Here, the NH died while domiciled in California, therefore, the agency looks to California intestacy law to determine whether Claimant is the child of the NH for purposes of entitlement Pursuant to California Probate law, a natural parent and child relationship is established where the relationship is presumed and not rebutted under California’s Uniform Parentage Act. The NH is the Claimant’s presumed parent under the Family Code laws because the NH was in a legally recognized domestic partnership with the Claimant’s natural mother when the Claimant was born. In the absence of any evidence rebutting that presumption, the Claimant is able to inherit intestate from the NH under the California Probate Law. Under California law, the NH is the Claimant’s natural parent and the Claimant could inherit intestate from the NH. As the NH’s natural child, the Claimant is deemed dependent on the NH and is therefore entitled to child’s insurance benefits under section 216(h)(2) of the Act.

QUESTION

You asked whether a parent-child relationship exists between K~ (NH) and D~ (Claimant) for purposes of determining Claimant’s entitlement to child’s insurance benefits on the NH’s account.

SHORT ANSWER

Yes. Claimant is entitled to child’s insurance benefits on the NH’s account. Claimant may inherit intestate as the NH’s child under California law because Claimant was born during the NH’s domestic partnership with Claimant’s natural mother.

SUMMARY OF EVIDENCE

The NH and L~ entered into a California same-sex domestic partnership legally registered with the State on September XX, 2009. L~ conceived Claimant via artificial insemination using anonymous donor sperm and Claimant was born on November XX, 20XX in S~, California. Claimant’s birth certificate lists both L~ and the NH as Claimant’s parents, and shows Claimant’s surname as “D~,” the same surname as the NH.

The NH currently receives disability benefits. Claimant filed his application for child’s insurance benefits on August XX, 2014. At all relevant times, the NH has been domiciled in California.

ANALYSIS

Federal Law

Under the Social Security Act (Act), every unmarried minor child of an individual entitled to old-age or disability insurance benefits shall be entitled to child’s insurance benefits. Social Security Act § 202(d)(1), 42 U.S.C. § 402(d)(1). However, to receive child’s insurance benefits, the applicant must qualify as the insured individual’s “natural child” and be dependent on the insured individual at the time he filed his application for child’s insurance benefits. See id.; 20 C.F.R. §§ 404.350, 404.3.55. In determining whether a claimant qualifies as the child of the insured individual, the Commissioner applies the law governing the devolution of intestate personal property by the courts of the State in which such insured individual was domiciled at the time of his or her death. Social Security Act § 216(h)(2)(A), 42 U.S.C. § 416(h)(2)(A); 20 C.F.R. § 404.355(a)(1). An applicant who satisfies the requirements of section 216(h)(2)(A) of the Act is also deemed dependent upon the insured individual. 20 C.F.R. § 404.361(a) (“If you are the insured’s natural child, as defined in § 404.355, you are considered dependent upon him or her”); Social Security Ruling (SSR) 77-2c (“where state intestacy law provides that a child may take personal property from a father’s estate, it may reasonably be thought that the child will more likely be dependent during the parent’s life...”).

Here, the NH died while domiciled in California. Therefore, the agency looks to California intestacy law to determine whether Claimant is the child of the NH for purposes of entitlement.

California Law

Pursuant to California Probate Code section 6453, a natural parent and child relationship is established where the relationship is presumed and not rebutted under California’s Uniform Parentage Act (UPA). Cal. Prob. Code § 6453(a); see also Cal. Fam. Code §§ 7600-7730 (UPA).

California Family Code sections 7611(a) and 297.5(d) provide a presumption of a parent-child relationship between the NH and Claimant. This presumption arises out of the relationship between the NH and Claimant’s natural mother. Specifically, under California Family Code section 7611(a), a parent-child relationship is presumed when a child’s natural mother is married to the presumed parent at the time of the child’s birth. Cal. Fam. Code § 7611(a). The presumptions of parentage under 7611 apply equally to children of registered domestic partners. Cal. Fam. Code § 297.5(d)(“The rights and obligations of registered domestic partners with respect to a child of either of them shall be the same as those of spouses.”); see Elisa B. v. Superior Court, 37 Cal. 4th 108 (Cal. 2005) (holding that a child can have two parents of the same sex under the UPA); In re M.C., 195 Cal. App. 4th 197, 216-17 (Cal. Ct. App. 2011) (finding a presumption of parentage under 7611(a) for a child born during a same-sex marriage; overturned on other grounds by Cal. Fam. Code § 3040(d)); see also Hunter v. Rose, 463 Mass. 488 (2012) (relying on Cal. Fam. Code §§ 297.5(d) and 7611(a) to hold that, under California law, a non-biological mother is presumed to be a child’s parent if the child is born during the domestic partnership).

Based on the foregoing, the NH is Claimant’s presumed parent under Family Code sections 7611(a) and 297.5(d) because she was in a legally recognized domestic partnership with Claimant’s natural mother when Claimant was born. In the absence of any evidence rebutting that presumption, Claimant is able to inherit intestate from the NH under California Probate Code section 6453(a).

