TN 30 (06-16)

PR 01010.016 Illinois

A. PR 16-115 Legal Opinion: Whether Statement by Numberholder’s Wife Acknowledging Marital Children Are Not Numberholder’s Biological Children Is Sufficient to Rebut Illinois Marital Presumption of Paternity When Biological Father Is Listed on Illinois Birth Certificates

Date: April 14, 2016

1. Syllabus

The claimants would be considered the number holder’s (NH) children when they were born during the NH’s marriage to the children’s mother. However, their mother filed a signed statement with the agency admitting that the NH is not the children’s biological father and the children’s biological father’s name appears on the children’s birth certificates. Illinois marital presumption of paternity would not apply. Therefore, the claimants would not be able to establish inheritance rights with respect to the NH under the Illinois law. We believe the claimants are not eligible to receive auxiliary child’s benefits based on the NH’s record.

2. Opinion

You asked whether, for purposes of entitlement to child’s benefits, L~ and M~ would be considered S~’s (numberholder) children when they were born during S~’s marriage to A~ but A~ filed a signed statement with the agency admitting that S~ is not the children’s biological father. In her statement A~ also explained that the children’s biological father was present for their births and his name is on both children’s birth certificates. Under Illinois law, for the biological father’s name to appear on the children’s birth certificates when the mother is married to another man, two things must first occur: (1) the mother and biological father must sign an acknowledgement of parentage, and (2) the mother and husband (the presumed father) must sign a denial of paternity. These documents, which must be filed before the biological father can sign the birth certificate, conclusively establish a parent-child relationship under Illinois law between the biological father and the children. Thus, we conclude that the Illinois marital presumption of paternity would not apply and that L~ and M~ would not be able to establish inheritance rights with respect to the numberholder under Illinois law.

FACTS

A~has filed a claim for auxiliary child’s benefits on behalf of her children, L~ and M~, on the Social Security record of S~. S~ has been receiving disability benefits since May 2007.

A~ and S~ were married on October XX, 1998. Both L~ and M~ were born during the marriage—L~ in August 2004 and M~ in September 2004. Both children lived with A~ and S~ as a family until the couple separated on October XX, 2013. The two children are currently residing with A~ in Urbana, Illinois, and S~ In P~, Illinois—approximately 100 miles away. It does not appear that we have any information about whether, or the extent to which, the two children have had contact with or have been supported by S~ since the couple’s separation. Nor do we have information about whether the couple has a legal separation agreement that addresses issues of visitation or support.

As part of the SSA child’s benefits application she filed on behalf of L~ and M~, A~ submitted a signed statement stating, in part, that S~ is not the biological father of L~ or M~. A~ further stated that the children have the same biological father and that the biological father was present when the children were born and his name appears on both of their birth certificates. A~ did not address whether, or to what extent, the biological father has been involved in the children’s lives or whether he has supported them in any way. According to A~, there was never any DNA testing done to confirm that S~ was not the biological father.

The agency has S~ listed as the father in both children’s NUMI files, and S~ listed both L~ and M~ as his children in his application for disability benefits.

ANALYSIS

Section 202(d) of the Social Security Act provides for the payment of benefits to the child of an insured numberholder who is retired, disabled, or deceased. 42 U.S.C. § 402(d). The Act provides that, when determining whether an applicant is the child of a numberholder, the agency will apply the law that would be applied to determine the inheritance of intestate personal property by the courts of the state where the numberholder was domiciled at the time the application for child’s benefits is filed. 42 U.S.C. § 416(h)(2)(A), 20 C.F.R. § 404.355(b)(4). Here, because S~ was domiciled in Illinois when A~ filed for auxiliary child’s benefits, Illinois law applies. If the children could inherit from S~ under Illinois’s intestate succession laws, therefore, they are considered his children for the purpose of eligibility for auxiliary child’s benefits. See 42 U.S.C. § 416(h)(2)(A); 20 C.F.R. § 404.355(b)(4).

Under Illinois intestacy law, the right to inherit is based on the establishment of a parent-child relationship though one of the statutorily prescribed methods. 755 ILCS 5/2-2. A man is presumed to be the natural father of a child if he and the child’s mother have been married and the child is born during the marriage. 750 ILCS 46/204(a)(1).1 Here, because S~ was married to A~ when L~ and M~ were born, he is the presumed father. This presumption may be rebutted, however, with clear and convincing evidence. 750 ILCS 46/206. The most frequent types of evidence that Illinois courts have accepted as sufficient to rebut the presumption are blood tests showing that the presumed father is not the natural father, evidence showing that that the mother and her husband were not living together and did not have intercourse during the possible time of conception, and evidence showing that the husband was sterile. See, e.g., Happel v. Mecklenburger, 101 Ill. App. 3d 107, 112 (1st Dist. 1981); Santiago v. Silva, 90 Ill. App. 3d 554, 559-60 (1st Dist. 1980).

If A~ had stated only that S~ was not the biological father, we believe that such a unilateral admission would not have been sufficient to rebut the strong marital presumption in favor of S~’s paternity. In particular, because it appears S~ had been living with A~, L~, and M~ as a family for roughly ten years, Illinois courts would have been reluctant to disturb the relationship built between S~ and the children over such an extended period. See In re Marriage of O’Brien, 247 Ill. App. 3d 745, 749-50 (4th Dist. 1993) (noting significant detrimental social and emotional consequences for children when paternity action is brought after children have spent years bonding with presumed father). Further, there is no evidence that S~ is sterile or that the couple was not having intercourse during the possible periods of conception. If it were possible for S~ to be the father and no DNA evidence had ruled him out, A~’s unilateral statement to the contrary likely would not have been sufficient to rebut the presumption in Illinois. See Dillon v. Indus. Comm’n, 142 Ill. App. 3d 599, 603-06 (1st Dist. 1990); Happel, 101 Ill. App. 3d at 112.

But, here, A~’s statement did more than just admit that S~ was not the children’s biological father. A~ stated that the children’s biological father was present for their births and that his name—not S~’s—appears on the children’s birth certificates. Under Illinois law, because of the procedures required to substitute the biological father for the husband/presumed father on the children’s birth certificates, this fact conclusively establishes parentage between the biological father and the children, not S~. See 410 ILCS 535/12; see also In re Parentage of G.E.M., 382 Ill. App. 3d 1102, 1108-1110 (3d Dist. 2008) (holding that man established parent-child relationship when he prepared “electronic birth certificate worksheet” at hospital with mother after child’s birth and completed prerequisite acknowledgement of paternity required by the Illinois Vital Records Act).

