You have asked for this office's opinion regarding whether a parent-child relationship
existed between A~ (“A~”) and J~, the deceased number holder (the “NH”) for purposes
of entitlement to child's survivor benefits under Title II of the Social Security
Act (the “Act”). For the reasons stated below, we conclude that the submitted New
Jersey court order of paternity based on genetic testing might be sufficient to establish
a parent-child relationship between A~ and the NH under New Jersey intestacy and parentage
laws. However, this office cannot make an ultimate determination as to A~'s entitlement
based on the submitted evidence. Additional evidence must be obtained, as discussed
herein. Assuming the additional evidence is obtained, the Agency could defer to the
court order of paternity under Gray
v. Richardson, adopted by Social Security Ruling 83-37c. Lastly, should the Agency defer to the
court order of paternity, then A~'s entitlement to child's survivor benefits would
begin April 2005, when a parent-child relationship was established for purposes of
intestate succession under New Jersey laws.
SUMMARY OF THE FACTS
A~'s birth certificate reveals that he was born on December, to M~. The birth certificate
does not contain any information as to the father. The NH died on February XX, 2005.
M~ filed an application on March XX, 2005 for benefits under Title II of the Social
Security Act on A~'s behalf as the surviving child of the insured NH (“child's survivor
benefits”). That application was denied, and M~ did not appeal the application.
On September XX, 2005, M~ filed a second application for child's survivor benefits.
The following information was submitted or obtained pursuant to this application:
A Civil Action Complaint against J~, the NH, for “Paternity Only,” filed on April
XX, 2005 in the Superior Court of New Jersey, Chancery Division - Family Part for
the County of Morris (the “Court”), Docket No. FD-14-598-05 by the Morris County Department
of Human Services, Office of Temporary Assistance on behalf of M~. The Complaint indicated
that the defendant's (the NH's) mailing address was c/o S~, Pershing Avenue, Iselin,
New Jersey, 08830, County of Middlesex. The Complaint further asked that any order
of paternity be made retroactive to the filing date of the Complaint;
A June XX, 2005 Court Order for genetic testing. The Order states that “Defendant's
mother, S~, present and requesting genetic testing.”;A Chain of Custody document certifying
that sample collection and testing for paternity evaluation was performed on M~, A~,
and J~, who is the alleged biological grandfather, on July XX, 2005. The document
also contains a certification that the specimens were received at LabCorp on July
XX, 2005, with no evidence of tampering; A LabCorp Relationship Report based on DNA
analysis, certified on July XX, 2005, by the LabCorp Director, G~, Ph.D., D(ABMG)
concluding that (1) the alleged paternal grandfather, J~, could not be excluded as
the biological grandparent of A~, since they share genetic markers; and (2) using
genetic markers found in the testing of the alleged biological grandfather, his biological
son was estimated to have a probability of paternity of 99.82%, as compared to an
untested, unrelated man; A Court Order dated September XX, 2005, establishing paternity
between the NH and A~. The Order stated that “S~ acknowledged that her son, J~, is
the natural father of A~ based on the genetic test results.”; and,
A numident of the NH's account listing his parents as J~ and S~T~.
Additionally, a September 26, 2005 Report of Contact contains statements from M~~
indicating that the NH did not provide support or contributions for A~, and, that
after the NH came home from rehabilitation he was living with his mother and died
two weeks later. M~~ also alleged that the NH has a twin brother, believed to be identical.
Lastly, another child, A~, has been deemed to be the NH's child for purposes of entitlement
to child's survivor benefits, and is currently receiving benefits under the NH's account.
LEGAL ANALYSIS
1. Social Security Statutes and Regulations
A child of an individual who dies fully insured or currently insured under the Act
is entitled to child's insurance benefits if he or she
(1) is the insured's child based upon a relationship as described by the Act and the
Commissioner's regulations;
(2) has applied for such benefits;
(3) is unmarried;
(4) is under the age of 18; and,
(5) was dependent upon the insured individual at the time of the insured's death.
