The evidence presented that claimant was not the NH’s child consists of the absence of a father’s name on claimant’s birth certificate and the absence of claimant’s name on the NH’s earlier benefit claims. We do not believe that this evidence is sufficient to meet the “clear and convincing” standard set forth by New York law. It is our opinion that SSA does not have sufficient evidence to rebut the presumption of legitimacy that a child born to a married woman has been fathered by her husband. New York follows the Lord Mansfield’s rule, which prohibits the use of the testimony of either a husband or wife to non-access to rebut the presumption of legitimacy of a child born within their marriage. Further, New York public policy does not permit a child to be delegitimized. In this case, the claimant is entitled to auxiliary benefits on the NH’s account because, under the intestacy laws of the State of New York, the claimant could inherit the NH’s personal property.

QUESTION PRESENTED

 You have asked for an opinion as to whether Joseph (the claimant) is entitled to auxiliary benefits on the account of William NH), pursuant to Section 216(h)(2) or (h)(3) of the Social Security Act (the Act), 42 U.S.C. § 416(h). The NH was married to Joseph’s mother, Monika, when she gave birth to the claimant; however, both Monika and the NH state that the claimant is not the NH’s biological son.

OPINION

It is our opinion that under Lord Mansfield’s Rule, which precludes testimony of non-access in a marriage, SSA does not have sufficient evidence to rebut the presumption of legitimacy that a child born to a married woman has been fathered by her husband. Further, New York public policy does not permit a child to be delegitimized. Therefore, the claimant is entitled to auxiliary benefits on the NH’s account because, under the intestacy laws of the State of New York, the claimant could inherit the NH’s personal property.

BACKGROUND

The NH married Monika in Huntington, New York on September 19, 1992. The claimant was born in Huntington, New York, in December.  The Certificate of Birth did not record a father’s name. The claimant’s last name is listed as William and Monika.

The NH filed for Social Security disability benefits three times, and he did not name the claimant as his child on any of the applications. The only child mentioned was William. The NH’s disability claim was approved in 2009 and an application for auxiliary benefits was filed for William .

On September 12, 2012, Monika filed a claim on behalf of the claimant on the NH’s record.  In her application and a subsequent letter in support of her claim, Monika stated that she is legally married to the NH, but they had separated in the mid 1990s. She further stated that Joseph is not the biological child of the NH and the couple was not living together when the claimant was conceived. Monika also stated that she continues to be married to the NH, the NH is known as the claimant’s father, the relationship between the NH and the claimant is good, and the two see each other often.

According to the NH, although he is not claimant’s biological father, he sees the claimant regularly and the claimant knows him as his father. The NH also claims that he did not mention Joseph on his disability applications because he thought SSA was asking about children who lived with him.

Evidence of the case:

•        Marriage Certificate of the NH and Monika

•        Birth Certificate for Joseph

•        Statements by Monika

•        Statement by the NH

•        Reports of Contact by the Claims Representative

ANALYSIS

 We believe that, after the application of Lord Mansfield’s rule, sufficient evidence has not been presented to rebut the presumption that the NH is Joseph’s father.

A.      Entitlement to Auxiliary Benefits - In General

For purposes of child’s benefits under the Act, a “child” is defined as the child, legally adopted child, stepchild, or, in limited circumstances, grandchild of an insured individual. Sections 202(d), 216(e) of the Act. See 42 U.S.C. §§ 402(d), 416(e).  Under one method for determining whether an applicant is the child of an insured individual, the Commissioner applies the law governing the devolution of intestate personal property applied by the courts of the State in which the insured individual was domiciled at the time he files an application. See 42 U.S.C. § 416(h)(2)(A). If the claimant can inherit as the NH’s child under the state intestacy law, he is considered the NH’s “child” under sections 216(e) and 216(h)(2)(A) of the Act. See id. Because the NH was domiciled in New York when the claimant’s application was filed, New York’s law of intestate succession applies in determining the claimant’s status as the child of the NH for purposes of section 216(h)(2)(A) of the Act. 20 C.F.R. §§ 404.355(a)(1), 404.355(b).  Therefore, New York law applies in determining whether the claimant is a child under the Act.