Under section 535/12 of the Illinois Vital Records Act, “if the mother was married at the time of conception or birth and the presumed father (that is, the mother’s husband) is not the biological father of the child, the name of the biological father shall be entered on the child’s birth certificate only if . . . (i) the mother and the person to be named as the father have signed an acknowledgement of parentage and (ii) the mother and the presumed father have signed a denial of paternity.” 410 ILCS 535/12(4) (emphasis added). The Act further provides that “[t]he signing and witnessing of the acknowledgement of parentage or, if the presumed father of the child is not the biological father, the acknowledgement of parentage and denial of paternity conclusively establishes a parent-child relationship in accordance with . . . the Illinois Parentage Act.” 410 ILCS 535/12(5)(a) (emphasis added).2

What this means for L~ and M~ is that for their biological father’s name—instead of S~’s name—to appear on their birth certificates, the parties first must have completed both an acknowledgment of parentage signed by A~ and the biological father and a concomitant denial of paternity signed by S~ and A~. See 410 ILCS 535/12(4); see also POMS PR § 01210.016A (explaining procedure required in Illinois to list someone other than presumed father on child’s birth certificate). In other words, the biological father necessarily had to be established as the children’s natural and legal father—and S~ necessarily and affirmatively had to deny paternity—before the biological father’s name could appear on L~’s and M~’s birth certificates. See In re Reyes, 369 Ill. App. 3d 150, 153-54 (1st Dist. 2006) (holseeding that because appellant was named as father on child’s birth certificate, this was sufficient evidence that he also signed written acknowledgement of parentage as required by Illinois law and, thus, he was established as legal father and his consent was necessary before child could be adopted).

As 410 ILCS 535/12(5) provides, the completion of the prerequisite acknowledgement of parentage and denial of paternity “conclusively establishes” a parent-child relationship between the biological father and the children under the Illinois Parentage Act. See In re Parentage of G.E.M., 382 Ill. App. 3d at 1110 (referring to man’s completion of electronic birth certificate worksheet and requisite acknowledgement of parentage in concluding that “this admission of paternity operated as conclusively as a judicial determination based on evidence or a judgment establishing paternity pursuant to the [Illinois Parentage Act]”). Thus, even though S~ is the presumed father, lived with L~ and M~ as a family for roughly ten years, and listed them as his children on his application for disability benefits, the children would not be able to inherit from S~ under Illinois intestacy laws. The children, however, could inherit from the biological father and may be entitled to receive auxiliary child’s benefits based on the biological father’s Social Security record, assuming he is retired, disabled, or deceased. See 42 U.S.C. § 402(d).

For these reasons, we conclude that L~ and M~would not be able to establish inheritance rights from S~ under Illinois law and, thus, are not eligible to receive child’s benefits on S~’s Social Security record.

CONCLUSION

We believe that L~ and M~are not eligible to receive auxiliary child’s benefits based on the Social Security record of S~. As discussed above, though S~ is presumed to be the children’s father under Illinois law, because their biological father’s name appears on their birth certificates instead of S~s, their biological father must have necessarily been established as their legal father based on the procedures required by the Illinois Vital Records Act. Thus, the question here is not whether there is clear and convincing evidence to rebut the presumption of paternity in favor of S~, but whether the biological father’s name appears on the children’s birth certificates. If it does—as A~ confirmed in her signed statement to the agency—then S~ is no longer the presumed father because the issue of paternity would have been conclusively established by the prerequisite signing of the acknowledgment of parentage by the biological father and the concomitant denial of paternity signed by S~.

Kathryn Caldwell

Acting Regional Chief Counsel, Region V

By: Catherine L. Gibbons

Assistant Regional Counsel

B. PR 00-197 Rebuttal of Presumption of Legitimacy - Illinois, Curtis B. M~ D~, SSN ~

DATE: November 7, 1997

1. SYLLABUS

The evidence in this case does not rebut the presumption of legitimacy under Illinois law. The child's mother had stated that the NH was not the child's natural father, but later recanted the statement. The divorce court found that the NH was not the child's father, but is not dispositive. The evidence in favor of paternity is that the NH was named as the father on the child's birth certificate, he and the child's mother were living together at the time of conception, and the NH failed to contest the Illinois Dept. of Public Aid's support order naming the child as his dependent.

2. OPINION

You asked whether, under Illinois law, Curtis B. M~ D~ (Curtis) can be considered the child of deceased wage earner, Curtis B. D~ (Mr. D~), for purposes of entitlement to child's insurance benefits on Mr. D~' account number. We conclude that Curtis should be considered Mr. D~' child because the evidence in the claims folder would not rebut the presumption of legitimacy under Illinois law.

Background

Curtis was born January XX, 1985, in Illinois. His birth certificate lists Mr. D~ as the father and shows the mother's maiden name as Sandra L~. The birth certificate in the file does not show an informant. Mr. D~ and Sandra L~ (Mrs. D~) were married at the time.

A support order was issued by the Illinois Department of Public Aid on July 17, 1987, ordering Mr. D~ to make monthly support payments for dependents Sandra (wife) and Curtis. The order gives 30 days notice to file for a modification, but there is no indication that Mr. D~ contested the order. In fact, the evidence suggests that Mr. D~ paid the child support.

On October XX, 1991, Mr. D~ applied for disability insurance benefits (DIB), listing Sandra L~ as his wife and stating that he had no children eligible for social security benefits on his wage record.

Mr. and Mrs. D~ were divorced on February XX, 1992 in Cook County, Illinois. The judgment of dissolution of marriage (divorce decree) states that Mr. D~ appeared before the court on December 13, 1991, stated that there were no children of the marriage, and agreed to proceed to hearing as in cases of default. The divorce decree also states that there is a transcript of a hearing at which Mrs. D~ testified; the substance of Mrs. D~' testimony is not detailed. The findings stated in the divorce decree are that Mr. and Mrs. D~ were married on February 10, 1976, that they had not lived together since about October XX, 1985, and that no children had been born to, or adopted by, the parties. The decree specifically states that Curtis and Marcus, who were born to Mrs. D~ during the marriage, are not Mr. D~' children.

Mr. D~ filed another DIB application on June 27, 1992, at which time he stated that he had never been married and had no children eligible for Social Security benefits on his earnings record. Psychological reports filed in connection with that application indicate that Mr. D~ told the examiner that he and his wife were separated for five years before divorcing and he had been required to pay child support for children he had not fathered. He told the examiner that he had fathered no children. On October XX, 1992, Mr. D~ was found disabled as of November XX, 1988, due to major depression and polysubstance abuse. In addition, Mr. D~ was found to be retarded, illiterate, and incapable of managing his own funds.

Mr. D~ died on January XX, 1996, domiciled in Illinois. On January XX, 1996, Mrs. D~ applied, on behalf of Curtis and herself, for child's insurance benefits (CIB) and mother's insurance benefits on Mr. D~' earnings record. Her applications were denied, and she requested reconsideration. On her reconsideration request, Mrs. D~ wrote, "Curtis B. M~ D~ is the natural child of my husband Curtis B. D~. I lied because I was mad when I filed the divorce decree."

Discussion

Under the Illinois Parentage Act, a man is presumed to be a child's natural father if he and the child's natural mother are married to each other when the child is born or conceived. 750 ILCS 45/5(a)(1). Because Mr. and Mrs. D~ were married when Curtis was born, the Parentage Act creates a presumption that Mr. D~ is Curtis' natural father. The Parentage Act provides that the presumption of legitimacy is rebuttable where there is clear and convincing evidence that the mother's husband is not, in fact, the natural father. 750 ILCS 45/5(b). This statutory provision, effective July 1, 1985, essentially codified pre-existing case law which required that the presumption of legitimacy could be rebutted only by evidence which was clear, convincing, and irrefragable. See Interest of Ozment, 378 N.E.2d 409, 412 (Ill. App. 1978); Santiago v. Silva, 413 N.E.2d 139, 142 (Ill. App. 1980); Happel v. Mecklenburger, 427 N.E.2d 974, 979 (Ill. App. 1981).

