TN 19 (03-17)

PR 00905.031 Nevada

A. PR 17-051 Establishing Parent-Child Relationship under Nevada Law Where Parent Entered into a California Same-Sex Marriage with Children’s Biological Mother

Date: February 16, 2017

1. Syllabus

The number holder (NH) was domiciled in Nevada when she filed her application for benefits; therefore, the agency looks to the Nevada intestacy law to determine whether the Claimants are the NH’s children for purposes of entitlement to benefits. The Nevada Uniformed Parentage Act (UPA) provides several ways to establish parentage. Under the Nevada law, the NH is the Claimants’ presumed parent because she received the Claimants into her home and openly held them out as her own children. Alternatively, under Nevada law, there is a parent-child relationship because the NH consented to her spouse’s assisted reproduction, which resulted in the Claimants’ births. Under either alternative, the Claimants could inherit from the NH if she died without a will. Accordingly, the Claimants have established a child-parent relationship under the Social Security Act (Act) and the agency can deem the Claimants dependent on the NH. Thus, the agency can find the Claimants are entitled to child’s benefits on the NH’s record.

2. Opinion

QUESTION

You asked whether a parent-child relationship exists between number holder J~ (NH) and claimants K~ and T~ (Claimants) for purposes of determining Claimants’ entitlement to child’s insurance benefits on the NH’s record. Here, the NH consented to assisted reproduction with the Claimants’ biological mother and openly held out the Claimants as her own children. The couple later married in California but were domiciled in Nevada.

SHORT ANSWER

Yes. Under Nevada law, the NH is the Claimants’ presumed parent because she received the Claimants into her home and openly held them out as her own children. Alternatively, under Nevada law, there is a parent-child relationship because the NH consented to her spouse’s assisted reproduction, which resulted in the Claimants’ birth. Under either alternative, the Claimants could inherit from the NH if she died without a will. Accordingly, the Claimants have established a child-parent relationship under the Social Security Act (Act) and the agency can deem the Claimants dependent on the NH. Thus, the agency can find the Claimants are entitled to child’s benefits on the NH’s record.

SUMMARY OF EVIDENCE

The NH and her spouse, M~, have lived together in L~, Nevada, since October 2003. In May 2006, M~ conceived Claimants through in vitro fertilization (IVF) with donor sperm after she and the NH unsuccessfully attempted to adopt children. According to the NH, M~, and their physician at the Fertility Center of Law Vegas, the NH was involved in the IVF process, attended medical appointments with M~, gave her injections, and co-signed the consent forms.1 M~ gave birth to the Claimants in December 2006 in Long Beach, California.2 The Claimants’ birth certificates list both the NH and M~ as their parents. The NH also signed the Claimants’ birth certificates as the informant, indicating she was their mother. The NH states she has not adopted the Claimants because she is named on their birth certificates.

Following the Claimants’ birth, the NH left her job to care for them. She legally changed her last name to “R~,” adding M~’s last name to her own for continuity in the family name. In July 2008, shortly after same-sex marriage became legal in California, the NH and M~ were married in S~, California.3 The Claimants participated in the wedding.

According to statements and documentation submitted by the NH and M~, the NH is identified as the Claimants’ parent in their passport applications; hospital, pediatrician and dental records; daycare, camp and school records; tax returns; and insurance policies.4 The NH named the Claimants as beneficiaries in her will and had them added to a family tree that an aunt prepared for a family reunion. Since their birth, the NH has been the primary caregiver for the Claimants, has taken them to medical and dental appointments, and has referred to the Claimants as her daughters to family, friends, and the public. Both the NH and M~ state that it was always their intention to be a family unit together with the Claimants.

The NH filed an application for retirement benefits on March XX, 2016. On the application, she stated she had two minor children—the Claimants. She also submitted applications for auxiliary child benefits for the Claimants.

