Under Utah law, the number holder is presumed to be the claimant's father because the child was born within 300 days after the marriage of the number holder and the claimant's mother was terminated by divorce.

If the relationship could not be presumed as a byproduct of the marriage, the number holder would still be determined to be the father because genetic testing resulted in a paternity index of at least 100 to 1.

Issue

You have requested an opinion concerning whether Halston S~ ("Halston"), a minor child, can be entitled to child's benefits on the record of his alleged father, number holder ("NH") Roger D~.

Short Answer

Under Utah law, the NH is presumed to be Halston's father because Halston was born within 300 days after the marriage of the NH and Halston's mother was terminated by divorce. Furthermore, the NH is presumed to be Halton's father because genetic testing resulted in a paternity index of at least 100 to 1. (We note that POMS GN 00306.645(3)(b) incorrectly lists the 150 to 1 standard, which was changed in May 2005.) Therefore, Halston qualifies for child's benefits on the NH's account.

BACKGROUND

The available facts in this case indicate that Halston was born in Utah, in February 1998. Halston's natural mother, Shirley E. A~ ("Shirley"), did not list a father's name on the birth certificate and explained that she gave the child the last name "S~" to match her other children's last names. Shirley alleged that she and the NH were married in May 1997, and that the child was conceived during the marriage. Shirley and the NH divorced on September 26, 1997, prior to Halston's birth.

The NH was awarded Title II disability insurance benefits as of March 2004. The NH did not list any dependents on his application, and never acknowledged the child or provided support. Shirley filed for auxiliary child's benefits on Halston's behalf on March 21, 2006.

Genetic paternity testing results revealed a combined paternity index of 37,017 to 1, indicating the NH's probability of paternity was 99.99 percent. These results were presented to the court with an issuance of a "Notice of Results of Genetic Testing." The court's "Results of Genetic Testing" order stated that under Utah law, a man is presumed to be the natural father of a child if genetic testing results indicate a probability of paternity of at least 99 percent and a paternity index of at least 100 to 1.

The information you provided included Halston's birth certificate, a copy of the "Results of Genetic Testing," a copy of a final divorce decree between Shirley and the NH dated September 26, 1997, and a Report of Contact completed on March 21, 2006, explaining the facts of this case. The information provided did not contain documentation to verify the date of the marriage between Shirley and the NH or the NH's domicile at the time of Halston's application for child's benefits in March 2006.

Federal Law

To be entitled to child's benefits on the account of a wage earner who is receiving disability insurance benefits, a child must meet the regulatory definition of "child," be dependent upon the wage earner, file an application, be unmarried, and be under age 18. 42 U.S.C. § 402(d)(1) (2000); 20 C.F.R. § 404.350(a) (2005).

In determining the relationship of a child to a NH, the applicable law is the law of the state where the NH was domiciled when the child filed his application for benefits. POMS GN 00306.001(2)(a). Specifically, the Agency looks to that state's law to determine whether the child would be considered the child of the NH for purposes of the distribution of intestate personal property. POMS GN 00306.001(1)(a); 20 C.F.R. § 404.355. Thus, assuming the NH was domiciled in Utah at the time of Halston's application, Utah intestacy law determines whether Halston was legally the NH's "child" for purposes of entitlement to child benefits on the NH's account.

Utah State Law

Utah law provides that "[a] man is presumed to be the father of a child if . . . he and the mother of the child were married to each other and the child is born within 300 days after the marriage is terminated by death, annulment, declaration of invalidity, or divorce, or after a decree of separation." Utah Code Ann. §§ 78-45g-204(1)(b); see id. § 78-45g-102(20) ("'Presumed father' means a man who, by operation of law under Section 78-45g-204, is recognized as the father of a child until that status is rebutted or confirmed as set forth in this chapter."). Moreover, a presumption of paternity arises under Utah law if genetic testing results in a paternity index of at least 100 to 1. Id. § 78-45g-505.

DISCUSSION

To be entitled to child's benefits on the account of a wage earner who is receiving disability insurance benefits, a child must meet the regulatory definition of "child," be dependent upon the wage earner, file an application, be unmarried, and be under age 18. 42 U.S.C. § 402(d)(1); 20 C.F.R. § 404.350(a).

The first prong of the analysis rests on whether Halston meets the regulatory definition of "child." A natural child of the wage earner meets the regulatory definition of child. 20 C.F.R. § 404.355. In determining a child's relationship to a NH in Utah, the Agency applies Utah law to determine whether the child would be considered the NH's child for purposes of the distribution of intestate personal property. POMS GN 00306.001(1)(a); 20 C.F.R. § 404.355; see also Utah Code Ann. § 75-2-114(1) (for purposes of intestate succession, a parent child relationship may be established as provided in the Utah Uniform Parentage Act).

Under Utah law, a presumption of paternity arises if the NH and the child's mother were "married to each other and the child [was] born within 300 days after the marriage [was] terminated . . . by divorce." Utah Code Ann. § 78-45g-204(1)(b); see also POMS GN 00306.020(A)(1). Based on the facts you provided, Halston was born in February 1998, less than 300 days after Shirley and the NH divorced in September 1997. The NH is, therefore, Halston's presumed natural father.

