TN 19 (05-12)

PR 01005.020 Kentucky

A. PR 12-100 DNA Testing, Kentucky Number Holder – Alvin Claimant – Corey

DATE: May 9, 2012

1. SYLLABUS

We believe the evidence submitted in this case is sufficient under Kentucky law to rebut the presumption of paternity of a child born during a marriage and establish the deceased number holder as the child’s father under Kentucky intestacy law. Although Claimant was born during the marriage of NH1 and Claimant’s mother, the DNA testing and other evidence are sufficient to rebut the presumption of paternity regarding a child born during wedlock. For a person alleging paternity by someone outside the marriage to overcome the presumption, he or she must present evidence of the strongest character, and so convincing as to remove the question of a reasonable doubt. The DNA testing results revealed a 99.99% probability NH2 was Claimant’s biological father.

Considering the DNA test evidence and the statements of NH1, Claimant’s mother, and the mother of NH1’s first child, we believe a Kentucky court would conclude clear and convincing evidence exists to establish that Claimant is NH2’s child for the purposes of Kentucky intestacy law. . Therefore, we conclude that the Claimant is NH2’s child for the purposes of determining Claimant’s eligibility for CIB on NH2’s earnings record.

2. OPINION

QUESTION

You asked whether the claimant, who was born during a marriage between his mother and his mother’s disabled husband and who is presently receiving child’s insurance benefits (CIB) on the disabled husband’s earnings record, can receive CIB on the earnings record of another number holder, now deceased, where DNA results indicate the deceased number holder is the child’s biological father. The original request asked for an opinion regarding whether the claimant’s mother committed fraud by filing a claim for benefits on her disabled husband’s earnings record when she knew he was not the biological father of the claimant.  Subsequently, the Louisville, Kentucky Field Office advised us we did not need to develop the fraud inquiry as the Social Security Administration (SSA) was on notice in 1999 that the disabled husband did not believe the claimant was his child.  

OPINION

For the reasons stated below, we believe the evidence submitted in this case is sufficient under Kentucky law to rebut the presumption of paternity of a child born during a marriage and establish the deceased number holder as the child’s father under Kentucky intestacy law.  Consequently, an SSA adjudicator could find the claimant is the child of the deceased number holder for CIB purposes.

BACKGROUND

According to the information provided, Dewey, a number holder entitled to disability insurance benefits (NH1), and Lisa (Claimant’s mother) married on August 28, 1995. Corey (Claimant) was born on February. Claimant’s birth certificate lists NH1 as his father. Claimant became entitled to CIB on NH1’s earnings record in March 1999. In December 1999, Debra, the mother of NH1’s first child, contacted SSA to protest the reduction in CIB for her child due to Claimant’s entitlement to CIB on NH1’s earnings record. She alleged Claimant was not NH1’s child, per report of NH1 and several other people. 

When contacted by SSA, NH1 provided a statement in February 2000 in which he indicated he and Claimant’s mother separated several times during their marriage, including the period between March 1998 and June 1998, the likely period of Claimant’s conception, and said he and Claimant’s mother had no marital relations during that period.  NH1 indicated Claimant’s mother had an affair earlier in their marriage that resulted in a pregnancy that ended in miscarriage. According to NH1, the man with whom Claimant’s mother had the affair was Alvin, now deceased (NH2).  NH1 stated Claimant’s mother lived with her mother and NH2 between March and June 1998. NH1 stated Claimant’s mother told him NH2 “forced himself” on her between March and June 1998.  NH1 stated he did not believe Claimant was his child. NH1 and Claimant’s mother indicated they contacted the Jefferson County, Kentucky, County Attorney’s office to establish NH2 was Claimant’s father, but because NH1 and Claimant’s mother were legally married, the County Attorney’s office advised them they would have to hire their own attorney to file a civil action to establish NH2 was Claimant’s father. They did not file a paternity action against NH2.  Despite NH1’s statements, SSA awarded Claimant CIB on NH1’s earnings record based on Kentucky’s presumption that a child born in wedlock is the legitimate child of his mother’s husband.

