The number holder (NH) was domiciled in Florida when he filed for child Insurance benefits (CIB) on the claimant’s behalf; therefore, we look to Florida intestacy law to determine whether the claimant is the NH’s child. The information provided does not indicate that NH ever participated in a marriage ceremony with claimant’s mother. Therefore, section 216(h)(2)(B) of the Act does not apply to this matter. The evidence also does not establish that the claimant is NH’s child under section 216(h)(3)(A) of the Act. Although, the evidence indicates NH acknowledged in writing that the beneficiary was his child, the DNA evidence and court order indicate the claimant did not meet the threshold requirement of section 216(h)(3) of being NH’s daughter.

The claimant currently receives CIB benefits on the NH’s record. Although the number holder executed a written acknowledgment of paternity, the information provided shows he has disestablished paternity based on genetic testing demonstrating that he could not be the beneficiary’s biological father. Neither the DNA tests nor the state court order disestablishing paternity would justify termination of a claimant’s benefits as the NH’s child. If a claimant has been entitled to benefits as the child of an insured individual, a later determination that another man is the child’s biological father is not a terminating event under the Act. However, based on new and material evidence, the agency may reopen a determination within four years of the date of the initial determination if the agency finds good cause.

In this case, the December 2014 DNA test results, the April 2015 court order, and NH’s December 2015 statements denying paternity are all new evidence because they did not exist when the NH applied for the CIB in March 2014 or when the agency approved the application in March 2014. Further, that evidence is material because there is a reasonable possibility that the evidence would change the agency’s determination to approve the application. Thus, the initial determination can be reopened.

The NH rebutted the presumption of paternity based on the DNA test results, the court order disestablishing paternity, and the NH’s statement denying paternity. Based on those facts, the claimant is not the NH’s child under Florida intestacy law.

QUESTION

You asked whether the Social Security Administration (agency) should terminate the beneficiary’s current entitlement to child’s insurance benefits (CIB) on the number holder’s earning record based on subsequent DNA evidence that excludes the number holder as the beneficiary’s biological father and a Florida court judgment declaring the number holder is not the beneficiary’s biological father. You also asked whether the agency’s initial determination awarding beneficiary CIB on number holder’s earnings record could be reopened based on new and material evidence.

ANSWER

For the reasons stated below, the agency, based on new and material evidence, should reopen the determination finding the beneficiary entitled to CIB on the number holder’s earning record. Although the number holder executed a written acknowledgment of paternity, the information provided shows he has disestablished paternity based on genetic testing demonstrating that he could not be the beneficiary’s biological father.

BACKGROUND

On March XX, 2013, C~, the number holder (NH), applied for old-age insurance benefits. At the time NH applied, he had no children that met the definition of a child who would be potentially eligible for CIB on his earnings record.

V~ (Beneficiary) was born on July XX, 2013, to N~ (Beneficiary’s mother). A copy of Beneficiary’s Florida Certification of Birth, issued March XX, 2014, identifies NH as Beneficiary’s father. The evidence provided does not include an acknowledgment of paternity signed by NH for purposes of listing him as Beneficiary’s father on the birth certificate. Additionally, there is no information that Beneficiary’s mother was ever married to NH.

On March XX, 2014, NH applied on Beneficiary’s behalf for CIB on his earnings record. The information provided indicates that NH also applied to be Beneficiary’s representative payee. In a Notice of Award dated March XX, 2014, the agency approved Beneficiary’s application for CIB, selected NH as Beneficiary’s representative payee, and established August 2013 as the first month that Beneficiary was entitled to CIB on NH’s earnings record.

On October XX, 2014, the agency selected Beneficiary’s mother to replace NH as Beneficiary’s representative payee.

On December XX, 2015, NH visited the Ocala, Florida field office and requested that the agency terminate benefits paid to Beneficiary’s mother as her representative payee. That day, NH signed a Statement of Claimant or Other Person alleging he was in an intimate relationship with Beneficiary’s mother when she became pregnant and gave birth to Beneficiary. NH alleged he signed Beneficiary’s birth certificate because he believed he was Beneficiary’s biological father. NH also alleged that around November 2013, Beneficiary experienced medical issues and her doctor advised obtaining DNA tests. NH presented DNA testing dated December XX, 2014, which excluded NH as Beneficiary’s biological father based on a zero percent probability of paternity. NH claimed that until he received the DNA test results, he was unaware that he was not Beneficiary’s biological father.

NH also presented evidence that on April XX, 2015, the Circuit Court for the Ninth Judicial Circuit, Orange County, Florida, issued a Final Judgment Disestablishing Paternity. The court, based on the December 2014 DNA test results, disestablished paternity pursuant to section 742.18 of the Florida Statutes and declared NH is not Beneficiary’s biological father. The court also ordered that it was in Beneficiary’s best interests for the appropriate State agency prepare an amended birth certificate to change Beneficiary’s name on the certificate to V2~. The court also noted that NH never had a court-ordered child support obligation for Beneficiary and terminated any such obligation. Finally, the court noted that Beneficiary’s mother had consented to the relief requested.

DISCUSSION

A claimant may be eligible for CIB on the earnings record of an individual entitled to old-age insurance benefits if the claimant is the insured individual’s “child.” See Social Security Act (Act) § 202(d)(1); 20 C.F.R. § 404.350(a)(1) (2016).^[1] “Child” includes “the child” of an insured individual. Act § 216(e); see 20 C.F.R. § 404.354; Astrue v. Capato, --- U.S. ---, 132 S. Ct. 2021, 2027-28 (2012). A claimant may show she is “the child” of an insured individual, within the meaning of section 216(e)(1), by meeting the requirements of section 216(h)(2)(A) of the Act.^[2] See Capato, 132 S. Ct. at 2028. Under section 216(h)(2)(A), a claimant is considered “the child” of an insured individual if she could inherit the insured individual’s intestate personal property under the law of the State in which the insured individual was domiciled when the claimant applied for CIB. See Act § 216(h)(2)(A); 20 C.F.R. § 404.355(a)(1), (b)(1), (b)(4); Capato, 132 S. Ct. at 2028-34; Program Operations Manual System (POMS) GN 00306.001(C)(1)(a), (C)(2)(a). The information provided indicates that NH was domiciled in Florida when he filed for CIB on Beneficiary’s behalf. Therefore, we look to Florida intestacy law to determine whether Claimant is NH’s child.

Under Florida intestacy law, a lineal descendent of a decedent is entitled to a share of the decedent’s estate not effectively disposed of by will. See Fla. Stat. Ann. §§ 732.101(1), 732.103(1) (2016; see also Fla. Stat. Ann. § 731.201(9) (2016) (defining “descendant” in the Florida Probate Code to include children and noting “descendant” is synonymous with “lineal descendant”). A person born out of wedlock is the lineal descendant of the putative father for the purposes of intestate succession if, among other things, the father acknowledges paternity in writing. See Fla. Stat. Ann. § 732.108(2)(c) (West 2016). The acknowledgment of paternity under Fla. Stat. Ann. § 732.108(2)(c) “requires no particular form of written acknowledgment.” Sanders ex rel. Wakefield v. Apfel, 85 F. Supp. 2d 1275, 1280-81 (M.D. Fla. 1999) (finding claimant was number holder’s child where he acknowledged paternity on birth certificate and insurance application).