See 42 U.S.C. §§ 402(d)(1), 416(e); 20 C.F.R §§ 404.350(a), 404.355-404.365; see generally, POMS GN 00306.001A. If the child is the insured's natural child, then he or she is considered dependent
upon the insured, thus satisfying the fifth requirement. See 20 C.F.R. § 404.361(a).
To be considered the insured's child for purposes of entitlement to child's survivor
benefits in this matter, A~ would need to show that he could inherit as the insured
NH's son under state intestacy law where the insured was domiciled at the time of
his death:
In determining whether an applicant is the child … 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…,
if such insured individual is dead, by the courts of the State in which he was domiciled
a the time of his death….
42 U.S.C. § 416(h)(2)(A); see 20 C.F.R. § 404.355(a)(1), (b)(4); POMS GN 00306.001C.2.a, and GN 00306.055.A.
Thus, for purposes of determining whether A~ is the NH's surviving child, we must
look to the intestacy laws of the State of New Jersey, which is where the NH was presumably
domiciled when he died. Such presumption is based on the September 2005 Report of
Contact, wherein M~ indicated that the NH was living with his mother when he died,
and the April 2005 Complaint for Paternity, which indicated that the NH's mailing
address was “care of” his mother S~, who resided in Iselin, New Jersey. We recommend
that the NH's death certificate or a death record be obtained to confirm that he was
domiciled in the State of New Jersey at the time of his death, as such is ultimately
determinative of the laws of the state we apply to determine A~'s entitlement to child's
survivor benefits.
2. New Jersey State Intestacy and Parentage Laws
Section 3B:5-10 of New Jersey Statutes Annotated (“N.J.Stat.Ann.”)(2004), Establishment of Parent-Child Relationship provides that
[i]f, for the purpose of intestate succession, a relationship of parent and child
must be established to determine succession by, through or from an individual,… an
individual is the child of the individual's parents regardless of the marital state
of the individual's parents, and the parent and child relationship may be established
as provided by the “New Jersey Parentage Act,” P.L. 1983 c.17 [N.J.Stat.Ann. §§ 9:17-38
et. seq.....
The New Jersey Parentage Act states that a parent-child relationship between a child
and the natural father may be established by an order of the court based on a blood
test or genetic test that meets or exceeds the specific threshold probability as set
forth in N.J.Stat.Ann. § 9:17-48 creating a rebuttable presumption of paternity. N.J.Stat.Ann.
§§ 9:17-41(b), 9:17-48(d)(2), 9:17-52(c);
see POMS GN 00306.565(2), (6). Subsection (i) of N.J.Stat.Ann. § 9:17-48 specifies that “[b]lood test or
genetic test results indicating a 95% or greater probability that the alleged father
is the father of the child shall create a presumption of paternity which may be rebutted
only by clear and convincing evidence that the results of the test are not reliable
in that particular case.”
Section 9:17-52, subsections (c) and (e), of N.J.Stat.Ann. additionally provides that
evidence relating to paternity may include “[g]enetic or blood tests, weighed in accordance
with the evidence, if available, of the statistical probability of the alleged father's
paternity” and “[a]ll other evidence on behalf of any party, relevant to the issue
of paternity of the child.”
3. The Parent-Child Relationship
In order for A~ to inherit as the NH's son in the State of New Jersey, A~ would need
to establish a parent-child relationship in accordance with New Jersey intestacy and
parentage law. See N.J.Stat.Ann. § 3B:5-10. Presumably, the first application for child's survivor benefits
was denied due to the lack of evidence establishing a parent-child relationship between
A~ and the NH under New Jersey law.
