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