NH2 died on January 26, 2012, while domiciled in Kentucky. In February 2012, Claimant’s mother filed a CIB claim for Claimant on NH2’s earnings record. Claimant’s mother arranged for DNA testing of genetic samples from Claimant and NH2 the day following NH2’s death. The DNA testing results revealed a 99.99% probability NH2 was Claimant’s biological father. Claimant’s mother submitted these results to SSA in support of Claimant’s claim. Claimant’s mother stated she knew NH2 was Claimant’s biological father when she filed the application on Claimant’s behalf for CIB on NH1’s earnings record. Claimant’s mother admitted she had contacted the County Attorney’s office who advised she would have to hire her own attorney to file a paternity action against NH2. Claimant’s mother also completed a child relationship statement (SSA 2519) indicating NH2 filed an application with a government agency stating Claimant was his child, he referred to himself as Claimant’s father in writing, listed Claimant as his child in a family tree or other family record, took Claimant to a medical appointment and listed himself as the parent, paid for Claimant’s hospital expenses at birth, admitted orally he was Claimant’s father, and made regular and substantial contributions to Claimant’s support. Claimant’s mother did not provide any of the written documentation referred to in the SSA 2519.

  

DISCUSSION

To be eligible for CIB on the earnings record of a fully or currently insured deceased individual, a claimant must be the individual’s “child.” See Social Security Act (Act) § 202(d); 20 C.F.R. § 404.350(a)(1) (2011). Unless otherwise noted, all subsequent references to the C.F.R. are to the 2011 edition. “Child” includes “the child” of an insured individual. See Act § 216(e); 20 C.F.R. § 404.354. A claimant may show he is “the child” of a deceased individual, within the meaning of section 216(e)(1), under section 216(h)(2)(A) or 216(h)(3)(C) Because we conclude that Claimant can qualify as NH2’s child under § 216(h)(2)(A) of the Act, we do not address § 216(h)(3) here. of the Act. Under section 216(h)(2)(A), a claimant must show he or she would be entitled to a child’s share of the insured’s intestate personal property under the law of the state in which the insured was domiciled at the time of his death. See Act § 216(h)(2)(A); 20 C.F.R. § 404.355(a)(1), (b)(1), (4). According to the information provided, NH2 died while domiciled in Kentucky. Therefore, we look to Kentucky intestacy law to determine whether Claimant is NH2’s child for purposes of section 216(h)(2)(A) of the Act. See Act § 216(h)(2)(A); 20 C.F.R. § 404.355(a)(1), (b)(1), (4). 

Under Kentucky law, if NH2 died with kindred, his intestate estate would pass to his kindred beginning with his surviving children. See Ky. Rev. Stat. Ann. §§ 391.010, 391.030 (West 2012); see also Fykes v. Clark, 635 S.W.2d 316, 317 (Ky. 1982) (“When a person dies intestate, both real and personal property shall descend in common to his children or their descendants.”).

Although Claimant’s mother presented evidence suggesting Claimant is NH2’s biological child, Claimant was born during the marriage of Claimant’s mother and NH1.  Kentucky law presumes a child born during lawful wedlock, or within ten months thereafter, to be the child of the husband and wife. See Ky. Rev. Stat. Ann. § 406.011 (West 2012).  This presumption is one of the strongest presumptions known to law, but the presumption is not conclusive and may be rebutted by factual evidence. See Bartlett v. Comm. ex rel. Calloway, 705 S.W.2d 470, 472 (Ky. 1986).  For a person alleging paternity by someone outside the marriage to overcome the presumption, he or she must present “evidence of the strongest character, and so convincing as to remove the question of a reasonable doubt.” J.A.S. v. Bushelman, 342 S.W.3d 850, 859 (Ky. 2011) (quoting Ratliff v. Ratliff, 183 S.W.2d 949, 952 (Ky. 1944)) (internal quotations marks and emphasis omitted). 