What constitutes clear and convincing evidence sufficient to rebut the presumption of legitimacy has been discussed in several Illinois cases. See Binion v. Commissioner of Social Security, 108 F.3d 780, 785-86 (7th Cir. 1997) (summarizing Illinois case law on presumption of legitimacy). The presumption may be rebutted by conclusive blood test results. Santiago v. Silva, 413 N.E.2d 139, 143 (Ill. App. 1980); People v. Askew, 393 N.E.2d 1124, 1128 (Ill. App. 1979). The presumption may also be rebutted where clear and convincing evidence establishes that the mother and her husband were not living together and did not have intercourse around the time of conception, Happel, 427 N.E.2d at 979; Ozment, 378 N.E.2d at 412; People ex rel. Adams v. Mitchell, 412 N.E.2d 678,682 (Ill. App. 1980). In Binion, the Seventh Circuit stated that, although the standard required to rebut the presumption of legitimacy in Illinois was at the "high end" of clear and convincing evidence, blood tests were not necessary to establish that the husband was not the natural father, nor was it necessary to establish non-access or the inability of the husband to procreate. 108 F.3d at 783, 785-86.

In your memorandum you question whether Mrs. D~' statement that Mr. D~ was the natural father effectively cancels out her earlier statement that he was not the natural father, leaving only Mr. D~' denial, and whether his denial could be used to rebut the presumption of legitimacy. Illinois case law is not entirely clear on the issue of whether statements by the mother, standing alone, or statements by the presumed father, standing alone, can rebut the presumption of legitimacy, but it is clear that statements by both the mother and the presumed father are relevant to the determination of whether the evidence as a whole meets the clear and convincing standard. In Happel, the court stated in dicta that a father, alone, could not challenge legitimacy. 427 N.E.2d at 979. The cases cited for that proposition, however, held only that a husband's testimony that he did not have intercourse with his wife during the period of conception, without corroboration, cannot overcome the presumption of legitimacy. See People v. Askew, 393 N.E.2d 1124,1127 (Ill. App. 1963); People v. Powers, 91 N.E.2d 637, 639 (Ill. App. 1950). In Ozment, a third appellate district case, the presumption of legitimacy was successfully rebutted where the mother and her husband both testified to non-access and the husband testified that he was sterile. 378 N.E.2d at 412. The court stated, however, that the mother's testimony alone would not have been sufficient. Id. Two years later, the first appellate district referred to the court's statement in Ozment as dicta and held that, where the evidence is clear and convincing, a mother's testimony alone can rebut the presumption of legitimacy. Adams, 412 N.E.2d at 682-83. There, the presumption of legitimacy was rebutted where the mother testified that she had been separated from her husband for many years, that she had relations only with the putative father around the time of conception, and that she lived with the putative father after the child's birth. Id. at 682-84; see also People ex. rel. D~ v. Clark, 426 N.E.2d 294 (Ill. App. 1981) (presumption rebutted by the testimony of the mother alone that there was no access and that she was separated from her husband at the time of conception and divorced at the time of the child's birth). In People ex rel. Gonzalez v. Monroe, 192 N.E.2d 691, 694-95 (Ill. App. 1963), however, the second appellate district held that, where the mother was living with her husband during the period of conception and there was no evidence of non-access except for the mother's testimony, the mother's testimony could not overcome the presumption of legitimacy. See also Happel, 427 N.E.2d at 979. Thus, it seems that any uncorroborated testimony by Mrs. D~ that she did not have intercourse with Mr. D~ around the time of Curtis' conception would have been insufficient to rebut the presumption of legitimacy, since the divorce decree implies that she and Mr. D~ were living together at that time.

That Mr. D~ was listed as Curtis' father on the birth certificate supports the presumption of legitimacy, but is, by itself, not dispositive. The absence of a father's name has some probative value in rebutting the presumption. Binion, 108 F.3d at 787 (citing People ex rel. Kelly v. Pasko, 540 N.E.2d 462 (Ill. App. 1989), and Ashford v. Ziemann, 441 N.E.2d 1255 (Ill. App. 1982), aff'd. 459 N.E.2d 940 (1984). Illinois law requires that, where the natural mother is married at the time of conception or birth and her husband is not the natural father, the natural father's name cannot be listed without acknowledgment of parentage signed by the mother and the natural father and a denial of paternity signed by the mother and the presumed father. 410 ILCS 535/12. No case law was located, however, which held that the presumption of legitimacy was conclusive where the mother's husband was shown as the father.

Regarding the support order issued by the Department of Public Aid in July 1987, it appears that there was no court determination of paternity at that time. There is no indication that Mr. D~ contested the order, and he reported paying child support, which tends to indicate that, at least when the order was issued, Mr. D~ believed he was Curtis' natural father. Mr. D~' statements on DIB applications in October 1991 and June 1992 that he had no child eligible for benefits on his earnings record cannot have much probative value, since Mr. D~ also stated on his June 1992 application that he had never been married, and since he suffered a severe mental impairment.

The most convincing evidence of non-relationship is the divorce court's finding that Mr. D~ was not Curtis' natural father. This finding implies that clear and convincing evidence was presented to rebut the presumption of legitimacy, even though that conclusion is not apparent on the face of the decree. In Gray v. Richardson, 474 F.2d 1370 (6th Cir. 1973), adopted as Social Security Ruling (SSR) 83-37c, the court held that SSA was not free to ignore a State trial court's decision when all of the following criteria were met:

(1) an issue in a claim for Social Security benefits previously has been determined by a State court of competent jurisdiction;

(2) this 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.

SSR 83-37.

Although Mr. and Mrs. D~ had opposing interests, the is some doubt as to whether the issue of Curtis' legitimacy was genuinely contested, since the divorce decree states that Mr. D~ consented to proceed as in cases of default. That Mr. D~ had severe mental impairments also casts doubt on whether the issue was genuinely contested. We need not determine, however, whether the second criterion listed above was met, since the trial court's finding in this case is not binding on SSA because the fourth criterion was not met.

The trial court's finding that Curtis was not Mr. D~' child is not consistent with Illinois case law. In Binion, the Seventh Circuit, interpreting Illinois law, found that a child claimant was the wage earner's legal son for purposes of eligibility to survivor benefits. 108 F.3d at 781. In that case, the child' mother and the wage earner were married when the child was born and the birth certificate showed the wage earner's age as the father's age but did not show a father's name. A subsequent divorce decree, entered by default because the wage earner did not respond to the complaint, stated that the couple were separated during the period of the child's conception. Although the decree listed several children born of the marriage, it did not list the child in question. Binion, 108 F.3d at 781-82. The court held that, the omission of the child's name from the divorce decree could be considered, but it could not, standing alone, rebut the presumption of legitimacy. 108 F.3d at 787.

