TN 2 (03-06)

PR 01010.007 Colorado

A. PR 04-335 Parent/Child Relationship for Deeming Purposes, Gregory L. S~, ~

DATE: August 10, 2001

1. SYLLABUS

This opinion involves an eligible child whose father now claims that he is not the biological father. He was married to the child's mother when the child was born, but claims he always knew he was not the biological father. The marriage between he and the child's mother was later dissolved and the father was awarded full custody.

State law is controlling here. Under Colorado law, certain presumptions of paternity prevail and can only be rebutted by clear and convincing evidence. In addition, there is a statute of limitations that attaches itself to the presumption of paternity once it is made. Any action to declare the nonexistence of a father-child relationship, following the presumption of paternity, must be brought within 5 years of that presumption. Because the issue was not raised within that period, the father was found to be the child's presumed father and his income is subject to deeming.

2. OPINION

You have requested an opinion as to whether Gregory B. S~ (the father) is considered the natural father or the stepfather of Gregory L. S~ (the child), an SSI eligible child, for SSI deeming purposes. You have also asked what action, if any, the father could take to be considered a stepparent and have his name removed from the child's birth certificate. For the reasons stated below, we believe the father would be presumed the child's natural father and that he would be time-barred from initiating any legal action to disprove that status or to remove his name from the child's birth certificate.

A. Factual Background

Based on your memorandum and the copies of documents you have provided, we find the relevant facts of this matter to be as follows.

The father and Holly C~, the child's mother, who was pregnant at the time, were married in June 1986. The child was born August 10, 1986. The father is listed as the child's father on the birth certificate. In November 1994, the marriage between the father and the child's mother was dissolved. Although the final order finds that both parties acknowledged the father was not the biological father of the child, sole custody of the child and three other children born during the marriage was awarded to the father. The child currently lives with the father in Colorado, and SSA deems income to him from the father, who is considered the natural father. The father states that both he and the child's mother knew he was not the child's father, that he did not know his name was listed on the birth certificate until "after the fact," and that he subsequently "chose not to do anything about [] being listed as the father because of the multitude of health problems and medical procedures that [the child] experienced shortly after his birth." The file indicates the father is willing to have DNA testing to prove he is not the child's father.

B. Analysis

Deeming of income is the process of considering another person's income to be that of an SSI claimant. See 20 C.F.R. § 416.1160. If an SSI claimant under age 18 lives with a parent or stepparent who is not eligible for SSI benefits, part of that individual's income and resources may be deemed to the child. See § 416.1851(c). A parent is a natural or adoptive parent. See § 416.1881(a). A stepparent is the present spouse of a natural or adoptive parent. See § 416.1881(b). A person is not a claimant's stepparent if the child's natural or adoptive parent, to whom the stepparent was married, has died, or if the child's parent and stepparent have been divorced or their marriage has been annulled. Id. Thus, in this case deeming of the father's income to the child will cease only if the father is no longer considered the child's natural father.

As relevant here, Colorado's probate code defines "child" and "parent" as individuals, excluding stepchildren and stepparents, who would be entitled to take from one another by intestate succession. Colo. Rev. Stat. § 15-10-201(7), (36) (2000). Colorado's law of intestate succession provides that "an individual is the child of his or her birth parents regardless of their marital status. The father and child relationship may be established under the 'Uniform Parentage Act [UPA],' article 4 of title 19, C.R.S. [Colorado Revised Statutes]." Colo. Rev. Stat. § 15-11-114(1).

Under Colorado's UPA, presumptions of paternity may arise in a number of different circumstances, summarized as follows: (1) when a child is born into an intact marriage; (2) when a man and a child's mother attempted to marry before the child's birth, and certain other conditions are met; (3) when a man and a child's mother attempted to marry or did marry after the child's birth, and certain other conditions are met; (4) when a man receives a child into his home and holds the child out as his natural child; (5) when the man files a written declaration of paternity in a court registry; or (6) when genetic tests show that the probability of a man's parentage is ninety-seven percent or higher. See Colo. Rev. Stat. § 19-4-105(1). Thus, in a single situation, presumptions of paternity may simultaneously arise in favor of different men. See N.A.H. v. S.L.S., 9 P.3d 354, 360 (Colo. 2000).