APPLICABLE LAW

Federal Law

Under the Act, every unmarried minor child of an insured individual is entitled to child insurance benefits. Social Security Act § 202(d)(1). However, to receive child insurance benefits, the applicant must qualify as the insured individual’s “child” and be dependent on the insured individual at the time she filed her application. See id. Section 216(e)(1) of the Act defines a “child” as “the child or legally adopted child of an individual.” Social Security Act § 216(e)(1). The Act further provides that in determining whether an applicant is the child of an insured individual, the agency “appl[ies] such law as would be applied in determining the devolution of intestate personal property by the courts of the State such insured individual is domiciled” when the applicant files her application. Social Security Act § 216(h)(2)(A).

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...”).

Here, the NH was domiciled in Nevada when she filed her application for benefits. Therefore, the agency looks to Nevada intestacy law to determine whether the Claimants are the NH’s children for purposes of entitlement to benefits.

Nevada Law

Under Nevada intestacy laws, an intestate decedent’s estate goes to his or her child when there is no surviving spouse. Nev. Rev. Stat. (NRS) § 134.090. Nevada law defines child as “a person entitled to take as a child by intestate succession from the parent whose relationship is involved,” excluding a stepchild. NRS § 132.055. Because Nevada intestacy laws do not further define “child,” Nevada courts look to the State’s Uniform Parentage Act (UPA), codified at chapter 126 of the NRS, to determine parentage for purposes of intestate succession. In re Estate of Murray, 344 P.3d 419, 421-22 (Nev. 2015); see also St. Mary v. Damon, 309 P.3d 1027, 1031 (Nev. 2013) (“To determine parentage in Nevada, courts must look to the Nevada Parentage Act ….”).

The Nevada UPA provides several ways to establish parentage. NRS §§ 126.041 (establishing parent-child relationship), 126.051 (presumptions of paternity). “Insofar as practicable,” statutes regarding determination of paternity also apply to determine the existence of a mother and child relationship. NRS § 126.231; see St. Mary, 309 P.2d at 1032 (noting that a statute establishing a presumption of paternity based on evidence of a genetic relationship could be used to establish a mother-child relationship).

Among other things, a man is presumed to be the father of a minor child if he receives the child into his home and openly holds out the child as his own.5 NRS § 126.051(1)(d); see In re Estate of Murray, 344 P.2d at 424 (upholding presumption of paternity where claimant demonstrated the decedent received her into his home and openly held her out as his child). A presumption of paternity may be rebutted by clear and convincing evidence. NRS § 126.051(3).

A parent-child relationship may be established if, among other things, a man or woman consents to assisted reproduction pursuant to NRS sections 126.670 and 126.680, which results in the birth of the child.6 NRS § 126.041(1)(e) & (2)(c). Under section 126.670, “[a] person who provides gametes for, or consents to, assisted reproduction by a woman, as provided in NRS 126.680, with the intent to be a parent of her child is a parent of the resulting child.” NRS § 126.670. Section 126.680 instructs that consent to assisted reproduction must be in writing, but the absence of a signed consent does not preclude a finding of parentage “if the woman and the person, during the first 2 years of the child’s life, resided together in the same household with the child and openly held out the child as their own.” NRS § 126.680(1) & (2).

ANALYSIS

Parent-Child Relationship

Because the NH was domiciled in Nevada at all relevant times, the agency applies Nevada law to determine whether a parent-child relationship can be established between the NH and the Claimants. If, under Nevada law, the Claimants could inherit from the NH if she died without a will, then the agency will find the Claimants are the NH’s children for purposes of child benefits. See Social Security Act § 216(h)(2)(A)(a); 20 C.F.R. § 404.345. Here, a parent-child relationship can be established between the NH and the Claimants in two ways, as discussed in turn below. As such, the Claimants could inherit from the NH under Nevada’s intestacy laws and the agency will find Claimants are entitled to child’s insurance benefits on the NH’s record.