The Binion court, citing Simcox v. Simcox, 546 N.E.2d 609 (Ill. 1989), noted that, under Illinois law, a divorce court's finding on the issue of a child's paternity is not binding on the child unless the child was a party to the divorce proceedings. 108 F.3d 787. The underlying reasoning is that the finding cannot be binding on the child where his interests were not represented in the divorce proceedings. 546 N.E.2d at 611. See also, In re Estate of Willis, 574 N.E.2d 172, (Ill. App. 1991), cert. denied, 580 N.E.2d 112 (issue of paternity was never really adjudicated where annulment decree stated that the wife was pregnant and that the husband was not the father, but the child's interests had not been represented by a guardian ad litem); In re A.K. v. Kirchner, 620 N.E.2d 572, 575 (Ill. App. 1993) (result in Simcox would not have been different, even if the child had been represented by a guardian ad litem). Thus, the decree dissolving Mr. and Mrs. D~' marriage is not dispositive, but is merely one factor to be considered in determining whether clear and convincing evidence rebuts the presumption of legitimacy.

The divorce decree does not recite the substance of Mrs. D~' testimony. Based on her subsequent statement on her application for survivor benefits that she lied at the time of the divorce, we can conclude with relative certainty that she probably told the court that Mr. D~ was not Curtis' natural father. Although the decree recites that Mr. D~ told the court that he was not Curtis' natural father, there is no information concerning why he so stated. Nor does the divorce decree recite the other evidence, if any, presented to the court on the issue.

While the decree states that Mrs. D~' testimony was transcribed, we think it unnecessary to attempt to secure the transcript because, regardless of the evidence adduced on the record during the dissolution proceedings, the court's finding is insufficient to rebut the presumption of legitimacy and to preclude Curtis from eligibility for survivor benefits on Mr. D~' earnings record. According to the divorce decree, Mr. and Mrs. D~ were not living together from about October 10, 1985. Under the holding in Gonzalez, since Mr. and Mrs. D~ were apparently living together when Curtis was conceived, any testimony by Mrs. D~ that there was non-access could not, by itself, have rebutted the presumption of legitimacy. See Gonzalez, 192 N.E.2d at 694-95. The divorce decree recites no evidence presented other than Mrs. D~' testimony.

In summary, the claims folder contains little evidence to rebut the presumption of legitimacy. Mrs. D~ recanted a statement that Mr. D~ was not Curtis' natural father. The divorce court's finding on the issue is not dispositive. The divorce decree and Mr. D~' statements indicating he was not the father may have been premised on other evidence but may have been premised only on Mrs. D~' statement. Nothing in the claims folder suggests any other evidence which might rebut the presumption of legitimacy. In favor of the presumption is the fact that Mr. D~ was named as the father on Curtis' birth certificate, the fact that Mr. and Mrs. D~ were apparently living together around the time of conception, and Mr. D~' failure to contest the Illinois Department of Public Aid's support order naming Curtis as his dependent. We conclude that the information in the claims folder falls short of the level of proof required under Illinois law to overcome the presumption that Curtis is the legitimate son of Mr. D~. Therefore, we conclude that, for purposes of eligibility to survivor benefits, Curtis is the legal child of Mr. D~.

We are returning the claims folder.

C. PR 97-002 Rebuttal of Presumption Of Legitimacy - Illinois Curtis B. M. D~, SSN

DATE: November 7, 1997

1. SYLLABUS

Under the Illinois Parentage Act, a man is presumed to be a child's natural father if he and the child's natural mother are married to each other when the child is born or conceived. This presumption of legitimacy is rebuttable where there is clear and convincing evidence that the mother's husband is not, in fact, the natural father. Examples of clear and convincing evidence are conclusive blood test results or evidence establishing that the mother and her husband were not living together and did not have intercourse around the time of conception.

Illinois case law is not entirely clear on whether statements by the mother, standing alone, or statements by the presumed father, standing alone, can rebut the presumption of legitimacy. However, it is clear that statements by both the mother and the presumed father are relevant to the determination of whether the evidence as a whole meets the clear and convincing standard.

The omission of the child's name from a divorce decree may be considered, but it does not, standing alone, rebut the presumption of legitimacy. Under Illinois law, a divorce court's finding on the issue of a child's paternity is not binding on the child unless the child was a party to the divorce proceedings; i.e., unless the child's interests were represented at the divorce proceedings.

2. OPINION

You asked whether, under Illinois law, Curtis B. M~ D~ (Curtis) can be considered the child of deceased wage earner, Curtis B. D~ (Mr. D~ ), for purposes of entitlement to child's insurance benefits on Mr. D~ account number. We conclude that Curtis should be considered Mr. D~' child because the evidence in the claims folder would not rebut the presumption of legitimacy under Illinois law.

Background

Curtis was born January XX, 1985, in Illinois. His birth certificate lists Mr. D~ as the father and shows the mother's maiden name as Sandra L~. The birth certificate in the file does not show an informant. Mr. D~ and Sandra L~ (Mrs. D~ ) were married at the time.

A support order was issued by the Illinois Department of Public Aid on July XX, 1987, ordering Mr. D~ to make monthly support payments for dependents Sandra (wife) and Curtis. The order gives 30 days notice to file for a modification, but there is no indication that Mr. D~ contested the order. In fact, the evidence suggests that Mr. D~ paid the child support.

On October XX, 1991, Mr. D~ applied for disability insurance benefits (DIB), listing Sandra L~ as his wife and stating that he had no children eligible for social security benefits on his wage record.

Mr. and Mrs. D~ were divorced on February XX, 1992 in Cook County, Illinois. The judgment of dissolution of marriage (divorce decree) states that Mr. D~ appeared before the court on December XX, 1991, stated that there were no children of the marriage, and agreed to proceed to hearing as in cases of default. The divorce decree also states that there is a transcript of a hearing at which Mrs. D~ testified; the substance of Mrs. D~' testimony is not detailed. The findings stated in the divorce decree are that Mr. and Mrs. D~ were married on February XX, 1976, that they had not lived together since about October XX, 1985, and that no children had been born to, or adopted by, the parties. The decree specifically states that Curtis and Marcus, who were born to Mrs. D~ during the marriage, are not Mr. D~ children.

Mr. D~ filed another DIB application on June 27, 1992, at which time he stated that he had never been married and had no children eligible for Social Security benefits on his earnings record. Psychological reports filed in connection with that application indicatXe that Mr. D~ told the examiner that he and his wife were separated for five years before divorcing and he had been required to pay child support for children he had not fathered. He told the examiner that he had fathered no children. On October XX, 1992, Mr. D~ was found disabled as of November XX, 1988, due to major depression and polysubstance abuse. In addition, Mr. D~ was found to be retarded, illiterate, and incapable of managing his own funds.

Mr. D~ died on January XX, 1996, domiciled in Illinois. On January X, 1996, Mrs. D~ applied, on behalf of Curtis and herself, for child's insurance benefits (CIB) and mother's insurance benefits on Mr. D~ ' earnings record. Her applications were denied, and she requested reconsideration. On her reconsideration request, Mrs. D~ wrote, "Curtis B. M~ D~ is the natural child of my husband Curtis B. D~ . I lied because I was mad when I filed the divorce decree."