Although Beneficiary’s birth certificate identifies NH as Beneficiary’s father, the birth certificate does not include NH’s signature as the informant, and the evidence provided does not otherwise include a written acknowledgment by NH that Beneficiary is his child. In Florida, however, there is a presumption that the father provided written acknowledgment/consent if his name appears on the birth certificate. See Fla. Stat. Ann. § 382.013(2)(c) (West 2016) (“If the mother is not married at the time of the birth, the name of the father may not be entered on the birth certificate without the execution of an affidavit signed by both the mother and the person to be named as the father.”); Flores v. Sanchez, 137 So.3d 1104, 1108-09 (Fla. Dist. Ct. App. 2014) (citing Fla. Stat. Ann. § 382.013(2)(c)); POMS GN 00306.120B; POMS GN ATL00306.120B (showing that in Florida, the father’s name on the birth certificate creates the presumption he provided written consent). Thus, NH’s name on Beneficiary’s birth certificate is sufficient to show NH provided a written acknowledgment of paternity. See Sanders, 85 F. Supp. 2d at 1280-81.

An individual who provided a written acknowledgment of paternity may disestablish paternity under Florida Statutes § 742.10(4) or § 742.18. See State of Florida, Dep’t of Revenue v. Travis, 971 So.3d 157, 160-61 (Fla. Dist. Ct. App. 2007). The April 2015 court order shows NH brought his claim under § 742.18; and the court, pursuant to that statute, found that the December 2014 DNA tests constituted newly discovered evidence sufficient to disestablish paternity.

The agency, however, is not bound by the decision of a State court in a proceeding to which SSA was not a party. See Baker o/b/o Baker v. Sullivan, 880 F.2d 319, 322 (11th Cir. 1989) (“As a legal matter, the Appeals Council could determine that the state court judgment is not binding on the [Commissioner] on the issue of paternity of the children . . . , particularly when the [Commissioner] was not a party to the state court action, and no opposing interests were presented in the case”). Florida law also indicates a person is not bound by a prior judicial paternity decision when that person was “not a party to the litigation in which the issue was determined.” In re Estate of Robertson, 520 So. 2d 99, 102 (Fla. Dist. Ct. App. 1988); see also Voss v. Shalala, 32 F.3d 1269, 1271 (8th Cir. 1994) (holding ALJ not bound by State probate court judgments of paternity because agency was not party to probate proceedings and judgments were only part of broader inquiry into facts and applicable law). Nevertheless, the agency is not free to ignore an adjudication of a State court where the following prerequisites exist: (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 Social Security Ruling (SSR) 83-37c (adopting Gray v. Richardson, 474 F.2d 1370 (6th Cir. 1973), as national policy). In this case, the order does not meet all of the prerequisites in SSR 83-37c. Specifically, parties with opposing interests did not genuinely contest the issue of NH’s paternity. Nevertheless, the court’s determination provides further evidence to rebut the presumption that NH is Claimant’s father.

A Florida court may also disestablish NH’s paternity under § 742.10(4). See Fla. Stat. Ann.

§ 742.18(11) (West 2016) (nothing in § 742.18 precludes an individual from challenging a paternity determination pursuant to § 742.10(4)). Although NH brought his claim to disestablish paternity under § 742.18, we have also addressed § 742.10(4) because we believe a Florida court may find NH rebutted the presumption of paternity created under that statute when he acknowledgment paternity in writing. Under § 742.10(4), NH’s written acknowledgment of paternity created a rebuttable presumption of paternity. See Flores v. Sanchez, 137 So.3d 1104, 1108-09 (Fla. Dist. Ct. App. 2014). Section 742.10(4) provides that the individuals named on a birth certificate may rebut the presumption of paternity by rescinding the voluntary acknowledgment of paternity within sixty days of signing the acknowledgement. See Flores, 137 So.3d at 1109. The information provided does not show that NH or Beneficiary’s mother rescinded the voluntary acknowledgment within sixty days of signing it. After the expiration of the sixty-day period, an individual can only rebut the presumption by showing fraud, duress, or material mistake of fact. See id. at 1109. Although NH alleged in his Statement of Claimant or Other Person that he was unaware he was not Beneficiary’s biological father until he received the DNA test results, he did not indicate that fraud or duress caused him to sign the written acknowledgement of paternity. NH’s statement, however, appears to show that when he signed the acknowledgement, he was operating under a material mistake of fact as to whether he was Beneficiary’s biological father. Accordingly, a Florida court may find NH rebutted the presumption of paternity based on the DNA test results, the court order disestablishing paternity, and NH’s statement denying paternity.

However, neither the DNA tests nor the state court order disestablishing paternity would justify termination of a claimant’s benefits as the NH’s child. If a claimant has been entitled to benefits as the child of an insured individual, a later determination that another man is the child’s biological father is not a terminating event under the Act. See 42 U.S.C. § 402(d)(1)(D)-(H); 20 C.F.R. § 404.352(b). As a result, SSA may only stop a claimant’s benefits based on an insured individual’s earnings record if SSA can reopen the original child-status determination. See 20 C.F.R. § 404.988.

The agency may reopen a determination within four years of the date of the initial determination if the agency finds good cause. See 20 C.F.R. § 404.988(b). The Notice of Award approving Beneficiary’s application for CIB is dated March XX, 2014. Thus, the agency may reopen the determination based on good cause. Good cause for reopening includes receipt of “new and material evidence.” 20 C.F.R. § 404.989(a)(1). New and material evidence constitutes good cause to reopen. See 20 C.F.R. § 404.989(a)(1). Material evidence is “relevant and probative so that there is a reasonable possibility that it would change the administrative result.” Milano v. Bowen, 809 F.2d 763, 766 (11th Cir. 1987). The December 2014 DNA test results, the April 2015 court order, and NH’s December 2015 statements denying paternity are all new evidence because they did not exist when he applied on Beneficiary’s behalf for CIB in March 2014 or when the agency approved the application in March 2014. Further, that evidence is material because there is a reasonable possibility that the evidence would change the agency’s determination to approve the application. Thus, the initial determination can be reopened.

CONCLUSION

A Florida court may find NH rebutted the presumption of paternity based on the DNA test results, the court order disestablishing paternity, and NH’s statement denying paternity. Thus, Beneficiary is not NH’s child under Florida intestacy law. Accordingly, Beneficiary is not NH’s child under section 216(h)(2)(A) of the Act for determining Beneficiary’s continuing entitlement to CIB on NH’s earnings record. Further, the agency has received new and material evidence sufficient to reopen the determination finding Beneficiary entitled to CIB on NH’s earning record.

Sincerely,

Mary Ann Sloan

Regional Chief Counsel

By: Jennifer L. Patel

Assistant Regional Counsel

In Florida, statements by both the number holder and his wife along with the presence of another man's name on the claimant's birth certificate are clear and convincing evidence sufficient to rebut the presumption of legitimacy.

QUESTION

Are statements by a husband and wife, combined with evidence of another man's name on the child's birth certificate, sufficient to rebut the presumption of paternity under Florida law?

ANSWER

For the reasons stated below, we believe the cited evidence is sufficient to rebut the Florida presumption of paternity based on birth within wedlock.

BACKGROUND

Thomas M~, the number holder (NH), and Renee C~ married in 1982 and Renee M~ gave birth to Tiffany A. K~ (Claimant) in 1996. The NH, who resides in Florida with his wife and Claimant, is filing for benefits for Claimant on his record. NH and his wife were separated when she became pregnant with Claimant but later reconciled. Claimant's biological father is listed on her birth certificate. Both NH and his wife have indicated in written statements that they were separated when Claimant was conceived and that NH is not Claimant's biological father. Claimant apparently uses the surname of her biological father, "K~."