The presumption of paternity also applies based on the genetic testing results you provided. Pursuant to Utah Code Ann. § 78-45g-505, a man is presumed to be the natural father of a child if genetic testing results in a paternity index of at least 100 to 1. Here, genetic testing in January 2006 revealed a paternity index of 37,017 to 1, which clearly surpassed the 100 to 1 standard.

Halston, therefore, meets the regulatory definition of "child." See 20 C.F.R. § 404.350(a); Utah Code Ann. §§ 78-45g-204(1)(b) (presumption of paternity arises when the child is born within 300 days after divorce); 78-45g-505 (presumption of paternity based on genetic testing results); § 78-45g-102(20) (definition of "presumed father"); POMS GN 0306.645(2)(a),(3); see also POMS GN 00306.001(C)(4) (if a son or daughter is a "child" for purposes of the Social Security Act, the father or mother is a "parent" for purposes of that law").

Second, to be entitled to child's benefits, Halston must be "dependent" upon the NH. A natural child of the insured NH is deemed dependent upon him. 20 C.F.R. § 404.361(a); POMS GN 00306.010. As discussed above, a presumption of paternity applied, and you did not indicate that the NH rebutted that presumption. Thus, Halston is dependent on the NH, satisfying the second prong. See 20 C.F.R. § 404.350(a).

Halston also meets the remaining prongs of the analysis because he filed an application for benefits (via Shirley on March 21, 2006), he is unmarried, and he is under 18 years of age (DOB February 1998). See 20 C.F.R. § 404.350(a). Therefore, Halston satisfied all of the requirements for entitlement to child's benefits on the NH's account.

CONCLUSION

Accordingly, we conclude that based on the presumption of paternity, Halston is the "child" of the NH under Utah law. Furthermore, we conclude that Halston satisfies all of the remaining requirements for entitlement to auxiliary child's benefits on the NH's account.

Deana R. E~-L~

Regional Chief Counsel, Region VIII

By

Alexess D. R~

Assistant Regional Counsel

Under Utah law, the presumption of legitimacy of a child born during a marriage may be overcome by proof beyond a reasonable doubt, but is subject to the Lord Mansfield rule. Certain nontraditional evidence, such as blood test results, is capable of conclusively rebutting the presumption of legitimacy. Nothing in Lord Mansfield's rule prohibits the introduction of blood test or tissue typing test results, or testimony from witnesses other than the putative parents, on the issue of paternity.

In the subject case, the presumption of legitimacy is successfully rebutted by DNA tests showing a 99.93% probability of paternity for the NH; semen tests after the husband's vasectomy; and third-party statements. The remaining question is whether the child qualifies as the child of the NH (the alleged biological father) under Utah law. The genetic test results in this case meet the requirement of Utah law that a child born "out of wedlock" is a child of the father if paternity is established by clear and convincing proof after the father's death.

You have requested our opinion as to whether Cassandra M~ qualifies as the child of deceased wage earner Robert S~ for purposes of establishing her eligibility to receive child's benefits under Title II of the Social Security Act ("the Act"), in light of the fact that Cassandra was born during the marriage of Pamela and Randy M~. For the reasons discussed below, we believe that she qualifies for such benefits.

Based on your memorandum and the copies of documents you provided, we find the facts of this situation to be as follows. On February 27, 1990, Cassandra was born to Pamela M~, who was married to Randy M~. The couple separated in April 1990, and a decree of divorce was entered on July 31, 1990. From August 1990 to August 1993, Pamela and Cassandra lived with Robert S~.

On February 15, 1994, Robert died in a mine accident in Price, Utah. Pamela filed an application for child's insurance benefits on behalf of Cassandra in April 1994, alleging that Robert was Cassandra's father. In support of her claim, she submitted the results of March 1994 "DNA typing for Paternity Testing [] performed on blood samples" from Cassandra, Pamela, and Robert. The "Interpretation" section of the report of the testing states: "Robert W. S~ cannot be excluded as being the father of Cassandra A. M~. The Probability of Paternity for Robert W. S~, based on this data . . . is 99.93%."

Pamela subsequently submitted the results of an August 1994 analysis of Randy M~'s semen, which showed that he had no sperm (apparently as a result of a vasectomy in 1984 ^[1] . The physician conducting the analysis concluded that Randy could not father any children. Also submitted in support of the claim were statements from friends and family members indicating that Robert had acknowledged his paternity of Cassandra; an Easter card stating "Hi, Granddaughter!", which Robert's mother sent to Cassandra; and a statement from Randy asserting that as a result of the DNA testing he "now know[s] Cassandra is the daughter of Robert S~." Finally, the Findings of Fact relating to the M~'s divorce decree were amended in July 1994 to specify that Randy was not Cassandra's natural father.