CONCLUSION

Under California law, the NH is Claimant’s natural parent and Claimant could inherit intestate from her. As the NH’s natural child, Claimant is deemed dependent on her. Claimant is therefore entitled to child’s insurance benefits under section 216(h)(2) of the Act.

NH died while domiciled in California, therefore, the agency looks to California intestacy law to determine whether the Claimant is the child of NH for purposes of entitlement. Based on the evidence provided, a California court would likely determine that NH is the Claimant’s natural parent under the California Family Code. The Superior Court of California granted NH’s petition for joint legal and physical custody of the Claimant and recognized NH’s status as the Claimant’s parent repeatedly throughout its order.

The NH and the Claimant’s mother’s separation does not affect NH’s status as the Claimant’s parent. We have no evidence indicating a competing claim for the role of Claimant’s second parent thus, under California law, the NH is Claimant’s natural parent and the claimant could inherit intestate from her. The Claimant is therefore entitled to child’s survivor benefits under the Act.

QUESTION

You asked whether a parent-child relationship existed between N~(NH) and K~ (Claimant) for purposes of determining Claimant’s entitlement to child survivor’s insurance benefits.

SHORT ANSWER

Yes. Claimant is entitled to survivor’s benefits as NH’s child because a parent-child relationship exists under California law. NH received Claimant into her home and openly held Claimant out as her child.

SUMMARY OF EVIDENCE

J~, Claimant’s biological mother, and NH were in a relationship and began living together in 2005. J~ gave birth to Claimant December XX, 2006. On February XX, 2011, NH married a third party, R~, and changed her name to “N~”. On March XX, 2011, Claimant’s last name was changed from “J2” to “J3”. NH petitioned the Superior Court of California, as “N~,” for joint legal and shared physical custody of Claimant, which the Court granted on July XX, 2012. NH passed away in M~, California on January XX, 2013. J~ filed for survivor benefits on NH’s record on Claimant’s behalf.

J~ provided the following information in a declaration dated November XX, 2014:

• •

  J~ and NH were in a relationship and started living together in 2005.

• •

  J~ and NH jointly planned Claimant’s birth and lived together at the time of Claimant’s birth.

• •

  NH did not sign Claimant’s birth certificate because of the military’s “Don’t Ask Don’t Tell” policy.

• •

  NH helped with expenses from the pregnancy and birth.

• •

  NH declared Claimant as a dependent on her tax returns and, after they separated, each partner claimed Claimant as a dependent on alternate years.

• •

  NH listed herself as Claimant’s parent on his medical and school records, and NH provided regular and substantial contributions to Claimant’s care.

• •

  After J~ and NH separated, they obtained a court order for joint custody where each parent had the same rights to Claimant.

The Court Order dated July XX, 2012 establishes the following facts:

• •

  NH petitioned for joint custody with J~ for Claimant.

• •

  The Court ordered that NH and J~ would have joint legal and shared physical custody of Claimant.

• •

  The Court order repeatedly references that NH is Claimant’s parent and establishes parental obligations for NH.

ANALYSIS

Federal Law

Under the Social Security Act (Act), every unmarried minor child of an individual that dies fully or currently insured shall be entitled to child insurance benefits. Social Security Act § 202(d)(1), 42 U.S.C. § 402(d)(1). However, to receive child insurance benefits, the applicant must qualify as the insured individual’s “natural child” and be dependent on the insured individual at the time he filed his application for child insurance benefits. ^[1] See id.; 20 C.F.R. §§ 404.350, 404.3.55. In determining whether a claimant qualifies as the child of the insured individual, the Commissioner applies the law governing the devolution of intestate personal property by the courts of the State in which such insured individual was domiciled at the time of his or her death. Social Security Act § 216(h)(2)(A), 42 U.S.C. § 416(h)(2)(A); 20 C.F.R. § 404.355(a)(1). An applicant who satisfies the requirements of section 216(h)(2)(A) of the Act is also deemed dependent upon the insured individual. 20 C.F.R. § 404.361(a) (“If you are the insured’s natural child, as defined in § 404.355, you are considered dependent upon him or her”); Social Security Ruling (SSR) 77-2c (“where state intestacy law provides that a child may take personal property from a father’s estate, it may reasonably be thought that the child will more likely be dependent during the parent’s life...”).

Here, NH died while domiciled in California. Therefore, the agency looks to California intestacy law to determine whether Claimant is the child of NH for purposes of entitlement.

California Law

Under California intestacy law, a natural parent and child relationship “is established where the relationship is presumed and not rebutted pursuant to the Uniform Parentage Act.”^[2] Cal. Prob. Code § 6453(a); see also Cal. Fam. Code §§ 7600-7730 (Uniform Parentage Act (UPA)). Pursuant to California’s UPA, a person is presumed to be the natural parent of a child if he or she “receives the child into his or her home and openly holds out the child as his or her natural child.” Cal. Fam. Code § 7611(d);^[3] see also Program Operations Manual System (POMS) GN 00306.430(A)(1)(b)(6).

