Question
For the reasons cited below, we believe a Social Security Administration (SSA) adjudicator
could find that Cheryl G~ committed fraud or similar fault in applying for survivor's
benefits on Tyler's behalf on Robert G~'s account.
Opinion
For the reasons cited below, we believe a Social Security Administration (SSA) adjudicator
could find that Cheryl G~ committed fraud or similar fault in applying for survivor's
benefits on Tyler's behalf on Robert G~'s account.
BACKGROUND
According to the applications filed for survivor's benefits, Cheryl G~ was married
to Robert G~ on March 20, 1985. Beginning December 1, 1994, Cheryl G~ and Robert G~
were living apart and continued to so until Robert G~'s death in New York on October
12, 1995. During this time period, Tyler G~ was born to Cheryl G~ on July 31, 1995.
On October 25, 2008, Cheryl G~ filed applications for survivor's benefits (mother's
and child's) on the account of deceased wage earner, Robert J. G~.
On June 13, 2008, Timothy P~ contacted the Social Security Administration alleging
that he was the biological father of Tyler G~. Mr. P~ also alleged that Cheryl G~
knew this when she applied for, and began receiving, survivor's benefits on the account
of deceased wage earner Robert G~. Specifically, Mr. P~ alleges: 1) he and Cheryl
G~ lived together during the period of Tyler's conception; 2) he recently petitioned
for visitation rights as Tyler's father and was granted such rights; 3) Cheryl G~
admitted in court that Timothy P~ voluntarily paid child support for Tyler, although
there was no court order; and 4) no DNA testing was ever done to determine paternity
of Tyler.
Mr. P~ has submitted the following documents in support of his allegations:
--Birth Announcement for "Tyler J. T.J.," born July 31, 1995, with parents identified
as Cheryl G~ and Timothy P~.
--A September 1995 paternity petition filed by Cheryl G~ in the Monroe County Family
Court, State of New York, declaring: a) on or about July 4, 1994, petitioner (Cheryl
G~) began having sexual intercourse with respondent (Timothy P~), which continued
through July 1995, and resulted with petitioner becoming pregnant and giving birth
out of wedlock to Tyler J. G~ on July 31, 1995; b) petitioner engaged in sexual intercourse
with only Timothy P~ at the probable time of conception of Tyler; and c) petitioner
was married to Robert G~ on March 20, 1989, ceased having sexual relations with Robert
G~ in April 1994, and separated from Robert G~ in July 1994.
--Additional documents relating to this paternity petition include: a) a summons dated
September 27, 1995; b) a Notice of Court Appearance dated January 8, 1996 referring
to a default hearing scheduled for February 23, 1996; and c) an Order of Dismissal
dated March 15, 1995 dismissing Cheryl's G~'s paternity petition finding that the
allegations of the petition had not been established.
--Photocopies of receipts for child support payments dated September 2002 through
August 2003, indicating that Timothy J. P~ made such payments to Cheryl G~ for Tyler's
support.
--A Petition for Paternity filed by Timothy J. P~ against Cheryl G~ on March 12, 2008,
alleging: a) petitioner (Timothy J. P~) had sexual intercourse with Cheryl G~ (respondent)
on or about April 4, 1994, continuing to April 4, 1996, which resulted in respondent
giving birth out of wedlock on July 31, 1995 to Tyler J. G~; b) petitioner is the
father of Tyler; and c) at the time of the conception, Cheryl G~ was married to Robert
G~. Petitioner Timothy P~ also declared that a similar petition was made five years
ago, "no show," and that by filing this petition, he was making application for child
support enforcement services.
--A petition for visitation filed by Timothy J. P~ (petitioner) against Cheryl G~
(respondent) on March 12, 2008, for visitation of Tyler J. G~, stating that it would
be in the best interests of Tyler because "[h]e is my son, and I would like to be
part of his life, to school him, love him forever."
--An Order of Filiation entered May 22, 2008, in the Monroe County Family Court of
New York, declaring Timothy P~ the father of Tyler G~.
Discussion
Entitlement to Child's Insurance Benefits - In General
An individual may be eligible for child's insurance benefits ("CIB") due to the death
of a wage earner, if he is the "child" of the wage earner as defined section 216(e)
of the Act, 42 U.S.C. § 416(e), and was a dependent of the wage earner at the time
of his death. 42 U.S.C. § 402(d)(1). Section 216(e)(1) of the Act defines a "child"
as the "child or legally adopted child of an individual." 42 U.S.C. § 416(e)(1). Section
216(h) of the Act specifies how family status is to be determined. Section 216(h)(2)(A)
provides that
[i]n determining whether an applicant is the child or parent of a fully or currently
insured individual for purposes of this title, the Commissioner of Social Security
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, or, if such insured individual is dead,
by the courts of the State in which he was domiciled at the time of his death . .
. .
42 U.S.C. § 416(h)(2)(A).
Mr. G~ was domiciled in New York at the time of his death, and therefore New York
law governs. Your reference to the Lord Mansfield rule in relation to the statements
made by Cheryl G~ as regarding Tyler's biological father, is well noted. Although
the Lord Mansfield Rule generally prohibits the use of testimony of either a husband
or wife to non-access to rebut the presumption of legitimacy of a child born within
their marriage (see POMS GN
00306.015, GN 00306.025 and GN 00306.026), Section 531 of the New York Family Law Act is recognized as a statutory exemption
to that rule. Family Court Act, § 531. See State of New York ex rel H. P., 90 A.D. 2d 434 (Dec. 30, 1982) (Section 531 of the Family Court Act is a statutory
exemption to the Lord Mansfield Rule); see also Anonymous v. Anonymous, 43 Misc. 2d 1050 (Family Court, Sept. 1, 1964 (A married woman may bring a paternity
action as well as an unmarried woman. The term, "child born out of wedlock" means
not only a child born to a mother who is not married, but also a child born to a married
woman where the father is not the husband). Here, we have Order of Filiation from
the Monroe County Family Court declaring Timothy J. P~ as the father of Tyler, even
though Cheryl G~ was married to Robert G~ at the time of Tyler's birth. We believe,
this is sufficient to rebut the presumption of paternity during the marriage and that
Tyler should be considered a non-marital child.
