Basic (11-22)

PR 03830.065 British Columbia, Canada

A. PR Surviving child’s benefits – Validity of a Canadian DNA Paternity Report in a 216(h)(3) case

Date: October 27, 2022

1. Syllabus

The number holder died, in British Columbia, Canada. The (Mother) filed an application for child’s insurance benefits on behalf of her child, (Claimant), on the NH’s record providing evidence of her marriage to the NH after the Claimant’s birth, deoxyribonucleic acid (DNA) evidence, and statements regarding the family’s history and living situation from the time of the Claimant’s birth until the NH’s death. Based on the evidence provided, our inquiry focuses on whether the Claimant is the NH’s natural child or alternatively, his stepchild.

2. Opinion

QUESTION

You asked whether the Claimant is the NH’s child for the purposes of his claim for child’s insurance benefits on the NH’s record under Title II of the Social Security Act (Act).

ANSWER

We believe the agency may reasonably conclude that there is satisfactory evidence of a biological relationship between the Claimant and the NH and that the NH was living with or contributing to the Claimant’s support at the time of his death. Thus, we believe there is legal support for the agency to find the Claimant to be the NH’s child under section 216(h)(3)(C)(ii) of the Act. Alternatively, we believe there is legal support for the agency to find the Claimant to be the NH’s stepchild under the Act. Therefore, there is legal support for the agency to find that the Claimant is the NH’s child under the Act for purposes of determining the Claimant’s entitlement to child’s insurance benefits on the NH’s record.

BACKGROUND

You advised that the Claimant was born on May XX, 20XX, in Penticton, British Columbia, Canada to the mother. The Claimant’s birth certificate identifies the Mother as his mother and does not list a father.

The Mother married the NH on May X, 20XX, in Nevada and remained married to the NH until his death. You provided a copy of their Nevada marriage certificate, which showed that at the time of their marriage, the NH was living in Oregon and the Mother was living in Canada. You advised that the NH died on July XX, 20XX, while domiciled in British Columbia, Canada. His death certificate reflects that he was born in Oregon and died July XX, 20XX, in British Columbia, Canada.

On October X, 20XX, the Mother applied for child’s insurance benefits on the Claimant’s behalf on the NH’s record. In the Form SSA-795, the Mother wrote:

I am the mother of [the Claimant] and [the NH] is the father. When we met during a visit to Canada, we started a long-distance relationship, and I became pregnant. When [the Claimant] was born, it was not 100% clear that we would get married so at the time of his birth, I didn’t add [the NH’s] name to the [birth] certificate and [the Claimant] has my last name XXX. We married a year later May 20XX and [the Claimant’s] brother was born in February 20XX. [The NH] moved to Canada permanently in September 20XX. We had intended to change the birth certificate but didn’t get around to it. He died suddenly without warning July XX, 20XX.

In support of their relationship, the mother submitted a one-page “DNA Test Report Paternity – Legal,” which was completed in Canada from XX DNA on August XX, 20XX. The report reflects that testing was performed on specimen from the NH, the Claimant, and the Mother. The DNA test report concludes that the probability of paternity is 99.9% between the Claimant and the NH. No other documents related to this DNA testing were provided, such as chain of custody documentation.

In a letter to the agency dated March XX, 20XX, the Mother provided further information on the family’s living situation and the NH’s relationship with the Claimant. She again explained that she and the NH were married in May 20XX. She stated that the Claimant was born in May 20XX before they were married. She stated that they had another son who was born in February 20XX after they were married. She wrote that after they were married, they lived together in the same house in Canada until 20XX when they separated to work on their marriage. She stated that they rented houses close to each other so that the Claimant and his brother could move between them easily. They shared time with the boys and continued to spend time together as a family. She said that there was no separation agreement, and no one had filed for divorce because they were still working on their marriage. She stated that they “shared the boys 50/50” and so the NH did not pay her anything. She stated that they “split the cost of any larger purchase associated with them – i.e., school trips, clothing, etc.” She wrote that at the time of the NH’s death, they “were still legally married, no separation agreement, no divorce papers, no divorce.”