The presumption of natural parentage applies even in the absence of a biological relationship. See Elisa B. v. Superior Court, 37 Cal. 4th 108, 120-21 (Cal. 2005). Paternity presumptions are not driven by biological paternity, but rather by “the state’s interest in the welfare of the child and the integrity of the family.” Id. at 121-22 (citing In re Salvador M., 111 Cal. App. 4th 1353, 1357-58 (Cal. Ct. App. 2003)). California recognizes the value of having two parents as a source of emotional and financial support for a child, and an alleged parent’s commitment to the child and the child’s well-being are considerations in determining presumed parenthood status. Id. at 123; In re D.M., 210 Cal. App. 4th 541, 553 (Cal. Ct. App. 2012) (citing E.C. v. J.V., 202 Cal. App. 4th 1076, 1085 (Cal. Ct. App. 2012)). In determining whether an alleged parent has held out a child as her natural child, California courts look at the alleged parent’s conduct to determine her commitment to the child, and may consider factors such as whether the alleged parent helped with prenatal care; paid pregnancy and birth expenses commensurate with the ability to do so; whether and how long the parent cared for the child; and acknowledged the child to others. See E.C., 202 Cal. App. 4th at 1087.

In Elisa B., the California Supreme Court discussed several factors that supported a finding of presumed maternity, including the fact that the petitioner was in a committed relationship with her partner when they decided to have children together and that the petitioner raised the children as her own. See Elisa B., 37 Cal. 4th at 122. Importantly, the Court held the petitioner, who participated in causing the children to be conceived, voluntarily accepted the rights and obligations of parenthood after the children were born, and there were no competing claims to her being the children’s parent, was a presumed parent under the UPA. Id. at 124-25.

Similarly, in S.Y. v. S.B., the California Court of Appeals upheld the finding of presumed parentage of S.Y., where S.Y. encouraged S.B. to adopt a child with the understanding they would raise the child together; S.Y. voluntarily accepted the rights and obligations of parenthood after the child was born; and there was no competing claims to S.Y. being the second parent. S.Y. v. S.B., 201 Cal. App. 4th 1023, 1037 (Cal. Ct. App. 2011).

An eventual separation or dissolution of the partner’s relationship does not affect presumed parentage under California law. In C. R. v. K. S., 175 Cal. App. 4th 361 (Cal. Ct. App. 2009) (disapproved on other grounds by Reid v. Google, Inc., 50 Cal. 4th 512, 532 n.7 (Cal. 2010)), the California Court of Appeal found a presumption of parentage even though the petitioner had only lived with and shared in the child’s care for about three months. Id. at 366-67, 374 (“We conclude that receipt of the child into the home must be sufficiently unambiguous as to constitute a clear declaration regarding the nature of the relationship, but it need not continue for any specific duration”). The petitioner was presumed a parent because she was present at the child’s birth, gave the child a hyphenated last name that included her name, and she held herself out as the child’s parent in public announcements. Id. In E.C. v. J.V., the California Court of Appeals stressed that, in determining presumed parentage, the State looks at the presumed parent’s commitment to the child’s well-being, as opposed to the presumed parent’s relationship with the biological mother. E.C. v, J.V., 202 Cal. App. 4th at 1085. A presumed parent, therefore, is “someone who has entered into a familial relationship with the child: someone who has demonstrated an abiding commitment to the child and the child’s well-being, regardless of his or her relationship with the child’s other parent.” Id.

Presumed parentage is also not affected if the parents do not register as domestic partners or execute a written agreement concerning the children. Elisa B., 37 Cal. 4th at 114-15; see also S.Y., 201 Cal. App. 4th at 1035-36. For example, the Court found presumed parentage in S.Y. where S.Y. did not formalize her relationship with S.B. because of the military’s “Don’t Ask, Don’t Tell” policy. S.Y., 201 Cal. App. 4th at 1030.

A California court would likely determine that NH is Claimant’s natural parent under Family Code § 7611(d). NH took Claimant into her home, and then held him out as her child by caring for him and financially supporting him. Importantly, the Superior Court of California granted NH’s petition for joint legal and physical custody of Claimant. The Superior Court also recognized NH’s status as Claimant’s parent repeatedly throughout its order. ^[4] As in Elisa B., NH held Claimant out as her child by declaring Claimant as a dependent on her tax returns and giving Claimant her last name. See Elisa B., 37 Cal. 4th at 122. Additionally, as in S,Y., NH was in a committed relationship with J~ at the time the partners decided to have a child. S.Y., 201 Cal. App. 4th at 1037. NH shared responsibility for the pregnancy and birth expenses. Further, NH lived with Claimant and J~ at the time of Claimant’s birth. While NH did not sign the birth certificate or legally adopt Claimant, she openly contributed to his personal and financial wellbeing. Even after she separated from J~, NH continued to provide regular and substantial contributions to Claimant and listed herself as a parent on Claimant’s medical and school records.