Discussion

Under the Illinois Parentage Act, a man is presumed to be a child's natural father if he and the child's natural mother are married to each other when the child is born or conceived. 750 ILCS 45/5(a) (1). Because Mr. and Mrs. D~ were married when Curtis was born, the Parentage Act creates a presumption that Mr. D~ is Curtis' natural father. The Parentage Act provides that the presumption of legitimacy is rebuttable where there is clear and convincing evidence that the mother's husband is not, in fact, the natural father. 750 ILCS 45/5(b). This statutory provision, effective July 1, 1985, essentially codified pre-existing case law which required that the presumption of legitimacy could be rebutted only by evidence which was clear, convincing, and irrefragable. See Interest of Ozment, 378 N.E.2d 409, 412 (Ill. App. 1978); Santiago v. Silva, 413 N.E.2d 139, 142 (Ill. App. 1980); Happel v. Mecklenburger, 427 N.E.2d 974, 979 (Ill. App. 1981).

What constitutes clear and convincing evidence sufficient to rebut the presumption of legitimacy has been discussed in several Illinois cases. See Binion v. Commissioner of Social Security, 108 F.3d 780, 785-86 (7th Cir. 1997) (summarizing Illinois case law on presumption of legitimacy). The presumption may be rebutted by conclusive blood test results. Santiago v. Silva, 413 N.E.2d 139, 143 (Ill. App. 1980); people v. Askew, 393 N.E.2d 1124, 1128 (Ill. App. 1979). The presumption may also be rebutted where clear and convincing evidence establishes that the mother and her husband were not living together and did not have intercourse around the time of conception, Happel, 427 N.E.2d at 979; Ozment, 378 N.E.2d at 412; People ex tel. Adams v. Mitchell, 412 N.E.2d 678,682 (Ill. App. 1980). In Binion, the Seventh Circuit stated that, although the standard required to rebut the presumption of legitimacy in Illinois was at the "high end" of clear and convincing evidence, blood tests were not necessary to establish that the husband was not the natural father, nor was it necessary to establish non-access or the inability of the husband to procreate. 108 F.3d at 783, 785-86.

In your memorandum you question whether Mrs. D~ statement that Mr. D~ was the natural father effectively cancels out her earlier statement that he was not the natural father, leaving only Mr. D~ ' denial, and whether his denial could be used to rebut the presumption of legitimacy. Illinois case law is not entirely clear on the issue of whether statements by the mother, standing alone, or statements by the presumed father, standing alone, can rebut the presumption of legitimacy, but it is clear that statements by both the mother and the presumed father are relevant to the determination of whether the evidence as a whole meets the clear and convincing standard. In Happel, the court stated in dicta that a father, alone, could not challenge legitimacy. 427 N.E.2d at 979. The cases cited for that proposition, however, held only that a husband's testimony that he did not have intercourse with his wife during the period of conception, without corroboration, cannot overcome the presumption of legitimacy. See People v. Askew, 393 N.E.2d 1124,1127 (Ill. App. 1963); People v. Powers, 91 N.E.2d 637, 639 (Ill. App. 1950). In Ozment, a third appellate district case, the presumption of legitimacy was successfully rebutted where the mother and her husband both testified to non-access and the husband testified that he was sterile. 378 N.E.2d at 412. The court stated, however, that the mother's testimony alone would not have been sufficient. Id. Two years later, the first appellate district referred to the court's statement in Ozment as dicta and held that, where the evidence is clear and convincing, a mother's testimony alone can rebut the presumption of legitimacy. Adams, 412 N.E.2d at 682-83. There, the presumption of legitimacy was rebutted where the mother testified that she had been separated from her husband for many years, that she had relations only with the putative father around the time of conception, and that she lived with the putative father after the child's birth. Id. at 682-84; see also People ex. rel. D~ v. C~, 426 N.E.2d 294 (Ill. App. 1981) (presumption rebutted by the testimony of the mother alone that there was no access and that she was separated from her husband at the time of conception and divorced at the time of the child's birth). In People ex rel. Gonzalez v. Monroe, 192 N.E.2d 691, 694-95 (Ill. App. 1963), however, the second appellate district held that, where the mother was living with her husband during the period of conception and there was no evidence of non-access except for the mother's testimony, the mother's testimony could not overcome the presumption of legitimacy. See also Happel, 427 N.E.2d at 979. Thus, it seems that any uncorroborated testimony by Mrs. D~ that she did not have intercourse with Mr. D~ around the time of Curtis' conception would have been insufficient to rebut the presumption of legitimacy, since the divorce decree implies that she and Mr. D~ were living together at that time.

That Mr. D~ was listed as Curtis' father on the birth certificate supports the presumption of legitimacy, but is, by itself, not dispositive. The absence of a father's name has some probative value in rebutting the presumption. Binion, 108 F.3d at 787 (citing people ex rel. Kelly v. Pasko, 540 N.E.2d 462 (Ill. App. 1989), and Ashford v. Ziemann, 441 N.E.2d 1255 (Ill. App. 1982), aff'd. 459 N.E.2d 940 (1984). Illinois law requires that, where the natural mother is married at the time of conception or birth and her husband is not the natural father, the natural father's name cannot be listed without acknowledgment of parentage signed by the mother and the natural father and a denial of paternity signed by the mother and the presumed father. 410 ILCS 535/12. No case law was located, however, which held that the presumption of legitimacy was conclusive where the mother's husband was shown as the father.

Regarding the support order issued by the Department of Public Aid in July 1987, it appears that there was no court determination of paternity at that time. There is no indication that Mr. D~ contested the order, and he reported paying child support, which tends to indicate that, at least when the order was issued, Mr. D~ believed he was Curtis' natural father. Mr. D~ ' statements on DIB applications in October 1991 and June 1992 that he had no child eligible for benefits on his earnings record cannot have much probative value, since Mr. D~ also stated on his June 1992 application that he had never been married, and since he suffered a severe mental impairment.

The most convincing evidence of non-relationship is the divorce court's finding that Mr. D~ was not Curtis' natural father. This finding implies that clear and convincing evidence was presented to rebut the presumption of legitimacy, even though that conclusion is not apparent on the face of the decree. In Gray v. Richardson, 474 F.2d 1370 (6th Cir. 1973), adopted as Social Security Ruling (SSR) 83- 37c, the court held that SSA was not free to ignore a State trial court's decision when all of the following criteria were met: (1) an issue in a claim for social security benefits previously has been determined by a State court of competent jurisdiction; (2) this 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. SSR 83-37.

Although Mr. and Mrs. D~ had opposing interests, the is some doubt as to whether the issue of Curtis' legitimacy was genuinely contested, since the divorce decree states that Mr. D~ consented to proceed as in cases of default. That Mr. D~ had severe mental impairments also casts doubt on whether the issue was genuinely contested. We need not determine, however, whether the second criterion listed above was met, since the trial court's finding in this case is not binding on SSA because the fourth criterion was not met.