The Mother also provided a letter from a family friend dated March XX, 20XX. The friend reported knowing the mother since 20XX and stated that her daughter babysat the Claimant and his two brothers. She described the mother’s marriage with the NH and their life raising three boys, including the Claimant. She wrote that the Claimant was the NH’s son.

Discussion

A. Federal Law: Entitlement to Child’s Insurance Benefits as a Child

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, he or she is the individual’s child. See 42 U.S.C. § 402(d)(1); 20 C.F.R. § 404.350(a)(1), 404.354.[1] 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. Based on the evidence provided, our inquiry focuses on whether the Claimant is the NH’s natural child or alternatively, his stepchild.[2]

  1. 1. 

    Natural Child under Section 216(h)(2)(A) of the Act and State Intestate Succession Law

    In assessing a claimant’s status as a natural child, under section 216(h)(2)(A) of the Act, the agency must determine whether the claimant could inherit the insured individual’s personal property as his or her child under the intestate succession laws of the State where the insured individual was domiciled at the time of the insured’s death. See 42 U.S.C. §§ 416(e)(1), 416(h)(2)(A); 20 C.F.R. § 404.355(a)(1), (b). Where the insured individual is domiciled outside of the United States at the time of death, such as here where the NH died domiciled in Canada, the agency applies the law of the District of Columbia. See 42 U.S.C. § 416(h)(2)(A); 20 C.F.R. § 404.355(b)(1); POMS GN 00306.014G, GN 00306.001R. Under District of Columbia law, the law of the decedent’s domicile determines intestate inheritance rights. Javier v. Comm’r of Soc. Sec., 407 F.3d 1244, 1247 (D.C. Cir. 2005) (citing In re Gray’s Estate, 168 F. Supp. 124 (D.D.C. 1958)); see also POMS PR 01105.010 District of Columbia, A. PR 13-047 (Feb. 25, 2013) (advising that the claimant could be the number holder’s child under section 216(h)(2)(A) of the Act because the claimant could inherit from the number holder as his child under District of Columbia law, which looks to Mexican law given that the number holder died domiciled in Mexico).

    In order to make this determination, given the NH’s domicile in Canada at the time of his death, we would need to obtain an opinion from the Law Library of Congress on the relevant provisions of Canada’s intestacy laws, and we believe the agency would likely need to further develop the evidence. In order to process this claim more expeditiously and because we are able to find the Claimant to be the NH’s child under section 216(h)(3) and alternatively as his stepchild, we believe it is not necessary to also address the Claimant’s alternative status as the NH’s natural child under section 216(h)(2)(A).

  2. 2. 

    Natural Child under Section 216(h)(2)(B) and (h)(3) of the Act

    The agency may deem a claimant to be an insured individual’s natural child under section 216(h)(2)(B) and (h)(3) of the Act if the claimant is the insured individual’s biological child and certain criteria are met. See 42 U.S.C. § 416(h)(2)(B), (h)(3); 20 C.F.R. § 404.355(a)(2)-(4); POMS GN 00306.001O.2, GN 00306.002B. We next consider each provision and the evidence provided.

    1. a. 

      Section 216(h)(2)(B) does not apply as there was no marriage ceremony that would have been valid but for a legal impediment

      Under section 216(h)(2)(B) of the Act, a claimant will be deemed to be an insured individual’s child if the claimant is the insured individual’s biological child, and the claimant’s parents went through a marriage ceremony that would have been valid but for a legal impediment. See 42 U.S.C. § 416(h)(2)(B); 20 C.F.R. § 404.355(a)(2); POMS GN 00306.090. This is not relevant as there is no indication that the NH and the Mother went through a marriage ceremony that would have been valid but for a legal impediment. Instead, they were validly married in Nevada in 2007.

    2. b. 

