TN 9 (07-16)

PR 00905.034 New Mexico

A. PR 16-089 New Mexico State Law – Status of Child Based on Same-Sex Relationship

Date: March 4, 2016

1. Syllabus

The issue is whether a parent-child relationship exists between the number holder (NH) and the claimant, L~ based on a same-sex marriage between the NH and the claimant’s biological mother, M~ for purposes of the claimant’s entitlement to child’s insurance benefits (CIB) on the NH’s record. The NH and M~ married in February 2011 in New Hampshire. M~ gave birth to the claimant in December 2011 in New Mexico. The child’s birth certificate lists the NH as “Father or Parent One” and M~ as “Mother or Parent Two.” There is no evidence that the NH legally adopted L~. The NH applied for disability benefits in July 2013 while domiciled in New Mexico and listed L~ as her child on her application and indicated the parent-child relationship began at the claimant’s date of birth and is based on inheritance rights. The NH was awarded benefits effective August 2012. Under New Mexico’s Uniform Parentage Act (UPA), the NH is presumed to be the claimant’s mother because she was married to the claimant’s biological mother and L~ was born during their marriage. The New Mexico Supreme Court expressly recognized that the UPA’s presumptions of parentage apply in the context of same-sex relationships and that a child can have two legal parents of the same-sex and an individual can be a child’s parent even though he or she has no biological or adoptive relationship to the child. Since the parent-child relationship is established between the NH and L~, L~ is considered the NH’s natural child under the Act’s state inheritance law provision. Therefore, L~ is the NH’s child for purposes of eligibility to CIB on the NH’s record.

2. Opinion

QUESTION PRESENTED

You have asked whether, under New Mexico State law, a parent-child relationship exists between the number holder D~ (number holder) and claimant L~ (claimant) based on a same-sex marriage between the number holder and claimant’s biological mother, M~ (M), for purposes of claimant’s entitlement to Title II child’s insurance benefits on the number holder’s record.1

ANSWER

Yes. It is our opinion that claimant is the number holder’s child for purposes of determining his entitlement to child’s benefits on the number holder’s earnings record.

BACKGROUND

As we understand the facts, M~ and the number holder, both female, were married on February XX, 2011, in New Hampshire. M~ gave birth to claimant on December XX, 2011, in New Mexico. Claimant’s New Mexico birth certificate lists the number holder as his “Father or Parent One” and M~ as his “Mother or Parent Two.” We have no evidence that the number holder legally adopted claimant. On or about July XX, 2013, the number holder, while domiciled in New Mexico, applied for disability insurance benefits under Title II of the Social Security Act (Act). The number holder listed claimant as her child on her application, and indicated that the parent-child relationship began December XX, 2011 (claimant’s date of birth) and is based on inheritance rights. The agency determined that the number holder was entitled to Title II benefits effective August 2012.

ANALYSIS

A. Requirements for Child’s Insurance Benefits under the Act

Under the 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). An applicant who satisfies the requirements of section 216(h)(2)(A) of the Act is also deemed dependent upon the insured individual. See 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 . . . .”).

The number holder was domiciled in New Mexico at the time the application was filed. Accordingly, New Mexico intestate succession law determines claimant’s relationship with the number holder, and thus, his entitlement to child’s insurance benefits on the number holder’s record.