DISCUSSION

Under the Social Security Act, a "child" under age eighteen may qualify for child's insurance benefits on the work record of a parent. See Social Security Act (Act) § 202(d), 42 U.S.C. § 402(d)); 20 C.F.R. § 404.350 (2006). To determine whether an applicant qualifies as a "child" of an insured individual in a case such as this, where the child was born in wedlock, the Commissioner shall apply such law as would be applied in determining the devolution of intestate personal property by the courts of the State in which the insured individual is domiciled. See § 216(h)(2)(A) of the Act, 42 U.S.C. § 416(h)(2)(A); 20 C.F.R. § 404.355 (2006). NH is domiciled in Florida, and the Florida law providing for intestate inheritance rights is found at Fla. Stat. Ann. Secs. 732.102, 732.103 (2006). A child born in wedlock is presumed to be the blood issue of the partners of the marriage. See Knauer v. Barnett, 360 So. 2d 399, 403 (1978). The legitimacy of a child born in wedlock may be disputed, but where the possibility of access exists, the strong presumption is in favor of legitimacy and proof must be clear to establish the contrary. Id.: see also Williams v. Estate of Long, 338 So. 2d 563 (1976). Testimony of the mother concerning non-access by the husband is admissible and clear evidence to rebut the presumption of legitimacy. See Williams v. Estate of Long, 338 So. 2d at 566-67; see also In Re Estate of Jerrido, 339 So.2d 237, 239 (1976).

Here, there is no question that Claimant was conceived and born while NH and Claimant's mother were married. She was born in 1996, several years after their 1982 marriage, and they are still married. While NH and Claimant's mother separated during their marriage, the exact period of separation is not clear, but Claimant's mother and NH have both stated that Claimant's mother was in a relationship with another man and that NH apparently had no access to Claimant's mother during the separation.

The question presented therefore is whether the testimony of the partners to the marriage and the presence of another man's name on Claimant's birth certificate is clear proof to rebut the strong presumption of legitimacy. As noted, Florida courts have accepted the testimony of the mother on this issue as adequate to rebut the presumption of legitimacy. See Williams v. Estate of Long, 338 So. 2d at 566-67; see also In Re Estate of Jerrido, 339 So.2d at 239. The presence of another man's name on the birth certificate and Claimant's use of the surname "K~" provides further evidence that NH is not the father. There is no evidence to the contrary.

We believe that the evidence presented here satisfies the "clear and convincing evidence" standard. Claimant uses the surname of the man listed on her birth certificate and both NH and Claimant's mother have submitted sworn statements that NH is not Claimant's biological father.

CONCLUSION

For the foregoing reasons, we believe the evidence presented would support an adjudicator finding that the presumption that Claimant is NH's child was rebutted.

Very truly yours,

Mary Ann S~

Regional Chief Counsel

Laurie G. R~

Assistant Regional Counsel

Under Florida law, children born during a marriage are presumed to be the product of the marriage. While this presumption is rebuttable, it is one of the strongest rebuttable presumptions known to law. In this case, the available evidence does not overcome Florida’s presumption of the child's legitimacy. The NH and the child's mother were married at the time of the child's conception and birth. The child's mother stated that she and the NH were separated, but lived together on and off during the relevant time period. The NH stated that he had no children under 18 and did not mention fathering the child in a medical report. However, his mental state was questionable during that period, and he never specifically denied that the child was his child.

You have requested our opinion as to whether a child who was conceived and born while her parents were married but possibly separated can be considered the child of the husband. We believe that under the facts presented, the child would be presumed the child of the husband.

Rose L~ applied for child's insurance benefits for Lindsy A. L~ on the account of Victor L~ (NH). Rose is a resident of Florida and NH was a resident of Florida when he died. Rose and NH were married in California in 1983. Lindsy was born in Arizona in 1989. NH stated in a June 2001 medical report that he had been separated from Rose for 16 years. Rose stated, however, that she and NH had lived together on and off over the years in California, Arizona, and Florida and that she and Lindsy lived occasionally with NH in 2002 and 2003. She stated that she was dating someone else when she was pregnant with Lindsy. No father is listed on Lindsy's birth certificate, but the boyfriend's name is listed on Lindsy's Social Security record. Rose denies that the boyfriend was Lindsy's father. Rose and NH apparently lived on the same street in Florida before NH went into a nursing home (NH at 711 27th Avenue and Rose at 702 27th Avenue). In NH's applications for disability insurance, he stated variously that he was separated from Rose and divorced from Rose. He denied having any children under the age of 18 in both applications. A 2003 records search in the county where the two resided shows that a divorce action was filed in 2000, but was dismissed because filing fees were not paid. No other record of a divorce was found.

Florida courts have long held that children born during a marriage are presumed to be the product of the marriage. Bostwick v. Bostwick, 346 So.2d 150, 151 (Fla. 1977); Blitch v. Blitch, 341 So.2d 251, 252 (Fla. 1976); Smith v. Wise, 234 So.2d 145, 146 (Fla. 1970). However, this presumption is rebuttable. Id. Nevertheless, the presumption is "one of the strongest rebuttable presumptions known to law." Smith v. Wise, 234 So.2d at 147; V.S. v. B.M., 281 So.2d 587, 588 (Fla. 1873). The Florida courts have not specifically outlined how one would rebut the presumption of legitimacy, but have stated that clear and satisfactory evidence would be required to rebut the presumption. Gammon v. Cobb, 335 So.2d 261, 264 (Fla. 1976); Eldridge v. Eldridge, 16 So.2d 163, 164 (Fla. 1944). Florida courts held that the presumption was rebutted where the mother stated that she had not lived with nor had sexual relations with her husband for seven years and had sexual relations at the time of the child's conception with only the defendant. This testimony was uncontradicted except by inadmissible hearsay. Hill v. Parks, 373 So.2d at 376. ^[3] A court also held that the presumption was overcome when all parties agreed that the husband was not the father of the child. Albert v. Albert, 415 So.2d 818, 820 (Fla. 1982). In other cases, the presumption of legitimacy was apparently overcome with the results of blood testing. Bostwick v. Bostwick, 346 So.2d at 151.

In our case, NH and Rose were married at the time of Lindsy's conception and birth. Rose stated that she and NH were separated, but lived together on and off during the relevant time period. NH stated that he had no children under 18 in his Social Security forms and did not mention fathering Lindsy in a medical report. However, his mental state was questionable during that period. He apparently never specifically denied that Lindsy was his child. The available evidence does not appear sufficient to overcome Florida's strong presumption of legitimacy. ^[4]

Very truly yours,

Mary Ann S~

Regional Chief Counsel

Laurie G. R~

Assistant Regional Counsel

If the NH and his wife consented in writing to the artificial insemination that resulted in the birth of twins to the wife, the NH is presumed to be the twins' father, and this presumption cannot be rebutted by additional evidence under Florida law. However, if the NH and his wife did not consent in writing to the insemination, the children have a right under Florida law to maintain legitimate status both factually and legally. Further, there must be clear and convincing reasons based primarily on the child's best interests to overcome the presumption of legitimacy even after the legal father is proven not to be the biological father. Because Florida does not recognize dual fathership, a biological father must take some legally recognized action to terminate the “legal father's” parental status; more than a mere allegation of biological fatherhood is necessary to terminate the status of the “legal father.” In this case, no evidence has been presented indicating that the (alleged) biological father has attempted to terminate the status of the legal father.

In connection with an Office of the Inspector General (OIG) fraud investigation, you have requested our opinion on the parent-child relationship in order to determine whether the children have been correctly paid. It is our opinion that, under Florida law, the number holder (NH), Luis M~, is the children's legal father, and they are his heirs.

In June 1998, the NH filed for retirement insurance benefits and listed twin, minor children, Mariella M~ and Melissa M~ (DOB 9/XX/97). The NH married the twins' mother, Aissa M~ on 12/XX/84, and on 6/XX/98, they divorced. The NH was domiciled in Florida at the time of his death, 11/XX/01. The twins were awarded children's benefits at the time the NH began receiving retirement benefits, and they have received survivor's benefits since the NH's death.

Information provided to OIG indicates that the NH was sterile and that he was not the twins' biological father. The informant stated that the twins were conceived by artificial insemination with another man's semen and that the NH was aware of the procedure. The informant also alleged that the NH and Aissa both signed some type of agreement/document stating that the NH was not the twins' biological father, that he was not financially responsible for them, and that the twins were legally and financially considered his heirs. OIG does not have a copy of the document, but the informant has indicated he will provide a copy.