      Section 216(h)(3)(C)(i) does not apply as there is no evidence of a written acknowledgment or court order entered before the NH’s death

      Under section 216(h)(3)(C)(i) of the Act, the biological child of a deceased insured individual may be deemed to be the insured individual’s child if, before the insured individual’s death: (1) the insured individual acknowledged in writing that the child was his child; (2) a court decreed the insured individual to be the child’s father; or (3) a court ordered the insured individual to contribute to the child’s support. See 42 U.S.C. § 416(h)(3)(C)(i); 20 C.F.R. § 404.355(a)(3); POMS GN 00306.100. Because there is no evidence of a written acknowledgment or court order entered before the NH’s death, this provision does not apply to establish status as the NH’s natural child.

    3. c. 

      Section 216(h)(3)(C)(ii) applies as there is other satisfactory evidence of a biological relationship and living with or contributing to the Claimant’s support at the time of the NH’s death

      Under section 216(h)(3)(C)(ii) of the Act, a biological child of a deceased insured individual may be deemed to be the insured individual’s child if the agency finds “by other satisfactory evidence” that the insured individual was the child’s biological father, and the insured individual was living with or contributing to the child’s support at the time of his death (or if the child was in the womb when the insured individual died, the insured individual must have been either living with or contributing to the support of the mother at the time of the number holder’s death). See 42 U.S.C. § 416(h)(3)(C)(ii); 20 C.F.R. § 404.355(a)(4); POMS GN 00306.100C.3, GN 00306.125. We believe this provision applies to establish the Claimant as the NH’s child.

      1. i.  

        Satisfactory Evidence of aBiological Relationship

        First, there must be satisfactory evidence that the claimant is the insured individual’s biological child. See 42 U.S.C. § 416(h)(3); 20 C.F.R. § 404.355(a)(4); POMS GN 00306.100A, GN 00306.125B.1. Under the POMS definition for “biological relationship,” a woman is “biologically related” to a child if she contributes genetic material, such as an egg or DNA, to the child. POMS GN 00306.001.C. A man is “biologically related” to a child if he contributes genetic material, such as sperm or DNA, to the child. Id. The evidence regarding a biological relationship does not have to be in any specific form. POMS GN 00306.125A. Where the birth certificate and Numident record do not establish the biological relationship, the POMS provides examples of what might qualify as additional evidence to support the biological relationship, as including, but not limited to:

        • hospital, church, or school records;

        • a court decree or order;

        • a statement from the attending physician, relative, or person who knows the child’s relationship to NH, e.g. NH’s spouse, including the basis for that knowledge;

        • evidence that NH and the child’s other parent were living together when the child was conceived; or

        • blood or genetic test results.

          POMS GN 00306.125B.1.

          Here, the Claimant’s birth certificate does not identify the NH as his father. In support of their biological relationship, the Mother submitted a one-page “DNA Test Report Paternity – Legal,” which was completed in Canada from Orchid Pro DNA on August XX, 2019. The report reflects that testing was performed on specimen from the NH, the Claimant, and the Mother. The DNA test report concludes that the probability of paternity is 99.9% between the Claimant and the NH. The DNA test report is signed by D~, Ph.D., Technical Leader & Laboratory Manager. This DNA test report supports a biological relationship between the NH and the Claimant. There is no contrary evidence disputing their biological relationship. Instead, the Mother and a longtime friend provided statements that corroborate the family’s history, living situation, and the NH’s biological relationship with the Claimant.[3] Thus, we believe there is satisfactory evidence of a biological relationship between the NH and the Claimant for purposes of section 216(h)(3)(C)(ii) of the Act. See POMS GN 00306.125B.1.

      2. ii.  

        Satisfactory Evidence that the NH was Living with or Contributing to the Claimant’s Support at the time of the NH’s Death

        Next, there must be satisfactory evidence that the insured individual was either living with the child or contributing to the child’s support at the time of the individual’s death. See 42 U.S.C. § 416(h)(3)(C)(ii); 20 C.F.R. §§ 404.355(a)(4), 404.366; GN 00306.125B.2. The evidence does not have to be in any specific form. POMS GN 00306.125A.

