The number holder (NH) was a resident of Georgia until January 2013, when he was deported to his birthplace of Guyana. The NH was domiciled in Guyana at the time of his death. It is our opinion that the District of Columbia would apply its own law to determine whether a parent-child relationship can be established between the number holder and the claimant. Based on the evidence provided, it is our opinion that the DNA evidence submitted is insufficient to establish the paternity of the NH under the laws of the District of Columbia. Also, even if the District of Columbia applied the Georgia law, the evidence likewise would be insufficient to establish a parent-child relationship between the NH and the claimant. The claimant has the burden of proving by a preponderance of the evidence that the NH was her father. Therefore, based upon the evidence we received, the claimant would not be entitled to surviving child’s insurance benefits under section 216(h)(2)(A) of the Social Security Act (Act).

QUESTION PRESENTED

This is in response to your January 11, 2017, request for our advice as to whether the District of Columbia would apply its own law or Georgia law to determine whether a parent-child relationship can be established between V~, the deceased Number Holder (NH), and W~ (the claimant), based on the March XX, 2015 deoxyribonucleic acid (DNA) test report prepared by LabCorp. You have also asked what the effective date of the relationship would be if a parent-child relationship is established.

SUMMARY

We have reviewed the information you provided and have researched the relevant provisions of the laws of the District of Columbia and Georgia. It is our opinion that the District of Columbia would apply its own law to determine whether a parent-child relationship can be established between the Number Holder and the claimant. It is our further opinion that the evidence of record is insufficient to establish a parent-child relationship between the NH and the claimant under the laws of the District. We note that even if the District of Columbia were to apply Georgia law, the evidence likewise would be insufficient to establish a parent-child relationship between the NH and the claimant. Therefore, based upon the evidence we received, the claimant would not be entitled to surviving child’s insurance benefits under section 216(h)(2)(A) of the Social Security Act (Act).

BACKGROUND

The NH was a resident of Georgia until January 2013, when he was deported to his birthplace of Guyana. He was domiciled in Guyana until his death on April XX, 2013.

The claimant was born on February XX, 2009, in Georgia. The Numident identifies the applicant, R~, as the biological mother. The father is not identified in the Numident.

On September XX, 2013, the claimant’s mother applied for surviving child’s benefits on behalf of the claimant, alleging a parent-child relationship between the NH and the claimant. With her application, the mother completed a Child Relationship Statement in which she stated that the NH had never been decreed by a court to be the claimant’s parent or ordered by a court to contribute to the claimant’s support. The mother denied that the NH had engaged in any of the fourteen listed activities that would demonstrate that he had held himself out as the father of the claimant. The agency denied the application for failure to provide proof of relationship between the NH and the claimant. The mother filed a second application on August XX, 2014, which the agency denied for the same reason.

With a third application for benefits on March XX, 2015, the mother provided a Relationship Report of a paternity test performed by Laboratory Corporation of America (LabCorp), signed and notarized on March XX, 2015. The report indicates that a sample from the NH, which had been collected on July XX, 2004, was tested with genetic material from the mother and the claimant. The test resulted in a 99.99% probability of paternity between the NH and the child. The report notes that the results for the NH were provided to LabCorp by the F~ County Superior Court. It also notes that the report (apparently from the court) indicates that LabCorp tested the NH in 2004. The LabCorp report acknowledges, however, that because it routinely destroys all records after seven years, it cannot confirm the authenticity of the document (the court report) or chain of custody of the alleged father’s sample. Finally, the LabCorp report states that all of the information for the alleged father was obtained from the report provided (by the court) to LabCorp. Labcorp is accredited by the American Association of Blood Banks (AABB). Based on this application, the agency awarded surviving child’s benefits with a month of entitlement of March 2015.

On June XX, 2015, the mother filed a request for reconsideration of the month of entitlement, seeking benefits as of the month of the NH death, April of 2013.

DISCUSSION

The Social Security Act provides that a child born out of wedlock can qualify for benefits if the child is entitled to inherit personal property under “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 at the time of his death, or, if [the] insured individual . . . was not so domiciled in any State, by the courts of the District of Columbia.” 42 U.S.C. § 416(h)(2)(A); 20 C.F.R. § 404.355(b)(1), (4).^[1]

According to the information provided, the NH was domiciled in Guyana at that time of his death. Therefore, the District of Columbia intestacy laws apply. 42 U.S.C. § 416(h)(2)(A).

You have asked whether the District of Columbia would apply its own laws or that of Georgia to determine whether the claimant is the child of the NH. Specifically, you rely on POMS GN 00306.005B.1 for the general rule that where the NH is domiciled in a different State from the State of his domicile when the child was born, the courts of the State of Domicile will usually look to the legitimation law of the State of domicile when the child was born. This POMS provision states that the usual rule is that a child will be recognized as legitimate in all States if she is legitimate under the law of the State of the father’s domicile at the time the child was born.

It is our understanding that POMS GN 00306.005B.1 sets forth a general proposition that some states may look to the legitimation laws of the State of the NH’s domicile when the child was born. In this case, however, we have found no statutory or case law to suggest that the District of Columbia would look to the state of the NH’s domicile when the child was born. Absent such law, we conclude that the District of Columbia would apply its own intestacy laws to determine whether a parent-child relationship exists between the NH and the claimant. See POMS GN 00305.001A.2.b (directing the agency to apply the law that the courts of the District of Columbia would apply where the NH was domiciled in a foreign country at the time of death).