       B.     Intestate Succession Under New York Law

New York’s intestacy law provides that the “issue” of a decedent are eligible to inherit the decedent’s property. N.Y. Est. Powers & Trusts Law § 4-1.1 (McKinney 2011).  State law defines “issue” as descendants in any degree from a common ancestor, including adopted children. N.Y. Est. Powers & Trusts Law § 1-2.10 (McKinney 2011).

New York law presumes that a child born to a married woman has been fathered by her husband. In re F~’s Estate, 44 N.Y. 2d 137, 142 (N.Y. 1978), app. dism’d 439 U.S. 1059 (1979), reh’g den. 440 U.S. 968 (1979). New York courts have described this presumption as “one of the strongest and most persuasive known to the law.” In re F~, 253 N.Y. 1, 7 (N.Y. 1930). However, the presumption of legitimacy may be rebutted by clear and convincing evidence to the contrary. Marilene S. v. David H., 63 A.D.3d 949 (N.Y. App. Div. 2009). To be “clear and convincing,” evidence must be sufficient to show that the application of the presumption of legitimacy under the particular circumstances of the case would be “entirely incompatible with ‘common sense and reason.’”  In re F~, 859 N.Y.S. 2d 902, 902 (N.Y. Surr. 2008) (citations omitted). In F~, the court held that the clear and convincing standard required evidence establishing that it is “highly probable” that a mother’s husband is not the child’s biological father. Id. (citation omitted).

Such evidence may include non-scientific evidence sufficient to overcome the presumption as wholly incompatible with reason and common sense. Id. at 902. Examples of evidence that is acceptable to overcome the presumption of legitimacy include proof that the spouses did not have access to each other at or around the time of conception, genetic testing establishing that the husband is not the biological father, or proof that the husband was physically incapable of fathering a child. Id. at 902, n. 1 (citations omitted).

However, with regard to evidence of non-access, New York follows Lord Mansfield’s rule, which prohibits the use of the testimony of either a husband or wife to non-access to rebut the presumption of legitimacy of a child born within their marriage. Comm’r of Pub. Welfare ex rel. Vincent v. Koehler, 284 N.Y. 260, 265 (N.Y. 1940); Richard B. v. Sandra B. B., 209 A.D.2d 139 (N.Y. App. Div. 1995); State ex rel. H. v. P., 457 N.Y.S. 2d 488, 491 (N.Y. App. Div. 1982); see also POMS GN 00306.015 (SSA follows state rules including Lord Mansfield’s rule), GN 00306.025 (SSA will not accept evidence contrary to Lord Mansfield’s rule), and GN 00306.026 (New York follows Lord Mansfield’s rule).

Based on the evidence provided, and on our review of New York law, we believe that insufficient evidence has been presented to rebut the presumption of legitimacy.  The evidence provided indicates that the NH was married to Monika at the time of the claimant’s conception, thus creating a presumption under New York law that he is the NH’s child. Because New York courts apply Lord Mansfield’s Rule, they would not accept the testimony of the NH or Monika to prove that the claimant was not the NH’s son. Id. Excluding their testimony, the only evidence that claimant was not the NH’s child consists of the absence of a father’s name on claimant’s birth certificate and the absence of claimant’s name on the NH’s earlier benefit claims. We do not believe that this evidence is sufficient to meet the “clear and convincing” standard set forth by New York law.

We note that New York has created a statutory exception to Lord Mansfield’s rule for paternity proceedings. S~ NY Fam. Ct Act § 531. Section 5 of the Family Court Act was found to be unconstitutional as applied to genetic mothers who could not establish maternity, but the Court extended the statute rather than strike it. In re S~, 879 N.Y.S.2d 677, 689-90 (Surr. Ct. N.Y. Cty 2009). Therefore, S~ does not have an impact on the pending case.

