The Alabama Supreme Court has ruled that a husband and wife are not allowed to testify that a child is illegitimate, but may testify about the circumstances from which non-access by the husband and the impossibility of paternity may be inferred.

In a case where statements from the mother and other relatives support a finding of “non-access”, Alabama courts would find such evidence sufficient to rebut the presumption of paternity by the clear and convincing standard.

QUESTION

You asked whether the admissions of a claimant's mother and statements collected from family members and others can rebut the Alabama presumption of paternity for a child born in wedlock.

ANSWER

For the reasons stated below, we believe a Social Security Administration (SSA) adjudicator could find the evidence submitted in this case sufficient under Alabama law to rebut the presumption of paternity and conclude the child, Hunter G. L~ (Claimant), would not be entitled to benefits based on the account of the number holder (NH), Danny L~.

BACKGROUND

NH is a resident of Alabama. NH married Claimant's mother, Anita C~ (Mother) on November 14, 2001. On November 19, 2001, Mother gave birth to Claimant. Claimant's birth certificate lists him as the child of Mr. and Mrs. Danny E. L~. NH and Mother were divorced in Neshoba County, Mississippi on April 10, 2006. Neither the Judgment of Divorce nor the Property Settlement Agreement acknowledges the existence of Claimant or addresses the issues of custody, visitation or support. On April 14, 2006, a motorcycle accident left NH severely brain damaged and unable to communicate.

On October 24, 2006, Mother filed a claim on Claimant's behalf for auxiliary child's benefits on NH's account. When questioned by a claims representative, Mother admitted that NH was not Claimant's biological father. On November 1, 2006, Mother submitted a signed statement under oath (SSA-795) that NH is not the biological father of Claimant but placed his name on Claimant's birth certificate and accepted all responsibility for the child since birth. Mother stated she and NH had been living together since she was three months pregnant. Mother also admitted that both families were aware of the circumstances surrounding Claimant's birth. Mother contends she does not know the identity of Claimant's biological father.

The claims representative contacted NH's mother, Vida B~, who provided a signed statement (SSA-795) that Mother was four to five months pregnant when she met and began dating NH. NH's mother said she referred to both Mother's children as NH's step-children. NH's brother, Donny L~, provided a similar statement by phone. The claims representative also contacted Robert T~, the divorce attorney for NH and Mother, who said Mother told him the couple had no children. Neither the brother nor the attorney submitted signed statements.

DISCUSSION

Entitlement to Child's Insurance Benefits - In General

To qualify for auxiliary child's benefits on the record of an individual entitled to disability benefits, a claimant must be that individual's child. See § 202(d) of the Social Security Act (Act), 42 U.S.C. § 402(d); 20 C.F.R. § 404.350(a)(1) (2006). A “child” for purposes of this regulation means an individual who is related to the insured person as a natural child, legally adopted child, stepchild, grandchild, stepgrandchild, or equitably adopted child. See § 216(e) of the Act, 42 U.S.C. § 416(e); 20 C.F.R. § 404.354 (2006). Only the provisions relating to a natural child or stepchild could apply to this claim.

A claimant can qualify as an insured person's stepchild if the claimant was conceived prior to the marriage but born during the course of the marriage and the insured is not the claimant's natural parent. See 20 C.F.R. § 404.357 (2006). However, a claimant will not be entitled to benefits as a stepchild on the earnings record of a number holder who is a former stepparent divorced from the child's natural parent. GN 00306.230(A)(3)(b). In this case, Mother and NH divorced approximately six months before the application for auxiliary child's benefits was filed. Therefore, Claimant is not entitled to benefits as NH's stepchild.

A claimant can qualify as the insured person's natural child if, among other methods, the claimant could inherit the insured's personal property as his or her child under the intestacy laws of the state where the insured has his permanent home when the claim for child's benefits was filed. See § 216(h)(2)(A) of the Act; 20 C.F.R. § 404.355(b) (2006). Because NH is domiciled in Alabama, the question is whether an Alabama court would consider Claimant to be NH's child for purposes of intestate succession.

Alabama Law Applied to this Claim

Since NH is unmarried, his intestate estate would pass to his linear descendants beginning with his surviving children. ALA. CODE §§ 43-8-1(15), 43-8-42(1) (2006). A man is presumed to be the father of a child who is born either during the course of the marriage between the man and the child's mother or within 300 days after the marriage. ALA. CODE § 26-17-5(a)(1) (2006). This statutory presumption does not require that the child be conceived during the marriage, only that the child is born during the course of the marriage. See Ex parte C.A.P., 683 So. 2d 1010, 1012 (Ala. 1996). Since NH was married to Mother at the time of Claimant's birth, Claimant is presumed to be the natural child of NH and entitled to inherit from NH's estate.

This presumption can only be rebutted by clear and convincing evidence. ALA. CODE § 26-17-5(b) (2006). Generally, SSA will look for clear and convincing evidence that the husband was sterile, did not have access to the wife, or other evidence which would have made sexual relations between the husband and wife impossible at the time of conception. GN 00306.021. SSA also recognizes that the manner by which such evidence is evaluated varies from state to state. GN 00306.026.