1. The NH Is Presumed To Be the Claimants’ Parent under NRS section 126.051(1)(d)

Under the NRS, a man is presumed to be the father of a minor child if he receives the child into his home and openly holds out the child as his own. NRS § 126.051(1)(d). This presumption, like other paternity presumptions, may be used to establish maternity as well. See NRS § 126.231; St. Mary, 309 P.2d at 1032. Here, the evidence shows the NH satisfies both requirements to be the Claimants’ presumed parent under NRS section 126.051(1)(d).

(a) The NH Received the Claimants into Her Home

The first prong of section 126.051(1)(d) is satisfied because the evidence shows the NH received the Claimants into her home, where she served as their primary caregiver since birth. See In re Estate of Murray, 344 P.2d at 424 (upholding presumption of paternity where claimant demonstrated the decedent received her into his home and openly held her out as his child).

(b) The NH Openly Held Out the Claimants as Her Own Children

With respect to the second prong of section 126.051(1)(d), Nevada law is not well developed on what constitutes “holding out” to establish parentage. In Hermanson v. Hermanson, 887 P.2d 1241, 1244 (Nev. 1994), the court noted that the putative father held himself out as the child’s parent where he consented to being named on the birth certificate and he was named as the child’s father in a welfare application. Here, as in Hermanson, the NH was named on the Claimants’ birth certificates, which she also signed as informant and mother; the NH also was named as the Claimants’ parent in their passport applications. See id.

Since there is little Nevada authority on point and because Nevada courts look to California law when interpreting Nevada’s UPA, it is reasonable to consider how California courts have interpreted a “holding out” to determine whether the requirement is satisfied here. See St. Mary, 309 P.3d at 1034 (finding “California’s precedent is highly persuasive because it pertains to a statutory scheme that is substantially similar to Nevada’s and advances the policies that underlie the Nevada Parentage Act.”), citing Elisa B. v. Superior Court, 37 Cal. 4th 108 (Cal. 2005).

Like section 126.051(1)(d) of the NRS, section 7611(d) of the California Family Code provides for a presumption of parentage where a parent receives the child into her home and openly holds out the child as her own. Cal. Fam. Code § 7611(d). California courts have found a presumption of maternity where a woman receives a child into her home and openly holds out the child as her own, even where the woman is not the child’s biological parent. See Elisa B., 37 Cal. 4th at 119-20; L.M. v. M.G., 208 Cal. App. 4th 133, 138-41 (Cal. Ct. App. 2012). When determining whether a parent has held out the child as her own, California courts look to the conduct of the alleged parent, including whether she was involved during her partner’s pregnancy; whether she sought to have her name placed on the birth certificate; whether and how long she cared for the child; whether and how widely she acknowledged that she was the child’s parent; whether she provided for the child after it no longer resided with her; whether she assisted with necessary paperwork for the child’s receipt of benefits; and whether her care for the child was merely incidental. E.C. v. J.V., 202 Cal. App. 4th 1076, 1087 (Cal. Ct. App. 2012), citing In re T.R., 132 Cal. App. 4th 1201, 1211 (2005). Not all factors need to be shown; rather, the “common thread [is] whether, through his or her conduct, an alleged parent has demonstrated a commitment to the minor child and the minor child’s well-being, thereby distinguishing the alleged parent as someone who has entered into a familial relationship with the child from someone who has not.” Id.

Here, the NH is identified as the Claimants’ parent on their birth certificates, which she signed as informant and mother. The NH is also named as the Claimants’ parent in their hospital, pediatrician and dental records; their daycare, camp and school records; the NH’s tax return; and the NH’s insurance policies. The NH named the Claimants as beneficiaries in her will and had them added to a family tree. The NH has been the Claimants’ primary caregiver since birth and has taken them to medical and dental appointments. She has referred to the Claimants as her daughters to family, friends, and the public. The NH identified the Claimants as her minor children in her application for benefits, and she applied for auxiliary child benefits for them based on her record. Finally, the NH and M~ state that they have been—and continue to be—a family unit together with the Claimants. Based on this evidence, a California court would likely conclude that the NH “has demonstrated a commitment to the minor child and the minor child’s well-being” sufficient to constitute “holding out” within the meaning of section 7611(d) of the California Family Code. E.C., 202 Cal. App. 4th at 1086. Therefore, a Nevada court would also likely find this evidence sufficient to meet the “holding out” requirement in section 126.051(1)(d) of the NRS. See St. Mary, 309 P.3d at 1033-34 (finding California precedent “highly persuasive” and “highly instructive” in interpreting Nevada’s UPA).

