TN 14 (08-16)

PR 00905.041 Oregon

A. PR 16-136 Another Relationship of a Child to a Number Holder in the State of Oregon

Date: May 25, 2016

1. Syllabus

The number holder (NH) lives in Oregon; therefore, we look to the Oregon intestacy law to determine the parent-child relationship. Oregon law presumes a parent–child relationship if the purported parents were married to each other at the time of the child’s birth. However, for the presumption of parentage to apply, it must be at least possible that the person is the biological parent of the child. This presumption cannot apply to a same-sex couple. Though the presumption of biological parentage is not available to same-sex couples, parentage may be established if the child was conceived through artificial insemination. Under the Oregon Family Fairness Act, same-sex couples may register as domestic partners and enjoy the same rights, benefits, and privileges extended to married couples under Oregon law. Those privileges presumably include legal parenthood for the domestic partner of a woman who conceives a child by artificial insemination.

In this case, the NH and the claimant’s biological mother were married at the time of the claimant’s birth, and the NH is identified as a parent on the claimant’s birth certificate. There is no evidence of a second legal, biological parent. Absent evidence to the contrary, it appears possible that the claimant was conceived by artificial insemination. If the claimant was conceived through artificial insemination and the NH consented to the insemination, then a parent–child relationship would be found that would support inheritance rights. The evidence presented does not preclude a finding of a parent-child relationship between the claimant and the NH for purposes of determining entitlement to child’s benefits under Title II of the Act. However, further development of the evidence is required.

2. Opinion

QUESTION PRESENTED

Does the evidence establish that the claimant was the child of the insured number holder for the purposes of child’s benefits under Title II of the Social Security Act (the Act)?

BRIEF ANSWER

The evidence does not preclude a finding of a parent–child relationship for purposes of determining entitlement to child’s benefits under Title II of the Act. However, further development of the evidence is required.

SUMMARY OF FACTS On June XX, 2013, number holder S~ (NH) married S1~ in Washington state. On July XX, 2013, S1~ gave birth to H~ (claimant). The claimant’s birth certificate lists both S1~ and the NH as his parents.

The NH filed for child’s benefits for the claimant, relying on the NH’s marriage to S1~. It is our understanding that the NH has not alleged that the claimant is her stepchild.

ANALYSIS

Federal Law on Child’s Benefits Under Title II

Under the Act, an individual may be eligible for child survivor’s insurance benefits if: (1) the individual is the “child” of the insured, as defined in the Act; and (2) the individual was “dependent upon” the insured at the time of application. 42 U.S.C. § 402(d); 20 C.F.R. § 404.350. For the purposes of child’s insurance benefits, “child” is defined as the natural child, legally adopted child, stepchild, or grandchild or stepgrandchild of the insured individual. See 42 U.S.C. §§ 402(d)(1), 416(e); see also 20 C.F.R. §§ 404.350, 404.354-59.

Under one method for determining whether the claimant qualifies as the “child” of an insured worker, the agency applies the law governing “the devolution of intestate personal property by the courts of the State in which such insured individual is domiciled at the time such applicant files” the application. 42 U.S.C. § 416(h)(2)(A); see also 20 C.F.R. § 404.355(a)(1), (b) (if the insured is living, apply state law where insured had permanent home at the time of the application); Program Operations Manual System (POMS) GN 00306.001(C) (determining what state law applies). “The place where a man lives is properly taken to be his domicile until facts adduced establish the contrary.” District of Columbia v. Murphy, 314 U.S. 441, 455 (1941) (citations omitted). Here, the NH’s wedding license shows that the NH lives in Portland, Oregon. In the absence of any evidence to the contrary, this opinion will assume that Oregon is the NH’s domicile.

State Law

Oregon law provides that, if a decedent dies intestate, her surviving spouse and any issue shall receive a share of the intestate estate. Or. Rev. Stat. § 112.025 (2013). “Issue” includes all lineal descendants, except those who are the lineal descendants of living lineal descendants. Or. Rev. Stat. § 111.005(22). Thus, if the claimant is the child of the NH, he would be able to inherit and would therefore be a “child” under 42 U.S.C. § 416(h)(2)(A).