However, upon the second application for benefits, which was filed on September XX,
2005, additional evidence was submitted or obtained, including a Court Order establishing
NH's paternity based on genetic testing. The testing was performed on DNA samples
taken from A~, M~, and alleged paternal grandfather J~. See M.A.
v. Estate of A.C., 274 N.J. Super 245, 250-52, 643 A.2d 1047, 1049-50 (Ch. Div.1993)(DNA testing of
decedent's heirs and their mother can provide conclusive evidence establishing whether
decedent was biological father of the claimant). The conclusion of the DNA testing
was that the biological son of the alleged biological grandfather, J~, is estimated
to have a 99.82% probability of paternity as compared to an untested, unrelated man. There appears to have been no challenge to the reliability of the DNA testing performed
and the results certified by LabCorp in this particular case, or any allegation of
fraud, duress or material mistake of fact with respect to the proceedings in this
matter. See N.J.Stat.Ann. §§ 9:17-41(b), 9:17-48(d) & (i).
[i]f, for the purpose of intestate succession, a relationship of parent and child
must be established to determine succession by, through or from an individual,… an
individual is the child of the individual's parents regardless of the marital state
of the individual's parents, and the parent and child relationship may be established
as provided by the “New Jersey Parentage Act,” P.L. 1983 c.17 [N.J.Stat.Ann. §§ 9:17-38
et. seq.]....
The New Jersey Parentage Act states that a parent-child relationship between a child
and the natural father may be established by an order of the court based on a blood
test or genetic test that meets or exceeds the specific threshold probability as set
forth in N.J.Stat.Ann. § 9:17-48 creating a rebuttable presumption of paternity. N.J.Stat.Ann.
§§ 9:17-41(b), 9:17-48(d)(2), 9:17-52(c); see POMS GN 00306.565(2), (6). Subsection (i) of N.J.Stat.Ann. § 9:17-48 specifies that “[b]lood test or
genetic test results indicating a 95% or greater probability that the alleged father
is the father of the child shall create a presumption of paternity which may be rebutted
only by clear and convincing evidence that the results of the test are not reliable
in that particular case.”
Section 9:17-52, subsections (c) and (e), of N.J.Stat.Ann. additionally provides that
evidence relating to paternity may include “[g]enetic or blood tests, weighed in accordance
with the evidence, if available, of the statistical probability of the alleged father's
paternity” and “[a]ll other evidence on behalf of any party, relevant to the issue
of paternity of the child.”
3. The Parent-Child Relationship
In order for A~ to inherit as the NH's son in the State of New Jersey, A~ would need
to establish a parent-child relationship in accordance with New Jersey intestacy and
parentage law. See N.J.Stat.Ann. § 3B:5-10. Presumably, the first application for
child's survivor benefits was denied due to the lack of evidence establishing a parent-child
relationship between A~ and the NH under New Jersey law.
However, upon the second application for benefits, which was filed on September XX,
2005, additional evidence was submitted or obtained, including a Court Order establishing
NH's paternity based on genetic testing. The testing was performed on DNA samples
taken from A~, M~, and alleged paternal grandfather J~. See M.A.
v. Estate of A.C., 274 N.J. Super 245, 250-52, 643 A.2d 1047, 1049-50 (Ch. Div.1993)(DNA testing of
decedent's heirs and their mother can provide conclusive evidence establishing whether
decedent was biological father of the claimant). The conclusion of the DNA testing
was that the biological son of the alleged biological grandfather, J~, is estimated
to have a 99.82% probability of paternity as compared to an untested, unrelated man.
There appears to have been no challenge to the reliability of the DNA testing performed
and the results certified by LabCorp in this particular case, or any allegation of
fraud, duress or material mistake of fact with respect to the proceedings in this
matter. See
N.J.Stat.Ann. §§ 9:17-41(b), 9:17-48(d) & (i).
The 99.82% estimated probability of paternity meets the 95% or greater probability
threshold required by the New Jersey Parentage Act on the establishment of a parent-child
relationship. See N.J.Stat.Ann. § 9:17-48(i). Nevertheless, there is still the issue of proof as to
whether the NH is actually the biological son of J~. While the NH's numident lists J~ as the NH's father, this should be confirmed
by obtaining the NH's birth certificate. The numident further identifies S~. T~ as
the NH's mother. Hence, additional evidence should be obtained establishing whether
the NH is the biological son of S~ who, according to Court Orders, requested genetic
testing, and later, acknowledged that her son, purportedly the NH, was the natural
father of A~ based on the genetic test results. Again, the NH's birth certificate
would be useful.