 We do not believe that that exception applies here. Significantly, there is no action to establish paternity. See Fam. Ct Act, § 522 (permitting proceedings for two purposes: to establish the paternity of a child and to compel support).  Rather, the statements by NH and Monika go to delegitimizing the claimant. It is contrary to New York State’s public policy to delegitimize a child without settling the issue of paternity. H. v. P., 457 N.Y.S. 2d at 489. Indeed, where a child has known one person as his father, courts have sometimes estopped the father from attempting to deny paternity. See, e.g., Felix O. v. Janette M., 934 N.Y.S.2d 424, 426-27 (N.Y. App. 2nd Dept.2011) (estopping person seeking genetic testing where child had relationship with his known father).

Thus, even assuming that New York law would permit the testimony of the NH and Monika in a paternity action, it is unlikely that a court would find the presumption of legitimacy has been overcome. See H.v. P., 457 N.Y.S. at 489-91 (In habeas corpus proceedings, court invoked Lord Mansfield’s Rule because there was no proceeding pending to establish paternity or support). 

CONCLUSION

Thus, based upon our review of law and the facts you provided to us, we believe that sufficient evidence to rebut the presumption of legitimacy has not been presented in this case. Therefore, the claimant is entitled to auxiliary benefits on the NH’s account because, under the intestacy laws of the State of New York, the claimant could inherit the NH’s personal property.

Stephen P. Conte

Regional Chief Counsel, Region II

By: ____________

Graham Morrison

Assistant Regional Counsel

New York State law presumes that a child born in wedlock is the natural legitimate child of the mother's husband. Further, New York State follows the Lord Mansfield Rule, an English common-law evidentiary rule, which prohibits the use of the testimony of either a husband or wife to non-access to rebut the presumption of legitimacy of a child born within their marriage. However, the Lord Mansfield Rule is not followed during a Family Court proceeding to establish paternity that results in an Order of Filiation.

In this case, the court noted the presumption of legitimacy was rebutted and that the NH had appeared and had submitted an affidavit of non-access. Based on the affidavit and the admissions of the actual father, the Family Court issued an Order of Filiation, an Order of Support, and a Paternity Petition indicating that the second man is the child's father. Under New York State law, although the child was born during his mother's marriage to the NH, he falls within the definition of "non-marital child" in relation to the other man.

QUESTION PRESENTED

You have asked whether a child born during the continuous and ongoing marriage of the number holder to the child's mother can receive benefits on the number holder's account where an interceding Order of Filiation declares another individual to be the child's father.

OPINION

Based on the Order of Filiation, which states that another individual is the father of the child, the child cannot qualify for child's benefits on the number holder's account.

BACKGROUND

Leroy (NH) and Elexzena (ES) were married on September 12, 1987.

ES gave birth to Elijah (EC) on February . The birth certificate listed NH as the father and lists EC's name as "Elijah."

On October 18, 2006, Support Magistrate Diego of the Family Court of the State of New York issued an Order of Filiation, an Order of Support, and a Paternity Petition that found that Carlton (CC) was the non-custodial parent and father of EC, and ordered him to pay a pro rata share of child support. Both the NH and CC were present before the court. As part of his appearance, the NH submitted an affidavit of non-access, which the court accepted.

On May 8, 2009, the NH filed for Social Security Disability benefits and listed two children on his application, Zachariah (ZS) and Leroy, but he did not list EC.

The Agency approved the NH's application for Social Security Disability Benefits in September 2009.

On November 19, 2009, ES, still married to NH, filed for Child's Benefits on NH's record for two children, ZS and EC. On that application, ES stated that EC was not the NH's child even though they were married and living together at the time of his birth. She stated that EC's father is CC. ES submitted EC's birth certificate and the three October 2006 Family Court orders to the Agency.

All parties are New York State residents.

ANALYSIS

To qualify for child's benefits on the earnings record of an insured individual, a claimant must be the "child" of the insured individual. See Social Security Act (Act) § 202(d)(1), 42 U.S.C. § 402(d)(1); 20 C.F.R. § 404.350(a)(2010). "Child" includes the natural child of an insured individual. See Act § 216(e), 42 U.S.C. § 416(e); 20 C.F.R. § 404.355(2010). Generally, a claimant's status as the child of the number holder is governed by either section 216(h)(2)(A) of the Act or section 216(h)(3) of the Act. 42 U.S.C. §§ 416(h)(2)(A), 416(h)(3). Here, EC cannot establish that he is the child of the NH under either provision.