In establishing a parent–child relationship, a man is presumed to be the father of a child born to a woman if he and the woman were married to each other at the time of the child’s birth. Or. Rev. Stat. § 109.070. However, “for the presumption of parentage to apply, it must be at least possible that the person is the biological parent of the child.” Shineovich v. Shineovich, 214 P.3d 29, 36 (Or. App. 2009) (noting that statutory provisions refer to establishing paternity). Thus, this presumption cannot apply to a same-sex couple.

Though the presumption of biological parentage is not available to same-sex couples, parentage may be established if the child was conceived through artificial insemination.

The relationship, rights and obligation between a child born as a result of artificial insemination and the mother’s husband shall be the same to all legal intents and purposes as if the child had been naturally and legitimately conceived by the mother and the mother’s husband if the husband consented to the performance of artificial insemination.

Or. Rev. Stat. § 109.243. In 2009, prior to Oregon’s permission for and recognition of same-sex marriage, the Oregon Court of Appeals held that this provision must be available to same-sex couples in a domestic partnership. Shineovich, 214 P.3d at 40. The only other method to establish parentage when the purported parent is not biologically related to a child is through adoption. Or. Rev. Stat. § 109.050; see Or. Rev. Stat. § 111.005(22) (including adopted children in definition of issue).

Application of Law to Facts

On June XX, 2013, the NH married the claimant’s mother, S1~, in Washington state. On July XX, 2013, S1~ gave birth to the claimant. These facts do not preclude the conclusion that the claimant is the child of the NH for the purposes of the Social Security Act. However, further factual development is warranted before making a determination in this case.

We first consider whether the claimant could inherit as the NH’s child under Oregon intestacy law. Here, there is no allegation that the NH is the claimant’s biological parent. However, evidence indicates that the NH and the claimant’s biological mother were married at the time of the claimant’s birth and the NH is identified as a parent on the claimant’s birth certificate. There is no evidence of a second legal, biological parent. Absent evidence to the contrary, it appears possible that the claimant was conceived by artificial insemination. If the claimant was conceived by artificial insemination and the NH consented to the insemination, the decision in Shineovich and Or. Rev. Stat. § 109.243 would apply.

In making the decision in Shineovich, the court noted that “[t]he purpose of ORS 109.243 is to protect children conceived by artificial insemination from being denied the right to support by the mother’s husband or to inherit from the husband . . . [and] extending the statute’s coverage to include the children of mothers in same-sex relationships advances the legislative objective by providing the same protection for a greater number of children.” 214 P.3d at 40. The court also stated that, “in 2007, the legislature passed the Oregon Family Fairness Act (OFFA), under which same-sex couples may register as domestic partners and enjoy the same rights, benefits, and privileges extended to married couples under Oregon law [and] those privileges presumably include legal parenthood by operation of law for the domestic partner of a woman who conceives a child by artificial insemination.” Id.

While the holding in Shineovich pertained to domestic partnerships and was prior to the state’s recognition of same-sex marriages, the court’s extension of Or. Rev. Stat. § 109.243 to same-sex domestic partnerships also extends to same-sex married couples. Following Shineovich, the Oregon Court of Appeals clarified that the touchstone for determining whether Or. Rev. Stat. § 109.243 applied to a same-sex couple was “whether the same-sex partners would have chosen to marry before the child’s birth had they been permitted to.” In re Madrone, 350 P.3d 495, 501 (Or. App. 2015) (emphasis in original). Here, despite the marriage ban in Oregon until 2014, the NH and the claimant’s biological mother did, in fact, choose to marry in Washington in 2013, shortly before the claimant was born. As Madrone confirms, Section 109.243 may apply in this case.

Therefore, if (a) the claimant was conceived through artificial insemination, and (b) the NH consented to the insemination, then a parent–child relationship would be found that would support inheritance rights. Accordingly, we recommend recontacting the NH to determine if this is the case.