(c) The NH’s Presumption of Parentage Is Unrebutted

Finally, a parentage presumption may be rebutted by clear and convincing evidence. NRS § 126.051(3). In this case, there is no evidence rebutting the presumption that the NH is the Claimants’ parent, nor is there evidence that any person besides the NH and M~ have acted as parents to the Claimants.

Accordingly, the NH can establish a presumption of parentage vis-à-vis the Claimants because the unrebutted evidence shows she received the Claimants into her home and openly held them out as her own children. See NRS § 126.051(1)(d). Because the NH is the Claimants’ presumed parent under NRS 126.051(1)(d), the Claimants could inherit intestate from her. See In re Estate of Murray, 344 P.3d at 421-424 (holding that child who was entitled to a presumption of paternity properly inherited from her presumed father, who died intestate).

2. The NH Consented to Assisted Reproduction that Resulted in the Claimants’ Birth

Alternatively, the NH can establish a parent-child relationship with the Claimants because she consented to M~s IVF procedures, which resulted in the Claimants’ birth. Under section 126.041(1)(e) of the NRS, a parent-child relationship may be established between a woman and a child if the woman consents to assisted reproduction pursuant to sections 126.670 and 126.680, which results in the child’s birth. The statute does not state—and research did not reveal—that this consent must be from the woman who gives birth to the child as opposed to her same-sex partner. See generally St. Mary, 309 P.3d at 1034 (holding that Nevada’s UPA permits a child to have two legal mothers where one woman had her egg fertilized through artificial insemination and implanted into her female partner).

Section 126.041(1)(e) references NRS section 126.670, which provides that “[a] person who … consents to assisted reproduction by a woman … with the intent to be a parent of her child is a parent of the resulting child.” NRS § 126.670. Notably, section 126.670 refers to a “person” (not a “man”) consenting to assisted reproduction by a woman, demonstrating that the statute applies where a woman’s same-sex partner provides consent. Here, the NH consented to the IVF procedures that resulted in M~ giving birth to the Claimants, as evidenced by the letter from Dr. D~ at the fertility center, who stated the NH “was involved in the entire [in vitro fertilization] process and attended office visits with [M~]. She also co-signed the forms required to consent to the procedures being performed.” Additionally, the NH and M~ both indicated it was their intent to form a family unit when they began the process of assisted reproduction that resulted in the conception and birth of the Claimants. This evidence satisfies the requirements of section 126.670.

Section 126.041(1)(e) also references NRS section 126.680, which requires written consent to the assisted reproduction. NRS § 126.680(1). Here, although the NH did not provide copies of her signed consent forms, Dr. D~ stated that she co-signed all consent forms for M~’s IVF procedures, as noted above. Moreover, the absence of written consent does not preclude a finding of parentage “if the woman and the person, during the first 2 years of the child’s life, resided together in the same household with the child and openly held out the child as their own.” NRS § 126.680(2). Statements submitted by the NH and M~ demonstrate that they lived together with the Claimants in the same household since the Claimants’ birth and openly held them out as their own children for at least the first two years of their lives. See id. For example, the NH and M~ are identified as the Claimants’ parents on their birth certificates, which the NH signed as informant and mother. The NH and M~ are also named as the Claimant’s parents in other records prepared within the first two years of Claimant’s lives, including passport applications and hospital records. Additionally, they have referred to the Claimants as their children since before their birth. Therefore, even absent copies of the IVF consent forms, the evidence shows the NH and M~ lived together with the Claimants in the same household and openly held them out as their own children during the first two years of their lives, as required under section 126.680(2).

