TN 22 (10-23)

PR 01210.041 Oregon

A. PR 23-020 Supplemental Legal Opinion on the Effective Date of Oregon Law for POMS PR 01210.041 Oregon, PR 23-007 Status of Child: Use of Oregon Birth Certificate to Presume a Written Acknowledgment or Court Order for Section 216(h)(3) Child Status and POMS GN 00306.120

DATE: October 6, 2023

1. Syllabus

In applying agency policy set forth in POMS GN 00306.120B.2 for the purpose of determining status as a child under section 216(h)(3) of the Act, the agency may presume that there has been a written acknowledgment of paternity or a court determination of paternity for a father named on a non-marital child’s Oregon birth certificate issued in 1983 through the present.

2. Question Presented

On August 4, 2023, we issued a legal opinion on whether the agency can accept an Oregon birth certificate as evidence of the number holder’s written acknowledgment of paternity or a court order of paternity where the number holder is identified on the birth certificate as the claimant’s father and the claimant is an illegitimate child, i.e., a non-marital child born out of wedlock, for the purpose of determining a claimant’s status as a number holder’s child under section 216(h)(3) of the Social Security Act (Act) and pursuant to Program Operations Manual System (POMS) GN 00306.120B.2. See POMS PR 01210.041 Oregon, PR 23-007 Status of Child: Use of Oregon Birth Certificate to Presume a Written Acknowledgment or Court Order for Section 216(h)(3) Child Status and POMS GN 00306.120 (Aug. 4, 2023). We advised that if a child’s birth mother is not married at the time of either conception or birth, or within 300 days before the child’s birth, Oregon law requires a voluntary acknowledgment of paternity that complies with Oregon law or a court order determining parentage for the other parent to be named on the non-marital child’s Oregon birth certificate. See id. Thus, for the purpose of determining a child’s status as a number holder’s child under section 216(h)(3) of the Act and per POMS GN 00306.120B.2, if presented with an Oregon birth certificate for a non-marital child that names a number holder as the child’s father, the agency may presume that the number holder completed a written acknowledgment of paternity or a court order determined paternity. See id. You asked whether this legal opinion could be applied to a birth certificate issued at any time in Oregon. We are issuing this supplemental opinion to address this specific question as to the effective date of this Oregon law.

3. Answer

In applying agency policy set forth in POMS GN 00306.120B.2 for the purpose of determining status as a child under section 216(h)(3) of the Act, the agency may presume that there has been a written acknowledgment of paternity or a court determination of paternity for a father named on a non-marital child’s Oregon birth certificate issued in 1983 through the present.

4. Analysis

This legal opinion serves as a supplement to the more detailed analysis set forth in POMS PR 01210.041 Oregon, A. PR 23-007 Status of Child: Use of Oregon Birth Certificate to Presume a Written Acknowledgment or Court Order for Section 216(h)(3) Child Status and POMS GN 00306.120 (Aug. 4, 2023).

Under current Oregon law regarding the mandatory registration of births:

(b) If the birth mother is not married at the time of either conception or live birth, or within 300 days before the live birth, the name of the other parent shall not be entered on the live birth report unless a voluntary acknowledgment of paternity form or other form prescribed under [Oregon Revised Statutes] 432.098 is:

(A) Signed by the birth mother and the person to be named as the other parent, and

(B) Filed with the State registrar.

(d) In any case in which paternity or parentage of a child is determined by a court of competent jurisdiction, or by an administrative determination of paternity or parentage, the Center for Health Statistics shall enter the name of each parent on the new record of live birth. The Center for Health Statistics shall change the surname of the child if so ordered by the court or, in a proceeding under [Oregon Revised Statutes] 25.550, by the administrator as defined in [Oregon Revised Statutes] 25.010.

Or. Rev. Stat. § 432.088(9)(b), (d) (effective Jan. 1, 2018, to present).