Finally, if a direct parent-child relationship cannot be established, the claimant might still be eligible for stepchild benefits, assuming that the requirements for such benefits are satisfied. See POMS GN 00210.505 (providing instructions for determining stepchild benefits). However, we were requested to focus our legal opinion on whether the claimant was the natural child of the NH because the NH did not allege that the claimant was her stepchild. See POMS GN 00210.505(B)(1) (if the claimant is not “alleging he or she is a stepchild of the NH . . . do not apply these instructions” for determining stepchild benefits). As a result, we do not address the claimant’s eligibility for stepchild benefits in this opinion.

CONCLUSION

For the above reasons, the evidence does not preclude a finding of a parent-child relationship for purposes of determining entitlement to child’s benefits under Title II of the Social Security Act. However, further development of the evidence is required.

B. PR 16-135 Relationship of a child to number holder in the State of Oregon

Date: May 25, 2016

1. Syllabus:

The number holder (NH) lives in Oregon; therefore, we look to the Oregon intestacy law to determine the parent-child relationship. Oregon law presumes a parent–child relationship if the purported parents were married to each other at the time of the child’s birth. However, for the presumption of parentage to apply, it must be at least possible that the person is the biological parent of the child. This presumption cannot apply to a same-sex couple. Though the presumption of biological parentage is not available to same-sex couples, parentage may be established if the child was conceived through artificial insemination. Under the Oregon Family Fairness Act, same-sex couples may register as domestic partners and enjoy the same rights, benefits, and privileges extended to married couples under Oregon law. Those privileges presumably include legal parenthood for the domestic partner of a woman who conceives a child by artificial insemination. This applies to couples who would have married if they could have.

The NH and the claimant’s biological mother were in a domestic partnership at the time of the claimant’s birth, and the NH is identified as a parent on the claimant’s birth certificate. There is no evidence of a second legal, biological parent. Absent evidence to the contrary, it appears possible that the claimant was conceived by artificial insemination. If the NH consented to the artificial insemination of the claimant’s mother and the evidence shows that they would have chosen to marry before the child’s birth had they been permitted to, it appears that the claimant would be the NH’s child. The evidence presented does not preclude a finding of a parent-child relationship between the claimant and the NH for purposes of determining entitlement to child’s benefits under Title II of the Act. However, further development of the evidence is required.

2. Opinion

QUESTION PRESENTED

Is H~ (the claimant) the child of her biological mother’s domestic partner, L~ (the NH), for the purposes of determining entitlement to child’s benefits under Title II of the Social Security Act (the Act)?

BRIEF ANSWER

The evidence presented does not preclude a finding of a parent-child relationship between the claimant and the NH for purposes of determining entitlement to child’s benefits under Title II of the Act. However, further development of the evidence is required.

SUMMARY OF FACTS

The NH began receiving disability benefits in November 2006. In February 2008, she entered into a domestic partnership under Oregon law with D~. On May XX, 2013, D~ gave birth to a baby girl, the claimant. The NH is listed as a parent on the birth certificate. Currently, D~ and the NH have separated; the claimant lives with the NH. On October XX, 2015, the NH filed for child’s insurance benefits on behalf of the claimant. The claimant and the NH both reside in Oregon.

ANALYSIS

Federal Law on Child’s Benefits Under Title II

Under the Act, an individual may be eligible for child survivor’s insurance benefits if: (1) she is the “child” of the insured, as defined in the Act; and (2) she was “dependent upon” the insured at the time of application. 42 U.S.C. § 402(d); 20 C.F.R. § 404.350. For the purposes of child’s insurance benefits, “child” is defined as the natural child, legally adopted child, stepchild, or grandchild or stepgrandchild of the insured individual. See 42 U.S.C. §§ 402(d)(1), 416(e); see also 20 C.F.R. §§ 404.350, 404.354-59.

Under one method for determining whether the claimant qualifies as the “child” of an insured worker, the agency applies the law governing “the devolution of intestate personal property by the courts of the State in which such insured individual is domiciled at the time such applicant files” the application. 42 U.S.C. § 416(h)(2)(A); see also 20 C.F.R. § 404.355(a)(1), (b) (if the insured is living, apply state law where insured had permanent home at the time of the application); Program Operations Manual System (POMS) GN 00306.001(C) (determining what state law applies). The place where a person lives is properly taken to be his or her domicile until facts adduced establish the contrary. District of Columbia v. Murphy, 314 U.S. 441, 455 (1941). Here, the evidence indicates that the NH lives in Oregon. In the absence of any evidence to the contrary, this opinion will assume that Oregon is the NH’s domicile.