Florida Statutes Annotated § 742.11(a) (2002) provides that:

Except in the case of gestational surrogacy, any child born within wedlock who has been conceived by the means of artificial or in vitro insemination is irrebuttably presumed to be the child of the husband and wife, provided that both husband and wife have consented in writing to the artificial or invitro insemination.

Thus, if there is evidence that the NH and Aissa consented in writing to the insemination, the NH is presumed to be the twins' father, and this presumption cannot be rebutted by additional evidence.

If, however, the NH and Aissa did not consent in writing to the insemination, further examination of Florida law is required. Historically, Florida's common law viewed any action challenging a child's legitimacy with great disfavor. G.F.C. v. S.G. & D.G., 686 So. 2d 1382, 1384 (Fla. App. 1997). However, modern improvements in genetic testing have now made it possible to conclusively determine the paternity of children whose parentage may be at issue, and, perhaps as a result of the increasing number of children whose paternity is called into question, the Florida Supreme Court ruled that paternity and legitimacy are separate and distinct concepts. In Department of Health and Rehabilitative Services v. Privette, 617 So. 2d 305, 309 (Fla. 1993), the Florida Supreme Court held that, under Article I, § 9 of the Florida Constitution, once children are born legitimate, they have a right to maintain that status both factually and legally, if doing so is in their best interests. Further, there must be clear and convincing reasons based primarily on the child's best interests to overcome the presumption of legitimacy even after the legal father is proven not to be the biological father. In Daniel v. Daniel, 695 So. 2d 1253 (Fla. 1997), the Florida Supreme Court reiterated its holding that any child born during a lawful marriage is considered “legitimate” irrespective of his or her biological connection, or lack thereof, to the mother's husband. Because Florida does not recognize dual fathership, a biological father must take some legally recognized action to terminate the legal father's parental rights; more than a mere allegation of biological fatherhood is necessary to terminate the status of the “legal father.” Achumba v. Neustein, M.D., 793 So. 2d 1013, 1015 (Fla. App. 2001). In this claim, no evidence has been presented indicating that the (alleged) biological father has attempted to terminate the status of the legal father.

Thus, it is our opinion that regardless of whether Florida statute, § 742.11(a), or Florida case law is applied to the facts presented, the NH is the twins' father and they are his heirs.

Very truly yours,

Mary Ann S~

Regional Chief Counsel

Pamela W. W~

Assistant Regional Counsel

The NH, a DIB beneficiary, was domiciled in Tennessee when the child's claim was filed in 1998. The child was born in 1983 during the NH's marriage to the child's mother. In 1984, the mother filed a petition for divorce in Florida, and the NH filed a counter-petition contesting the child's paternity. Following a trial, a final judgment of divorce was entered on 9/11/85. The court found that the child was the NH's child and the NH was ordered to pay child support. The NH subsequent request for a blood test was denied and subsequent appeals dismissed. In 1990, the NH had blood tests performed on himself and the child. The results show that the NH cannot be the child's biological father.

After additional proceedings, a General Master's Report on 4-13-90 enjoined the NH from using the blood tests in any manner whatsoever. The Florida court has not changed its ruling that the child is the NH's legitimate child. If the child is recognized as the NH's legitimate child under Florida law, he would be the NH's child under Tennessee law.

Based on Florida case law, the child is the NH's legitimate child as a result of the divorce judgment. Therefore, the child is his child for purposes of intestate inheritance rights and is entitled to child's benefits pursuant to section 216(h)(2)(A) of the Act.

You have asked our opinion as to whether Theodore W. S~ (Theodore) is the child of the NH, Stanford B. S~ (S~) for purposes of the Social Security Act (Act), given a Florida court's determination that Theodore is S~'s legitimate child and a blood test that shows Theodore is someone else's child. For the reasons set out below, we believe Theodore is S~'s child for purposes of the Act.

The facts presented are that on September XX, 1998, Dorie B~ (B~) filed a claim on behalf of Theodore for child's benefits as S~'s legitimate child. S~ is receiving DIB benefits and was domiciled in Tennessee when Theodore's claim was filed. Theodore was born on September XX, 1983, during S~'s marriage to B~. On October XX, 1984, B~ filed a petition for divorce with the Circuit Court for Broward County, Florida. On October XX, 1984, S~ filed a counter-petition contesting Theodore's paternity. Following a trial, a final judgment of divorce was entered on September XX, 1985. The Florida court found that Theodore was S~'s child, and S~ was ordered to pay child support.

After the final judgment of divorce, S~ again raised the issue of paternity and requested a blood test; a hearing was held on October XX, 1985. S~'s motion was denied, and subsequent appeals were dismissed. S~'s November XX, 1987, Motion to Permit Blood Testing to Determine Paternity was dismissed with prejudice. In March 1990, S~ had blood tests performed on himself and Theodore.

The test results show that S~ cannot be Theodore's biological father. After additional proceedings, a General Master filed a Report on April XX, 1990, enjoining S~ from using the blood tests "in any manner whatsoever."

The Florida court has not changed its ruling that Theodore is S~'s legitimate child. In August 1996, the court held S~ in contempt for failure to pay back child support. You have noted that if the child is recognized as S~'s legitimate child under Florida law then, under Tennessee law, he would be S~'s child and entitled to child's benefits.

The legal problems that arise when a child is born to a woman who is married, but whose husband is not the biological father have been referred to as "perplexing and fraught with difficult social issues." Lefler v. Lefler, 722 So. 2d 941, 942 (Fla. App. 1998).

The same view is advanced in a recent article entitled "Quasi-Marital Children: The Common Law's Failure in Privette and Daniel Calls for Statutory Reform", 26 Fla. St. U.L. Rev. 219 (1999). Under the principles set forth by the Florida Supreme Court in Department of Health Rehabilitative Services v. Privette, 617 So. 2d 305 (Fla. 1993), a trial court can deny a court ordered blood test if it finds that the child's best interests would not be served "by being declared illegitimate and having parental rights transferred to the biological father." Id. at 309. Privette- was significantly narrowed in Daniel v. Daniel, 695 So. 2d 1253 (Fla. 1997). In Daniel, the Florida Supreme Court held that "a person has no legal duty to provide support for a minor child who is neither his natural nor his adopted child and for whose care and support he has not contracted (citations omitted)." Id. at 1254. The Daniel court limited Privette to instances "where a child faces the threat of being declared illegitimate and the 'legal father' also faces the threat of losing parental rights which he seeks to maintain." Id. at 1255. The court concluded that paternity and legitimacy are related but separate and distinct concepts. Even though Daniel had no duty to pay child support upon the dissolution of the marriage, the child remained legitimate because she was born during the parties' valid marriage. See Gantt v. Gantt, 716 So. 2d 846 (Fla. App. 1998) (former husband's request for blood tests of 6 children granted [3 born during marriage] even though, if blood test results excluded paternity, there was no evidence of other means of support for the children).

In our opinion, Theodore is not entitled to child's benefits pursuant to 42 U.S.C. § 416(h)(3)(B), because he is not S~'s "son or daughter." The Florida Supreme Court's decision in Daniel is controlling, and, as previously noted, the Daniel court distinguished between paternity and legitimacy. SSR 83-37c. While Theodore may be considered legitimate as a result of the divorce judgment, he clearly is not S~'s son as required for entitlement under § 416(h)(3)(B). Nevertheless, because Theodore is S~'s legitimate child as a result of the divorce judgment, Theodore is deemed to be S~'s child for purposes of intestate inheritance rights, and is entitled to child's benefits pursuant to the provisions of 42 U.S.C. § 416(h)(2)(A).