Furthermore, NH and J~’s separation does not affect NH’s status as Claimant’s parent. California law is clear that the question of presumed parenthood is determined by NH’s relationship to Claimant, not her relationship to J~. See, e.g. E.C., 202 Cal. App. 4th at 1088 (“The relationship between a child’s alleged parent and biological parent is legally irrelevant in determining whether the alleged parent held out that child as his or her natural child.”). Indeed, even after NH’s separation from J~ and NH’s subsequent marriage, NH continued to hold Claimant out as her child. For example, Claimant’s last name was changed to include NH’s last name. Additionally, NH petitioned for joint custody of Claimant, clearly establishing her continued commitment toward Claimant’s welfare. The court order awarding joint custody to NH and J~ further indicates that the court considered NH’s continued presence in Claimant’s life to be beneficial for him. See Elisa B., 37 Cal. 4th at 121-22 (discussing In re Salvador and “holding out” provision). Finally, we have no evidence indicating a competing claim for the role of Claimant’s second parent. See id. at 123, 125. In fact, NH and J~, through the petition for joint custody, appear to agree that NH was the second parent and should be formally recognized as such.

CONCLUSION

NH received Claimant into her home and openly held Claimant out as her child. Thus, under California law, NH is Claimant’s natural parent and claimant could inherit intestate from her. Claimant is therefore entitled to child’s survivor benefits under the Act.

The NH died while domiciled in California. Therefore, the agency looks to California intestacy law to determine whether the Claimants are the children of the NH for purposes of entitlement. The evidence shows that the NH was committed to the Claimants and their well-being since their birth. A California court would likely find that the NH was the natural mother of the Claimants because she voluntarily accepted the rights and obligations of parenthood and demonstrated a commitment to the Claimants and their welfare. The NH is the Claimants’ presumptive and natural parent under California Law and they could inherit intestate from her, therefore, the Claimants are entitled to child’s insurance benefits on the NH’s record.

QUESTION

You asked whether a parent-child relationship existed between M~(NH) and A~ and K~ (Claimants) for purposes of determining A~ and K~’s entitlement to child’s insurance benefits.^[5]

SHORT ANSWER

Yes. The Claimants are entitled to benefits as the NH’s children because a parent-child relationship is established under California law. NH received the Claimants into her home and openly held them out as her children.

SUMMARY OF EVIDENCE

NH and C~ were in a relationship that began before 1999. C~ gave birth to the Claimants in October, 1999, and the Claimants’ birth certificates list her as the mother. The Claimants’ birth certificates do not list a father or a second parent. On August XX, 2001, NH executed a will and living trust naming C~ as her life partner and identifying the Claimants as her children.

On August XX, 2008, NH and C~ were married in California. At the time NH and C~ married, same-sex marriage was legal in California.^[6] NH died from cancer on October XX, 2011 in C~, California.

In a March 2014 child relationship statement (SSA-2519), NH’s mother reported that NH and C~ lived with her from December 1997 to July 2003 in C~, California. When the Claimants were born in 1999, the children also lived with NH’s mother until NH, C~, and the Claimants moved to their own home in C~, California in July 2003. NH signed the Claimant’s school forms and report cards as their parent. NH’s mother also stated that NH lived with the Claimants from their birth until the NH’s death.^[7] She stated that the Claimants referred to NH as “Mommy” and that NH fed them, played with them, took care of them at home, took them to school, picked them up from school, took them to play gym, Tae Kwan Do, soccer, school events, play practices, assemblies, play-dates, swim lessons, family get-togethers and trips, and birthday parties. NH’s mother also stated that NH went to parent-teacher conferences, participated in the PTA as a treasurer and room mother, and assisted the soccer team. NH’s mother stated that she considered the Claimants to be her grandchildren and that her other grandchildren considered the Claimants to be their cousins.

C~’s sister confirmed that NH, C~, and the Claimants lived together. NH’s nephew also confirmed that NH was present during C~’s pregnancy and throughout the Claimants’ lives and that NH took care of the Claimants while C~ worked. A2~, MD, a parent at R~, which the Claimants attended, stated that while C~ worked at an accounting job, NH was the main parent in charge of the Claimants’ needs, rearing, and education. L~, LMFT, reported that NH, C~, the Claimants attended G~ support groups for cancer patients and their families together. Since NH passed away, the Claimants continue to attend club functions and weekly support groups for bereavement counseling.

ANALYSIS

Federal Law

Under the Social Security Act (Act), every unmarried minor child of an individual that dies fully or currently insured shall be entitled to child insurance benefits. Social Security Act § 202(d)(1), 42 U.S.C. § 402(d)(1). However, to receive child insurance benefits, the applicant must qualify as the insured individual’s “natural child” and be dependent on the insured individual at the time he filed his application for child insurance benefits.^[8] See id.; 20 C.F.R. §§ 404.350, 404.355. In determining whether a claimant qualifies as the child of the insured individual, the Commissioner applies the law governing the devolution of intestate personal property by the courts of the State in which such insured individual was domiciled at the time of his or her death. Social Security Act § 216(h)(2)(A), 42 U.S.C. § 416(h)(2)(A); 20 C.F.R. § 404.355(a)(1). An applicant who satisfies the requirements of section 216(h)(2)(A) of the Act is also deemed dependent upon the insured individual. 20 C.F.R. § 404.361(a) (“If you are the insured’s natural child, as defined in § 404.355, you are considered dependent upon him or her”); Social Security Ruling 77-2c (“where state intestacy law provides that a child may take personal property from a father’s estate, it may reasonably be thought that the child will more likely be dependant during the parent’s life...”).