Genetic testing that shows a probability of paternity equal to or exceeding 99% also creates a rebuttable presumption of paternity under Kentucky domestic relations law that can be rebutted only be a preponderance of the evidence. See Ky. Rev. Stat. Ann. § 406.111 (2012). Further, Kentucky domestic relations law states: “[g]enetic test results are admissible and shall be weighed along with other evidence of the alleged father’s paternity.”  Ky. Rev. Stat. Ann. § 406.091(3) (West 2012). In B~, the Kentucky Supreme Court endorsed the use of DNA testing to establish paternity, stating: “We see no justification for keeping the traditional presumption of paternity locked in the science of centuries past. . . . DNA testing now serves as an appropriate form of evidence, not to avoid the traditional presumption of paternity, but to rebut it.” B~, 342 S.W. 3d at 861. 

B~ arose when a putative father sued to establish paternity based on DNA testing that showed a 99.9429% probability he was the biological father. Id. at 853. The B~ court held, even if a woman is married, a putative father has standing to maintain a paternity suit if there is sufficient evidence to overcome the presumption of the husband’s paternity. Id. at 864-65. The court relied on the DNA test results as well as the mother’s admission she had a relationship with the putative father that included sexual intercourse during the likely time of conception to rebut the presumption of paternity. Id. Kentucky courts have considered genetic test results in determining the husband’s nonpaternity, along with other evidence, to rebut the presumption of paternity in other cases. See, e.g., B~, 705 S.W.2d at 471 (genetic testing showing a 99.93% probability of the third party’s paternity, wife’s testimony she had separated from her husband more than three years before the child’s birth and she and the third party lived together on and off for five years, the third party’s financial contribution to the child’s support, and a physical genetic characteristic between the third party and the child (six fingers) rebutted presumption); Spears v. Spears, 784 S.W.2d 605, 608 (Ky. Ct. App. 1990) (following divorce and order requiring husband to pay child support, blood test showed the husband was not the father of the child, and appeals court declined to apply the doctrine of res judicata, because prohibiting the husband from challenging paternity would “work an injustice” and the record did not show the husband ever held out the child as his or the wife had ever sought child support). 

Based on the above legal authority, we believe the evidence submitted in this case is sufficient under Kentucky law to rebut the presumption of paternity of a child born during a marriage. Although Claimant was born during the marriage of NH1 and Claimant’s mother, the DNA testing and other evidence are sufficient to rebut the presumption of paternity regarding a child born during wedlock. See B~, 342 S.W. 3d at 861. In addition to the DNA evidence, NH1 stated he and Claimant’s mother were not living together and did not have sexual relations at the time of Claimant’s possible conception, whereas NH2 reportedly lived with Claimant’s mother and had sexual relations at that time. Both NH1 and Claimant’s mother expressed doubts about NH1’s paternity of Claimant. Thus, we believe the evidence rebuts the presumption that NH1 is Claimant’s father.

Kentucky law provides that “a child born out of wedlock includes a child born to a married woman by a man other than her husband where evidence shows that the marital relationship between the husband and wife ceased ten (10) months prior to the birth of the child.” Ky. Rev. Stat. Ann. § 406.011 (West 2012). The evidence rebutting the presumption that NH1 was Claimant’s father also indicates the marital relationship between Claimant’s mother and NH1 had ceased ten months before Claimant’s birth. Although we have not found any Kentucky statute or case law discussing the determination of inheritance rights of a child fathered by someone not a party to the marriage, we believe a Kentucky court would treat Claimant as a child born out of wedlock and apply Kentucky intestacy law for determining whether a child born out of wedlock is the child of the putative father. See Program Operations Manual System (POMS) GN 00306.055 (illegitimate child has status of “child” under the Act if has inheritance rights under applicable state intestacy law).

Under Kentucky intestate law, a person born out of wedlock is the child of his father if:

(a) The natural parents participated in a marriage ceremony before or after the birth of the child, even though the attempted marriage is void; or

(b) In determining the right of the child or its descendants to inherit from or through the father:

1. There has been an adjudication of paternity before the death of the father; or

2. There has been an adjudication of paternity after the death of the father based upon clear and convincing proof;

Ky. Rev. Stat. Ann. § 391.105(1) (West 2012). Claimant could not qualify as NH2’s child under subsection (a) of Ky. Rev. Stat. Ann. § 391.105 because NH2 and Claimant’s mother did not marry or attempt to marry. The evidence also does not include an adjudication of paternity as required by subsection (b) of Ky. Rev. Stat. Ann. § 391.105.  However, SSA does not require that a claimant obtain such a determination by a state court but will use the standard of proof that the state court would use as the basis for a determination of paternity. See 20 C.F.R. § 404.355(b)(2).