Turning to the law of the District of Columbia, the evidence here is not sufficient to establish the NH paternity under District of Columbia law. The D.C. Code provides that children born out of wedlock can inherit from their mother or from their father “if parenthood has been established.” D.C. Code § 19-316 (2001) However, standards for establishing parenthood are not defined in any provision under Titles 19 or 20, respectively entitled “Descent, Distribution, and Trusts” and “Probate and Administration of Decedents’ Estates.”

In order to define the standards for establishing parenthood, the courts in the District of Columbia have looked to relevant provisions of the District of Columbia Marriage and Divorce Act at D.C. Code § 16-909 (2001). See In re Estate of Johnson, 2006 WL 3302857 *2 (D.C.Super. June 21, 2006) (citing In re Estate of Glover, 470 A.2d 743, 749-50 (D.C. 1983) (holding that § 19-316 provides for parenthood determinations subsequent to the death of a putative father and § 16-909(a) sets the burden of proof to be met by the child born out of wedlock)). Section 16-909(a) provides that a child’s relationship to his or her father is established by a preponderance of the evidence. A preponderance of the evidence in the District of Columbia “requires the court to merely determine who has the most competent evidence.” In re E.D.R., 772 A.2d 1156 (D.C. 2001).

Section 16-909(a) provides that there shall be a presumption created if the child proves by a preponderance of evidence that he has met any of the following subsections:

• •

  if he and the child’s mother are or have been married, or in a domestic partnership, at the time of either conception or birth, or between conception and birth, and the child is born during the marriage or domestic partnership, or within 300 days after the termination of marital cohabitation by reason of death, annulment, divorce, or separation ordered by a court, or within 300 days after the termination of the domestic partnership; or

• •

  if, prior to the child’s birth, he and the child’s mother have attempted to marry, and some form of marriage has been performed in apparent compliance with law, though such attempted marriage is or might be declared void for any reason, and the child is born during such attempted marriage, or within 300 days after the termination of such attempted marital cohabitation by reason of death, annulment, divorce, or separation ordered by a court; or

• •

  if, after the child’s birth, he and the child’s mother marry or attempt to marry, (with the attempt involving some form of marriage ceremony that has been performed in apparent compliance with law), though such attempted marriage is or might be declared void for any reason, and he has acknowledged the child to be his; or

• •

  if the putative father has acknowledged paternity in writing.

Section 16-909(b) provides that a presumption created by § 16-909(a)(1)-(4) may be overcome upon proof of clear and convincing evidence presented to the Superior Court. Section 16-909(b-1) provides that a conclusive presumption of paternity shall be created as follows:

• •

  Upon a result and an affidavit from a laboratory of a genetic test of a type generally acknowledged as reliable by accreditation bodies designated by the Secretary of the U.S. Department of Health and Human Services that is performed by a laboratory approved by such a body indicating a 99% probability that the putative father is the father of the child; or

• •

  If the father has acknowledged paternity in writing as provided in § 16-909.01(a)(1).

D.C. Code § 16-909(b-1).

Here, the claimant is not entitled to a presumption under § 16-909(a) because there was no evidence of marriage between the applicant (R~) and the NH, and no written acknowledgement of paternity by the NH. D.C. Code § 16-909 (a) (1)-(4). Therefore, the claimant has the burden of proving by a preponderance of the evidence that the NH was her father. D.C. Code § 16-909(a). Under a preponderance of the evidence standard, however, a court in the District of Columbia would likely find that the claimant did not establish a parent-child relationship.

The claimant has produced DNA test results showing a 99.99% probability of paternity between the NH and the child. Although the test results satisfy the statistical probability required under section 16-909(b-1) of the D.C. Code and are from an accredited laboratory, they do not satisfy the chain of custody requirements of D.C. law.

Genetic test results are admissible as evidence of paternity provided that they meet the requirements outlined in section 16-2343.01(a)(1)-(3) of the D.C. Code:

Expert reports that show the statistical probability of the alleged parent’s paternity may be admissible into evidence.

Certified documentation of the chain of custody of the test specimens is competent evidence to establish the chain of custody.

Test results that show the statistical probability of the alleged parent’s paternity shall be admitted into evidence unless a substantiated objection is made that the test did not comply with the requirements of this subchapter.

Here, LabCorp acknowledged that it could not confirm the authenticity of the report it received from the F~ County Superior Court or the chain of custody of the NH’s sample. LabCorp’s DNA paternity test report, therefore, is not legally acceptable under the District of Columbia Code. Compare Johnson, 2006 WL 3302857 at *3 (finding that a certified copy of the laboratory findings, to which there was attached an affidavit, was in accordance with § 16-909(b-1)(1)). In Johnson, the court noted that because the child produced “certified documentation of the chain of custody,” the test results were admissible under D.C. Code § 16-2343.01, which governs the admissibility of tests determining paternity. Id. at *4, (citing D.C. Code § 16-2343.01(a), (e) (2001) (requiring certified documentation of the chain of custody of the test specimens)). Therefore, absent certified documentation of the chain of custody, a child is barred from admitting DNA results in a court of the District of Columbia. Id. Thus, without an admissible DNA report, a court in the District of Columbia would likely find that the claimant has not established the NH’s paternity.