Moreover, the genetic test results deduce that any biological son of J~ had the estimated
99.82% probability of paternity of A~. Thus, additional evidence is needed to exclude
the possibility that A~ is the natural child of any other biological son of J~. With
regard to the later, M~ has alleged that the NH has a twin brother believed to be
identical. Further inquiry of this information is required. If such person exists,
genetic test results would not exclude the possibility that the NH's twin brother,
or any other brother, could be the biological father of A~.
Accordingly, further development in this matter is needed on the issues of whether
the NH is the biological son of S~ and, more importantly, J~, and whether J~ has any
other biological sons. This office suggests first obtaining the NH's long-form birth
certificate, which might contain information on the NH's biological mother, father,
and any children born previously or concurrently, such as a twin brother. You may
also attempt to gather the information by speaking directly to J~ and/or S~, and asking
if the NH had any brothers fathered by J~.
Given additional evidence establishing that the NH is the biological son of J~, and
excluding the NH's brothers, if any, as possible fathers of A~, the Court's September
XX, 2005 Order could establish a parent-child relationship between the NH and A~ under
the New Jersey Parentage Act for the purpose of intestate succession in the State
of New Jersey. Conversely, the lack of such evidence, and/or evidence of the existence
of the NH's identical twin or other biological son of J~ could amount to a rebuttal
of the presumption of the NH's paternity of A~ determined by the Court in its September
XX, 2005 Order. See N.J.Stat.Ann.§§ 9:17-41(b), 9:17-48(d)(2), 9:17-52(c).
The New Jersey Parentage Act further provides for the amendment of a child's birth
record upon the court's request so that it is consistent with the findings or the
court, or upon the court's order if the order regarding the parent-child relationship
is at variance with the child's birth certificate. N.J.Stat.Ann.§§ 9:17-53(b), 9:17-59(a).
A~'s birth certificate contains no information as to the father. While such fact may
not be especially relevant to the issue of entitlement of benefits under the Act,
we suggest ascertaining whether A~'s birth certificate was amended to include the
NH as the father. If so, the amended birth certificate should be obtained.
4. Effect of the State Court Order
The Commissioner is not necessarily bound by the decision of the State trial court
in a proceeding to which she was not a party. See Gray v.
Richardson, 474 F.2d 1370 (6th Cir. 1973); POMS GN 003.06.001C.3. However, the Gray decision, adopted as Social Security Ruling ("SSR") 83-37c, provides that the Commissioner
is not free to ignore an adjudication of a State trial court where the following prerequisites
are found:
an issue in a claim for Social Security benefits previously has been determined by
the State court of competent jurisdiction;
this issue was genuinely contested before the State court by parties with opposing
interests;
the issue falls within the general category of domestic relations law; and
the resolution by the State trial court is consistent with the law enunciated by the
highest court in the State.
474 F.2d at 1373; SSR 83-37c.
Prongs one and three of SSR 83-37c were met insofar as a court of competent jurisdiction
has made a determination on the issues of parent-child relationship and paternity
under New Jersey intestacy and parentage laws, which relate to a claim for benefits
under the Act, as discussed above.
As for the second prerequisite, the Sixth Circuit in Gray placed emphasis on the contested proceeding therein, noting its importance in determining
whether the Commissioner was bound by a State court decision. See
474 F.2d at 1373. Assuming additional evidence establishes the NH was the biological
son of S~ and J~, it appears that the issue of NH's paternity was genuinely contested
by a person with opposing interests. For instance, one opposing interest may be A~'s
inheritance rights as an alleged biological grandson of S~'s estate.
Here, S~ requested, and the Court ordered, genetic testing, which involved samples
taken from the NH's father, J~. Following DNA analysis, S~ acknowledged that her son,
the NH, is the natural father of A~ based on the genetic test results. This acknowledgment
is contained in the Court's September XX, 2005 Order. Further, as discussed, there
has been no challenge to the reliability of the DNA testing, or any actual allegation
of fraud, duress or material mistake of fact with respect to the proceedings in this
matter.