We believe a Kentucky court would conclude the evidence provides clear and convincing proof that NH2 is Claimant’s father.  Kentucky domestic relations law provides that if a court finds that the statistical probability of paternity equals or exceeds ninety-nine percent (99%) based on DNA testing, there is a rebuttable presumption of paternity. Ky. Rev. Stat. § 406.111 (West 2012). This presumption shall only be rebutted by a preponderance of the evidence. Id.  Kentucky intestacy law provides that courts will consider DNA testing as one piece of evidence to establish paternity posthumously. In Croucher v. Clark, No. 2005-CA-000736-MR, 2006 WL 1867909, at *1 (Ky. Ct. App. 2006), the plaintiff attempted to establish paternity to collect a share of the proceeds from a wrongful death claim. The Kentucky Court of Appeals considered test results comparing the DNA of the putative father and the alleged daughter born out-of-wedlock (and prior to a later marriage) that showed a 99.945% probability of paternity. See id. at *2-3. The court stated paternity was not established until the widow, and personal representative of the father’s estate, “stipulated [to] that fact. Even after DNA testing, the matter of paternity had not been established. The DNA test results were merely proof in support of the allegation.” The court also said “the DNA testing appeared to conclusively prove paternity,” but only after noting the widow who originally contested paternity stipulated to such paternity. See id. at *3.  The court concluded paternity was not established and the widow did not owe a fiduciary duty to the daughter until the widow entered the stipulation. See id. Thus, the court required more than just DNA test results in making a determination of paternity. See id. Another Kentucky intestacy case in which genetic tests were considered is Hibbs v. Chandler, 684 S.W. 2d 310, 313 (Ky. Ct. App. 1985). In H~, the plaintiff attempted to establish paternity to qualify her child for CIB on the earnings record of the deceased number holder.  The trial court ordered blood tests on the mother, child and putative grandparents, the results of which showed the putative father fell within the 64% to 99% probability range. Id. at 311-12. The Kentucky Court of Appeals found the blood test evidence, in conjunction with the mother’s deposition testimony that she had intercourse with the putative father around the probable date of conception, sufficient to withstand summary judgment. The H~ court stated that “clear and convincing evidence” was not required at the summary judgment stage. Id. at 312. Thus, H~ does not establish that DNA testing constitutes clear and convincing evidence, but it shows the Kentucky courts do consider DNA testing in the intestacy context.        

Although we have not found any Kentucky statute or case law directly on point, we believe a Kentucky court would consider the DNA test results as evidence that Claimant is NH2’s child for the purposes of Kentucky intestacy law although the results alone would not presumptively establish paternity. Considering the DNA test evidence and the statements of NH1, Claimant’s mother, and the mother of NH1’s first child, we believe a Kentucky court would conclude clear and convincing evidence exists to establish that Claimant is NH2’s child for the purposes of Kentucky intestacy law.

CONCLUSION

The evidence presented rebuts the presumption that Claimant is NH1’s child. The evidence also provides clear and convincing proof that Claimant is NH2’s child under Kentucky intestacy law.  Therefore, an SSA adjudicator could conclude Claimant is NH2’s child for the purposes of determining Claimant’s eligibility for CIB on NH2’s earnings record.  

Mary Ann Sloan
Regional Chief Counsel

By___________
Megan E. Gideon
Assistant Regional Counsel

B. PR 12-080 Sufficiency of the Evidence to Rebut Presumption of Legitimacy Under Kentucky Law Deceased Number Holder – Barry Claimants – Nicholas and Hayley

DATE: March 20, 2012

1. SYLLABUS

The case questions whether a statement from the mother of the claimants that her husband, the deceased number holder, was unable to have children and birth certificates identifying individuals other than her husband as the claimants’ fathers is clear and convincing evidence to rebut the presumption of legitimacy under Kentucky law.