        In a letter to the agency dated March XX, 2020, the Mother provided further information on the NH’s relationship with the Claimant and their situation at the time of the NH’s unexpected death in 2019 indicating that the Claimant was living with the NH half the time and that they shared and split costs related to the Claimant and his brother. She explained that she and the NH were married in May 2007. She stated that the Claimant was born in May 2006 before they were married. She stated that they had another son who was born in February 2008 after they were married. She wrote that after they were married, they lived together in the same house until 2018 when they separated to work on their marriage. She stated that they rented houses close to each other so that the Claimant and his brother could move between them easily. They shared time with the boys and continued to spend time together as a family. She said that there was no separation agreement and no one had filed for divorce because they were still working on their marriage. She stated that they “shared the boys 50/50” and so the NH did not pay her anything. She stated that they “split the cost of any larger purchase associated with them – i.e., school trips, clothing, etc.” She wrote that at the time of the NH’s death, they “were still legally married, no separation agreement, no divorce papers, no divorce.”

        The Mother’s statement indicates that the Claimant was living with the NH the same amount of time as he was living with her during this separation. This would seem to be sufficient to satisfy the “living with” requirement given that the child did not live with either parent for a majority of the time. See 20 C.F.R. § 404.366(c) (“You are living with the insured if you ordinarily live in the same home with the insured and he or she is exercising, or has the right to exercise, parental control and authority over your activities.”); POMS RS 01301.002 (defining “living with” to mean that the child and the parent ordinarily share a common roof under conditions indicating more than mere coincidence of residence, and the parent has the right to exercise parental responsibility and authority; stating that a child “lives with” the parent with whom the child lives the majority of the time).

        Alternatively, the Mother’s statements also indicate that the NH was making “contributions for support” to the Claimant at the time of his death that were regular and substantial. She stated that they rented houses close to each other so that the Claimant and his brother could move between them easily. They shared time with the boys and continued to spend time together as a family. She said that there was no separation agreement and no one had filed for divorce because they were still working on their marriage. She stated that they “shared the boys 50/50” and so the NH did not pay her anything. She stated that they “split the cost of any larger purchase associated with them – i.e., school trips, clothing, etc.” This would seem to be sufficient to satisfy the requirement for regular and substantial contributions for support. See 20 C.F.R. § 404.366(a) (explaining that the insured makes a contribution for your support if the following conditions are met: (1) the insured gives some of his or her own cash or goods to help support you, which includes food, shelter, routine medical care, and other ordinary and customary items needed for your maintenance; and (2) the contributions are made regularly and are large enough to meet an important part of your ordinary living costs, which are the costs for your food, shelter, routine medical care, and similar necessities); POMS RS 01301.005 (defining “contributions for support” as regular and substantial contributions in cash or in kind support; stating that “substantial support” is an amount we consider large enough as a material factor in the reasonable cost of the child’s support; and defining “regular support” as a consistent pattern of contributions).

        In summary, the evidence as a whole is consistent and supports a parent-child relationship between the NH and the Claimant. We believe there is satisfactory evidence that establishes the NH’s biological parentage as to the Claimant. Further, we believe there is satisfactory evidence that establishes that the Claimant was living with the NH at the time of his death. We also believe there is satisfactory evidence that establishes that the NH was making contributions for the Claimant’s support at the time of his death. Therefore, we believe the agency may reasonably determine that the Claimant is the NH’s child under section 216(h)(3)(C)(ii) of the Act.

  3. 3. 

    Stepchild under the Act

    As noted, under the Act, a child may be eligible for surviving child’s insurance benefits if, among other things, he or she is the child of an insured individual. See 42 U.S.C. §§ 402(d)(1), 416(e); 20 C.F.R. § 404.350(a)(1). The Act and regulations define child to include the individual’s stepchild. See 42 U.S.C. §416(e)(2); 20 C.F.R. § 404.357. To qualify as the insured individual’s stepchild, the agency must determine whether after the claimant’s birth, his natural parent validly married the insured individual and that he was the stepchild for at least nine months prior to the day the insured individual died. See 42 U.S.C. § 416(e)(2); 20 C.F.R. § 404.357.