The trial court's finding that Curtis was not Mr. D~ child is not consistent with Illinois case law. In Binion, the Seventh Circuit, interpreting Illinois law, found that a child claimant was the wage earner's legal son for purposes of eligibility to survivor benefits. 108 F.3d at 781. In that case, the child' mother and the wage earner were married when the child was born and the birth certificate showed the wage earner's age as the father's age but did not show a father's name. A subsequent divorce decree, entered by default because the wage earner did not respond to the complaint, stated that the couple were separated during the period of the child's conception. Although the decree listed several children born of the marriage, it did not list the child in question. Binion, 108 F.3d at 781-82. The court held that, the omission of the child's name from the divorce decree could be considered, but it could not, standing alone, rebut the presumption of legitimacy. 108 F.3d at 787.

The Binion court, citing Simcox v. Simcox, 546 N.E.2d 609 (Ill. 1989), noted that, under Illinois law, a divorce court's finding on the issue of a child's paternity is not binding on the child unless the child was a party to the divorce proceedings. 108 F.3d 787. The underlying reasoning is that the finding cannot be binding on the child where his interests were not represented in the divorce proceedings. 546 N.E.2d at 611. See also, In re Estate of Willis, 574 N.E.2d 172, (Ill. App. 1991), cert. denied, 580 N.E.2d 112 (issue of paternity was never really adjudicated where annulment decree stated that the wife was pregnant and that the husband was not the father, but the child's interests had not been represented by a guardian ad litem); In re A.K.v. Kirchner, 620 N.E.2d 572, 575 (Ill. App. 1993) (result in Simcox would not have been different, even if the child had been represented by a guardian ad litem). Thus, the decree dissolving Mr. and Mrs. D~ ' marriage is not dispositive, but is merely one factor to be considered in determining whether clear and convincing evidence rebuts the presumption of legitimacy.

The divorce decree does not recite the substance of Mrs. D~' testimony. Based on her subsequent statement on her application for survivor benefits that she lied at the time of the divorce, we can conclude with relative certainty that she probably told the court that Mr. D~ was not Curtis' natural father. Although the decree recites that Mr. D~ told the court that he was not Curtis' natural father, there is no information concerning why he so stated. Nor does the divorce decree recite the other evidence, if any, presented to the court on the issue.

While the decree states that Mrs. D~ ' testimony was transcribed, we think it unnecessary to attempt to secure the transcript because, regardless of the evidence adduced on the record during the dissolution proceedings, the court's finding is insufficient to rebut the presumption of legitimacy and to preclude Curtis from eligibility for survivor benefits on Mr. D~ ' earnings record. According to the divorce decree, Mr. and Mrs. D~ were not living together from about October 10, 1985. Under the holding in Gonzalez, since Mr. and Mrs. D~ were apparently living together when Curtis was conceived, any testimony by Mrs. D~ that there was non-access could not, by itself, have rebutted the presumption of legitimacy. See Gonzalez, 192 N.E.2d at 694-95. The divorce decree recites no evidence presented other than Mrs. D~ ' testimony. 1§/

In summary, the claims folder contains little evidence to rebut the presumption of legitimacy. Mrs. D~ recanted a statement that Mr. D~ was not Curtis' natural father. The divorce court's finding on the issue is not dispositive. The divorce decree and Mr. D~ ' statements indicating he was not the father may have been premised on other evidence but may have been premised only on Mrs. D~ ' statement. Nothing in the claims folder suggests any other evidence which might rebut the presumption of legitimacy. In favor of the presumption is the fact that Mr. D~ was named as the father on Curtis' birth certificate, the fact that Mr. and Mrs. D~ were apparently living together around the time of conception, and Mr. D~ ' failure to contest the Illinois Department of Public Aid's support order naming Curtis as his dependent. We conclude that the information in the claims folder falls short of the level of proof required under Illinois law to overcome the presumption that Curtis is the legitimate son of Mr. D~ . Therefore, we conclude that, for purposes of eligibility to survivor benefits, Curtis is the legal child of Mr. D~ .

We are returning the claims folder. 1§/ In Illinois, an action can be brought to declare the non-existence of the father/child relationship. 750 ILCS 45/7(b). A statute of limitations requires that such an action by the natural mother or the presumed father be brought no later than two years after the petitioner obtains knowledge of relevant facts. 750 ILCS 45/8(a) . Because Mr. and Mrs. D~ presumably would have known that Mr. D~ was not Curtis' natural father more than two years before the divorce proceedings, the statute of limitations presumably would have precluded the divorce court from considering the issue.

D. PR 87-004 Posthumous Child - Legitimacy - Illinois John R~ , A/N ~

DATE: March 23, 1987

1. SYLLABUS

LEGITIMACY AND LEGITIMATION -- PRESUMPTION AND EVIDENCE -- ILLINOIS

A 319 day gestation period although not in itself sufficient to rebut the presumption of the legitimacy of a child may be used together with other evidence to arrive at a body of evidence that would be considered "clear and convincing" for the purpose of rebutting the presumption of legitimacy. (R~ , John, ~ -- RAV (F~), to ARC, Progs., 03/23/87.)

OD 2110 -- IL

2. OPINION

This response is in reference to your inquiry regarding whether a 319-day gestational period will permit a finding that Lockett R~ is the legitimate child of the deceased wage earner. We believe that the facts as presented in the record are sufficient to rebut the presumption of legitimacy under Illinois law.

We note the facts relevant to our determination in this matter. The wage earner, John R~, was born on July XX, 1908 or 1918 (the record refers to both dates) and died on April XX, 1962. He was married to Betty R~ at the time of his death, and they had at least four children. Betty subsequently gave birth to Lockett R~ on March 4, 1963, 319 days after the wage earner's death. The father's name was "legally omitted" from the birth certificate, and the only identifying information provided was his age of 42 years. Because Betty R~ died prior to a determination of Lockett's eligibility for childhood disability benefits, reliable facts and circumstances surrounding paternity could not be obtained.

Ms. Leela C~ took Lockett into her home when he was two weeks old because Betty was "an alcoholic." She effectively raised Lockett as her own child, although she claims to have obtained food and money from the R~ household when necessary for Lockett's behalf. Ms. C~ stated that Betty was dating Henry N~ while her husband was in the hospital dying of cancer. Betty's mother, Mary H~, stated that Betty told her that Mr. N~ was Lockett's father.

Leela C~ applied for disability benefits on Lockett's behalf on April 19, 1985. She applied on the account of Henry N~. The claim initially was denied but, upon reconsideration, it was determined that Lockett became disabled on December 31, 1982. Prior to benefit distribution, however, SSA discovered that Betty R~ never was married to Henry N~ and that no convincing evidence demonstrated he was Lockett's father. Therefore, the possibility existed that Lockett might be entitled to benefits on John R~'s account.

Factual development of the case provided little additional information. The Veterans Administration was able to provide John R~ 's date of death, but could not locate his hospital records. Neither the doctor named on Lockett's birth certificate nor any of Lockett's siblings could be located. Although there was evidence that Betty R~ applied for and received veterans benefits for four children, the Veterans Administration Regional Office was unable to locate records indicating she ever applied for or received such benefits for Lockett.