Here, the NH died while domiciled in California. Therefore, the agency looks to California intestacy law to determine whether the Claimants are the children of the NH for purposes of entitlement.

California Law

Under California intestacy law, a natural parent and child relationship “is established where the relationship is presumed and not rebutted pursuant to the Uniform Parentage Act.”^[9] Cal. Prob. Code § 6453(a); see also Cal. Fam. Code §§ 7600-7730 (Uniform Parentage Act (UPA)). Pursuant to California’s UPA, a person is presumed to be the natural parent of a child if he or she “receives the child into his or her home and openly holds out the child as his or her natural child.” Cal. Fam. Code § 7611(d);^[10] see also Program Operations Manual System (POMS) GN 00306.430(A)(1)(b)(6).

The presumption of natural parentage applies even in the absence of a biological relationship. See Elisa B. v. Superior Court, 37 Cal. 4th 108, 120-21 (Cal. 2005). Paternity presumptions are not driven by biological paternity, but rather by “the state’s interest in the welfare of the child and the integrity of the family.” Id. at 121-22 (citing In re Salvador M., 111 Cal. App. 4th 1353, 1357-58 (Cal. Ct. App. 2003)). California recognizes the value of having two parents as a source of emotional and financial support for a child, and an alleged parent’s commitment to the child and the child’s well-being are considerations in determining presumed parenthood status. Id. at 123; In re D.M., 210 Cal. App. 4th 541, 553 (Cal. Ct. App. 2012) (citing E.C. v. J.V., 202 Cal. App. 4th 1076, 1085 (Cal. Ct. App. 2012)). In determining whether an alleged parent has held out a child as her natural child, California courts look at the alleged parent’s conduct to determine her commitment to the child, and may consider factors such as whether the alleged parent helped with prenatal care; paid pregnancy and birth expenses commensurate with the ability to do so; whether and how long the parent cared for the child; and acknowledged the child to others. See E.C., 202 Cal. App. 4th at 1087.

In Elisa B., the California Supreme Court discussed several factors that supported a finding of presumed maternity, including the fact that the petitioner was in a committed relationship with her partner when they decided to have children together and that the petitioner raised the children as her own. See Elisa B., 37 Cal. 4th at 122. Importantly, the Court held the petitioner, who participated in causing the children to be conceived, voluntarily accepted the rights and obligations of parenthood after the children were born, and there were no competing claims to her being the children’s parent, was a presumed parent under the UPA. Id. at 124-25.

Similarly, in S.Y. v. S.B., 201 Cal. App. 4th 1023 (Cal. Ct. App. 2011), the California Court of Appeal upheld the finding of presumed parentage of S.Y., where S.Y. encouraged S.B. to adopt a child with the understanding they would raise the child together; S.Y. voluntarily accepted the rights and obligations of parenthood after the child was born; and no other person claimed to be the second parent. Id. at 1037. The Court also found that S.Y.’s attending the child’s school events and naming the child as a beneficiary to her assets strengthened her claim to parentage. Id.. at 1035. Finally, the fact that S.Y.’s parents considered and treated the child as their grandchild showed that S.Y. held the child out as her own. Id.

Here, as in Elisa B., the evidence shows that NH and C~ were in a committed relationship before deciding to have children. NH clearly accepted the Claimants into her home as C~, the Claimants, and NH all lived together with NH’s mother for the first few years of the Claimants’ lives. Thereafter, C~, the Claimants, and NH moved into their own home for the remainder of NH’s life. Cf. C. R. v. K. S., 175 Cal. App. 4th 361 (Cal. Ct. App. 2009) (finding a presumption of parentage even though the petitioner had only lived with and shared in the child’s care for about three months). Moreover, after the Claimants were born, NH accepted her responsibilities as a parent and raised the children. NH signed school documents as the Claimants’ parent and participated in the PTA at their school. NH also named the Claimants as her children and her beneficiaries in her last will and testament and in her living trust.

The evidence shows that NH was committed to the Claimants and their well-being since their birth. She took the Claimants into her home, cared for them, supported them, and openly held them out as her children by declaring that they were her children on formal documents, including her own will and testament. Therefore, a California court would likely find that NH was the natural mother of the Claimants because she voluntarily accepted the rights and obligations of parenthood and demonstrated a commitment to the Claimants and their welfare. Finally, public policy would favor a finding of a parent and child relationship between NH and the Claimants, as there are no competing claims for the role of the Claimants’ second parent. See In re Nicholas H., 28 Cal. 4th at 63-64; E.C., 202 Cal. App. 4th at 1085; accord S.Y. v. S.B., 201 Cal. App. 4th 1023, 1036 (Cal. Ct. App. 2012) (finding the defendant failed to rebut the parentage presumption where the plaintiff voluntarily accepted the rights and obligations of parenthood since the children were born, there were no competing claims to her being the second parent, and public policy favored children having two parents).