The NH was domiciled in Tennessee when the child's claim was filed on his record. The child was born in 1983, during his mother's marriage to the NH . In 1984, the mother filed for divorce with a Florida circuit court, and the NH filed a counter-petition contesting paternity. Following a trial, a final judgment of divorce was entered; the court found that the child was the NH's child. After the judgment of divorce, the NH's motions to permit a blood test to determine paternity were dismissed by the court. In 1990, the NH had blood tests performed on himself and the child, which showed that he cannot be the child's biological father. The NH was enjoined by a General Master from using the blood tests in any manner whatsoever. The Florida court has not changed his ruling that the child is the NH's legitimate child.

While the child may be considered legitimate under Florida law (and therefore under Tennessee law) as a result of the divorce judgment, he is not the NH's biological son as required for entitlement under section 216(h)(3)(B) of the Act. However, because he is the NH's legitimate child as a result of the divorce judgment, he is entitled to child's benefits under section 216(h)(2)(A) of the Act.

You have asked our opinion as to whether Theodore W. S~ (Theodore) is the child of the NH, Stanford B. S~ (S~) for purposes of the Social Security Act (Act), given a Florida court's determination that Theodore is S~'s legitimate child and a blood test that shows Theodore is someone else's child. For the reasons set out below, we believe Theodore is S~'s child for purposes of the Act.

The facts presented are that on September XX, 1998, Dorie B~ (B~) filed a claim on behalf of Theodore for child's benefits as S~'s legitimate child. S~ is receiving DIB benefits and was domiciled in Tennessee when Theodore's claim was filed. Theodore was born on September XX, 1983, during S~'s marriage to B~. On October XX, 1984, B~ filed a petition for divorce with the Circuit Court for Broward County, Florida. On October XX, 1984, S~ filed a counter-petition contesting Theodore's paternity. Following a trial, a final judgment of divorce was entered on September XX, 1985. The Florida court found that Theodore was S~'s child, and S~ was ordered to pay child support.

After the final judgment of divorce, S~ again raised the issue of paternity and requested a blood test; a hearing was held on October XX, 1985. S~'s motion was denied, and subsequent appeals were dismissed. S~'s November XX, 1987, Motion to Permit Blood Testing to Determine Paternity was dismissed with prejudice. In March 1990, S~ had blood tests performed on himself and Theodore. The test results show that S~ cannot be Theodore's biological father. After additional proceedings, a General Master filed a Report on April XX, 1990, enjoining S~ from using the blood tests "in any manner whatsoever."

The Florida court has not changed its ruling that Theodore is S~'s legitimate child. In August 1996, the court held S~ in contempt for failure to pay back child support. You have noted that if the child is recognized as S~'s legitimate child under Florida law then, under Tennessee law, he would be S~'s child and entitled to child's benefits.

The legal problems that arise when a child is born to a woman who is married, but whose husband is not the biological father have been referred to as "perplexing and fraught with difficult social issues." Lefler v. Lefler, 722 So. 2d 941, 942 (Fla. App. 1998). The same view is advanced in a recent article entitled "Quasi-Marital Children: The Common Law's Failure in Privette and Daniel Calls for Statutory Reform", 26 Fla. St. U.L. Rev. 219 (1999). Under the principles set forth by the Florida Supreme Court in Department of Health Rehabilitative Services v. Privette, 617 So. 2d 305 (Fla. 1993), a trial court can deny a court ordered blood test if it finds that the child's best interests would not be served "by being declared illegitimate and having parental rights transferred to the biological father." Id. at 309. Privette was significantly narrowed in Daniel v. Daniel, 695 So. 2d 1253 (Fla. 1997). In Daniel, the Florida Supreme Court held that "a person has no legal duty to provide support for a minor child who is neither his natural nor his adopted child and for whose care and support he has not contracted (citations omitted)." Id. at 1254. The Daniel court limited Privette to instances "where a child faces the threat of being declared illegitimate and the 'legal father' also faces the threat of losing parental rights which he seeks to maintain." Id. at 1255. The court concluded that paternity and legitimacy are related but separate and distinct concepts. Even though Daniel had no duty to pay child support upon the dissolution of the marriage, the child remained legitimate because she was born during the parties' valid marriage. See Gantt v. Gantt, 716 So. 2d 846 (Fla. App. 1998) (former husband's request for blood tests of 6 children granted [3 born during marriage] even though, if blood test results excluded paternity, there was no evidence of other means of support for the children).

In our opinion, Theodore is not entitled to child's benefits pursuant to 42 U.S.C. § 416(h)(3)(B), because he is not S~'s "son or daughter." The Florida Supreme Court's decision in Daniel is controlling, and, as previously noted, the Daniel court distinguished between paternity and legitimacy. SSR 83-37c. While Theodore may be considered legitimate as a result of the divorce judgment, he clearly is not S~'s son as required for entitlement under § 416(h)(3)(B). Nevertheless, because Theodore is S~'s legitimate child as a result of the divorce judgment, Theodore is deemed to be S~'s child for purposes of intestate inheritance rights, and is entitled to child's benefits pursuant to the provisions of 42 U.S.C. § 416(h)(2)(A).

Under Florida law, a child conceived in wedlock but born after the termination of the marriage is strongly presumed to be the legitimate child of the marriage. Smith v. Wise, 234 So.2d 145 (1970). (M~ /B~- ~ - RAIV [W~] - to ARC, Progs., Atl., (09/06/88) OD 2110 OD 2110 - Fla.

In your memorandum you asked whether there is sufficient evidence to establish paternity of the child applicant under State law.

The wage earner, Warren B. B~, and Lenos L. M~ were married on November XX, 1979, in Florida and allegedly separated in October 1980. The wage earner initiated his divorce action against Lenos on June XX, 1981, in Orange County, Florida. The divorce action was uncontested. Lenos' answer filed on June XX, 1981, to the wage earner's Petition for Dissolution of Marriage acknowledged that all of the statements contained in the wage earner's petition were true. The wage earner had stated in his petition that no children had been born or adopted during marriage and none are contemplated. The final divorce judgment was granted in Florida on August XX, 1981. At the divorce hearing on August XX, 1981, the wage earner specifically testified that there were no minor children of the marriage, none adopted, and none expected to be born.

The child applicant was born on April XX, 1982, in Johnson City, Tennessee, approximately eight (8) months after the final divorce was granted in Florida, on August XX, 1981. The father's name does not appear on the birth certificate. Lenos has stated she had a normal full term pregnancy and was unaware of pregnancy until about the sixth week.

The insured died on May 8, 1987, in Orlando, Florida. On June 18, 1987, the insured's widow, Jennifer B~, filed applications for mother's benefits on her own behalf and for child's benefits on behalf of their two children, date of birth: 12/23/61 and 6/29/85. Lenos filed an application for child's benefits on behalf of her daughter on August 18, 1987, alleging the deceased insured was the child applicant's father. In support of her application, Lenos submitted affidavits from the insured's mother and from Lenos' sister. According to the insured's mother, the insured orally stated in a 1984 telephone conversation that he fathered a child with his ex-wife, Lenos. According to Lents' sister, Lenos accompanied the insured on overnight trips and the insured was an overnight guest in Lenos' apartment following their separation in October 1980.

Since it is clear from the record that there is no written acknowledgment of paternity, no judicial determination of paternity, no court order of support, and no evidence that the insured was living with or contributing to the support of the child applicant at the time of the insured's death, the only statutory basis for child benefits available to the present child applicant is Section 216(h)(2)(A) of the Act, 42 U.S.C. §416(h)(2)(A).

Pursuant to Section 216(h)(2)(A) of the Act, 42 U.S.C. §416(h)(2)(A), the child applicant would be entitled to child's benefits on the insured's record if under the law of the insured's domicile the child would be entitled to an intestate share of the insured's personal property. The insured apparently died domiciled in Florida.