Section 216(h)(2)(A) of the Act requires a showing that EC could inherit the NH's personal property as his child under the intestacy laws of the state where the NH was domiciled at the time of the application. See Act § 216(h)(2)(A); 20 C.F.R. §§ 404.355(a)(1), (b)(1) (2010). Because the NH was domiciled in New York at the time of the application, the question is whether EC would be considered the NH's child for purposes of intestate succession under New York law.

New York State law presumes that a child born in wedlock is the natural legitimate child of the mother's husband. N.Y. Dom. Rel. § 24 (2010); see In re Findlay, 170 N.E. 471 (N.Y. 1930); Further, New York State follows the Lord Mansfield Rule, an English common-law evidentiary rule, which prohibits the use of the testimony of either a husband or wife to non-access to rebut the presumption of legitimacy of a child born within their marriage. POMS GN 00306.026. However, the Lord Mansfield Rule is not followed during a Family Court proceeding to establish paternity that results in an Order of Filiation. N.Y. Fam. Ct. Act § 531. See State of New York ex rel H v. P., 90 A.D.2d 434 (December 30, 1982)(Section 531 of the Family Court Act is statutory exemption to the Lord Mansfield Rule). Here, the Family Court noted the presumption of legitimacy was rebutted and that the NH had appeared and had submitted an affidavit of non-access. Based on the affidavit and the admissions of CC, the Family Court issued an Order of Filiation, an Order of Support, and a Paternity Petition indicating that CC is EC's father. Under New York State law, although EC was born during his mother's marriage to the NH, he falls within the definition of "non-marital child" in relation to CC.

Pursuant to N.Y. Est.Powers & Trusts § 4-1.2(a)(2)(A), the New York statute that determines when a non-martial child may inherit intestate, a non-marital child is the legitimate child of his father so that he and his issue can inherit from his father and his paternal kindred, if a court of competent jurisdiction has, during the lifetime of the father, issued an order of filiation declaring paternity. Here, because the October 2006 Order of Filiation declared that CC is EC's father, under New York law, EC could not inherit the NH's personal property under New York's intestacy laws. Therefore, EC does not meet the requirements of section 216(h)(2)(A) of the Act with regard to the NH.

To establish child status under section 216(h)(3) of the Act, EC must show he was the NH's son and show one of the following: (1) the NH acknowledged in writing that EC was his child, (2) a court decreed the NH to be EC's father, (3) the NH was ordered to contribute to EC's support, or (4) the NH was living with, or contributing to, the EC's support at the time the application for benefits was filed. See Act § 216(h)(3); 20 C.F.R. §§ 404.355(a)(3). See also, POMS GN 00306.100(B)(1). EC has not presented any evidence to satisfy these criteria.

In this case, the Family Court issued Order of Filiation declared that CC is EC's father and ordered CC to contribute to EC's support. Both CC and the NH were present before the issuing court; and the court order is consistent with New York state law. In addition, there is no evidence that the NH was contributing to EC's support. In fact, the NH's own benefits application appears to indicate that he was not contributing to EC's support since EC was not listed as a child. Accordingly, EC is not eligible for benefits on the NH's account under section 216(h)(3) of the Act.

Finally, pursuant to Social Security Ruling (SSR) 83-37c, although the Commissioner is not bound by the decision of a state trial court in a proceeding to which he was not a party, he is not free to ignore an adjudication of a state trial court where the following prerequisites have been found: 1) an issue in a claim for social security benefits previously has been determined by a state court of competent jurisdiction; 2) this issue was genuinely contested before the state court by parties with opposing interests; 3) the issue falls within the general category of domestic relations law; and; 4) the resolution by the state trial court is consistent with the law enunciated by the highest court in the state. See SSR 83-37c, adopting the holding of Gray v. Richardson, 474 F.2d 1370 (6th Cir. 1973). Since the Order of Filiation in this case meets all four prerequisites, it is binding upon the Agency in this case.

CONCLUSION

EC does not qualify for child's benefits on the NH's account.

Stephen P. Conte

Regional Chief Counsel, Region II

By: ____________

Thomas G~

Assistant Regional Counsel