Regarding the last prerequisite, it appears that the Court's Order establishing paternity
is not inconsistent with New Jersey laws on intestacy and parentage so long as the
additional evidence is consistent with the Order. See N.J.Stat.Ann. § 9:17-53(a). In fact, the New Jersey Supreme Court concluded in Fazilat v. Feldstein that an accurate determination of paternity under the New Jersey Parentage Act is
in a child's best interest, as it not only establishes the child's legitimacy and
contributes to his or mental well-being, but it may also entitle a child to certain
rights, including Social Security, Veteran's or pension benefits. 180 N.J. 74, 87-88,
848 A.2d 761, 768-69 (2004)(citing M.A. v. Estate of A.C., 274 N.J. Super at 255-56, 643 A.2d at 1052-53)(other citations omitted). If the
additional evidence is not consistent with the Court Order, however, the Order would
not be accurate and, thus, not harmonious with New Jersey law.
Accordingly, the Agency could defer to the Court's September 16, 2005 Order establishing
the NH's paternity and a parent-child relationship between A~ and the NH, provided
additional evidence has been obtained and supports the Order, as discussed above.
Assuming the Court Order establishes a parent-child relationship between the NH and
A~ and, therefore, A~'s right to inherit as the NH's child, under New Jersey parentage
and intestacy laws, A~ should be entitled to child's survivor benefits as the insured
NH's child for purposes of under the Act. See
42 U.S.C. §§ 402(d)(1), 416(h)(2)(A); 20 C.F.R. §§ 404.350(a), 404.355(a)(1).
DATE OF ENTITLEMENT
You also inquired as to what would be the appropriate date of entitlement, assuming
A~ is entitled to benefits under the NH's account. Entitlement to child's benefits,
if the insured is deceased, begins the first month covered by the application in which
all other requirements for entitlement are also met. See 20 C.F.R. § 404.352(a). Furthermore, children filing for survivors' benefits may
receive retroactive benefits on the record of the deceased number holder for up to
six months beginning with the first month in which all requirements are met. 20 C.F.R.
§ 404.621(a)(1)(ii).
An initial application for child's survivor benefits was filed in March 2005, and
was denied without further appeal. A second application was filed in September 2005.
Under the New Jersey Parentage Act, the judgment or order of the court or a Certificate
of Parentage determining the existence (or nonexistence) of the parent and child relationship
is determinative for all purposes. N.J.Stat.Ann. § 9:17-53(a). Assuming the Agency
defers to the Court Order of paternity here, a parent-child relationship was established
between A~ and the NH under the New Jersey Parentage Act. Such relationship conferred
on A~ inheritance rights as the NH's child under New Jersey intestacy law. The Court's
Order also had the effect of granting M~'s April XX, 2005 Civil Action Complaint seeking
an order of paternity. Because the Complaint also provided that any order of paternity
be made retroactive to the filing date of the Complaint, this office deems the effective
date of A~'s inheritance rights to be April XX, 2005, the filing date of the Complaint.
See POMS GN 00306.055A.3 (an act/event conferring inheritance rights has effect only from the date of such
act/event).
Accordingly, if the Court Order is accepted, April 2005 would be the first month in
which all the requirements for entitlement under 20 C.F.R. § 404.350 are met for purposes
of entitlement to child's survivor benefits retroactive to the period of the September
2005 application. See 20 C.F.R. § 404.621(a)(1)(ii). Thus, if the Agency defers to the Court Order, the
date of A~'s entitlement would be April 2005.
CONCLUSION
Genetic test results here may be sufficient under New Jersey intestacy and parentage
laws to deem A~ the NH's child for purposes of entitlement to child's survivor benefits
under the Act. However, further development, as discussed, is needed. Assuming A~
is entitled to benefits, the earliest date of entitlement would be April 2005.
Very truly yours,
BARBARA L. SPIVAK
By:__________________
Maria P. F.Santangelo
Assisant Regional Counsel