To be entitled to an intestate child's share of the insured's personal estate, the child applicant must be a lineal descendant of the deceased insured. Fla. Stat.Ann. §732.103. Under Florida law, the law of the father's domicile determines the legitimacy of children. Young v. Garcia, 172 So.2d 243 (1965). In a prior opinion from this office (Jeffrey A. C~ - ~~ RAIV - (08/05/81)), this office was not aware of Young v. Garcia, supra. Accordingly, this opinion incorporating Young v. Garcia, supra, modifies that portion of the C~ opinion dealing with the Florida law of determining legitimacy. This modification does not change the result in C~.

Under Florida law, a child conceived in wedlock and born after the termination of the marriage is presumed to be the legitimate child of that marriage. This presumption is one of the strongest known to the law and can be rebutted only with clear and convincing evidence. Cartee v. Carswell, 425 So.2d 204 (1983); Smith v. Wise, 234 So.2a 145 (1970); Gammon v. Cobb, 355 So.2d 261 (1976). A full period of gestation is generally 280 days but this period may range from 260 to 300 days or more under Florida law. Smith v. Wise, supra, p. 147.

According to the evidence of record, the divorce judgment was dated and entered in Florida court on August XX, 1981. The child applicant was born on April XX, 1982, in Tennessee. Therefore, the child applicant was born 238 days after the divorce. According to the child's mother, she had a normal full-term pregnancy. There is no evidence of record to indicate the pregnancy was other than full-term. Since the minimum full-term of gestation in Florida is 260 days, the child applicant was conceived prior to the divorce and is strongly presumed to be the legitimate child of the insured and the child's mother, Lends. Cartee v. Carswell, supra; Smith v. Wise, supra.

The presumption of legitimacy based upon the period of gestation under Florida law is consistent with other evidence of record. The insured's mother stated in an affidavit that the insured orally acknowledged in 1984 that he had fathered a child with his ex-wife. The sister of the child's mother described how the insured would have occasional overnight visitations with the child's mother even after their alleged separation prior to their divorce. The child's mother has unequivocally declared that the insured is the father of the subject child applicant.

There is little evidence of record to rebut the strong presumption of legitimacy of the child applicant. The court, in its divorce judgment of August XX, 1961, having relied upon the insureds testimony and pleadings in this uncontested divorce, found that no minor children were born of the marriage and none were expected. By way of explanation, the child applicant's mother stated she was not even aware she was pregnant at the time of the divorce proceedings. Assuming a full period of gestation under Florida law, i.e., 260 to 300 or more days, the plaintiff was likely in such an early stage of pregnancy at the time of her divorce that she was, in fact, unaware of her pregnancy.

Although the child's birth certificate does not reflect the name of the father. The child's mother's explanation is that she was angry with the insured (he remarried the day after the divorce) and did not declare him as the child's father.

There is no clear and convincing evidence of record to rebut the presumption of legitimacy under Florida law. Accordingly, you would be warranted in finding that the child applicant is the legitimate son of the deceased insured and entitled to inherit an intestate child's share of the insured's personal property under Florida law. Consequently, the child applicant is entitled to child's benefits on the insured's record. Section 216(h)(2)(A) of the Act, 42 U.S.C. §416(h)(2)(A).

FR LEGITIMACY AND LEGITIMATION — PRESUMPTIONS AND EVIDENCE — FLORIDA

In the absence of a jurisdictional defect, a New York Court decree, holding a deceased Florida domiciliary, who was a resident of New York and a party to the suit, not to be the father of a child will be accorded res judicata effect under the full faith and credit clause of the U. S. Constitution by the Courts of Florida. Williams v. North Carolina, 32 U.S. 226, 65 S.Ct. 10982, reh. denied (1945); in re Estate of Refkin, 359 So 2d 1197 (1978), Schroeder v. Schroeder, 430 S0.2d 604 (1983)

(Peter C~ (DNH) - ~ - RAIV [J~] - to Asst. Reg. Comm., Progs., Atl., 05/05/86)

OD 2110 OD 2110 - Fla.

In your memorandum you asked our office to determine whether the New York annulment decree, which held that the child, Stephanie C~, was not Peter C~ child in light of other evidence presented by the child's mother that tended to show the numberholder recognized the child as his, was sufficient under Florida law to rebut the presumption of legitimacy of the child born during wedlock.

The file indicates that the decedent, Peter C~ died domiciled in Florida on February XX, 1985. Lori P~ filed an application for child insurance benefits on behalf of Stephanie C~ on June XX, 1985, asserting the decedent was the father of the child. Lori

and Peter were married on January XX, 1982, and Stephanie was born on April XX, 1982. Lori brought suit for divorce against Peter on September 23, 1982, alleging cruelty and inhuman treatment. Peter countersued for an annulment or total divorce. Peter asserted that he had been fraudulently induced into marrying Lori. According to Peter's complaint, Lori had misrepresented to him that her unborn child (Stephanie) was his. On June XX, 1983, the Supreme Court of the State of New York issued a decree annulling the marriage between Lori and Peter, both residents of New York. The decree also found that Stephanie was the child of Lori but not the child of Peter.

Lori now contends that Stephanie is the natural child of Peter and, therefore, should be entitled to child's insurance benefits. Lori alleges she went along with the annulment because she was fearful for her and Stephanie's life and that this was a way to prevent the decedent from having access to them.

In support of the claim, Lori submitted a sworn affidavit dated April XX, 1982, by the decedent stating Stephanie was his daughter, a note from Stephanie's pediatrician stating the decedent had accompanied Lori and Stephanie to his office from May 1982 through August 1982, a work record in which the decedent had claimed three exemptions, ^[5] letters from two friends stating they had attended Stephanie's christening at the decedent's request, and a letter from the attorney who represented Lori during the annulment proceeding stating Lori did not contest the annulment because she could not afford a protracted court battle and reiterating Lori's statements as well.

For reasons hereafter stated, it is the opinion of this office that the annulment decree is sufficient to rebut the presumption of legitimacy of the child under Florida law. This is true in spite of the additional evidence presented by Lori.

It is well established law that every state is required to recognize and respect the valid final decree and order of the courts of all other states. Williams v. North Carolina, 325 U.S. 226, 65 S. Ct. 1092, reh. denied (1945). Further, a decree of any state is presumed valid and ordinarily will be honored in any state where an attempt is made to bring suit on the same cause of action. Newton v. Newton, 245 SO.2d (Fla. 1971). The New York Courts having had jurisdiction over the subject matter and the parties and the annulment decree being otherwise regular on its face, the Florida Courts would accord res judicata effect to the decree under the full faith an-~-credit clause of the U.S. Constitution. Schroeder V. Schroeder, 430 SO.2d 604 (1983); In Re Estate cif Rifkin 359 SO.2d 1197 (1978); Strickland, 344 So.2d 931 (1977).

With regard to Lori's evidence, it would have no effect on the decree. It is presumed that the evidence was presented during the annulment hearing since all the evidence pre-dated the annulment. Unless, Lori can show a jurisdictional defect in the New York proceeding, the New York decree would stand. Therefore, your office would be warranted in finding that Stephanie is not the child of Peter.

If we may be of further service, please advise.

FR LEGITIMACY AND LEGITIMATION — PRESUMPTIONS AND EVIDENCE — FLORIDA

Under Florida law, a child will be presumed to be the legitimate child of the husband where the husband had access to his wife during the possible period of conception.

(V~, Francisco - SSN to Dir., IPB, 11/13/85) ~ - - RAIV [J~] - OD 2110 OD 2110 - Fla.

In your memorandum you asked our office to evaluate the evidence as contained in the claims file to determine whether it is sufficient to rebut the presumption of legitimacy of L~ Vita, the child in question.