We believe an SSA adjudicator could conclude Claimants are NH’s children for purposes of Kentucky intestacy Claimants were born during the marriage of NH and Claimants’ mother, and we believe Claimants’ mother’s statement that NH was unable to have children combined with the birth certificates listing individuals other than the NH as the Claimants’ fathers do not rebut the presumption of legitimacy regarding a child born during wedlock.

2. OPINION

QUESTION

You asked whether a statement from the mother of the claimants that her husband, the deceased number holder, was unable to have children and birth certificates identifying individuals other than her husband as the claimants’ fathers is clear and convincing evidence to rebut the presumption of legitimacy under Kentucky law.

OPINION

For the reasons stated below, we believe the evidence submitted in this case is insufficient under Kentucky law to rebut the presumption of legitimacy, and therefore, a Social Security Administration (SSA) adjudicator could find the claimants are the children of the deceased number holder for purposes of child’s insurance benefits.

BACKGROUND

According to information provided by the SSI program team, Theresa (Claimants’ mother) filed applications on behalf of Nicholas and Hayley (Claimants) for child’s insurance benefits on the record of Barry, the deceased number holder (NH). These applications are pending. NH and Claimants’ mother married on June 28, 1983, in Kentucky, and they remained married until NH’s death on January 30, 1998, in Glasgow, Kentucky. During the marriage, Claimants’ mother gave birth to both Claimants. Claimants’ mother informed the SSA field office that Claimants’ are not NH’s legitimate children. Claimant Hayley was born in Barren County, Kentucky on April, and her birth certificate identified Barry s as her father. Claimant Nicholas was born in Barren County, Kentucky on December, and his birth certificate identified James as his father. SSA has no signed documentation acknowledging paternity from the men listed as the fathers on Claimants’ birth certificates and no court has ordered the men pay child support. Claimants’ mother informed the SSA field office that NH was “not able to have children.” She stated she slept with other men while still married to NH with the intent of becoming pregnant. According to his death certificate, NH was domiciled in Kentucky when he died on January 30, 1998.

DISCUSSION

To be eligible for child’s insurance benefits on the earnings record of a fully-insured, deceased individual, a claimant must be the individual’s “child.” See Social Security Act (Act) § 202(d); 20 C.F.R. § 404.350(a)(1) (2011). 1 A “child” includes “the child” of an insured individual. See Act § 216(e); 20 C.F.R. § 404.354. A claimant may show she is “the child” of a deceased insured individual, within the meaning of section 216(e)(1), under either section 216(h)(2)(A) or section 216(h)(3)(C) of the Act. Because we conclude Claimants would qualify as NH’s children under § 216(h)(2)(A), we do not address § 216(h)(3)(C) here. Under section 216(h)(2)(A) of the Act, a claimant must show that he or she would be entitled to a child’s share of the insured’s intestate personal property under the law of the state in which the insured was domiciled at the time of his death. See Act § 216(h)(2)(A); 20 C.F.R. § 404.355(a)(1), (b)(1), (4). According to NH’s death certificate, NH was a resident of Kentucky when he died. Therefore, Kentucky’s law of intestate succession applies in determining Claimants’ status as the children of NH for purposes of section 216(h)(2)(A) of the Act. See Act § 216(h)(2)(A); 20 C.F.R. § 404.355(a)(1), (b)(1), (4).