Accordingly, a parent-child relationship may be established between the NH and the Claimants under section 126.041(1)(e) of the NRS because the NH consented to M~’s IVF procedures pursuant to sections 126.670 and 126.680, which resulted in the Claimants’ birth. As the NH’s children, the Claimants could inherit intestate from her. See NRS §§ 134.090, 132.055.

Finally, in considering the evidence as a whole, Nevada courts would likely conclude that the State’s policy objective of promoting the best interests of children would be met by finding a parent-child relationship here. See Love v. Love, 959 P.2d 523, 527 (Nev. 1998) (recognizing the legislature’s primary intent in creating presumptions of paternity in section 126.051 was to ensure that children were supported by their parents).

Dependency

Because the Claimants could inherit intestate from the NH, they are also deemed dependent upon her. See 20 C.F.R. § 404.361(a). The agency will therefore find a parent-child relationship exists between the NH and the Claimants such that the Claimants are entitled to benefits on the NH’s record. See Social Security Act § 202(d)(1).

CONCLUSION

Under Nevada law, a parent-child relationship can be established between the NH and the Claimants in two ways. First, the NH is the Claimants’ presumed parent because she received the Claimants into her home and openly held them out as her own children. Alternatively, there is a parent-child relationship between the NH and the Claimants because the NH consented to M~’s IVF, which resulted in the Claimants’ birth. Under either alternative, pursuant to Nevada law, the Claimants could inherit from the NH if she died without a will. Accordingly, for purposes of child’s benefits, the agency can find the Claimants are the NH’s children pursuant to the Act and the agency will deem the Claimants dependent upon the NH.


Footnotes:

[1]

. In an August 2016 letter, Dr.D~, stated the NH “was involved in the entire [in vitro fertilization] process and attended office visits with [M~]. She also co-signed the forms required to consent to the procedures being performed.”

[2]

. The NH and M~ state that they traveled to California for the birth because the State permitted both same-sex partners to be named on the birth certificates.

[3]

. In May 2008, the California Supreme Court held that same-sex couples had the right to marry in California. In Re Marriage Cases, 43 Cal. 4th 757 (Cal. 2008). In November 2008, California voters passed Proposition 8, which amended the California Constitution to provide that “[o]nly marriage between a man and a woman is valid or recognized in California.” Perry v. Schwarzenegger, 704 F. Supp. 2d 921, 927 (N.D. Cal. 2010). The district court held Proposition 8 violated the federal constitution, id., and the United States Supreme Court later held the petitioners lacked standing to appeal, effectively reinstating same-sex marriage in California. Hollingsworth v. Perry, 133 S. Ct. 2652, 2668 (2013). California recognizes as valid same-sex marriages performed from June 16, 2008 through November 4, 2008. Strauss v. Horton, 46 Cal. 4th 364, 474 (Cal. 2009).

[4]

. The NH and M~ each submitted a Form SSA-2519 (Child Relationship Statement) and Form SSA-795 (Statement of Claimant or Other Person) along with the Claimants’ birth certificates, a marriage certificate, joint tax returns, and school records.

[5]

. Section 126.051 identifies other presumptions of paternity that are not applicable here: where the man married or attempted to marry the child’s mother and the child was born during or within 285 days after the actual or attempted marriage; where the man cohabitated with the child’s mother before and during the time of conception; and where paternity is established by genetic testing. NRS § 126.051(1)(a)-(c) & (2).

[6]

. Section 126.041 identifies other ways of establishing a parent-child relationship that are not relevant to this analysis: proof that the woman gave birth to the child; an adjudication of maternity or paternity; proof of the child’s adoption; and an adjudication of parentage where the child was born to a gestational carrier. NRS § 126.041(1)(a)-(d), (f) & (2)(a)-(d).


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PR 00905.031 - Nevada - 03/28/2017
Batch run: 03/28/2017
Rev:03/28/2017