Finally, we note that even if the District of Columbia applied the law of the state of the NH’s domicile when the child was born, there would not be sufficient evidence for the claimant to establish paternity under Georgia law. The Georgia code permits a child born out of wedlock to inherit if paternity is established by clear and convincing evidence. Ga. Code Ann. § 53-2-3(2) (2016). Genetic testing that establishes at least a 97% probability of paternity provides a rebuttable presumption of paternity. Ga. Code Ann. § 53-2-3(2)(B)(ii). Although, here, the blood test results of 99.99% probability of paternity exceed the Georgia statutory requirement of 97%, the test does not satisfy the foundation requirements. As in the District of Columbia, Georgia requires that genetic tests be conducted by a laboratory that is certified by the AABB and that the results meet the standards the AABB requires in order for such results to be admitted as evidence in a court of law. Ga. Code Ann. § 19-7-45. The admission of blood test evidence also requires proof of chain of custody. See Pinson v. State, 391 S.E. 2d 28, 29 (Ga. Ct. App. 1990) (admitting into evidence blood tests where samples were handled according to normal laboratory procedures and chain of custody was maintained). Thus, here, where LabCorp has acknowledged that it cannot confirm the authenticity of the document or the chain of custody of the NH’s sample, a Georgia court would likely find that the blood test results are insufficient evidence with which to establish the NH’s paternity.

CONCLUSION

Based on the evidence provided, it is our opinion that the DNA evidence is insufficient to establish the paternity of the NH under the laws of the District of Columbia. It is also our opinion that the District of Columbia would apply its own laws to determine whether a parent-child relationship is established between the NH and the claimant. However, even if the District of Columbia were to apply Georgia law, the evidence is insufficient to establish the paternity of the NH for the same reason that it fails to satisfy the foundation requirements under Georgia law. Therefore, the claimant would not be entitled to surviving child’s insurance benefits under the Act.

For purposes of intestacy, Georgia law states that: "[c]hildren of the decedent who are born after the decedent's death are considered children in being at the decedent's death, provided they were conceived prior to the decedent's death, were born within ten months of the decedent's death, and survived 120 hours or more after birth." In this case, a child born 303 days after the Number Holder's death to his widow would be considered a child of that number holder for intestacy purposes since there is no conflicting evidence to rebut the presumption of legitimacy.

QUESTION

You asked whether the claimant can qualify for child's insurance benefits as the child of the number holder where the claimant was born approximately ten months after the number holder's death.

OPINION

For the reasons set forth below, we believe a Social Security Administration (SSA) adjudicator could determine the claimant is the child of the number holder for purposes of child's insurance benefits.

BACKGROUND

According to the information made available to us, Randal M~, the number holder (NH), married Olivia W~ (Wife) on July XX, 2007. On July XX, 2007, NH died while domiciled in Georgia. Rayna N. B~ M~ (Claimant) was born on May XX, 2008, 303 days after NH's death. Wife filed an application on Claimant's behalf for child's insurance benefits on July XX, 2008. Claimant's birth certificate lists NH as the father.

DISCUSSION

To qualify for child's insurance benefits on the record of an individual who dies a fully or currently insured individual, a claimant must be that individual's "child." See Social Security Act (Act) § 202(d)(1), 42 U.S.C. § 402(d)(1); 20 C.F.R. § 404.350(a)(1) (2008). A "child" for purposes of section 202(d)(1) of the Act includes an individual who is the insured individual's natural child. See Act § 216(e), 42 U.S.C. § 416(e); 20 C.F.R. § 404.354 (2008).

A claimant can qualify as the insured person's natural child if, among other methods, the claimant could inherit the insured person's personal property as his or her child under the intestacy laws of the state where the insured has his permanent home when he died. See Act § 216(h)(2)(A); 20 C.F.R. § 404.355(a)(1), (b) (2008). Because NH was domiciled in Georgia when he died, we look to Georgia law.

For purposes of intestacy, Georgia law states that: "[c]hildren of the decedent who are born after the decedent's death are considered children in being at the decedent's death, provided they were conceived prior to the decedent's death, were born within ten months of the decedent's death, and survived 120 hours or more after birth." GA. CODE ANN. § 53-2-1(a)(1) (2008). Georgia law also provides that all children born in wedlock or within the usual period of gestation thereafter are legitimate. See GA. CODE ANN. § 19-7-20(a) (2008). The legitimacy of a child born in wedlock may be disputed, but where the possibility of access exists, the strong presumption is in favor of legitimacy and proof must be clear to establish the contrary. See GA. CODE ANN. § 19-7-20(b) (2008). The public policy favoring the presumption of a child's legitimacy is one of the most firmly-established and persuasive precepts known in the law, disputed only by clear and convincing evidence. Baker v. Baker, 582 S.E.2d 102, 103 (Ga. 2003). "Clear and convincing evidence" requires a higher minimum level of proof than the preponderance of the evidence standard, but less than that required for proof beyond a reasonable doubt. Clark v. Cotton, 440 S.E.2d 165 (Ga. 1994).

Although the facts are distinguishable from the facts presented here, the Georgia Court of Appeals in Stephens v. State, 57 S.E.2d 493 (Ga. Ct. App. 1950), grappled with the issue of normal period of gestation. In Stephens, a child was a child born ten and a half months after the last possible act of coition between a husband and wife. Stephens, 57 S.E.2d at 495. The court cited the state law providing that children born in the "usual period of gestation" after wedlock are legitimate. See id. (discussing GA. CODE § 74-101 (1933), a former version of GA. CODE ANN. § 19-7-20). The court also recognized that a presumption of legitimacy is strong and persuasive, but it can be overcome by a showing of impossibility. See id., at 495-96. However, the facts showed a possibility of access between the husband and wife. See id. Based upon the facts presented, the court determined the child was a child born in wedlock, within the usual period of gestation, after the marriage. See id.