Under Kentucky law, if NH died with kindred, his intestate estate would pass to his kindred beginning with his surviving children. See Ky. Rev. Stat. Ann. §§ 391.010, 391.030 (West 2012); see also Fykes v. Clark, 635 S.W.2d 316, 317 (Ky. 1982) (“When a person dies intestate, both real and personal property shall descend in common to his children or their descendants.”). Kentucky law presumes a child born during lawful wedlock, or within ten months thereafter, to be the child of the husband and wife. See Ky. Rev. Stat. Ann. § 406.011 (West 2012). 2 Although this presumption is one of the strongest known to law, it is not conclusive and may be rebutted by factual evidence. See Bartlett v. Commonwealth, Ky., ex rel. Calloway, 705 S.W.2d 470, 472 (Ky. 1986). The proof required to rebut this presumption must be “‘so clear, distinct and convincing as to remove the question from the realm of reasonable doubt.’” Id. (quoting Simmons v. Simmons., 479 S.W.2d 585, 587 (Ky. Ct. App. 1972)). That proof “must be of the strongest character and so convincing as to remove a reasonable doubt. To bastardize a child, the evidence must be of a higher degree than that required to convict a person of even a minor criminal offense.” Bradshaw v. Bradshaw, 295 S.W.2d 571, 572 (Ky. Ct. App. 1956) (citing Moore v. Moore, 190 S.W.2d 689, 690 (Ky. Ct. App. 1945)). Once there is a marriage and a child is born at a time when the child could have been conceived in wedlock, the burden shifts to the one disputing legitimacy to disprove it. See Wilson v. Wilson, 193 S.W. 7, 10 (Ky. Ct. App. 1917).

With these principles in mind, we look to Kentucky law to determine the type and amount of evidence courts have found sufficient to rebut the presumption of paternity that arises when a child is born in wedlock. Kentucky courts have found proof that the husband was long separated from the wife or that he was physically unable to procreate due to sterility or impotence sufficient to overcome the presumption. See J.A.S., 342 S.W.3d at 859; B~, 295 S.W.2d at 572-73; Gross v. Froman, 12 S.W. 387, 389 (Ky. Ct. App. 1889). In G~,12 S.W. at 389, the court found testimony from the deceased husband’s doctor and nurse that he was afflicted with a disease of his sexual organ that rendered sexual intercourse very improbable and proof that the mother had committed adultery sufficient to overcome the presumption. In W~, 193 S.W. at 10-12, several witnesses testified that, shortly after his marriage to his wife in 1875, W~ moved to another state and remained there until the fall of 1877 when the child was born; the court concluded this evidence clearly and satisfactorily demonstrated W~ had neither access nor opportunity for access or sexual intercourse. However, Kentucky courts have also found testimony by the parents as to lack of sexual relations is not admissible to bastardize a child. See J.A.S., 342 S.W.3d at 861 n.13; Dudley’s Adm’r et al. v. Fidelity & Deposit Co., 240 S.W.2d 76, 78-79 (Ky. 1951) (noting it is against public policy to permit parents to give testimony to bastardize their children); Drake v. Drake, 721 S.W.2d 728, 730 (Ky. Ct. App. 1986) (identifying this as a longstanding rule); but see S.B. v. M.C., 352 S.W.3d 345, 349 (Ky. Ct. App. 2011) (holding, in a case addressing trial court’s jurisdiction over putative father’s paternity claim, that judicial admission by the mother that the putative father was the biological father was enough to rebut the presumption). 3 In W~, 193 S.W. at 11-12, the court stated “where access is either admitted or the opportunity for it is reasonably certain from the evidence, the presumption of legitimacy will prevail, unless the jury are convinced that it was impossible for the husband to have been the father of the child.”

We believe a Kentucky court would afford little probative value to the statement of Claimants’ mother that NH was incapable of fathering children. Claimants’ mother provided no underlying basis or medical documentation in support of her statement. See generally Cuzick v. Commonwealth of Ky., 276 S.W.3d 260, 265 (Ky. 2009) (providing lay witness testimony is limited to matters within the witness’s personal knowledge); Lincoln Income Life Ins. Co. v. Mann, 180 S.W.2d 877, 880 (Ky. 1944) (providing that generally a lay witness cannot express an opinion or testify that an individual is afflicted with a particular kind of disease when the disease is not a common occurrence or readily recognizable). Also, given Kentucky courts have concluded testimony by the mother as to lack of sexual relations with her husband is insufficient to rebut the presumption of legitimacy, we do not believe a Kentucky court would find the statement of Claimants’ mother that NH was unable to father children sufficient to prove he was not Claimants’ father.