Although this law concerning compulsory registration of births has been renumbered and amended over the years and the form of the acknowledgment has changed from an affidavit of paternity to an acknowledgment of paternity, the basic requirement for a written acknowledgment by both the birth mother and father or a court order of paternity to name a father on a birth certificate for a non-marital child born to an unmarried birth mother has been in effect in Oregon law since 1983. See Or. Rev. Stat. § 432.205(4), (5) (Amended by Laws 1979, c. 426, § 2; Laws 1983, c. 709, § 6; Laws 1995, c. 514, § 5; repealed by Laws 1997, c. 783, § 22); Or. Rev. Stat. § 432.206(5), (6) (Laws 1997, c. 783, § 23, enacted in lieu of § 432.205; Laws 1999, c. 254, § 2; Laws 1999, c. 840, § 1; Laws 2001, c. 455, § 24; Laws 2013, c. 366, § 10); Or. Rev. Stat. § 432.088 (renumbered from § 432.206 in 2013 by the Legislative Counsel; Amended by Laws 2014, c. 45, § 51, effective July 1, 2014; Laws 2015, c. 629, § 50, effective Jan. 1, 2016; Laws 2017, c. 651, § 45, effective Jan. 1, 2018).[1]

5. Conclusion

In applying agency policy set forth in POMS GN 00306.120B.2 for the purpose of determining status as a child under section 216(h)(3) of the Act, the agency may presume that there has been a written acknowledgment of paternity or a court determination of paternity for a father named on a non-marital child’s Oregon birth certificate issued in 1983 through the present.

B. PR 23-007 Status of Child: Use of an Oregon Birth Certificate to Presume a Written Acknowledgment or Court Order for Section 216(h)(3) Child Status and POMS GN 00306.120

DATE: August 4, 2023

1. Syllabus

For the purpose of determining a child’s status as a number holder’s child under section 216(h)(3) of the Act and per POMS GN 00306.120B.2, if presented with an Oregon birth certificate for a non-marital child that names a number holder as the child’s father, the agency may presume that the number holder completed a written acknowledgment of paternity or a court order determined paternity.

2. Question Presented

For the purpose of determining a claimant’s status as a number holder’s child under section 216(h)(3) of the Social Security Act (Act) and pursuant to Program Operations Manual System (POMS) GN 00306.120B.2, you asked whether the agency can accept an Oregon birth certificate as evidence of the number holder’s written acknowledgment of paternity or a court order of paternity where the number holder is identified on the birth certificate as the claimant’s father and the claimant is an illegitimate child, i.e., a non-marital child born out of wedlock.[2]

3. Answer

Yes. If a child’s birth mother is not married at the time of either conception or birth, or within 300 days before the child’s birth, Oregon law requires a voluntary acknowledgment of paternity that complies with Oregon law or a court order determining parentage for the other parent to be named on the non-marital child’s Oregon birth certificate. Thus, for the purpose of determining a child’s status as a number holder’s child under section 216(h)(3) of the Act and per POMS GN 00306.120B.2, if presented with an Oregon birth certificate for a non-marital child that names a number holder as the child’s father, the agency may presume that the number holder completed a written acknowledgment of paternity or a court order determined paternity.[3]

4. Analysis

a. Federal Law: A Natural Child under Section 216(h)(3) of the Act

Under Title II of the Act, a claimant may be entitled to child’s insurance benefits on the record of an insured individual who has died or an individual who is entitled to old-age or disability benefits if, among other things, the claimant is the individual’s child. See 42 U.S.C. § 402(d)(1); 20 C.F.R. §§ 404.350(a)(1), 404.354. The Act and regulations define “child” as an insured individual’s natural child, legally adopted child, stepchild, grandchild, step grandchild, or equitably adopted child. See 42 U.S.C. § 416(e); 20 C.F.R. §§ 404.354 – 404.359. The agency may deem a claimant to be an individual’s natural child under section 216(h)(3) of the Act if the claimant is the individual’s biological child and certain criteria are met, including a written acknowledgment establishing the claimant as the number holder’s child; a court decree of paternity or court order for support establishing the claimant as the number holder’s child; or other satisfactory evidence establishing the claimant as the number holder’s child if the number holder was living with or contributing to the child’s support. See 42 U.S.C. § 416(h)(3); 20 C.F.R. § 404.355(a)(3); POMS GN 00306.100. It is our understanding that your request concerns the use of an Oregon birth certificate as evidence of a written acknowledgment of paternity or court decree of paternity.[4] See POMS GN 00306.105C.2, GN 00306.110C, GN 00306.120.