In Illinois, a presumption exists that a child is legitimate when he or she was born in wedlock or within a competent time of the termination of the marriage. Zachman v. Zachman, 201 Ill. 380, 66 N.E. 256 (1903); Sturdy v. Sturdy, 67 Ill. App. 2d 469, 214 N.E.2d 607 (1966); People v. Griffin, 142 Ill. App. 371 (1910). The courts recognize that generally lasts between 260 and 308 days, with the average being 276 days. Handley~ v. People, 196 Ill. App. 556 (1915); People v. Bibb, 155 Ill. App. 371 (1910). Illinois courts, however, do acknowledge that the duration of a pregnancy may exceed the expected limits. People ex rel. Barbour v. Hatchett, 131 Ill. App. 3d 540, 475 N.E.2d ll13 (1985); People ex rel. Cizek" v. Azzarello, 81 Ill. App. 3d l102, 401 N.E.2d 1177 (1980); Handley v. People, supra. The limits of such excess cannot be known. Handley v. People, supra. 3

The presumption of legitimacy in Illinois, nevertheless, is not absolute. Evidence which is "clear, convincing and irrefragable" will rebut the presumption. Ozment v. Heater, 61 Ill. App. 3d 1044, 378 N.E.2d 409 (1978). Stated differently, evidence considered "strong, satisfactory and conclusive" will be sufficient to defeat a finding of legitimacy. People ex rel. Gonzalez v. Moore, 43 Ill. App. 2d l, 192 N.E.2d 691 (1963). The presumption weakens where the gestation period exceeds 287 days, and it can be rebutted by competent evidence of less force and convincing power than that necessary to overcome a strong presumption. 4 The presumption, if any, further weakens as the alleged period of gestation becomes extended. 5 Further, the presumption can be overcome by proof that the wage earner had no access to the mother during the period of possible conception. People v. Askew, 74 Ill. App. 3d 743, 393 N.E.2d 1124 (1979).

Lockett R~ was born on March 4, 1963, 319 days after the death of John R~ on April 19, 1962. This fact alone is not sufficient to rebut the presumption that Lockett is the legitimate son of the wage earner and, therefore, we consider the additional facts presented which provide a basis for our opinion.

As previously stated, the bulk of the information gathered from various sources does not support a finding of legitimacy in this case. These factors include: 1) Betty R~ omitted the father's name from the child's birth certificate; 2) Betty R~ listed the father's age as 42, and the evidence in the file shows that the wage earner was either almost 45 or 55 in 1963 (an application completed by Mrs. R~ for disability insurance benefits lists the wage earner's year of birth as 1918 whereas SSA records list the year as 1908); 3) agency records give the birth date of Henry N~ as November 23, 1921 which makes him more than 41 years old at the time of Lockett's birth in 1963; 4) Lockett's maternal grandmother stated that her daughter told her that Henry N~ was Lockett's father; 5) Leela C~, a long-time family friend who raised Lockett since two weeks of age, indicated she believed Henry N~ to be the father; 6) Ms. C~ initially applied for benefits in Lockett's behalf on the account of Henry N~ ; and 7) the wage earner died in a hospital after a terminal illness.

Based upon the material presented, we believe there is clear and convincing evidence which rebuts the presumption of legitimacy in this case and provides a basis upon which to deny benefits on the account of John R~. We note that you previously determined that convincing evidence did not exist to establish that Henry N~ was Lockett's father. In view of the information provided, including the fact that Mr. N~ 's age at Lockett's birth closely corresponds to the father's age listed on the birth certificate, you may wish to re-evaluate the evidence.

E. PR 84-025 Legitimacy of Child Born 290 Days After Divorce of Parents In Illinois -- Child's Benefits on Account of Robert C~, A/N~

FR LEGITIMACY AND LEGITIMATION -- PRESUMPTIONS AND EVIDENCE -- ILLINOIS

1. SYLLABUS

The fact that a child is born 290 days following the date of divorce would not in itself rebut the presumption of the legitimacy of the child. The presumption is weakened by the fact that the birth took place more than 287 days following the divorce but additional facts would be needed in order to rebut the presumption. (C~, Robert,~ -- RAV (M~), to ARC, 05/17/84.)

OD 2110 -- IL

2. OPINION

By referral dated March XX, 1984, you have asked whether Illinois law permits finding that a child born 290 days after the mother's divorce from the wage earner is the legitimate child of the wage earner. You refer to POMS GN 00306.055 C and E which question the legitimate status of a child where the child's birth certificate does not show the wage earner as the father or the child was born more than 287 days after the mother's divorce from the wage earner. In our opinion Illinois law permits but does not require a finding of legitimacy in this case. The presumption of legitimacy is weakened by the alleged length of the pregnancy but you must fully consider the relevant facts concerning the child's paternity to determine whether the presumption of legitimacy is rebutted. On balance we believe the presumption of legitimacy is not rebutted by the evidence currently in the file in this case.

DISCUSSION

We have previously advised you that a presumption exists in Illinois that every child born in wedlock or within a competent time of the termination of a marriage is legitimate. Zachmann v. Zachmann, 201 Ill. 380, 66 N.E. 256 (1903); Sturdy v. Sturdy, 67 Ill. App. 2d 469, 214 N.E.2d 607 (1966}; People v. Griffin, 142 Ill. App. 371 (1910). Illinois courts recognize pregnancy as generally lasting between 260 and 308 days, the average length being 276 days. Handley~/ v. People, 196 Ill. App. 556 {l915); People v. Bibb 155 Ill. App. 371 (1910). Moreover, Illinois courts acknowledge that the duration of a pregnancy may exceed such limits and the limits of such excess cannot be known. Handley v. People, supra. 6

The Illinois Appellate Court has recently stated:

It is not a 'matter outside of common experience, nor is proof required to show that the normal gestation period is "approximately" nine months, not exactly nine months, and a mother giving birth to a baby a couple of weeks before or after the approximate due date cannot be said to have had an abnormally long pregnancy. We are not aware that the predicting of the date of birth has developed into an exact science.

People ex rel. Cizek v. Azzarello, 81 Ill. App. 3d 1102, 401 N.E.2d 1177, 1183(1980).

We have also advised you that the presumption of legitimacy in Illinois is not absolute. It may normally be rebutted by evidence which is clear, convincing and irrefragable, Ozment v. Heater; 61 Ill. App. 3d 1044, 378 N.E.2d 409 (1970), or, differently stated', by evidence which is strong, satisfactory and conclusive, People ex rel. Gonzalez v. Monroe, 43 Ill. App. 2d l, 192 N.E.2d 691 (1963). 7 However, where the gestation period exceeds 287 days the presumption is weakened and may be rebutted by competent evidence of less force and convincing power than would be required to overcome a strong presumption. 8 Further, the more abnormal the alleged period of gestation, the weaker the presumption, if any. 9

In this case, the divorce decree was entered March 6, 1970, and Terrence was born 290 days later on December 22, 1970. Applying the above principles, the fact that the child was born 290 days after the mother's divorce from the wage earner would not, standing alone, be sufficient to rebut the presumption of his legitimacy. Consideration of additional facts is required, however, before your office can-make a final determination.

There is already evidence in the file which is relevant to this matter. Cutting against the presumption of legitimacy are the following facts: 1) both the wage earner and the mother filed applications for SSA benefits during 1978 which failed to mention Terrence although other children were mentioned; 2) the mother originally thought the divorce occurred as early as 1961; 3} the divorce decree fails to mention Terrence although another child is mentioned; 4) the divorce decree states the couple ceased living together as husband and wife on May 17, 1965; and 5) the birth certificate and hospital records from the mother's admission when Terrence was born do not name the child's father. There does not appear to have been any written or formal acknowledgement of paternity by the wage earner prior to his death.