Because the statement of Claimants’ mother that NH was unable to have children would not be sufficient to rebut the presumption that NH was Claimants’ father, we now turn to the birth certificate evidence. We did not locate a case where Kentucky courts addressed the issue of whether birth certificates could rebut the presumption that a child born during wedlock is the child of the mother’s husband. Kentucky law provides a certified copy of a vital record, such as a birth certificate, “shall be prima facie evidence of the facts stated therein. “4 Ky. Rev. Stat. Ann. § 213.136 (2) (West 2012). However, “prima facie evidence is nothing more than a presumption which, if unrebutted or unexplained, is sufficient to maintain a proposition.” D~’s Adm’r., 240 S.W.2d at 79; see also Tarter v. Medley, 356 S.W.2d 255, 258 (Ky. Ct. App. 1962) (noting though birth certificate creates prima facie evidence, the presumption may be rebutted or explained). The Kentucky Court of Appeals in Kirkshouse v. Eastern Kentucky University, 501 S.W.2d 581, 582 (Ky. Ct. App. 1973) concluded that the degree of proof to overcome the presumption created by a birth or death certificate is not greater than the proof to overcome other kinds of evidence. The Court explained that the introduction of such a certificate will determine the verdict only if no other evidence is introduced “but it does not have the effect of shifting the burden of proof and the moment the opposing evidence is received the issue is then joined and must be determined upon all the evidence.” Id. No greater weight is accorded to the certificate than that given to any other evidence introduced as competent proof. Id.

The marriage of Claimants’ mother to NH at the times Claimants were conceived and born, and the lack of evidence showing sterility, impotence, or lack of access would appear to overcome any presumption created by the birth certificates. Indeed, a presumption that the individuals listed on Claimants’ birth certificates were Claimants’ fathers is a weaker presumption than the presumption of legitimacy. As stated above, the degree of proof to overcome the presumption created by a birth or death certificate is not greater than the proof to overcome other kinds of evidence. See K~, 501 S.W.2d at 582. The certificate only determines the verdict in the absence of no other evidence. Id.; see also J.I. v. J.B., No. 2007-CA-002428-ME, 2008 WL 2219912, at *3 (Ky Ct. App. 2008) (unpublished disposition) (by way of analogy finding admission by Appellant that he was not the biological father enough to rebut his voluntary acknowledgment of paternity). On the other hand, to overcome the presumption that NH was Claimants’ father based on their births during his marriage to Claimants’ mother, the proof “must be of the strongest character and so convincing as to remove a reasonable doubt.” B~, 295 S.W.2d at 572. Because the evidence provided does not establish lack of access or medical evidence or another basis showing NH was unable to have children, we believe a Kentucky court would conclude the presumption of legitimacy prevails and NH is Claimants’ father. See W~, 193 S.W. at 11-12.

CONCLUSION

Based on the above legal authority, we believe an SSA adjudicator could conclude Claimants are NH’s children for purposes of Kentucky intestacy law. Claimants were born during the marriage of NH and Claimants’ mother, and we believe Claimants’ mother’s statement that NH was unable to have children combined with the birth certificates listing individuals other than the NH as the Claimants’ fathers do not rebut the presumption of legitimacy regarding a child born during wedlock.

Mary Ann Sloan
Regional Chief Counsel

By
Laura Verduci
Assistant Regional Counsel

C. PR 03-156 Termination of Parental Rights - Child's Benefits Claimant: Christopher Deceased NH: Steven, SSN: ~

DATE: July 15, 2003

1. SYLLABUS

A Kentucky court ordered termination of parental rights does not terminate the child's right to inherit from the affected parent.

2. OPINION

You requested a legal opinion on whether a court-ordered termination of parental rights also terminates inheritance rights under Kentucky law, and consequently affects entitlement to child's benefits on the earnings record of the deceased number holder (NH). Although the court order terminated all status as the NH's “child,” Kentucky law explicitly states that the child retains inheritance rights from the parent. Therefore, the child may be entitled to benefits under the Social Security Act.