Here, Claimant was born ten months after NH's death. There is no indication in the file that an impossibility of access existed prior to NH's death. Applying the Stephens analysis to the facts presented, an SSA adjudicator could find Claimant was a child born in wedlock within the usual period of gestation.

Additionally, Claimant's birth certificate designating NH as the father provides an additional basis for finding NH to be Claimant's father. In Georgia, a certified copy of a Georgia vital record, such as a birth certificate, "is prima-facie evidence of the facts stated therein. . . ." GA. CODE ANN. § 31-10-26(b) (2008); see GA. CODE ANN. § 31-10-1 (2008) (defining "vital records" to include birth certificates); Huskins v. State, 266 S.E.2d 163, 164 (Ga. 1980) ("A certified copy of a birth certificate is considered prima facie evidence of the facts contained therein and given the same status as the original").

We found nothing in the file is to overcome the strong presumption of legitimacy.

CONCLUSION

Therefore, an SSA adjudicator could determine Claimant is the child of the number holder for the purposes of child's insurance benefits on NH's account.

Mary Ann S~

Regional Chief Counsel

Jennifer L. P~

Assistant Regional Counsel

In Georgia, statements from surviving relatives and the omission of the deceased number holder's name from the child claimant's birth certificate does not constitute clear and convincing evidence to overcome a presumption of legitimacy based on a birth within wedlock.

QUESTION

Are statements by relatives, combined with the absence of the NH's name on the birth certificate, sufficient to rebut the presumption of paternity under Georgia law?

ANSWER

For the reasons stated below, we do not believe the cited evidence is sufficient to rebut the Georgia presumption of paternity based on birth within wedlock.

BACKGROUND

Daroll R. B~, the number holder (NH), and Brenda R. B~ married in 1997 and M~M. B~ (Claimant) was born in 2000. The NH died in 2005, while domiciled in Georgia. Claimant is filing for survivor benefits on NH's record, but NH's name is not on his birth certificate. The space for the father's name on the birth certificate was left blank. Claimant does share NH's last name, as shown on the birth certificate. In a written statement, NH's father said NH and Claimant's mother had been separated several years and Claimant's mother was living with another man when Claimant was born. He further stated that NH told him and NH's step-mother that Claimant was not his child, that NH had never claimed Claimant as a dependent on his tax return, and that NH had started divorce proceedings before he died. NH's father stated that NH did acknowledge another child (C2) born to Claimant's mother after Claimant's birth, who does not carry NH's last name. NH's brother and mother filed similar but less detailed statements. A Report of Contact shows that NH's mother stated she was unable to locate any information regarding paternity or divorce proceedings. The field office contact advised NH's mother that a DNA test could be done, but the family would be responsible for pursuing that option. There is no evidence the family plans DNA testing.

Claimant's mother admits she and NH were separated and NH was not present when Claimant was born. However, she also states they later got back together. Claimant's mother states she and NH did not file joint tax returns and NH never asked to claim Claimant on his return. She submitted her own 2005 return, but no past returns and no copies of NH's returns.

DISCUSSION

Under the Social Security Act, a "child" under age eighteen may qualify for child's insurance benefits on the work record of a deceased parent. See Social Security Act (Act) § 202(d), 42 U.S.C. § 402(d)); 20 C.F.R. § 404.350 (2006). To determine whether an applicant qualifies as a "child" of an insured individual in a case such as this, where the child was born in wedlock, the Commissioner shall 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 at the time of his death. See § 216(h)(2)(A) of the Act, 42 U.S.C. § 416(h)(2)(A); 20 C.F.R. § 404.355 (2006). NH was domiciled in Georgia when he died, and the Georgia law providing for intestate inheritance rights is found at O.C.G.A. § 53-2-1. The only definitions or clarifications of who is a "child" concern children born after the decedent's death or children considered "half-blood." O.C.G.A. § 53-2-1. However, case law clarifies that the word "children," as used in the statutes, generally refers to legitimate descendants. Rhodes v. Williams, 85 S.E. 105 (Ga. 1915). Georgia law provides that all children born in wedlock are legitimate. O.C.G.A. § 19-7-20(a). The legitimacy of a child born in wedlock may be disputed, but where the possibility of access exists, the strong presumption is in favor of legitimacy and proof must be clear to establish the contrary. O.C.G.A. § 19-7-20(b).

Here, there is no question that Claimant was conceived and born while NH and Claimant's mother were married. He was born in 2000, several years after their 1997 marriage, and they were still married when NH died in 2005. While NH and Claimant's mother separated during their marriage, the exact period of separation is not clear, and no one has alleged NH had no access to Claimant's mother during the separation or no "possibility" of access around the time Claimant was conceived. The existence of C2, whose paternity NH did not dispute, weighs heavily in favor of the possibility of access. Thus, under Georgia law, there is a strong presumption in favor of Claimant's legitimacy.

The question presented therefore is whether there is clear proof to rebut this strong presumption. The public policy favoring the presumption of a child's legitimacy is one of the most firmly-established and persuasive precepts known in the law, disputed only by clear and convincing evidence. Baker v. Baker, 582 S.E.2d 102, 103 (Ga. 2003). "Clear and convincing evidence" requires a higher minimum level of proof than the preponderance of the evidence standard, but less than that required for proof beyond a reasonable doubt. Clark v. Cotton, 440 S.E.2d 165 (Ga. 1994).