B. New Mexico Intestate Succession Law

Article 2, Part 1 of New Mexico’s Uniform Probate Code (UPC), N.M. Stat. Ann. §§ 45-2-101 – 45-2-122, codifies New Mexico’s law of intestate succession. Any part of a decedent’s estate that is not disposed of by a will passes by intestate succession to the decedent’s heirs as provided for in the UPC, which includes the decedent’s surviving spouse and descendants. N.M. Stat. Ann. §§ 45-2-101(A), 45-2-103(A)(1). “Descendant” means an individual who has established a parent-child relationship with the decedent. See N.M. Stat. Ann. § 45-1-201(9); see also N.M. Stat. Ann. § 45-1-201(6) (defining “child” as “an individual entitled to take as a child pursuant to the [UPC] by intestate succession from the parent whose relationship is involved and excludes a person who is only a stepchild, a foster child, a grandchild or any more remote descendant”). If a parent-child relationship exists or is established, “the parent is a parent of the child and the child is a child of the parent for the purpose of intestate succession.” N.M. Stat. Ann. § 45-2-116. The UPC, however, does not set forth specific methods for establishing the parent-child relationship for purposes of intestate succession. We look to New Mexico’s Uniform Parentage Act (UPA), N.M. Stat. Ann. §§ 40-11A-101 – 40-11A-903, which determines parentage in New Mexico for all purposes under New Mexico law, including for intestate succession under the UPC. See N.M. Stat. Ann. §§ 40-11A-103(A), 40-11A-203; see also Estate of Swift ex rel. v. Bullington, 309 P.3d 102 (N.M. Ct. App. 2013) (recognizing that the UPA governs determinations of parentage in New Mexico, and that a parentage action could be maintained after a putative father’s death). The UPA defines “child” as “a person of any age whose parentage may be determined pursuant to the New Mexico [UPA].” N.M. Stat. Ann. § 40-11A-102(F).

The UPA does not expressly address parentage determinations in the context of a same-sex marriage, such as in this case. Under the UPA, the mother-child relationship is established between a woman and a child by:

(1) the woman’s having given birth to the child;

(2) an adjudication of the woman’s maternity; or

(3) the woman’s adoption of the child.

N.M. Stat. Ann. § 40-11A-201(A). None of these circumstances apply here to the number holder’s relationship with claimant. However, the UPA also provides that “[p]rovisions of the New Mexico [UPA] relating to determinations of paternity apply to determinations of maternity insofar as possible.” N.M. Stat. Ann. § 40-11A-106. Thus, we look to the methods for establishing paternity.

Under the UPA, the father-child relationship is established between a man and a child by:

(1) an unrebutted presumption of the man’s paternity of the child pursuant to the UPA;

(2) the man’s effective acknowledgment of paternity;

(3) an adjudication of the man’s paternity; or

(4) the man’s consent to assisted reproduction by a woman that resulted in the child’s birth.

N.M. Stat. Ann. § 40-11A-201(B). Of these four methods, the presumption of paternity is most applicable to the present matter. Thus, we consider whether New Mexico law has applied a presumption of paternity in the context of a same-sex relationship to find a woman to be a child’s presumptive mother.

Under the UPA, a man is presumed to be the child’s father if:

(1) he and the child’s mother are married to each other and the child is born during the marriage;

(2) he and the child’s mother were married to each other and the child is born within 300 days after termination of the marriage;

(3) before the child’s birth, he and the child’s mother married each other in apparent compliance with the law, even if the attempted marriage is or could be declared invalid, and the child is born during the invalid marriage or within 300 days after its termination;

(4) after the child’s birth, he and the child’s mother married each other in apparent compliance with the law, whether or not the marriage is or could be declared invalid, and he voluntarily asserted his paternity of the child, and (a) the assertion is in a valid acknowledgment of paternity, or (b) he agreed to be and is named on the child’s birth certificate, or (c) he promised in a record to support the child as his own; or

(5) for the first two years of the child’s life, he resided in the same household with the child and openly held out the child as his own.

N.M. Stat. Ann. § 40-11A-204(A). Of these five methods, the first method is most applicable to the present situation. We therefore next analyze whether the number holder is presumed to be claimant’s mother under section 40-11A-204(A)(1) of New Mexico’s UPA because she is legally married to claimant’s biological mother (M~), and claimant was born during their marriage.