b. Agency Policy: Using Information from a Child’s Birth Certificate as Written Acknowledgment or Proof of Court Order for Section 216(h)(3) Child Status

POMS GN 00306.120 sets forth the agency’s policy for using information from a non-marital child’s birth certificate as evidence of a written acknowledgment of paternity or proof of a court order determining paternity for purposes of section 216(h)(3) child status. See POMS GN 00306.105C.2, GN 00306.110C, GN 00306.120. This provision explains that certain State laws or regulations require a father’s written consent or a court determination in order to identify a father as a non-marital child’s father on the birth certificate. POMS GN 00306.120B. The agency is instructed to contact the State vital statistics office to determine if a written statement or court determination was filed with the birth certificate for a particular child. POMS GN 00306.120B.1. Alternatively, the agency may presume that there has been written acknowledgment or a court determination of paternity if the birth certificate shows illegitimacy and a precedent legal opinion shows that the applicable State law requires the written acknowledgment or court determination of paternity to be filed in order for the father’s name to appear on the birth certificate or for the child’s last name to be the same as the father’s on the birth certificate. POMS GN 00306.120B.2. It is our understanding that this question of State law is the focus of your legal opinion request. There is no current published precedent legal opinion for Oregon in POMS PR 01210.000, the section 216(h)(3) child POMS subchapter containing opinions on State law requirements for showing information about a father on a child’s birth certificate for section 216(h)(3) child determinations. Thus, per your request, we have set forth Oregon law on the naming of a father on a birth certificate for a non-marital child.

c. Oregon Law and Identification of a Child’s Parents on the Birth Certificate

Under Oregon law, a report of live birth for all births that occur within Oregon is required to be submitted to the State within five calendar days after the child’s birth. Or. Rev. Stat. § 432.088(1) (effective Jan. 1, 2018, to present). In terms of identifying the child’s parents on the birth record, Oregon law provides the following rules relevant to a child born outside of marriage (or a registered domestic partnership).[5]

The Birth Mother or the Mother Identified in a Court Order is to be Named as the Child’s Mother on the Birth Certificate

Oregon law states that “the woman who gives live birth is the birth mother.” Or. Rev. Stat. § 432.088(8). If a court determines that a woman other than the birth mother is the biological or genetic mother, the court may order the state registrar to amend the record of live birth. Id.

If the Birth Mother is Unmarried, the Parent Identified in a Voluntary Acknowledgment of Paternity Form is to be Named as the Child’s Other Parent on the Child’s Birth Certificate

If the birth mother is not married at the time of either conception or live birth, or within 300 days before the live birth, the name of the other parent shall not be entered on the live birth report unless a voluntary acknowledgment of paternity form or other form prescribed in section 432.098 of the Oregon Revised States is: (A) signed by the birth mother and the person to be named as the other parent, and (B) filed with the State registrar. Or. Rev. Stat. § 432.088(9)(b); see also Or. Rev. Stat. § 432.093 (“Any health care facility … shall make available to the biological parents of any child born live or expected to be born in the health care facility, a voluntary acknowledgment of paternity form when the facility has reason to believe that the mother of the child is unmarried. The responsibility of the health care facility is limited to providing the form and submitting the form with the report of live birth to the State Registrar of the Center for Health Statistics. The biological parents are responsible for ensuring that the form is accurately completed.”); Or. Rev. Stat. § 432.098(1) (“When the [voluntary acknowledgment of paternity] form is signed by both biological parents and witnessed by a third party, the form establishes parentage for all purposes when filed with the State Registrar of the Center for Health Statistics, provided there is no second parent already named on the report of live birth….When there is no second parent named on the child’s record of live birth, the filing of such voluntary acknowledgment of paternity form shall cause the state registrar to place the name of the parent who has signed the voluntary acknowledgment of paternity form on the record of the live birth of the child….”); Or. Rev. Stat. § 109.065(1)(e) (an effective acknowledgment of paternity establishes parentage between a person and a child); Or. Rev. Stat. § 109.070(4) (establishing of paternity by a voluntary acknowledgment of paternity).