In Alabama, the clear and convincing evidence standard requires a showing that it is “naturally, physically or scientifically impossible for the husband to be the father” of the child. Leonard v. Leonard, 360 So. 2d 710, 713 (Ala. 1978). In Leonard, the wife of the decedent opposed a claim to an intestate share of the estate by four individuals who were born to a woman who was married to another man at the time of their birth. The children claimed that they were the product of an adulterous relationship between their mother and the decedent. See Leonard, 360 So. 2d at 711-712.

The Alabama Supreme Court said the husband and wife are not allowed to testify that the child is illegitimate, but may testify about the circumstances from which non-access by the husband and the impossibility of paternity may be inferred. See Leonard, 360 So. 2d at 713. Furthermore, evidence that someone other than the husband is the father of the child in question is insufficient. Id. The party attempting to rebut the presumption of paternity must show that the husband could not have had sexual relations with the mother at the probable time of conception. See Leonard, 360 So. 2d at 713; see also Adams v. State, 428 So. 2d 117, 120 (Ala. Civ. App. 1983) (allowing testimony from a mother that her husband was out of the country and not present at the time of conception).

The clear and convincing evidence test has been met where both the mother and her husband testified that she became pregnant before their relationship began. See C.T.J. v. A.S.J., 816 So. 2d 61, 64 (Ala. Civ. App. 2001). Due to NH's impairment, he is unable to provide a statement regarding the nature of his relationship, if any, to Mother at the time of Claimant's conception. Mother stated that she was three months pregnant when she began living with NH. Mother has not made an explicit statement as to when her relationship with NH began and whether he could have impregnated her. However, Mother has stated unequivocally that NH is not Claimant's biological father and she does not know the identity of the biological father. We believe that an SSA adjudicator could find this to be more than a statement that Claimant is illegitimate. Mother's statements to SSA could be viewed as an implicit recognition of non-access by NH at the time of conception. Furthermore, NH's mother said Mother was already pregnant when she met and began dating NH. It would appear from the evidence gathered that both Mother and NH conveyed to their respective families that NH was not Claimant's biological father.

We recognize that an argument could be made to the contrary since historically a statement by a mother that her spouse is not the father of a child has been insufficient to meet this standard. See Franks v. State, 161 So. 549, 551 (Ala. Ct. App. 1935). However, given the similarity between this case and C.T.J. above, we believe a SSA adjudicator could find the evidence in this case to be sufficient to rebut the statutory presumption of paternity. Mother's statements to members of her family and an SSA claims representative demonstrate a belief that it would have been impossible for NH to be Claimant's biological father.

CONCLUSION

Therefore, while an SSA adjudicator could conclude that the evidence here is insufficient to prove access was impossible, there is more support under Alabama law for concluding the evidence presented is sufficient to rebut the presumption that NH is Claimant's father. If the adjudicator concludes Claimant could not inherent from the NH through intestacy under Alabama law, Claimant would not be entitled to child's benefits. See 20 C.F.R. § 404.350(a)(1); see also 20 C.F.R. § 404.355.

Mary A. S~

Regional Chief Counsel

By:__________________

Christopher G. H~

Assistant Regional Counsel

The declaration of validity of the divorce decree in this case is binding upon the Secretary since it complies with standards delineated in Social Security Ruling (SSR) 83-37(c). Gray v. Richardson, 474 F.2d 1370 (6th Cir. 1973). The divorce as genuinely contested before the county court by parties with opposing interests, and the decree was issued in accordance with state law.

(R~ , Franklin O. D. - SSN ~ - RAIV [A~] - to ARC, Progs., Atl., 06/20/86)

You requested in your memorandum of July 16, 1985 that this office determine if the presumption of legitimacy statutes under Alabama State Law apply to entitle the child in question, James E. A~, to child benefits.

The facts are as follows based on the records in the claim file: Franklin O. D. R~ , the wage earner, was married to Dorthy R~, mother of James E~ , on November 8, 1969. They separated after living together tough mid March 1970. Mr. R~ sued for a divorce on grounds of adultery on June 29, 1970. The Bill of Complaint charged that Dorthy R~ committed adulterous acts with James E. A~, and that she was impregnated with child by James E. A~ Mr. R~ alleged that he and Ms. P~ did not have any children during their marriage. Dorthy R~ filed an Answer to her husband's Bill of Complaint on June 29, 1970, at which time she denied all of the charges. Her Answer also contained waivers regarding: notice of filing of interrogatories and the 10 days allowed by law to file cross interrogatories; notice of taking testimony; notice of the time of rendering any decrees; and any and all other further notice required by law in the divorce matter. On June 30, 1970, the Walker County Circuit Court granted an Order of Divorce on the grounds of adultery to Franklin O. D. R~ based on all the charges contained in his Complaint. The Court further ordered that, “upon the birth of the unborn child, the custody and control of said child is granted to Dorthy R~ .“

Dorthy R~ began living with James E. A~, her former husband, March 1970, following her separation from Franklin O. D. R~. She married James E. A~., on August 31, 1970. The child, James E. A~ (subject child) was born September 1, 1970, one day following the marriage of Dorthy and James E. A~ There is nothing to indicate that James E. A~, had other than a full period of gestation.