The facts are as follows: The wage earner, Francisco V~, married Emilia C. V~ on March XX, 1974 and divorced her on June XX, 1977. The presumptive child was born on September XX, 1977. The record indicates that Francisco died on April XX, 1984. Application for child's benefits were filed on the decedent's record by his second wife, Felicita A. V~, and his former wife, Emilia V~. The second wife alleges that Leopoldo is not the child of the wage earner and, therefore, should not be entitled to benefits. According to Felicita, Emilia and Francisco had not cohabited together since April 1974. In support of her assertion that Leopoldo is not the child of the decedent, Felicita submitted a copy of Emilia's and Francisco's final divorce judgment, a copy of Francisco's answer to the counter claim, and a copy of Emilia's answer to the counter claim. Paragraph four of Francisco's counter claim stated that there was one child born of this marriage, to wit, Raul V~ (age two), and no other issue is expected. Emilia, in her answer to the counter claim, admitted to all of the allegations contained in paragraphs one through six, including paragraph four. The final divorce decree provided for child support for Raul V~ but was silent as to Leopoldo, the unborn child.

In addition to the foregoing documents, the file also contains a copy of Leopoldo's certificate of birth which designated Francisco V~ as the father; a birth registration card which listed Leopoldo's surname as V~; a letter captioned Emilia V~ v. Francisco V~, Case No. 76-14943 FC(12) from the Florida State Attorney, the Child Support Enforcement Division, which indicates that Emilia V~ is receiving public assistance from the state for two children; a petition to have Leopoldo's birth record changed; statements by Jose, German and Milkez V~, the decedent's brothers and sister-in-law, respectively, in which they stated that Leopoldo was not the child of Francisco; and statements by Emilia V~ . According to Emilia, she and the decedent had lived together until November XX, 1976. Emilia stated that she and Francisco lived together on and off before their divorce.

Emilia further stated that the decedent brought Christmas presents to Raul in January 1977. Emilia further stated that she moved to Los Angeles in January 1977 for about two months when Raul was not quite two years old, and she began dating Leopoldo B~. Emilia further stated that she moved back to Miami, Florida, after her two-month stay in Los Angeles. According to Emilia she found out in February 1977 that she was pregnant. The record indicates that the Social Security Administration, on July XX, 1984, contacted the Florida State Welfare Department. Their records indicated that on October XX, 1977, Emilia had stated that Leopoldo B~ was the father of Leopoldo V~. The record further indicated that in June 1981 she told the Welfare Department that the decedent was the father and on November XX, 1981, she said that Leopoldo B~ was the father and that on March XX, 1983, and April XX, 1984, said that the decedent was the father. According to Emilia she told the Welfare Department that Leopoldo B~ was the father because she planned to marry him. Emilia further stated that she did not want the decedent's name to appear on the certificate of birth but agreed to show him as the father only after the judge, who granted her a divorce, advised her that the decedent's name had to be shown since she and the decedent were married at the time she became pregnant. For reasons hereinafter stated, it is this office's opinion that the evidence as contained in the case files is insufficient to rebut the legitimacy of Leopoldo V~.

Under Florida law, a child born or conceived during wedlock is presumed legitimate. However, the presumption is rebuttable. Gammon v. Cobb, 355 So.2d 261 (Fla. app., 1976); Eldridge v. Eldridge, 16 So.2d 163 (Fla. app., 1944). In order to rebut the presumption, there must be clear and satisfactory evidence which does more than cast a strong suspicion or grave doubt on the paternity of the child although the proof need not be beyond a reasonable doubt. Eldridge v. Eldridge, supra. Evidence likely to rebut the presumption includes evidence of non-access by the husband or sterility or impotency of the husband at the time of conception. This evidence must consist of something more than the testimony of the husband or wife that no intercourse occurred between them. Eldridge v. Eldridge, supra; Blitch v. Blitch, 341 So.2d '251 (Fla. 1st DCA 1977). Second, the presumption is much more likely to be rebutted if the reputed natural father (not the husband) takes some affirmative step which would indicate the child is his. Hills v. Parks, 373 So.2d 376 (Fla. 2nd OCA 1979); Sacks v. Sacks, 267 So.2d 73 (Fla. 1972). See, opinion, Re RAIV [Stephens] - to Dir., NATPSC, 03/14/80.

Applying the above principals, it is our opinion that the evidence is insufficient to rebut the presumption. Although Emilia may have made conflicting statements as to the paternity of the child, her statements relevant to access are not in conflict. The record evidence indicates that both men had access to Emilia during the possible period of conception. Thus, it is our opinion that inasmuch as Francisco Vita had access to Emilia, Francisco would be presumed to be the natural father.

Furthermore, it is noted that the file is devoid of any evidence that Leopoldo B~ took any affirmative step to establish that he is the father of the child.

Additionally, we note that the Florida State Welfare Department treated the decedent, Francisco, as the non-supporting parent in a support action. We presume the action was brought on behalf of Raul and Leopoldo since the record does not indicate that Francisco had any more children. If the decedent was not the father of Leopoldo then he certainly would have contested the paternity of Leopoldo while he was alive. Finally, it is noted that the child's certificate of birth and related birth records designate the decedent as the father. The record does not indicate that he took any action to refute the state's position. Based on the foregoing, it is our belief that the Florida courts would hold that presumption would not be rebutted.

If we can be of further service, please advise. claims file is returned herewith.

FR LEGITIMACY AND LEGITIMATION — PRESUMPTIONS AND EVIDENCE — FLORIDA

A child conceived during one marriage but born during a subsequent marriage is, in the absence of authority to the contrary, presumed to be the legitimate child of the mother's husband at the time of its conception.

(L~, James - SSN ~ - RAIV [W~], to Dir., S.E. Prog. Serv. Ctr., 03/08/84)

OD 2110 OD 2110 - Fla.

You have requested our opinion as to whether, under Florida law, a child conceived during one marriage and born during a later marriage is presumed to be the child of the first husband or of the later husband.

The facts, as indicated in the file, are that the number holder, James L~, died on February XX 1982, while domiciled in Florida. On April XX, 1982, Patricia A. D~ applied for surviving child's benefits on behalf of her daughter, Terri D. D~, alleging that Terri is the biological child of the deceased wage earner. James L~ and Patricia A. D~ were married August XX, 1974, and divorced October XX, 1977. At the time of the divorce, Patricia was pregnant with Terri D. D~. In the divorce decree, the court reserved judgment as to the unborn child until the issue was brought before the court.

Patricia married Kenneth D~ on January XX, 1978, and Terri D. D~ was born March XX, 1978, in Florida. Kenneth D~ is shown as Terri's father on the birth certificate; Kenneth did not execute an adoption of Terri for that reason.

Patricia A. D~ alleges that the deceased wage earner is the natural father of Terri and that they were living together at the time of conception. Kenneth D~ alleges that he did not meet Patricia until after her divorce from James L~ and that she was pregnant when they met. The deceased wage earner's second wife, Ruby L~, contends that the deceased wage earner doubted his paternity of Terri and thought Patricia and Kenneth D~ lived together prior to Patricia's divorce from James. F. L~, the deceased wage earner's mother, considers Terri to be her grandchild. Ruby L~ stated, however, that Frances was in poor health and was not told the truth about Terri's birth. James L~ did not contribute to Terri's support at any time and no written acknowledgment is available.