"If two or more presumptions arise which conflict with each other, the presumption which on the facts is founded on the weightier considerations of policy and logic controls." Colo. Rev. Stat. § 19-4-105(2)(a). Competing presumptions must be resolved, because a child has only one legal father. See Michael H. v. Gerald D., 491 U.S. 110, 130 (1989). In this case, no competing presumptions of legal fatherhood have been raised. However, two presumptions arise that the father is the child's father: the presumption of legitimacy occasioned by his marriage to the child's mother when the child was born, and the presumption occasioned by accepting the child into his home and holding the child out as his own child. A strong public policy supports the presumption of legitimacy. See A.G. v. S.G., 609 P.2d 121, 124 (Colo. 1980) (stating that the presumption of legitimacy is "one of the strongest presumptions known to the law"). The presumption associated with a man "accepting the child as his own is closely related to the presumption of legitimacy." N.A.H. v. S.L.S., 9 P.3d at 360.

Colorado's UPA provides that any of the presumptions of paternity may be rebutted by clear and convincing evidence. See Colo. Rev. Stat. § 19-4- 105(2)(a); see also In re L.J.P., 2 P.3d 140, 142 (Colo. App. 2000) (noting that the statutes "plainly state" that paternity presumptions may be rebutted). A presumption of paternity under the UPA may be rebutted by a court decree establishing paternity of a child by another man. Id.

However, Colorado's UPA limits the circumstances under which presumptions of paternity may be rebutted. See Colo. Rev. Stat. § 19-4-107. A child, natural mother, presumed father, or appropriate state/county agency may bring an action at any time to declare the existence of the father-child relationship presumed by the natural mother's marriage to the presumed father when the child was born; but an action brought to declare the nonexistence of the father-child relationship must be brought no later than five years after the child's birth. See § 19-4-107(1)(b) (emphasis added); People ex rel. S.L.H, 736 P.2d 1226, 1228 (Colo. App.1986). This section of the UPA does not preclude a presumed father from asserting nonpaternity as a defense in a child support proceeding more than five years after the child's birth. See People ex rel. R.T.L., 780 P.2d 508, 515 (Colo. 1989). However, the father cannot now initiate an action to disprove his status as the child's presumed father under the UPA because a presumption of fatherhood arose due to his marriage to the natural mother at the time of the child's birth, and more than five years have passed.

The statute also provides that "an interested party" may bring an action "at any time" to determine "the existence or nonexistence of the father and child relationship" presumed by a man receiving a child into his home and holding the child out as his natural child, by filing a written declaration of paternity in a court registry, or by appropriate genetic testing. See Colo. Rev. Stat. § 19-4-107(2). However, Colorado courts have held that § 19-4-107(2) does not apply in the type of situation presented here. For example, a man presumed to be a child's father because he was married to the natural mother at the time of the child's birth, despite the mother's acknowledgement that he was not the father, could not utilize the provisions of § 19-4-107(2) to avoid the five-year statute of limitations imposed by § 19-4-107(1)(b), even though he had also received the child into his home and openly held the child out as his own. The court found that the presumption of legitimacy controlled because it had "the greater weight of policy and logic behind it." See e.g., People ex rel. S.L.H., 736 P.2d at 1228; see also M.R.D. by P.D. v. F.M., 805 P. 2d 1200, 1201-03 (Colo. App. 1991) (natural mother's husband, who was presumed to be the child's natural father because he was married to the mother at the time of the child's birth, could not utilize the open-ended statute of limitations governing claims by "interested parties" to prove the nonexistence of a father-child relationship more than five years after child's birth, even though blood tests of the putative father, who admitted paternity, raised a conflicting presumption of paternity). Thus, the provisions of § 19-4-107(2), which allow an "interested party" to bring a paternity action at any time, do not apply to the father's right to initiate a paternity action.

CONCLUSION

For the reasons discussed above, it is our opinion that the father is the child's presumed father under Colorado law, and he is time-barred from initiating any action to disprove this status. Please be aware, however, that although we have provided our opinion on the second issue (i.e., "what action the father could take"), we do not believe it is appropriate (and, indeed, would be a conflict of interest) for SSA, based on an opinion from this office, to provide such legal advice to the father. Rather, he should retain legal counsel for that purpose. We therefore suggest you advise him simply that because he is the child's presumed father, not his stepfather, SSA must continue to apply the deeming rules.

Deana R. E~-L~
Regional Chief Counsel

By: ______________
Debra J. M~
Assistant Regional Counsel


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http://policy.ssa.gov/poms.nsf/lnx/1501010007
PR 01010.007 - Colorado - 03/08/2006
Batch run: 11/29/2012
Rev:03/08/2006