New Mexico Law Recognizes a Presumption of Parentage to a Non-biological Mother in a Valid Same-Sex Marriage

Here, we find that the number holder is presumed to be claimant’s mother under section 40-11A-204(A)(1) of New Mexico’s UPA because she was married to claimant’s biological mother (M~), and claimant was born during their marriage. See N.M. Stat. Ann. § 40-11A-204(A)(1). As noted, although section 40-11A-204 refers to the presumption of a man’s paternity, the UPA also states that “[p]rovisions of [New Mexico’s UPA] relating to determination of paternity apply to determinations of maternity insofar as possible.” N.M. Stat. Ann. § 40-11A-106. Moreover, in a 2012 decision, the New Mexico Supreme Court expressly recognized that the UPA’s presumptions of parentage apply in the context of same-sex relationships. See Chatterjee v. King, 280 P.3d 283, 285-286 (N.M. 2012) (interpreting a prior version of the UPA in the context of a same-sex relationship to determine the legal relationship between the non-biological partner and her partner’s adopted child, and applying the UPA’s holding-out provision for the presumption of paternity, which is similar to the provision now contained in section 40-11A-204(A)(5)).

The Chatterjee case involved two women, Chatterjee and King, who were in a long-term committed relationship (not a legal same-sex marriage), during which time King adopted a child from Russia. See Chatterjee, 280 P.3d at 284. Chatterjee supported King and the child financially, lived together with King and the child, and co-parented the child with King for several years. See id. When Chatterjee and King ended their relationship, King moved to another state with the child and sought to prevent Chatterjee from having any contact with the child. See id. Chatterjee filed a petition in a New Mexico district court to establish her parentage of the child under New Mexico’s UPA so that she would have standing to seek joint custody and timesharing of the child. See id. After the New Mexico district court and court of appeals ruled that she could not establish parentage because she was neither the child’s biological or adoptive parent, Chatterjee appealed to the New Mexico Supreme Court. See id. at 285.

The New Mexico Supreme Court held that the presumption in New Mexico’s UPA that a man is the father of a minor child he openly holds out as own also applies to a woman who openly holds a child out as her own; the fact that Chatterjee was not the child’s biological or adoptive mother did not preclude her from establishing that she was the child’s mother within meaning of New Mexico’s UPA; and that Chatterjee had standing as an interested party to establish parentage under New Mexico’s UPA. See id. at 285-286. In so holding, the New Mexico Supreme Court found that (1) the plain language of section 40-11-21 (the predecessor to the current section 40-11A-106) requires courts to apply provisions relating to the father-child relationship to women to determine the mother-child relationship when it is practicable to do so, and this includes the holding out provision establishing a presumption of parentage; (2) commentary by drafters of the UPA supports application of the provisions relating to paternity to determinations of maternity; (3) this holding is consistent with how other courts in other jurisdictions (including California, Colorado, and Oregon) interpreted their UPAs, which have provisions that are similar to the New Mexico UPA; and (4) New Mexico’s public policy is to encourage the support of children. See id. The Court stated that “[c]onsistent with the underlying policy-based rationale of New Mexico UPA that equality in child welfare requires laws that achieve equality in parentage, a child’s need for love and support is no less critical simply because her second parent also happens to be a woman.” Id. at 292. The Court found that it “is against public policy to deny parental rights and responsibilities based solely on the sex of either or both of the parents.” Id. at 293. The Court concluded that “the Legislature intended that [the holding out provision for a presumption of paternity] be applied to a woman who is seeking to establish a natural parent and child relationship with a child whom she has held out as her natural child from the moment the child came into the lives of both the adoptive mother and the presumptive mother.” Id. Therefore, the New Mexico Supreme Court held that under New Mexico law, a child can have two legal parents of the same sex, and an individual can be a child’s parent even though he or she has no biological or adoptive relationship to the child. See id. at 285-286; see also Griego v. Oliver, 316 P.3d 865, 871 (N.M. 2013) (holding that same-sex marriage is legal in New Mexico, and citing Chatterjee and N.M. Stat. Ann. § 32A-5-11 before noting that “New Mexico law recognizes the right of same-gender couples to raise children,” and later citing Chatterjee and noting that “[t]his Court has held same-gender couples have custody rights to children under the New Mexico [UPA]”).