Christina filed for child's benefits on behalf of her son, Christopher , as the illegitimate child of the deceased NH. According to court documents provided, the NH was the natural father of Christopher, although Christopher resided solely with Christina, and there is no evidence that Christina and the NH ever married. On May 3, 1996, upon a petition filed by Christina, the Jefferson Circuit Court ordered termination of the NH's parental rights, finding that the NH had abandoned Christopher, had failed to provide essential parental protection for Christopher, and had failed to provide essential food, shelter, medical care or education. Therefore, the court ordered that “all rights of [the NH] in and to the minor child … hereby are terminated.”

Although the rights of the NH were terminated with respect to Christopher, Ky. Rev. Stat. Ann. § 625.104 (2003)5 states that “[f]ollowing the entry of an order involuntarily terminating parental rights in a child, the child shall retain the right to inherit from his parent under the laws of descent and distribution until the child is adopted.” (emphasis added). We believe that this statute conclusively establishes that Christopher would be entitled to inherit from the deceased NH in spite of the 1996 order terminating the NH's parental rights.

You have not provided any information regarding whether Christopher has subsequently been adopted by another individual. If he has not, then it would appear that he is entitled to benefits on the earnings record of the deceased NH.

Mary Ann Sloan
Regional Chief Counsel

By
Michael S. Feinstein
Assistant Regional Counsel


Footnotes:

[1]

All citations to the Code of Federal Regulations are to the 2011 version unless otherwise noted.

[2]

Section 406.011 also provides: “[A] child born out of wedlock includes a child born to a married woman by a man other than her husband where evidence shows that the marital relationship between the husband and wife ceased ten (10) months prior to the birth of the child.” Ky. Rev. Stat. Ann. § 406.011. Recently, the Kentucky Supreme Court clarified that a birth out of wedlock occurs when a child is born to a woman, regardless of her marital status, if she was not lawfully married to the biological father. See J.A.S. v. Bushelman, 342 S.W.3d 850, 864 (Ky 2011). The court explained that the word “includes” in § 406.011 plainly denotes that the following phrase is not an exhaustive recitation of what is meant by “child born out of wedlock.” Id. at 856. However, a person challenging the legitimacy of a child born to a married woman within ten months of the cessation of her marriage must still overcome the presumption. Id.

[3]

Although the court in S.B., 352 S.W.3d at 349-50, indicated that the mother’s “judicial admissions,” was enough to rebut the presumption, the court also noted that in addition to the judicial admissions, diagnostic paternity tests showed the putative father was the biological father and the husband signed a three-way affidavit affirming he was not the father. Later, the court stated in summation, “given the fact that [the mother] and [her husband] judicially admitted that [the putative father] was [the child’s] father and the paternity testing confirmed that relationship, [the parties were] estopped from arguing that the trial court had no jurisdiction to establish paternity and custody . . . [, a]ny presumption that [the child] was born during lawful wedlock has been rebutted.” Id. at 350 (emphasis added). Thus, it is unclear from the court’s decision whether it was truly holding judicial admissions alone are sufficient to rebut the presumption of legitimacy, given the long established Kentucky law against parents giving testimony to bastardize their children.

[4]

Under Kentucky Law, an individual other than the husband is only listed on the child’s birth certificate where either all parties (i.e., husband, wife, and putative father) sign three-way affidavits of paternity acknowledging the putative father as the father, or a district court has determined the question of paternity. See Ky. Rev. Stat. Ann. § 213.046(9). Under Kentucky domestic relations law, the presumption of paternity established by the voluntary acknowledgment of paternity form is rebuttable. See Ky. Rev. Stat. Ann. § 406.021(4) (West 2012). However, the agency has no signed documentation from the men listed as the fathers in the Claimants’ birth certificates or a district court judgment determining the issue of paternity.

[5]

We note that this statutory section was added in 1986, when the Kentucky General Assembly enacted the Kentucky Unified Juvenile Code. The language of this statute was previously found in Ky. Rev. Stat. Ann. § 199.613, which was entitled “Parents Not To Be Named In Termination Order; All Rights Terminated Except Right To Inherit.” (emphasis added).


To Link to this section - Use this URL:
http://policy.ssa.gov/poms.nsf/lnx/1501005020
PR 01005.020 - Kentucky - 05/30/2012
Batch run: 05/30/2012
Rev:05/30/2012