Florida recognizes a strong presumption in favor of the legitimacy of a child born or conceived in wedlock. Gammon v. Cobb, 355 So.2d 261 (Fla. App., 1976); Eldridge v. Eldridge, 16 So.2d 163 (Fla. App., 1944). In an Office of the General Counsel (OGC) opinion in the claim of Thomas W. H~, Jr., SSN , RAIV (H~), to R. Rep., Phila., 07/XX/72, we considered a similar situation that arose under Florida law, in which the child was conceived in one marriage and born in another (that of the wage earner). That opinion quoted extensively from, "our opinion In Re Glenn A. R~ , Acct. No. ~, dated October 4, 1963, (in which) we said:

"Even though there are no Florida court decisions on the point, we think the Florida courts would follow the general rule that if the mother at the time of conception of her child is shown not to be living in the marital relationship with anyone other than her legal husband, such husband would be presumed to be the father of the child even though the child is born during a subsequent marriage. But if the mother of the child is shown to have been living in a marital relationship with a man other than her legal husband at the time of conception and the mother subsequently marries such man and the child is born during such marriage, then the logical inference is that the second husband is the father of the child. And in the absence of proof overcoming the presumption of legitimacy, the child will be presumed to be the legitimate child of the second husband. A presumption predicated on the absence of evidence should not be invoked to the extent of precluding inquiry into the actual facts as to which of the mother's husbands was living with her in a marital relationship at the time of the child's conception. In Re Findlay, 253 N.Y. 1, 170 N.E. 471: Vulgamore v. Unknown Heirs of Vulgamore, 7 Ohio App. 374; Sec. 3, Bastards, 10 Corpus Juris Secundum 23; Notes, 26 Neb. L. Rev. 127 (1947); 25 Tex. L. Rev. 428 (1947). The determination of paternity or which is the natural father is the paramount issue here, not the legitimacy of the child (although the latter may be involved) ....

Another OGC opinion in the claim of Charles R. H~, SSN ~, RAIV (Rigdon), to R.Rep., OASI, 01/23/63, states, in pertinent part, that,

"In the claim of Oscar L. H~, Acct. No. ~ , dated February 20, 1951, we advised that if the Florida courts were ever confronted with a situation where a child was conceived during one marriage but born during a subsequent marriage, the child would be presumed to be the legitimate child of the mother's husband at the time of conception. However, we further noted that this presumption can be rebutted by evidence that the husband at the time of conception was not the father of the child. See our opinions in the claims of Odis C. R~ , Acct. No., dated June 7, 1960; and Arthur A~, Acct. No. ~, dated May 7, 1961. The rebuttable presumption prevails only when there is an absence of evidence showing non-access or the physical impotency of the husband at the time of conception."

We have reexamined Florida case law and again find no Florida cases on point. It appears that the earlier OGC opinions continue to accurately reflect the applicable law and legal presumptions on this point. Thus, it is our opinion that inasmuch as the mother at the time of conception was living with her legal husband, James L~ , and in the absence of evidence showing non-access or impotency on the part of said husband at the time of conception, James L~ , the wage earner, would be presumed to be the natural father of Terri D~.

If we may be of further service please advise. The above-referenced OGC opinions are attached in their entirety.

FR LEGITIMACY AND LEGITIMATION — PRESUMPTIONS AND EVIDENCE — FLORIDA

Under Florida law, a 312-day gestation period would not as a matter of law establish that the child is illegitimate. Whether such child is the child of the deceased husband is determinable as an issue of fact; this factual determination may rebut the presumption of legitimacy. (W~, Joan, ~ — RAIV (W~), to ARC, 03/09/84.)

OD 2110 — FL

You have requested a determination as to whether, under Florida law, the length of the gestation period will - permit a finding that Nicole L. W~ is the natural, legitimate child of Charles C. W~.

The facts, as contained in the file, are that the number holder, Charles C. W~, died on December XX, 1970, in Tampa, Florida. Nicole L. W~ was born on October XX, 1971, after a gestation period of 312 days. Nicole's birth certificate shows the name of the father as Charles C. W~. Joan W~ the child's mother, married the wage earner on February XX, 1966; they separated approximately one year prior to his death. Mrs. W~ stated that she last had intimate relations with the number holder on December XX, 1970; he visited her on that date in Hollywood, Florida, returning the same evening to Tampa, Florida, where he was working.

On February XX, 1971, Joan W~ filed for mother's benefits and surviving child's insurance benefits on behalf of a stepchild and a legitimate son. Benefits were awarded to Mrs. W~ and the two children. In March 1983 Mrs. W~ was notified that her benefits would terminate in September 1983 due to the last child attaining age 16. On May XX, 1983, Mrs. W~ filed for herself and Nicole. She stated that she had inquired about applying on Nicole's behalf shortly after her birth but was told that the lengthy pregnancy would result in a denial of benefits.

Mrs. W~ has contacted the attending physician but his records were purged after seven years and he remembered nothing of the child's birth. Records of the West Broward Clinic indicated the baby weighed 6 lbs., 8 ozs., was 20" in length, and was full term. The baby was first seen by Dr. S~ in Hollywood, Florida, when she was three months old; his records show the baby had weighed 7 lbs. 5 ozs., at one week. The deceased wage earner's mother had no knowledge with respect to whether Nicole was the daughter of her son.

Generally, the law presumes the legitimacy of a child begotten or born in wedlock; however, this strong presumption of legitimacy is rebuttable by practical methods and substantial evidence. 10 Am. Jur.2d, Bastards §10; Eldridge v. Eldridge, 153 Fla. 873, 16 So.2d 163 (1944); Albert v. Albert, 415 So.2d 818 (Fla. App., 1982).

We have found no Florida statute prescribing a legal period of gestation. In the absence of a statute, the mere fact that a child is born to a widow when more than the usual 280-day period of gestation has elapsed since her husband's death does not, as a matter of law, establish that the child is illegitimate. Whether such child is that of the deceased husband is determinable as an issue of fact. 10 Am. Jur.2d, Bastards §16. See Office of the General Counsel (OGC) opinion in the claim of Columbus W. J, ~ SSN ~,RAIV (H~) Rep., Phila., SSA, 10/12/71. As stated in Smith v. Wise, 234 So.2d 145, at 147 (Fla. App., 1970), "Under the law, a child is held to have been conceived during marriage when it is born 'within a competent time afterwards', that is, within the period in which it is generally recognized in medical science and knowledge that conception may have occurred during marriage, with reference to a given birth. In that connection the period for a full gestation birth, which is generally taken as 280 days, normally may be anywhere from 260 days to as much as 300 days or even more." The S~ decision cites to the ruling in Yarmack v. Strickland, 193 So.2d 212 (Fla. App., 1967), in which the court declared, at 213, "The medical evidence revealed that although the normal gestation period is 280 days, it is recognized in medical science that a normal gestation period may be anywhere from 260 days to as long as 340 days." However, as stated in the above-referenced OGC opinion in the claim of Columbus W. J~, "the presumption of legitimacy becomes weakened and attenuated the longer the period of gestation exceeds the normal period of 280 days."

Thus, under Florida law, a 312-day gestation period would not, as a matter of law, establish that the child is illegitimate; in fact, there is a strong presumption of legitimacy. However, as noted earlier, whether such child is that of the deceased husband is determinable as an issue of fact; this factual determination may rebut the presumption of legitimacy.

The facts, in our opinion, tend to indicate a finding that the applicant is not the child of the deceased wage earner. The mother waited until the child was over eleven years old to apply for benefits and during that period of time medical records of the pregnancy and birth have been destroyed. There is no indication of record that the mother protested when told in 1971 that her lengthy pregnancy with Nicole would result in a denial of benefits. Nicole's birth weight of 6 lbs., 8 ozs., is not consistent with a gestation period approximately 32 days longer than what is regarded as a normal full-term pregnancy. Further, the mother and deceased wage earner had been living apart for approximately one year at the time of the wage earner's death.

It is our conclusion that although a finding of legitimacy would be permitted under Florida law with a 312-day gestation period, you would be warranted in finding that as a factual matter the child is not the child of the deceased wage earner and, thus, that the presumption of legitimacy is rebutted by this substantial evidence.