We do not believe the evidence presented here satisfies the "clear and convincing evidence" standard. NH's name is not on the birth certificate, but neither is anyone else listed as the father. There seems to be no dispute that C2, who does not have NH's name, is in fact NH's child. Also, Claimant does share NH's last name, as shown on the birth certificate.

NH's father, mother, and brother provided written statements that NH and Claimant's mother had been separated several years before the child's birth and the mother was living with another man when Claimant was born. These statements, even if true, provide no clear evidence as to whether NH had access to Claimant's mother when Claimant was conceived. Moreover, NH's father concedes access at some point after the separation, because he stated that NH acknowledged C2, who does not carry NH's last name, was his child. We found one case in which oral testimony met the clear and convincing evidence standard to rebut the presumption that a child born in wedlock is legitimate. However, the evidence at issue was a mother's oral testimony as to her husband's non-access. In re Estate of Slaughter, 540 S.E.2d 269 (Ga. App. 2000). Here, no one has testified to non-access, and certainly not the Claimant's mother.

Similar problems arise with the family statements that NH said Claimant was not his child, NH had never claimed Claimant as a dependent on his tax return, and NH had started divorce proceedings prior to his death. A Report of Contact shows NH's mother stated she was unable to locate any information regarding paternity filings or divorce proceedings that might support their allegations. No one has copies of NH's tax returns. Claimant's mother stated she and NH did not file joint tax returns and NH never asked to claim Claimant on his return. While a child's name on a tax return might be probative evidence to establish paternity, we could find no case that found an absence of a child's name on a tax return rebutted paternity. Thus, the family statements are unsupported by any documentary evidence, and are not probative of the critical issue of access at the time of Claimant's conception. We do not believe the evidence is sufficient to rebut the presumption of paternity.

CONCLUSION

For the foregoing reasons, we do not believe the evidence presented is sufficient to overcome the presumption that Claimant is NH's child.

Mary Ann S~

Regional Chief Counsel

Nancy R. B~

Assistant Regional Counsel

In Georgia, DNA test results and the subsequent "Paternity Exclusion Order" from the state court can be considered new and material evidence that would support a decision to reopen the child's benefit determination.

This reopening would be subject to SSA rules and time limits.

QUESTION

Your office has requested our advice on whether a child's insurance benefits determination made in March 2004 can be reopened and whether a new determination would become retroactive back to the original application date.

BACKGROUND

Velma L. H~ applied for child's insurance benefits on behalf of Giyani J. H~ on March XX, 2004 on the wage record of Lorenza W~. The benefits were awarded based on a signed statement from Mr. W~ acknowledging paternity. A dispute about the paternity of Giyani a. when Ms. H~ sought to obtain child support in a court proceeding. The number holder and Ms. H~ agreed to DNA testing. Genetic test results revealed that "The alleged father, LORENZA T. W~, cannot be the biological father of GIYANI J. H~, since he and the child do not share necessary paternal markers in multiple genetic systems." The court subsequently issued a paternity exclusion order in the case that was signed on December 3, 2004.

DISCUSSION

Social Security regulations provide for the reopening of determinations based on certain prescribed criteria. A determination can be opened within twelve months of the notice of the initial determination for any reason. 20 C.F.R. § 404.988(a) (2004). When the local office initially received the information about the paternity exclusion, the determination could have been reopened under this section. More than twelve months have now elapsed since the benefit determination awarding child's benefits to Giyani. However, as long as the Agency diligently pursued its investigation of this matter, it can be reopened under § 404.988(2), notwithstanding the lapse of the twelve month period. See 20 C.F.R. § 404.991a. Even if the Agency's pursuit of its investigation were less than diligent, a determination can be reopened for "good cause" within four years after the initial decision. 20 C.F.R. § 404.988(b) (2004). "Good cause," as defined in 20 C.F.R. § 404.489 (2004), includes the furnishing of new and material evidence.

The DNA test results and the subsequent "Paternity Exclusion Order" from the state court can be considered new and material evidence that would support a decision to reopen the March 2004 child's benefit determination. Since the office will be reopening the original decision and issuing a revised determination, the effective date of the revised determination would be retroactive to the date of the application.

CONCLUSION

The initial determination can be reopened under the applicable regulations cited above. Any revision in that determination would be effective from the date that the original determination was effective.

Mary Ann S~

Regional Chief Counsel

Sharon F. Y~

Assistant Regional Counsel

Under Georgia law, a child conceived in wedlock by artificial insemination but without the written consent of the spouses pursuant to Official Code of Georgia Annotated (O.C.G.A.) §19-7- 21 is, nevertheless, presumed to be the legitimate child of the marriage. O.C.G.A. §§19-7-20, 19-7-21.

(S~, Teddie E. - SSN ~ - CCIV [W~] - to ARC, Progs., Atl., 06/05/91)

OD 2100 OD 2100 - Ga.

In your memorandum, you asked whether the Social Security Administration (SSA) is bound by a Georgia Superior Court Order dated April 4, 1990, which found a child conceived by artificial insemination to be the legitimate issue of the marriage of the child's mother and the insured, Teddie E. S~.

