TN 29 (10-05)
GN 00306.001 Determining Status as Child
Act - Secs. 202(d) , 216(e) , 216(h)(2) , 216(h)(3) ;
Regulations - Secs. 404.350 - 404.366
A child may qualify as the NH's child for purposes of entitlement to child's insurance benefits under one of several provisions of the Social Security Act. This subchapter sets forth the categories of children and the relationship and dependency requirements for each.
Unless otherwise indicated, the term “child,” for purposes of relationship, refers to:
B. Policy - Chart
For quick reference, this chart shows the categories of children for whom benefits are provided, the dependency test for each, and the POMS cross-reference. Do not attempt to work complex child relationship claims without referring to the appropriate POMS section shown in the chart.
*If child has been legally adopted by someone other than NH, dependency must be established. (See GN 00306.165)
**For entitlements for months before 07/96, the dependency requirement was living with or one-half support.
*** See GN 00210.505 for instructions if the NH is the alleged stepparent based on a same-sex marriage or non-marital legal relationship.
C. Policy - Status of child
1. Status under State or Federal law
a. State law
In determining a child's relationship to the NH, SSA applies the law of the appropriate State to determine whether the child would be considered his/her child for purposes of the distribution of intestate personal property.
State laws concerning presumption of legitimacy and the Lord Mansfield Rule apply in determining the status of a child born during wedlock. State law may also determine the validity of an adoption or determine whether an adopted child still has inheritance rights in his/her natural parent's estate.
b. Federal law
In some situations a child may be deemed under Federal law to have the required status, regardless of his/her status under State law. (See GN 00306.090 - GN 00306.130 concerning entitlement as a child of an invalid ceremonial marriage and a section 216(h)(3) child (deemed child).)
c. Status of child conceived after NH's death
A child conceived by artificial means after the NH's death cannot be entitled under the Federal law provisions of the Act (section 216(h)(3)). Such a child can only be entitled if he or she has inheritance rights under applicable State intestacy law. Submit all cases involving a child conceived by artificial means after the NH's death to the RCC for an opinion per GN 01010.815 ff.
CAUTION: Although some State law entries in GN 00306.405 - GN 00306.680 include State laws for children conceived after the NH’s death, and provide development guidelines for such cases, all cases involving such children require an RCC opinion.
NOTE: The Hart v. Shalala case was settled prior to a judicial decision and is not a precedent for payment of benefits to children conceived after the NH's death.
d. Status of child of a same-sex marriage or other relationship
If the number holder (NH) is the biological or adoptive parent of a child, no opinion is necessary and child benefits can be awarded on that NH’s record. If the NH alleges that the child is his or her stepchild based on a same-sex marriage or non-marital legal relationship (NMLR), see GN 00210.505. Before you request a new legal opinion, check for an applicable precedent opinion in PR 00905.000 that may address the facts relevant to the claim. If no applicable precedent opinion exists, and the NH is not the biological or adoptive parent and the parental relationship alleged is based on a same-sex marriage or NMLR, refer the case for a legal opinion using the instructions in GN 01010.815.
Direct all program–related and technical questions to your RO support staff or PSC OA staff. RO support staff or PSC OA staff may refer questions or problems to their Central Office contacts.
2. Which State law applies
a. NH domiciled in State
In a life case, SSA applies the law of the State where the NH is domiciled when the child files. See GN 00306.075B. for how SSA determines which version of State law to apply.
In a death case, SSA applies the law of the State where the NH was domiciled at the time of death. See GN 00306.075B. for how SSA determines which version of State law to apply.
(See GN 00305.001 for a definition and more detailed discussion of domicile.)
b. NH domiciled in jurisdiction not defined in the Act as a State
The law applied by the courts of the District of Columbia determines the child's status. (See GN 00305.001B.1. for a definition of “State.”)
NOTE: Prior to 4/7/77, to determine whether a child would be legitimate or legitimated, D.C. law would refer to the law of the purported father's domicile at the time of the child's birth or at the time of a subsequent legitimating act. Effective 4/7/77, D.C. law would apply.
c. Change of domicile
See GN 00306.005.
3. Applicability of State court decisions
In determining child relationship under State law where the evidence includes a State court decision on the issue, SSA is not necessarily bound by the court decision. See SSR 83-37C for the applicable criteria, which were set forth in Gray v. Richardson.
4. Parent status
Unless otherwise indicated in this subchapter, if a son or daughter is a “child” for purposes of the SS Act, the father or mother is a “parent” for purposes of that law.
5. Constitutionality of State intestacy law raised at initial claim or reconsideration level
During the development of a child's claim or upon reconsideration, if the child claimant or individual acting on behalf of the child questions the constitutionality of SSA's interpretation of State intestacy law (as shown in the applicable State law entry in GN 00306.405 - GN 00306.680), the adjudicator or reconsideration reviewer should forward the claim for an opinion by the RCC per GN 01010.815 ff.
6. Termination of NH’s parental rights
When the NH’s parental rights with respect to a child have been terminated, and the child has not been adopted by someone else, the child does not necessarily lose inheritance rights with respect to the NH under State law. This issue is relevant to initial entitlements or reentitlements; termination of parental rights and/or loss of inheritance rights are not terminating events for child’s benefits. In the absence of a legal precedent opinion, the adjudicator should submit the case to the RCC per GN 01010.815 ff. (See GN 00306.165 ff. if the child was adopted by someone other than the NH during the NH’s lifetime.)
D. Procedure - FO development
Follow these guidelines in developing child relationship:
You must explore all possibilities of entitlement before disallowing a child's claim because the relationship requirements are not met. Pay special attention to the possibility of entitlement as a legitimated child or an illegitimate child with inheritance rights under State law (GN 00306.050 - GN 00306.085; GN 00306.400 - GN 00306.680).
You may develop the child's relationship under any applicable provisions consecutively or concurrently (e.g., development under State law and section 216(h)(3)). In general, follow the line of development that will permit payment as soon as possible. However, pursue any earlier possible entitlement date once the child is on the rolls.
As needed, use the State law digests in GN 00306.400 - GN 00306.680 and elsewhere in this subchapter. Use the rules in GN 00306.001B. to determine which State law applies, unless otherwise indicated. When in doubt as to which State law applies, submit the question to the RCC under GN 01010.815. See GN 00306.005 for change of domicile situations.
Use DOTEL to check existing legal precedents when necessary (GN 01010.815). If you submit the claim to the PC or RO for a legal opinion, exclude the claim from DOFA using code RV03 (e.g., in MCS cases, enter R