Thus, NH is the Claimants’ presumptive parent under California Family Code section 7611(d), as NH received the Claimants into her home and openly held them out as her natural children. See Cal. Fam. Code § 7611(d). As the NH’s children under the UPA, the Claimants are able to inherit intestate from the NH under California Probate Code section 6453(a).

Because we conclude the Claimants are the children of NH under California Family Code section 7611(d), the agency need not reach the issue of whether there is another independent presumption of parentage arising from the 2008 marriage between C~ and the NH.^[11]

CONCLUSION

Under California law, NH is the natural mother of the Claimants, and they could inherit intestate from her. The Claimants are therefore entitled to child’s insurance benefits on the NH’s record.

The number holder (NH) and her same-sex spouse, J~ provided statements and documentary evidence establishing the claimant is the child of the NH. The claimant was born August 2001 in California to J~. The original birth certificate did not identify a father, however the claimant’s surname was listed the same as the NH’s. The NH and J~ became registered domestic partners in September 2001 and they married in 2008. In March 2014, the NH and J~ signed a California Acknowledgement of Paternity/Parentage form under penalty of perjury listing the NH as the father/parent of the claimant. Thereafter, the California Department of Public Health issued an amended birth certificate listing the NH as the claimant’s father/parent.

Under California’s Uniform Parentage Act (UPA), a parent is presumed to be the natural parent of a child if he or she “receives the child into his or her home and openly holds out the child as his or her natural child.” This means a woman may openly hold out a child as her natural child even if she is not the biological mother. Based on the facts that the NH reported she actively participated in the claimant’s birth, named the claimant as her child on tax returns, referred to the claimant as her child to friends and family, listed the child as a beneficiary on her insurance policy, taken the claimant to the doctor, made regular and substantial contributions to his support, and lives with the claimant and J~ as a family unit, the California court would determine that the NH is the claimant’s presumed parent.

Since the NH received the claimant into her home and openly held the claimant out as her child, the NH is considered a natural parent and the claimant could inherit intestate from her. Therefore, the claimant qualifies as the NH’s child for benefit purposes because a parent-child relationship is established under California law.

QUESTION

You asked whether a parent-child relationship existed between D~ (NH) and C~ (Claimant) for purposes of determining Claimant’s entitlement to child’s insurance benefits.

SHORT ANSWER

Yes. Claimant qualifies as NH’s child for benefits purposes because a parent-child relationship is established under California law. NH received Claimant into her home and openly held Claimant out as her child.

 

SUMMARY OF EVIDENCE

NH and her wife J~ provided the following information in statements dated March XX, 2014 and April XX, 2014:

• •

  NH and J~ became registered domestic partners on September XX, 2001.

• •

  NH and J~ married in 2008.

• •

  NH reported that she:

  • •

    lives with the Claimant;

  • •

    refers to Claimant as her son (or to herself as Claimant’s parent) in letters to friends and family;

  • •

    listed the Claimant as a dependent on her tax returns from the time he was born;

  • •

    included the Claimant as a beneficiary of her insurance policy when she was working;

  • •

    listed Claimant as her son in a 2006 application for employment;

  • •

    registered Claimant for school or signed a report card as his parent;

  • •

    took Claimant to the pediatrician and listed herself as Claimant’s parent;

  • •

    accepted responsibility for or paid the hospital expenses at Claimant’s birth;

  • •

    identified Claimant as her son in written applications, surveys, and Facebook postings;

  • •

    orally acknowledged Claimant as her son to friends, family, coworkers, and neighbors; and

  • •

    made regular and substantial contributions to the Claimant’s support when she previously worked.

Documentary evidence established the following facts:

• •

  Claimant was born on August XX, 2001 in O~, CA. Claimant’s original birth certificate listed J~ as his mother and did not identify a father. Claimant’s surname was listed as “XX,” the same as NH.

On March XX, 2014, NH and J~ signed a California Acknowledgement of Paternity/Parentage form listing NH as the Father/Parent of Claimant. The couple signed the form under penalty of perjury. Thereafter, the California Department of Public Health issued an amended birth certificate, listing D~ as Claimant’s Father/Parent.^[12]

• •

  NH married J~ on November XX, 2008 and J~ took the surname “XX”.

• •

  As of February XX, 2014, NH and J~ were listed as parents in the information maintained by Claimant’s school, A~.

ANALYSIS

Federal Law

Under the Social Security Act (Act), every unmarried minor child of an insured individual is entitled to child’s insurance benefits. Act § 202(d)(1), 42 U.S.C. § 402(d)(1). However, to receive child’s insurance benefits the applicant must qualify as the insured individual’s “child,” as defined by section 216(e), and be dependent on the insured individual at the time he filed his application. See id.; 20 C.F.R. § 404.350.

Section 216(e)(1) of the Act defines a “child” as “the child or legally adopted child of an individual.” Act § 216(e)(1), 42 U.S.C. § 416(e)(1). The Act further provides: “[i]n determining whether an applicant is the child...[of an] insured individual...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 was domiciled. Act § 216(h)(2)(A), 42 U.S.C. § 416(h)(2)(A). An applicant is eligible for benefits as the insured individual’s “natural child” if he could inherit property based on this intestacy test. 20 C.F.R.§ 404.355(a)(1).^[13] An applicant who satisfies the requirements of section 216(h)(2)(A) of the Act is also deemed dependent upon the insured individual. 20 C.F.R.§ 404.361(a) (“If you are the insured’s natural child, as defined in § 404.355, you are considered dependent upon him or her”); Social Security Ruling 77-2c (“where state intestacy law provides that a child may take personal property from a father’s estate, it may reasonably be thought that the child will more likely be dependent during the parent’s life...”).