Under Utah law, there is a presumption that if a child is born during a marriage, as Cassandra was, she is the child of the husband. Utah Code Ann. (UCA) S 30-1-17.2(2); see POMS S GN 00306.020A.1 (11-90). Thus, initially there is a presumption that Cassandra is Randy M~'s biological child. While this presumption of legitimacy may be overcome by proof beyond a reasonable doubt, Utah law also holds that "the form of proof admissible to rebut the presumption is limited," one of the limits being Lord Mansfield's rule. State ex rel. J.W.F., 799 P.2d 710, 713 (Utah 1990). As stated by the Utah Supreme Court, "the rule is that 'spouses themselves may not give testimony which would tend to illegitimatize the child. [T]he proof of such facts where necessary [must] come from other sources."' Id. at 713-14 (quoting Lopes v. Lopes, 518 P.2d 687, 689 (Utah 1974)); see POMS S GN 00306.025A.1 (11-90). ^[2] Thus, proof that Cassandra is the daughter of Robert S~ must come from sources other than Pamela and Randy M~. Id.

Significantly, the court further noted in J.W.F. that "the legislature has not abrogated Lord Mansfield's rule, but has specified that certain nontraditional evidence is capable of conclusively rebutting the presumption of legitimacy." 799 F.2d at 714. One of these types of evidence is the results of a blood test. Id. (citing UCA S 78-25-21 ^[3] ); see also Teece v. Teece, 715 P.2d 106, 107 (Utah 1986); Hales v. Hales, 656 P.2d 423, 424 (Utah 1982). In this case, we believe that a Utah court would find the presumption of Cassandra's legitimacy, i.e., that Randy M~ was her biological father, has been effectively rebutted, in light of the DNA and semen testing and the third-party statements. See J.W.F., 799 F.2d at 714; see also Teece, 715 P.2d at 107 ("Nothing in [Lord Mansfield's rule] . . . prohibits the introduction of the results of blood or tissue typing tests or of testimony from witnesses other than the putative parents on the issue of paternity."); cf. Luke ex rel. Luke v. Bowen, 868 F.2d 974, 978-979 (8th Cir. 1989) (finding evidence of the alleged father's vasectomy and lack of sperm in his semen sample supported the Secretary's conclusion that he was not the father). Indeed, it may be inferred from the amendment of the divorce decree to exclude Cassandra as a child of Randy that a State court made such a finding.

Thus, based on our conclusion that the presumption that Cassandra's status as the legitimate child of Randy M~ has been successfully rebutted, the remaining question is whether she qualifies as the child of Robert S~ under Utah law. As you know, under section 216(h)(2)(A) of the Act, 42 U.S.C.A. S 416(h)(2)(A), an applicant for child's insurance benefits will be deemed a child of the deceased wage earner if she would be entitled to inherit under the intestacy laws of the state in which the wage earner was domiciled at the time of his death. Since Robert was living in Utah when he died, the question, therefore, is whether Cassandra could inherit from him under Utah intestacy law.

Utah law of intestate succession provides that a child born "out of wedlock" is "a child of the father" if the "paternity is established . . . by clear and convincing proof" after the father's death.^[4] UCA S 75-2-109(2)(b). The Utah Supreme Court has stated that clear and convincing proof "implies something more than the usual requirement of a preponderance, or greater weight, of the evidence; and something less than proof beyond a reasonable doubt." Child v. Child, 332 P.2d 981, 986 (Utah 1958); see also Greener v. Greener, 212 P.2d 194, 204-05 (Utah 1949) ("for a matter to be clear and convincing to a particular mind it must at least have reached the point where there remains no serious or substantial doubt as to the correctness of the conclusion").

We believe that a Utah court would find the evidence in the file to be "clear and convincing proof" that Robert S~ was Cassandra's father. See Memorandum, Questionable Child Relationship--Utah, CC VIII (Prescott) to RC, SSA, April 8, 1993. Significantly, there is no conflicting evidence on this issue. Cf. Memorandum, Inheritance Rights of an Illegitimate Child under Utah Probate Code, RA VIII (Swope) to RC, SSA, Dec. 1, 1980 (recommending further development where the father of the deceased wage earner disputed the alleged paternity). Most persuasive are the genetic test results showing a combined "Paternity Index" of 1637. Under UCA S 78-45a-10(3), "[a] man is presumed to be the natural father of a child if genetic testing results in a paternity index of at least 100. A presumption under this subsection may be rebutted in an appropriate action only by clear and convincing evidence." ^[5] We also note that the Utah Supreme Court, in addressing the effect of another type of blood testing, stated that a probability of paternity "figure in the range above 95 percent may be translated for the fact-finder into language . . . such as 'paternity is very likely."' Kofford v. Flora, 744 P.2d 1343, 1353-54 (Utah 1987). Here, of course, the probability that Robert S~ fathered Cassandra is 99.93 percent.

In sum, we believe Cassandra M~ is eligible to receive Title II benefits as the child of Robert S~.

Frank V. S~

III Acting Chief Counsel, Region VIII

By-___________

Carol S. P~

Assistant Regional Counsel