According to the evidence of record/ the insured married Anita Marie S~ in B~, Arkansas, on November XX, 1968. A daughter was born of this marriage on July XX, 1971. This child was named after her mother and is referred to hereinafter as Anita II. The insured had a vasectomy in 1971. Following the vasectomy, the insured's wife expressed the desire to have another child. Therefore, on February 8, 1979, the insured had surgery at the University of Arkansas Medical Center in an effort to reverse the effects of his vasectomy. According to the insured and his wife, the reversal procedure was not successful. An analysis of the insured's semen performed by a gynecologist in June 1980 determined that the reversal procedure was not successful. This gynecologist recommended to the insured's wife that she consider artificial insemination. The insured's wife and the insured decided to pursue the artificial insemination option. However, due to the medical expenses incident to this procedure, the insured and his wife mutually agreed to attempt this procedure without the assistance of medical professionals.

After acquiring various medical and other crude paraphernalia deemed necessary by the insured to perform the procedure to include a syringe and a hair spray bottle with an attached tube, the insured and his wife attempted artificial insemination.

The sperm used in these procedures was donated by the insured's seventeen year old son by a prior marriage. One effort apparently resulted in a miscarriage. A later effort resulted in the conception and ultimate birth of Micaela on December XX, 1985, in B~, Georgia. The insured contends that although he and his wife attempted the artificial insemination procedure, he and his wife also continued to have intercourse. His wife denies that intercourse occurred. As informant on Micaela's birth certificate, the insured's wife certified that the insured was the natural father of Micaela.

On June XX, 1989, approximately four and one-half (4-1/2) years following Micaela's birth, the insured's wife initiated a divorce action in the Superior Court of Glynn County, Georgia, and sought the sole custody of Micaela. She also sought to deny any visitation rights to the insured. In her effort to gain custody of Micaela, the insured's wife sought to render Micaela illegitimate by amending her divorce complaint and alleging that only one child, Anita II, had been born of the marriage of Anita and the insured and by further alleging that Micaela was the child of the insured's son by way of artificial insemination. The insured, however, argued that Micaela was his legitimate child either because he was the natural father or as a matter of law under. the artificial insemination statute. O.C.G.A. §19-7- 21.

Following an evidentiary hearing on the issue of the custody of Micaela, the Superior Court of Glynn County, Georgia, issued an order on April 4, 1990, finding Micaela to be the legitimate child of the marriage of the insured and his wife. The court awarded custody to the insured's wife but granted the insured "broad and reasonable" visitation rights.

In a written statement to the SSA dated November 9, 1990, approximately seven (7) months subsequent to the court's finding, the insured has asserted that his blood type is "O" positive and that the blood types of both Micaela and his son are type "A". The insured stated that a doctor-friend advised him that there is no way Micaela could be his child. However, the insured offered no medical or other evidence to substantiate his allegation. The insured further advised that his older daughter, Tammy, told him that Anita and his son, Teddie, had an affair.

Pursuant to Gray v. Richardson, 474 F.2d 1370 (6th Cir. 1973) which was adopted in its entirety as Social Security Ruling (SSR) 83-7c, the Secretary cannot ignore an adjudication of a State trial court where the following prerequisites are found:

(1) an issue in a claim for Social Security benefits previously has been determined by a State court of competent jurisdiction; (2) the issue was genuinely contested before the State court, by parties with opposing interests; (3) the issue falls within the general category of domestic relations law; and (4) the resolution by the State trial court is consistent with the law enunciated by the highest court in the State.

The decision by the Superior Court of Glynn County, Georgia, dated April 4, 1990, was limited to a determination of the issue of custody. Given the insured's wife's amended complaint alleging that the insured was not the father of Micaela, it was necessary for the court to determine Michaela's relationship to the insured. The court found as a matter of fact the following: (1) that the parties (the insured and his wife) had attempted unsuccessfully to conceive a child by the usual means for several years; (2) that the parties sought medical advice on the feasibility of artificial insemination; (3) that the parties decided to attempt the insemination process themselves due to the cost of medical professionals; (4) that the insured's son by a prior marriage volunteered to be the sperm donor; and, (5) that Micaela was conceived as a result of the artificial insemination procedure and the sexual intercourse between the insured and his wife.

Under Georgia law, all children born in wedlock or within the usual period of gestation thereafter are rebuttably presumed to be legitimate. Official Code of Georgia Annotated (O.C.G.A.) §19-7-20. However, Georgia law also provides that all children conceived by artificial insemination and born within wedlock or within the usual period of gestation thereafter are irrebuttably presumed legitimate if both parties have consented in writing to the use and administration of artificial insemination. O.C.G.A. §19-7-21.

The court noted that the parties did not consent in writing to the artificial insemination procedure. Consequently, the court reasoned that an irrebuttable presumption of legitimacy does not arise under O.C.G.A. §19-7-21. The court reasoned, however, that the strong public policy of Georgia in favor of legitimacy coupled with a reasonable construction of O.C.G.A. §19-7-21 would necessarily dictate that there would still exist a rebuttable presumption that the child conceived by artificial insemination during wedlock is legitimate even in the absence of a writing under O.C.G.A. §19-7-21. Consequently, the court found as a matter of law that Micaela was the legitimate child of the parties and awarded custody to the insured's wife with broad visitation rights to the insured. Although Georgia's Supreme Court has not specifically addressed the construction of O.C.G.A. §19-7-21 where a written consent is not present, it is the opinion of this office that if the Georgia Supreme Court were to address this issue, the Georgia Supreme Court's analysis would be consistent with the reasoning of the Glynn County Superior Court.