 

Accordingly, California intestacy law determines Claimant’s relationship with NH, and thus, his entitlement to child’s insurance benefits.

 

California Law

 

Pursuant to California Probate Code § 6453, a natural parent and child relationship is established where the relationship is presumed and not rebutted under California’s Uniform Parentage Act (UPA).^[14] Cal. Prob. Code § 6453(a); see also Cal. Fam. Code §§ 7600-7730 (UPA). According to the UPA, a parent is presumed to be the natural parent of a child if he or she “receives the child into his or her home and openly holds out the child as his or her natural child.” Cal. Fam. Code § 7611(d); see also Program Operations Manual System (POMS) GN 00306.430(A)(1)(b)(6).^[15]

For purposes of § 7611(d), a woman may openly hold out a child as her natural child even if she is not the biological mother. Elisa B. v. Superior Court, 37 Cal. 4th 108, 120 (Cal. 2005). Elisa B. discussed several factors that supported a determination of presumed parenthood under § 7611(d). See Elisa B., 37 Cal. 4th at 122. First, the petitioner actively consented to, and participated in, the artificial insemination of her partner with the understanding that the resulting child or children would be raised by the same-sex couple as co-parents. Id. Second, the children’s surname was formed by joining the surnames of the petitioner and her partner. Id. Third, the petitioner named the children as dependents on her tax return. Id. Fourth, the petitioner told her employer that she had children. Id. Fifth, the petitioner lived in the same home as the children and acted as a co-parent. Id.

Since Elisa B., California appellate courts have consistently applied the reasoning of Elisa B. to hold a presumptive parental relationship is established. In C.R. v. K.S., 175 Cal. App. 4th 361 (Cal. Ct. App. 2009) (disapproved on other grounds by Reid v. Google, Inc., 50 Cal. 4th 512, 532 n.7 (Cal. 2010)), the California Court of Appeal found a presumption of parentage even though the petitioner had only lived with and shared in the child’s care for about three months. Id. at 366-67, 374. However, the petitioner was present at the child’s birth, gave the child a hyphenated last name that included her name, and she held herself out as the child’s parent in public announcements. Id.

Similarly, in S.Y. v. S.B., 201 Cal. App. 4th 1023 (Cal. Ct. App. 2011), the California Court of Appeal upheld the finding of presumed parentage of S.Y., where S.Y. encouraged S.B. to adopt a child with the understanding they would raise the child together; S.Y. voluntarily accepted the rights and obligations of parenthood after the child was born; and no other person claimed to be the second parent. Id. at 1037.

Then, in E.C. v. J.V., 202 Cal. App. 4th 1076 (Cal. Ct. App. 2012), the California Court of Appeal stressed that, in determining presumed parentage, the State looks at the presumed parent’s commitment to the child’s well-being, as opposed to the presumed parent’s relationship with the biological mother. Id. at 1085.

As in Elisa B., NH reported that she actively participated in Claimant’s birth, including taking responsibility for hospital expenses from his birth, and Claimant was given her surname. NH named Claimant on her tax returns, and told an employer Claimant was her child. Just as the petitioner in C~ had done, the NH held Claimant out as her child in public announcements. Moreover, NH has referred to Claimant as her son to friends and family, listed him as a beneficiary on her insurance policy, registered Claimant for school, taken Claimant to the doctor, and made regular and substantial contributions to his support. In addition, NH continues to live with Claimant and J~ as a family unit -- unlike the petitioners in Elisa B., C~, S.Y., and E.C.—who were nevertheless found to be presumed parents.

Based on the foregoing, a California court would determine that NH is Claimant’s presumed parent under Family Code § 7611(d). NH participated in Claimant’s conception and birth, took Claimant into her home, cared for him, and financially supported him. Additionally, NH has married Claimant’s biological mother and is actively taking steps to be officially declared a parent on Claimant’s birth certificate. Finally, we are not aware of any competing claim for the role of Claimant’s second parent, denying NH’s presumed parentage would leave Claimant with only one parent; a result that is contrary to public policy in California. See Elisa B., 37 Cal. 4th at 123, 125.

CONCLUSION

Under California law, NH is Claimant’s natural parent and Claimant could inherit intestate from her. Claimant is therefore entitled to child’s insurance benefits under the Act.

The number holder (NH) entered into a same-sex marriage with the claimant’s mother, K~ in 2008. Thereafter, K~ conceived the claimant via artificial insemination of anonymous donor sperm and the claimant was born December 2010 in S~, California. The birth certificate lists both K~ and the NH as the claimant’s parents. The NH died April 2014 in S~. Since the NH was domiciled in California at the time of her death, we look to California intestacy law to determine whether a parent-child relationship existed between the NH and the claimant for purposes of determining entitlement to child survivor’s insurance benefits.