Thus, New Mexico law permits and requires application of the presumptions of paternity set forth in section 40-11A-204 of New Mexico’s UPA to determine whether a presumptive mother-child relationship exists between the number holder and claimant. As noted, section 40-11A-204(A)(1) of the UPA provides that “a man is presumed to be the father of a child if he and the mother of the child are married to each other and the child is born during the marriage.” N.M. Stat. Ann. § 40-11A-204(A)(1). Here, M~ and the number holder were married on February XX, 2011, in New Hampshire in a same-sex marriage. M~ gave birth to claimant on December XX, 2011, in New Mexico, during the number holder and M~’s same-sex marriage. Claimant’s New Mexico birth certificate lists the number holder as his “Father or Parent One” and M~ as his “Mother or Parent Two.” Thus, we next consider whether their same-sex marriage was validly celebrated in order to determine whether this presumption of parentage applies to establish a parent-child relationship between the number holder and claimant.

The agency’s POMS instructs that all states must permit same-sex marriage and recognize valid same-sex marriages from other states. See POMS GN 00210.003(A). Therefore, we are to consider whether the New Hampshire same-sex marriage was validly celebrated. See id. New Hampshire began permitting same-sex marriages effective January 1, 2010. See N.H. Rev. Stat. Ann. §§ 457:1-a, 457:46. The evidence provided with this request includes a certified copy of a State of New Hampshire Certificate of Marriage showing that the number holder and M~ participated in a marriage ceremony C~ performed on February XX, 2011, in New Hampshire. See N.H. Rev. Stat. § 457:22 (marriage license application required), § 457:26 (marriage license required before the solemnized marriage ceremony), § 457:31 (solemnized marriage ceremony by appropriate official required). A certified copy of a marriage record “shall be received in all courts and places as evidence of the fact of the marriage.” N.H. Rev. Stat. § 457:38; see also 20 C.F.R. § 404.725 (certified copy of a marriage record is preferred evidence of ceremonial marriage).2 Therefore, M~ and the number holder’s marriage in New Hampshire was validly celebrated on February XX, 2011. See POMS GN 00210.003(B).

In sum, the evidence provided establishes that M~ and the number holder’s same-sex marriage is valid under New Hampshire law. See POMS GN 00210.003(B). Thus, the number holder is presumed to be claimant’s mother under section 40-11A-204(A)(1) of New Mexico’s UPA because she is legally married to M~, claimant’s biological mother, and claimant was born during their marriage.3 See N.M. Stat. Ann. § 40-11A-204(A)(1).4 Because a parent-child relationship is established between the number holder and claimant under New Mexico’s UPA, a parent-child relationship is established for purposes of intestate succession under New Mexico’s UPC. See N.M. Stat. Ann. § 40-11A-203 (a parent-child relationship established under the UPA applies for all purposes). Therefore, claimant is the number holder’s natural child under the Act’s state inheritance law provision. See Act § 216(h)(2)(A); 20 C.F.R. § 404.355(a)(1).

CONCLUSION

It is our opinion that claimant is the number holder’s child for purposes of his eligibility to child’s insurance benefits under the Act on the number holder’s record because he would be able to inherit from the number holder under New Mexico’s intestate succession laws.

Michael McGaughran

Regional Chief Counsel

By: Shalyn Timmons

Assistant Regional Counsel


Footnotes:

[1]

. In determining the status of a child of a same-sex marriage or other relationship, the Program Operations Manual System (POMS) advises the agency that if the number holder is not the biological parent and a parental relationship is alleged based upon a same-sex relationship, such as a same-sex marriage, civil union, or domestic partnership, the claim should be submitted for a Regional Chief Counsel opinion. POMS GN 00306.001(C)(1)(d).

[2]

. OGC Boston reviewed this opinion and concurs with the discussion of New Hampshire law.

[3]

. The presumption of parentage under section 40-11A-204 is rebuttable only by adjudication as described in Article 6 of New Mexico’s UPA. See N.M. Stat. Ann. § 40-11A-204(B). There is no claim or evidence a