The insured's blood type allegation and the allegation of an affair between his son and his wife made subsequent to the court's determination of legitimacy, are insufficient to alter the court's findings. The blood test allegation is perfectly consistent with the artificial insemination explanation offered by both the insured and his wife during the court proceedings. The suggestion of an affair between the insured's son and his wife is totally unsubstantiated. Further, there is absolutely no evidence of record as to when such an alleged affair occurred relative to the birth of Micaela.

Since the four prerequisites of Gray v. Richardson have been satisfied, the Secretary cannot disregard the Glynn County Superior Court's findings. These findings are fully supported by the evidence of record and Georgia law. Accordingly, you would be justified in accepting the findings of the Glynn County Superior Court and concluding, therefore, that Micaela is the legitimate child of the insured under Georgia law.

FR PARENT AND CHILD -- FEDERAL DEFINITION OF "CHILD .... GEORGIA

FR LEGITIMACY AND LEGITIMATION -- GEORGIA

Under Georgia law, a child born in wedlock is presumed to be the legitimate child of the husband, but this presumption may be rebutted by clear and convincing evidence to include blood test results.

(G~, John E. (DNH) - to ARC, Progs., Atl., 08/20/85)

In your recent memorandum you asked whether Demario G~ can qualify as the natural child of the insured under Sections 216(h) (3) or 216(h) (2) of the Social Security Act.

According to the file and the information supplied in your memorandum, the deceased insured married Annie on December XX, 1963 in M~, Georgia. Three children were born to Annie during her marriage to the insured: John G~, dob: July XX, 1966; Keshel G~, dob: July XX, 1970; and, Demario, dob: August XX, 1979. It is undisputed that John and Keshel are the natural children of the insured. Annie initiated a divorce action and in response thereto the insured contends that he and Annie separated in February 1977 and lived in a bonafide state of separation since that time. The insured also denied that Demario was his child but did agree that John and Keshel were his natural children. However, Demario's birth certificate was signed by the insured as Demario's father. The insured also claimed Demario as his child on his 1982 tax return. No subsequent tax returns were filed by the insured and there is no evidence of record as to tax returns prior to 1982. In a Divorce Judgment and Decree dated May XX, 1984 but retroactive to May XX, 1984, the court made the jury verdict the judgment of the court specifically granting a divorce on the grounds of an irretrievably broken marriage specifically finding that Demario was not the natural child of the insured.

The insured died on May XX, 1984 domiciled in Georgia of a suspected suicide. According to your memorandum, the evidence presented to the jury regarding the paternity issue is not reflected in the Social Security file because of the cost of procuring a transcript of the trial. However, the insured's request No. 1 for jury instructions indicates that the jury considered blood tests which may have excluded the insured as the natural father.

Pursuant to Section 216(h) (2) (A) of the Social Security Act, (42 U.S.C. §416(h) (2) (A)), an applicant is the child of a deceased insured provided the applicant would be entitled to an intestate child's share of the insured's personal property under the law of the insured's domicile at the time of the insured's death. The insured died domiciled in Georgia on May XX, 1984. The child applicant was born August XX, 1979 at which time the insured was married to the child applicant's mother.

To be entitled to an intestate child's share of the insured's personal property under Georgia law, the child applicant must be the natural child of the insured.

Under Georgia law, a child born in wedlock is presumed to be the legitimate child of the husband. Ga.Code Ann. §74-101. Although this is one of the strongest and most persuasive presumptions known to law, it is rebuttable. Parks v. State, 270 S.E.2d 271 (5th Cir. 1980). The presumption may be rebutted by direct or presumptive evidence, however, the evidence must be clear and convincing. Harris v. Sheldon, 107 S.E. 842 (1921); English v. English, 168 S.E.2d 187 (5th Cir. 1969). Further, a birth certificate which was completed in accordance with the statutory requirements is prima facie evidence of the facts stated therein; however, such facts may be rebutted. Ga.Code Ann. §§88-1709, 88-1714. P~ v. State, 167 S.E.2d 340 (1933).

Since the insured was married to the child applicant's mother at the time the child was born and for approximately 16 years prior thereto and given the insured's signature on the child's birth certificate describing the child as his son, there exists a strong presumption under Georgia law that the child is the natural and legitimate son of the insured.

However, this office has previously opined in a 1978 opinion that the presumption of legitimacy of a child born in wedlock in the State of Georgia can be rebutted based upon a court order based upon blood tests indicating the child could not medically be the biological issue of the man legally married to the child's mother. (A copy of this opinion is attached.)

In the present case, the nature and quality of the blood test evidence discussed in the court's judgment adopting the jury verdict are unknown. If the blood test evidence excludes the insured as the father as was the situation in the 1978 opinion, the presumption of legitimacy would be successfully rebutted under Georgia law, and you would be warranted in concluding that the insured is not entitled to an intestate child's share of the insured's personal property under Georgia law.