The requirements in New York for inheritance by non-marital children involve an order
of filiation declaring paternity issued by a court of competent jurisdiction, a signed
instrument acknowledging paternity, paternity established by clear and convincing
evidence with the father having openly and notoriously acknowledged the child as his
own, or use of a genetic blood marker administered to the father during his lifetime.
N.Y. Est. Powers & Trusts L. § 4-1.2(a)(2). See POMS GN 00306.575. There is no evidence that any of these criteria were met with respect to establishing
that Robert G~ was the father of Tyler G~. To the contrary, the only order of filiation
declaring paternity is the order of filiation dated May 22, 2008, from the Monroe
County Family Court of New York, declaring Timothy P~ as the father of Tyler G~. We
also have the petition for paternity and petition for visitation filed by Timothy
P~ in which Timothy P~ openly and notoriously acknowledges Tyler as his own child.
Nothing similar has been provided suggesting a claim that Robert G~ is Tyler's father.
Another test for establishing eligibility for child's insurance benefits is provided
in Section 216(h)(3). This statutory section provides in relevant part:
(C) in the case of a deceased individual------
(i) such insured individual----(I) had acknowledged in writing that the applicant
is his or her son or daughter,
(II) had been decreed by a court to be the mother or father of the applicant, or
(III) had been ordered by a court to contribute to the support of the applicant because
the applicant was his or her son or daughter, or
(ii) such insured individual is shown by evidence satisfactory to the Commissioner
of Social Security to have been the mother or father of the applicant, and such insured
individual was living with or contributing to the support of the applicant at the
time such insured individual died.
42 U.S.C. § 416(h)(3)(C). See POMS GN 00306.100.
Here too, there is no evidence that these statutory requirements were met with respect
to establishing Robert G~ as Tyler's father. Significantly, Cheryl G~ declared in
support of the paternity petition she filed in September 1995 that she separated from
Robert G~ in July 1994. There is nothing to indicate that she and Tyler resumed living
with Robert G~ after Tyler's birth, that they were living with Robert G~ at the time
of his death, or that Robert G~ ever contributed to Tyler's support. There is, however,
evidence that Timothy P~ contributed to Tyler's support, as reflected in the child
support payment receipts dated September 2002 through August 2003.
Reopening and Revising a Determination on the Basis of Fraud or Similar Fault
SSA may reopen a determination at any time if it was obtained by fraud or similar
fault. See 20 C.F.R. § 404.988(c)(1) (2008). In deciding whether a determination was
obtained by fraud or similar fault, SSA takes into account any relevant physical,
mental, educational or linguistic limitations. See POMS GN 04020.010D.1. The record contains no evidence that Cheryl G~ suffered from
such a limitation.
Unrestricted reopening of an initial determination is allowed when there is evidence
that a person, with intent to defraud, either: (1) makes or causes to be made a false
statement or misrepresentation of a material fact or (2) conceals or fails to disclose
a material fact for use in determining rights to Social Security benefits. See POMS GN 04020.010A.1. Similar fault exists when a person knowingly makes an incorrect
or incomplete statement or knowingly and deliberately conceals information that is
material to the determination. See POMS GN 04020.010A.2. Intent is not required for a finding of similar fault. Id. The existence of fraud or similar fault must be established by a preponderance of
the evidence. See POMS GN 04020.010B, C.
In this case, at a minimum an adjudicator could find that "similar fraud" was committed
by Cheryl G~ in applying for survivor's benefits for her son, Tyler, on the account
of wage earner, Robert G~.
When Cheryl G~ filed her paternity petition in September 1995, she swore to the Monroe
County Family Court that she last had sexual relations with Robert G~ in April 1994,
she had separated from him in July 1994, and that Timothy P~ was the father of Tyler.
In October 1995, after filing a paternity petition with the Court, Cheryl G~ applied
for benefits for Tyler and for herself as the mother of Tyler on the account of Robert
G~. In Cheryl G~'s application for mother's benefits in support of Tyler's application,
she identified Tyler G~ as the "child of the deceased." This is an incorrect statement
and directly contradicts Cheryl G~'s declaration in September 1995 that Timothy P~
is Tyler's biological father. There is nothing to support a claim that Tyler G~ is
the "child of the deceased" as discussed above. Rather, there is evidence that Tyler
is the child of Timothy P~ based upon the numerous documents submitted by Timothy
P~. From all accounts, Cheryl G~ was fully cognizant of this fact when she applied
for benefits. She therefore made a false or incorrect statement that was material
to the determination of whether Tyler was eligible for benefits on the account of
Robert G~. No evidence has been provided to the contrary.
CONCLUSION
We believe an SSA adjudicator could find Tyler is not eligible for survivor's benefits
on the account of Robert G~, and that the evidence presented is sufficient to reopen
and revise the prior determination on the basis of fraud or similar fault.
Mary Ann S~
Acting Regional Chief Counsel
By: ______________
Karen T. C~
Assistant Regional Counsel