Under California law, the NH is the claimant’s natural parent and the claimant can inherit intestate from her because the claimant was born during the NH’s marriage to the claimant’s birth mother. Therefore, the claimant qualifies as the NH’s child for purposes of determining entitlement to child’s insurance benefits under section 216(h)(2) of the Act.

QUESTION

You asked whether a parent-child relationship existed between C~ (NH) and F~ (Claimant) for purposes of determining Claimant’s entitlement to child survivor’s insurance benefits. The NH and the Claimant’s biological mother entered into a same-sex marriage prior to the Claimant’s birth.

SHORT ANSWER

Yes. Claimant is entitled to child survivor’s insurance benefits. Claimant is NH’s child under California law because Claimant was born during NH’s marriage to Claimant’s birth mother.

SUMMARY OF EVIDENCE

NH entered into a same-sex marriage with K~ on October XX, XXXX. Thereafter, K~ conceived Claimant via artificial insemination of anonymous donor sperm. Claimant was born on December XX, XXXX in S~, California. The birth certificate lists both K~ and NH as Claimant’s parents. Claimant’s middle name is listed as “Z~,” the surname of NH. NH died on April XX, XXXX in S~, California.

ANALYSIS

Federal Law

Under the Social Security Act (Act), every unmarried minor child of an insured individual is entitled to child’s insurance benefits. Act § 202(d)(1). However, to receive child’s insurance benefits the applicant must qualify as the insured individual’s “child,” as defined by section 216(e) of the Act, and be dependent on the insured individual at the time he filed his application. See id.; 20 C.F.R. § 404.350.

Section 216(e)(1) of the Act defines a “child” as “the child or legally adopted child of an individual.” Act § 216(e)(1). The Act further provides: “[i]n determining whether an applicant is the child...[of an] insured individual...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 was domiciled. Act § 216(h)(2)(A). An applicant is eligible for benefits as the insured individual’s “natural child” if he could inherit property based on this intestacy test. 20 C.F.R. § 404.355(a)(1).^[16] An applicant who satisfies the requirements of section 216(h)(2)(A) of the Act is also deemed dependent upon the insured individual. 20 C.F.R. § 404.361(a) (“If you are the insured’s natural child, as defined in § 404.355, you are considered dependent upon him or her”); Social Security Ruling 77-2c (“where state intestacy law provides that a child may take personal property from a father’s estate, it may reasonably be thought that the child will more likely be dependent during the parent’s life...”).

NH was domiciled in California at the time of her death. Accordingly, California intestacy law determines Claimant’s relationship with NH, and thus, his entitlement to child’s survivor benefits.

California Law

Pursuant to California Probate Code section 6453, a natural parent and child relationship is established where the relationship is presumed and not rebutted under California’s Uniform Parentage Act (UPA).^[17] Cal. Prob. Code § 6453(a); see also Cal. Fam. Code §§ 7600-7730 (UPA).

California Family Code section 7611(a) provides a presumption of a parent-child relationship between NH and Claimant. This presumption arises out of the relationship between NH and Claimant’s natural mother.^[18] Specifically, under California Family Code section 7611(a), a parent-child relationship is presumed when a child’s natural mother is married to the presumed parent at the time of the child’s birth. Cal. Fam. Code § 7611(a).^[19]

California courts have held that the presumptions of parentage under 7611 apply equally to children of same-sex relationships. See Elisa B. v. Superior Court, 37 Cal. 4th 108, 119-20 (Cal. 2005) (holding that a child may have same-sex parents under the UPA); In re D.S., 207 Cal. App. 4th 1088, 1100 (Cal. Ct. App. 2012) (“‘[I]n the context of same-sex relationships involving two women, courts have found a child may have a biological mother and a presumed mother, to the extent the woman who is the nonbiological [or nonadoptive] parent meets the requirements of one or more of the presumptions listed in section 7611’”) (citing In re Bryand D., 199 Cal. App. 4th 127, 138-39 (Cal. Ct. App. 2011)). Furthermore, at least one California court applied section 7611(a) to establish presumed parentage for a child born during a same-sex marriage. See In re M.C., 195 Cal. App. 4th 197, 216-17 (Cal. Ct. App. 2011) (overturned on other grounds by Cal. Fam. Code § 3040(d)). In the case In re M.C., the Court applied section 7611(a) to establish that the same-sex spouse of a child’s natural mother was the child’s presumed parent, where the child was born during the same-sex marriage. Id.

Based on the foregoing, NH is Claimant’s presumed parent under Family Code section 7611(a) because she was legally married to Claimant’s natural mother when he was born. In the absence of any evidence rebutting that presumption, NH is also considered Claimant’s natural parent under California law and Claimant is therefore able to inherit intestate from NH under California Probate Code section 6453(a).

CONCLUSION

Under California law, NH is Claimant’s natural parent and Claimant could inherit intestate from her. Claimant therefore qualifies as the NH’s child for purposes of determining her entitlement to child’s insurance benefits under section 216(h)(2) of the Act.