State Law

Oregon law provides that, if a decedent dies intestate, her surviving spouse and any issue shall receive a share of the intestate estate. Or. Rev. Stat. § 112.025 (2013). “Issue” includes all lineal descendants, except those who are the lineal descendants of living lineal descendants. Or. Rev. Stat. § 111.005(22). Thus, if the claimant is the child of the NH, she would be able to inherit and would therefore be a “child” under 42 U.S.C. § 416(h)(2)(A).

Oregon law presumes a parent–child relationship if the purported parents were married to each other at the time of the child’s birth. Or. Rev. Stat. § 109.070. However, “for the presumption of parentage to apply, it must be at least possible that the person is the biological parent of the child.” Shineovich v. Shineovich, 214 P.3d 29, 36 (Or. App. 2009) (noting that statutory provisions refer to establishing paternity). Therefore, this presumption cannot apply to a same-sex couple.

Though the presumption of biological parentage is not available to same-sex couples, parentage may be established if the child was conceived through artificial insemination.

The relationship, rights and obligation between a child born as a result of artificial insemination and the mother’s husband shall be the same to all legal intents and purposes as if the child had been naturally and legitimately conceived by the mother and the mother’s husband if the husband consented to the performance of artificial insemination.

Or. Rev. Stat. § 109.243.

In 2009, the Oregon Court of Appeals held that Section 109.243 must be available to same-sex couples in a domestic partnership.1 Shineovich, 214 P.3d at 40. Following Shineovich, the court clarified that the touchstone for determining whether Or. Rev. Stat. § 109.243 applied to a same-sex couple was “whether the same-sex partners would have chosen to marry before the child’s birth had they been permitted to.” In re Madrone, 350 P.3d 495, 501 (Or. App. 2015) (emphasis in original).2

Parentage can also be established by adoption. Or. Rev. Stat. § 109.050; see Or. Rev. Stat. § 111.005(22) (including adopted children in definition of issue).

Application of Law to Facts

In February 2008, the NH entered a domestic partnership with the claimant’s mother. In 2013, D~ gave birth to the claimant. As of the date of this request for opinion, the NH and D~ no longer live together. These facts do not preclude the conclusion that the claimant is the child of the NH for the purposes of the Act.

We first consider whether the claimant could inherit as the NH’s child under Oregon intestacy law. Here, there is no allegation that the NH is the claimant’s biological parent. However, evidence indicates that the NH and the claimant’s biological mother were in a domestic partnership at the time of the claimant’s birth and the NH is identified as a parent on the claimant’s birth certificate. There is no evidence of a second legal, biological parent. Absent evidence to the contrary, it appears possible that the claimant was conceived by artificial insemination. If the claimant was conceived by artificial insemination, Or. Rev. Stat. § 109.243 could apply.

In making the decision in Shineovich, the court noted: “The purpose of ORS 109.243 is to protect children conceived by artificial insemination from being denied the right to support by the mother's husband or to inherit from the husband… [and] extending the statute's coverage to include the children of mothers in same-sex relationships advances the legislative objective by providing the same protection for a greater number of children.” The court also stated that, “in 2007, the legislature passed the Oregon Family Fairness Act (OFFA), under which same-sex couples may register as domestic partners and enjoy the same rights, benefits, and privileges extended to married couples under Oregon law [and] those privileges presumably include legal parenthood by operation of law for the domestic partner of a woman who conceives a child by artificial insemination.” As the court later explained in Madrone, Section 109.243 applies to couples who “would have married if they could have.” 350 P.3d at 502 (emphasis in original).

As a result, if the NH consented to the artificial insemination of the claimant’s mother and the evidence shows that they “would have chosen to marry before the child’s birth had they been permitted to,” Madrone, 350 P.3d at 501 (emphasis omitted), it appears that the claimant would be the NH’s child.3

CONCLUSION

For the above reasons, the evidence does not preclude a finding of a parent-child relationship for purposes of determining entitlement to child’s benefits under Title II of the Social Security Act.


Footnotes:

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