Parents Identified in a Court Order Determining Parentage are to be Named as Parents on the Child’s Birth Certificate

In any case in which paternity or parentage of a child is determined by a court, or by an administrative determination of paternity or parentage, the Center for Health Statistics shall enter the name of each parent on the new record of live birth. Or. Rev. Stat. § 432.088(9)(d). The Center of Health Statistics shall change the last name of the child if so ordered by the court. Id.

In summary, as to the specific question posed, for a child born to a birth mother who is not married (or in a registered domestic partnership), Oregon law instructs that a second parent will only be named on the child’s Oregon birth certificate if that second parent (along with the birth mother) has completed a voluntary acknowledgment of paternity in accordance with Oregon law or if that second parent has been determined to be the child’s parent through a valid court order.[6] See Or. Rev. Stat. § 432.088(9)(b), (d). As such, in applying agency policy set forth in POMS GN 00306.120B.2 for the purpose of determining status as a child under section 216(h)(3) of the Act, the agency may presume that there has been a written acknowledgment of paternity or a court determination of paternity for a father named on a non-marital child’s Oregon birth certificate.

5. Conclusion

If a child’s birth mother is not married at the time of either conception or birth, or within 300 days before the child’s birth, Oregon law requires a voluntary acknowledgment of paternity that complies with Oregon law or a court order determining parentage for the other parent to be named on the non-marital child’s Oregon birth certificate. Thus, for the purpose of determining a child’s status as a number holder’s child under section 216(h)(3) of the Act and per POMS GN 00306.120B.2, if presented with an Oregon birth certificate for a non-marital child that names a number holder as the child’s father, the agency may presume that the number holder completed a written acknowledgment of paternity or a court order determined paternity.


Footnotes:

[1]

The Oregon State Legislature’s website contains the 1953-1997 Archives of the Oregon Revised Statutes. See Oregon Legislature Archives ORS-Archives (last visited Oct. 6, 2023).

[2]

POMS GN 00306.120 sets forth agency policy for using information from a child’s birth certificate as evidence of a written acknowledgment of paternity or proof of a court order determining paternity for an “illegitimate child,” defined as “a child who is born to parents who are not married to each other, i.e., born out of wedlock or a non-marital child.” POMS GN 00306.001H, GN 00306.120.

[3]

This opinion does not address child status under section 216(h)(2)(A) of the Act and whether a child has established the right to inherit under Oregon State intestate succession law by providing only an Oregon birth certificate. This opinion is limited to the agency’s use of a child’s Oregon birth certificate as evidence of a written acknowledgment or proof of court order for section 216(h)(3) purposes and per agency policy set forth in POMS GN 00306.120. See POMS GN 00306.105B (“NOTE: For written acknowledgment under section 216(h)(3), definitions or precedents as to what constitutes written acknowledgment under State laws on legitimation or inheritance rights are not controlling.”).

[4]

This opinion does not address all of the requirements for entitlement to child’s insurance benefits or all of the requirements for establishing status as a child under section 216(h)(3) of the Act, including a biological relationship. This opinion is limited to the question of when the agency may use information from a non-marital child’s Oregon birth certificate as evidence of a number holder’s written acknowledgment of the child or proof of a court determination of parentage for purposes of determining status as a child under section 216(h)(3).

[5]

If the birth mother is married at the time of either conception or live birth, or within 300 days before the live birth, the name of the mother’s spouse in the marriage shall be entered on the report of live birth as the child’s parent unless parentage has been determined otherwise by a court. Or. Rev. Stat. § 432.088(9)(a). Additionally, if the birth mother is a partner in a domestic partnership registered by the State at the time of either conception or live birth, or between conception and live birth, the name of the birth mother’s partner shall be entered on the report of live birth as a parent of the child, unless parentage has been determined otherwise by a court. Or. Rev. Stat. § 432.088(9)(c).


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PR 01210.041 - Oregon - 10/16/2023
Batch run: 10/16/2023
Rev:10/16/2023