Franklin O. D. R~ filed an application for disability insurance benefits in February, 1971, stating an onset date of August 1970. He became entitled to disability benefits, March, 1971. Mrs. Dorthy A~ filed an application on Franklin O. D. R~ SSN for child's benefits on behalf of James E. A~ . in December 1983. She named Franklin O. D. R~ as the natural father of the subject child.

For reasons hereinafter stated, it is this office's opinion that the divorce decree, which also stipulated that the wage earner was not the father of the subject child (at that time unborn), was issued by a competent Alabama Court, and is therefore binding upon the Secretary.

It is well settled law that the Secretary will be bound by state trial court decisions where the following prerequisites are found: (1) An issue in a claim for Social Security benefits previously had 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 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. SSR 83-37(c). Gray v. Richardson, 474 F.2d 1370 (6th Cir. 1973); Cain v. Secretary of Health, Education and Welfare, 337 F.2d 55 (4th Cir. 1967). We find that the divorce case meets the four prerequisites cited in Gray, supra.

First, after establishing appropriate jurisdiction, the Circuit Court of Walker County, Alabama determined that Franklin O. D. R~ , the wage earner, was not the father of the subject child as now alleged by Dorthy A~ in the Social Security claim filed on behalf of her son. Second, the paternity issue was genuinely disputed as Dorthy A~ contested the divorce by filing an Answer to the wage earner's Bill of Complaint in which she denied all of the allegations contained therein, including the wage earner's claim that there were no children born during the marriage. Third, the divorce proceedings between the wage earner and Dorthy A~ was a matter that is generally considered in the category of domestic relations law in Alabama. (See, Code of Alabama, Title 30 Marital & Domestic Relations). Fourth, the resolution of the issues before the trial court was consistent with the law as enunciated by the Alabama Supreme Court. Sims v. City of Birmingham, 254 Ala. 598, 607, 49 So.2d 302, 310 (1950); Wheeler v. First Alabama Bank of Birmingham, 364 So.2d 1190 (Ala. 1978).

Furthermore, the Secretary is required to follow the decision of the Alabama Circuit Court pursuant to Section 216 H2A of the Social Security Act, 42 U.S.C. Section 216(h) (d) (A). The foregoing provision provides that:

“In determining whether an applicant is the child or parent of a fully or currently insured individual for purposes of this subchapter, the Secretary shall apply such law as would be applied in determining the devolution of intestate personal property by the courts of the State in which such insured individual is domiciled at the time such applicant files application, or, if such insured individual is dead, by the courts of the State in which he was domiciled at the time of his death, or, if such insured individual is or was not so domiciled in any State, by the courts of the District of Columbia. Applicants who according to such law would have the same status relative to taking intestate personal property as a child or parent shall be deemed such.”

The records show that Franklin O. D. R~, wage earner, was domiciled in the State of Alabama at the time Dorthy A~ filed the child benefits application. Dorthy A~ is attempting to assert her claim for child benefits on behalf of the subject child on the basis that Franklin O. D. R~ is the child's natural father. However, as stated above, the Circuit Court of Walker County determined in 1970 that Franklin O. D. R~ was not the father of James E. A~

The record further indicates that the Secretary is bound by the trial courts decision since it has not been altered or vacated pursuant to Alabama Rules o/ Civil Procedure, Rule 59, (New Trials). Since Ms. A~ has apparently failed to have the district court's ruling vacated or altered pursuant to the foregoing provisions, the trial court's paternity determination is binding, and the claimant cannot seek to overturn the decision in proceedings before the Secretary. Tatum v. Kelley, 480 S.2d 1132 (Ala. 1985). A trial court's decision in Alabama must be altered as per Rule 59 above, and then only if it is shown that judgment constitutes a manifest abuse of discretion. The record must plainly show that the trial court erred. Tatum v. Kelley, supra. Since James E. A~ is barred by Alabama law from claiming intestate personal property from the wage earner, he is not a child of the said wage earner for Social Security benefit purposes. As noted previously, James E. A~ is not entitled to child benefits under the Social Security Act unless the judgment in the Walker County Circuit Court is vacated, altered, or in any way amended as per the provisions of Rule 59 as discussed above.

Based on the foregoing discussion, your office would be warranted in finding that Franklin O. D. R~ is not the father of James E. A~., the subject child.

Finally, your request for determination 'of whether James E. A~. is entitled to child benefits pursuant to a presumption of legitimacy theory under the Alabama Law is not addressed herein because James E. A~'s entitlement to child benefits is resolved as per the analysis recited above. However, in the future should an issue of the legitimacy of the subject child arise based on a set of facts other than as stipulated herein, this office would review the presumption of legitimacy issue at that time.