    The Claimant was born on May XX, 2006, in Canada to the Mother. The Claimant’s birth certificate identifies the Mother as his mother and does not list a father. As evidenced by a Nevada marriage certificate, the Mother married the NH on May XX, 2007, in Nevada and remained married to the NH until his death on July XX, 2019, in Canada. Based on the Mother’s marriage to the NH after the Claimant’s birth, we believe the Claimant would qualify as the NH’s stepchild.

    Consistent with the scope of your legal opinion request and the evidence provided, we have only addressed the requirement for a parent-child relationship and have not addressed the other requirements for child’s insurance benefits, including dependency as a stepchild. See 20 C.F.R. §§ 404.357, 404.363; POMS GN 00210.505.

CONCLUSION

We believe the agency may reasonably conclude that there is satisfactory evidence of a biological relationship between the Claimant and the NH, and that the NH was living with or contributing to the Claimant’s support at the time of his death. Thus, we believe there is legal support for the agency to find the Claimant to be the NH’s child under section 216(h)(3)(C)(ii) of the Act. Alternatively, we believe there is legal support for the agency to find the Claimant to be the NH’s stepchild under the Act. Therefore, there is legal support for the agency to find that the Claimant is the NH’s child under the Act for purposes of determining the Claimant’s entitlement to child’s insurance benefits on the NH’s record.


Footnotes:

[1]

The Claimant must satisfy other criteria for his application for child’s insurance benefits that are outside the scope of this legal opinion request, including showing that he “was dependent upon” the insured individual “at the time of [the individual’s] death” in order to be eligible for benefits. 42 U.S.C. § 402(d)(1)(C)(ii); 20 C.F.R. § 404.360. A child is “deemed” dependent on the insured individual if the child is “legitimate” or was living with or being supported by the wage earner at the time of his death. 42 U.S.C. § 402(d)(3). A claimant can satisfy the legitimacy criterion by meeting the requirements of sections 216(h)(2)(B) or 216(h)(3) of the Act, see id. § 402(d)(3), or by meeting the intestacy requirements of section 216(h)(2)(A) of the Act, see Matthews v. Lucas, 427 U.S. 495, 515 n.17 (1976); 20 C.F.R. § 404.361(a). Consistent with the scope of your legal opinion request, we focus only on the requirement of a parent-child relationship between a claimant and the insured individual. See 20 C.F.R. § 404.350(a)(1).

[2]

There is no evidence supporting the Claimant as the NH’s adopted child, equitably adopted child, or grandchild.

[3]

Other legal opinions have advised that genetic testing that may not meet State law requirements can constitute satisfactory evidence of a biological relationship for purposes of section 216(h)(3). See POMS PR 01205.021 Louisiana, A. PR 20-034 (March 31, 2020) (advising that paternal grandparent DNA test showing 99% relatedness between the child and the number holder’s mother, along with other evidence, was sufficient evidence to establish the biological relationship for purposes of section 216(h)(3)); POMS PR 01210.035 New York, A. PR 15-093 (March 5, 2015) (advising that a DNA paternity test showing a 99% probability of the alleged father’s paternity of the child was sufficient to establish the biological relationship for purposes of section 216(h)(3)); POMS PR 01210.036 North Carolina, A. PR 13-100 (July 9, 2013) (advising that DNA testing from the number holder’s sister showing a 99.95% probability of relatedness between the number holder’s sister and the child was sufficient to establish the biological relationship for purposes of section 216(h)(3)); but see POMS PR 01205.048 Texas, B. PR-21-010 (March 1, 2021) (advising that the evidence was not satisfactory evidence of a biological relationship when a paternal grandparent DNA test showed a 99.96% probability of relatedness, but the mother and grandmother provided inconsistent statements about the pregnancy and living situation, and there was no information from the grandmother that the number holder was her only son).


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PR 03830.065 - British Columbia, Canada - 11/08/2022
Batch run: 11/20/2023
Rev:11/08/2022