Since the insured died on May XX, 1984 and the application for child's benefits on behalf of Demario G~ as a surviving natural child of the insured was filed on June XX, 1984, it is assumed that your specific question under Section 216(h) (3) is whether Demario can qualify as the natural child of the insured under Section 216(h) (3) (C) of the Social Security Act. To be deemed the child of the deceased insured pursuant to Section 216(h) (3) (c) (i), the insured must have acknowledged in writing that the applicant was his son, have been decreed by a court to be the father of the applicant or have been ordered by a court to contribute to the support of the applicant because the applicant was his son. In the present case, there is no evidence of any court order or decree which determined the insured to be the child applicant's father. Further, there is no court order requiring the insured to contribute to the support of the applicant. There is a court judgment, however, which specifically determined that the insured was not the child applicant's natural father and further determined that the insured had no support obligation to the child applicant. Although the requisite court order or decree requirements are not satisfied for purposes of Section 216(h) (3) (C), there is evidence of record in the form of a birth certificate and the 1982 tax return wherein the insured acknowledged in writing that the applicant is his son. However, the insured has refuted that acknowledgment at least in the subsequent divorce proceedings. Given the conflicting positions of the insured regarding the paternity of the child applicant and the blood test evidence which may have supported the insured's contention that the applicant is not his child, it is the opinion of this office that the apparent acknowledgment of paternity embodied in the birth certificate would be insufficient to award child's benefits under the circumstances. It is the opinion of this office that any award of child's benefits here must be pursuant to Section 216(h) (2) (A) of the Act and such an award appears to hinge upon the nature and quality of the blood test results. The blood test may completely exclude the insured as the father. If the blood test evidence is ambivalent, it must be considered with the existing evidence and any other evidence which may be developed on the paternity issue.

Although you are apparently barred from procuring the entire transcript of the divorce trial due to the expense, it is the recommendation of this office that a concerted effort be made to determine the nature of any blood test evidence which was made available to the court because it apparently was the basis for rebutting the strong presumption of paternity otherwise present in this case. It is likely that both parties to the proceeding were supplied with copies of the blood test results. This report may have been placed in evidence and may be available without the need for procuring the entire transcript. Certainly the medical authority conducting such test was known to the parties and would be available to discuss by phone or advise you in writing as to the results of such tests and the degree of reliability which can be placed upon this blood test. Those who attended the trial may also recall the nature of the blood test evidence.

Under Georgia Law, a 315-day gestation period would not as a matter of law establish that the child claimant is illegitimate. The question of whether the child is legitimate or illegitimate is an issue of fact which must be determined on a case-by-case basis. See opinion Re P~, Ray A. - A/N RAIV [Stephens -.. to R.Rep., ODO, SSA, 10/16/67. When determining the infant's correct gestational age, the infant's medical records should be reviewed to determine whether the infant's alleged gestation period agrees with its medical estimated gestational age and birth weight.

(Marion R~ (DNH) - ~ - RAIV J~] - to Asst.Reg.Comm., Progs., Atl., 11/28/84)

OD 2110 OD 2110 - Ga.+

In your memorandum you inquired whether under Georgia law the length of the gestation period (315 days) would forbid a finding that Dominga D. R~ is the natural and legitimate child of the deceased wage earner, Marion

The record indicates that the decedent, Marion J. R~, died in an automobile accident on June XX, 1969. The child claimant was born on April XX, 1970 (315 days after the decedent's death). According to the attending physician the child was a "full-term" baby. The child's birth certificate indicated that the child weighed six pounds at birth. The claimant's mother, on May XX, 1970, filed for benefits on behalf of the child. The Administration denied the application citing Alabama law as the basis for its decision. On January XX, 1984, the mother reapplied and it was established that the decedent died while domiciled in Georgia.

There is no evidence in the record showing adultery on the part of the mother. Both the mother and grandmother contend that the mother never had sexual relationships with any other men other than the decedent. Notwithstanding the mother's and grandmother's assertion, your office believed that the extended gestation period of 315 days and the fact the child weighed six pounds at birth cast considerable doubt on the child's legitimacy.

The proper procedure to be followed in resolving a case of this nature has been discussed in earlier opinions. In Re P~, RaY Alvin, A/N ~~- RAIV [Stephens - to R.Rep., ODO, SSA, 10/16/67, we advised that under Georgia law a presumption of legitimacy arises but where more than a normal period of gestation elapses between the death of an alleged parent and the birth of the child, the presumption will be controlling only if there is no evidence inconsistent therewith. We further advised that the question in such cases is an issue of fact which must be decided on the evidence developed. In Re Joan W~, SSN ~ RAIV W~], to Asst.Reg.Comm., Progs., Atl., 03/09/84, we advised the presumption of legitimacy becomes weakened and attenuated the further the birth exceeds the normal period of gestation.

The normal accepted period of gestation is 280 days although it is medically accepted that the period may run as long as 340 days (48 weeks). In Re W~, supra. The average weight for a term infant is seven pounds (3-5 kg.). The Merck Manual of Diagnosis and Therapy (14th ed. - 1982). (Copy attached.)

Each newborn is characterized according to its estimated gestation and its birth weight. The Merck Manual, supra, 1019. An infant that is born between 25 and 36 weeks is classified as a "premature" infant. An infant born between 37 and 41 weeks is classified as a "term" infant. An infant born 42 weeks, or thereafter, is classified as a "postmature" infant. The Merck Manual, supra, 1019. With regard to weight, an infant is either classified as large, appropriate, or small for its gestational age. The Merck Manual, supra, 1812, 1813.

In the instant case, according to the mother, the infant was born 315 days (45 weeks) after conception or, in other words, five weeks beyond the normal period of gestation which means that the newborn should have been classified as a "postmature" infant. Notwithstanding, the physician classified the infant as a "full term" infant. We suggest that your office contact the physician to see what he meant by "full term" infant. If your office finds that the physician's classification "full term" means a "term" infant (an infant born between 37 and 41 weeks), then your office would be warranted in concluding that the infant is not the natural offspring of the wage earner because conception would have had to have taken place after the wage earner's death. However, if you find that the physician's response is not dispositive of the issue, you should review the delivery records. The delivery records should contain enough information so as to allow your office to make a finding.