from a person, an individual is the child of the individual's natural parents, regardless
of their marital status, and the parent and child relationship may be established
as indicated under AS 25.20.050." AS 25.20.050(a) provides that
A child born out of wedlock is legitimated and considered the heir of the putative
parent when: (1) the putative parent subsequently marries the undisputed parent of
the child; (2) for acknowledgments made before July 1, 1997, the putative parent acknowledges,
in writing, being a parent of the child; (3) for acknowledgments made on or after
July 1, 1997, the putative father and the mother both sign a form for acknowledging
paternity under AS 18.50.165; or (4) the putative parent is determined by a superior
court without jury or by another tribunal, upon sufficient evidence, to be a parent
of the child. Acceptable evidence includes evidence that the putative parent's conduct
and bearing toward the child, either by word or act, indicates that the child is the
child of the putative parent. That conduct may be construed by the tribunal to constitute
evidence of parentage. When indefinite, ambiguous, or uncertain terms are used, the
tribunal may use extrinsic evidence to show the putative parent's intent.
Kristina was born out of wedlock on May 10, 1991. Fifteen days later, Kristina's mother
married the N/H. Kristina's birth certificate showed the N/H as the father. The N/H
listed Kristina as his dependent child on his first application, which was filed on
October 6, 1992, and on his reapplication filed on December 20, 1994. He has been
paying child support to a child support enforcement agency. Based on these facts,
Kristina would be treated as a legitimated child and considered the heir of her putative
father, the N/H, under AK 25.20.050.
However, several years later, on September 17, 1997, the N/H provided a blood specimen
for genetic testing. On October 7, 1997, Ruth P. K~, Ph.D., determined that the N/H
could not be Kristina's biological father. This determination is admissible in a judicial
or administrative proceeding in Alaska to disestablish paternity. See AK 25.20.050(d) and AS 25.27.166(c). It would also be admissible in a judicial proceeding
in Oregon, where Kristina and her mother now reside. See 1997 Oregon Law Ch. 746 (H.B. 2324), Note (1997) (Domestic Relations Child Support
Program Changes), which addresses the admissibility of genetic test results, and authorizes
a male party to apply to an Oregon court for an order of nonpaternity if genetic tests
exclude him as the possible father of the child. Thus, we believe that SSA may rely
on the genetic testing to reopen its earlier decision that Kristina is N/H's child,
and to terminate auxiliary benefits to Kristina. See 20 C.F.R. §§ 404.987,404.988,404.989 (1997), which authorize SSA to reopen an earlier
decision within four years upon a showing of good cause (i.e., new and material evidence).
It is likely that the N/H has already filed a court or administrative action to disestablish
paternity because he cannot unilaterally stop paying child support through the child
support enforcement agency without first seeking a judicial or administrative order
disestablishing paternity. See State, Dept. of Revenue, Child
Support Enforcement Div. v. Wetherelt, 931 P.2d 383, 387-88 (Alaska 1997). If Kristina (or someone acting on her behalf)
has opposed N/H's action to disestablish paternity, we expect that she will also challenge
SSA's determination. In this event, we suggest that you obtain copies of the documents
filed in the action to disestablish paternity, and submit them to us for our review
and guidance.