Supporting a finding of legitimacy are the following facts: 1)the mother has offered a plausible explanation for the failures to reflect paternity in official documents such as SSA benefit applications, the divorce decree, and birth and hospital records; 2) the mother's statements that she continued to see and have relations with the wage earner and that the wage earner was the child's father are corroborated by statements from relatives, friends, and a pastor; 10 3) there are corroborating statements that the wage earner had an ongoing father-son relationship with the child; and 4} medical records from the mother's hospital admission of October 25, 1970 (almost two months before Terrence's birth and under eight months after the March 6, 1970 divorce decree) show a pregnancy of seven or eight months. The fact that hospital records show that a term baby weighing seven pounds seven ounces was delivered on December 22, 1970 does not preclude finding an unusually long gestation period.11

In similar cases, we have previously recommended factual development regarding the last date of cohabitation as well as statements from family members and friends. You have already obtained evidence of this nature. We have also recommended development of medical evidence, if possible, from the doctor who attended the child's birth containing an opinion regarding the possibility of a gestation period of the required length in this case. We have also suggested development of information regarding the mother's sexual relations with other men during the probable period of conception, although we have noted problems concerning the competence of such evidence under the Lord Mansfield Rule when it is obtained from the mother.12

While we note additional areas of possible factual development, we do not believe additional development is required in this case. Unlike cases where the gestation period exceeds 300 or 325 days, the 290 day gestation period in this case is not abnormally excessive. Therefore the presumption of legitimacy is still rather strong. In a similar case involving a gestation period under 300 days, we found that the presumption of legitimacy was not rebutted notwithstanding greater evidence of non-access by the wage earner and promiscuity by the mother, and equally inconclusive medical opinions regarding the possible gestation period. 13 Thus, you may conclude that no benefit would be served in this case by additional factual development, although you are free to pursue additional development if you believe it would assist your resolution of this matter.

CONCLUSION

In summary, the child in this case was born 290 days after the mother's divorce from the wage earner. Since Illinois courts recognize pregnancy as generally lasting between 260 and 308 days, there is a presumption that the child was legitimate. Although the presumption is weakened because the gestation period apparently exceeded 287 days, there is presently inadequate evidence to rebut even a weak presumption of legitimacy in this case. Should you choose to obtain additional evidence, we are available to provide additional assistance if you deem it necessary.

The materials provided this office are returned herewith. We are also attaching copies of the prior legal opinions referred to herein.

F. PR 84-020 Rebuttal Of Presumption Of Legitimacy - Order Of Heirship - Clear And Convincing Evidence -- Grady L. T~, ~ DWE, Allen M. T~

DATE: April 18, 1984

1. SYLLABUS

FR LEGITIMACY AND LEGITIMATION -- PRESUMPTIONS AND EVIDENCE -- ILLINOIS

A State Probate Court "declaration of heirship" may be sufficient to rebut the presumption of legitimacy if certain requirements are met one of them being that the subject of the legitimacy determination be a party to the action in an adversary proceeding. Where the subject individual's name was not included among the list of heirs contained in the "declaration of heirship," this in itself is not a sufficient basis to rebut the presumption of legitimacy. (T~ Grady L.,~- RAV (G~), to ARC, 04/18/84.)

OD 2110 -- IL

2. OPINION

Your February XX, 1984 request for a legal opinion in this matter asked whether under Illinois law a probate court "declaration of heirship" is sufficient to rebut the presumption of legitimacy. Although a declaration of heirship may serve to rebut the presumption, the one here does not, as explained below.

Therefore, the denial of child's survivor benefits to claimant may not be based under on the conclusion 42 U.S.C. 402(d)(3) and 416(h)(2)(A) that he is neither the legitimate child nor intestate heir of the deceased wage earner (DWE) by virtue of the declaration of heirs that does not include claimant. However, we clarify below the standard for determining whether claimant is the DWE's legitimate child and for rebutting the presumption of legitimacy because your request suggests that you might be applying a more stringent test than that required by law.

RELEVANT FACTS

Claimant Allen M. T~ was born in 1975 to Norma B~ T~. His birth certificate gives no identity for the father but does give an age, 35.

Although the marital history of the DWE is less than clear cut, you appear to have concluded that a valid marriage existed between Norma B~ T~ and the DWE (under the name of L.G. T~) since 1958 that was never terminated by divorce. The DWE died in 1983. Thus, claimant, as issue of a valid marriage, is presumed to be legitimate under Illinois law. He is thus both the legitimate child and intestate heir of the DWE for purposes of child's survivor benefits under §§ 202(d)(3) and 216(h)(2)(A) respectively of the Social Security Act. If claimant were not legitimate, no basis exists for awarding benefits under either §216(h)(2)(A) as the DWE's intestate heir or Washington, ARCthe alternative "federal law tests" of §216(h)(3)(c).

There is substantial reason to doubt that claimant is the son of the DWE, who was born in 1925. The DWE's age at time of claimant's birth in 1975 was thus 50, and not 35 as the certificate shows. (Norma T~ was 34 in 1975.) In contrast, the birth certificate for Rogena, another child of the DWE and claimant's mother, gives both the DWE's name and his correct age at the time.

In addition, claimant's birth certificate gives as one of the two middle names, "Modell," the other being Maurice. "Modell" might well be a surname, but it was not the mother's maiden name. "Modell" could be the surname of a father other than the husband.

There is no evidence that claimant was ever acknowledged in any way by the DWE. Although he did not list claimant on a December, 1982 disability benefits application, neither did he list Rogena or two other children, Michael and Ramona, all of whom have been declared his heirs. He then listed one such child, Robert, and two other children whose mother, Sadie M~, says are not his. Claiming paternity of the children of women with whom he was involved was apparently a habit of the DWE. Ms. M~, with whom the DWE was living prior to her death and who knew the DWE for twelve years (before Allen's birth but after Rogena's) reports him as mentioning Robert, Michael, and Ramona as his children, but never Rogena or Allen.

Rogena and Allen have been in the custody of a friend of their mother, Mary B~, since the mother's death in 1979. These two women promised to care for the other's children should one of them die. The friend reports knowing the mother since 1957, prior to the marriage. Yet even she says that the mother never actually said that the DWE was Allen's father; she simply assumed it because of the marriage.

The DWE's siblings and children have been either uncooperative or unavailable. Two children have spoken indirectly, however. Michael obtained the declaration of heirship that lists only Robert, Michael, Ramona and Rogena. A letter from B~'s lawyer states that Ramona filed a separate child's survivor benefits claim on behalf of her sister Rogena but not, apparently, Allen. {Mary B~ filed on behalf of Allen and Rogena.) The DWE's obituary lists 10 children, including the four above T~ 's, but no Allen. (Two of the other six are the two children of his last girlfriend, Sadie M~, who were not his children.}

Your request states that the DWE and the mother were separated at the time of claimant's birth. The basis for this conclusion is unclear. Mary B~ states that she is unaware exactly when they separated. On his 1982 disability application, the DWE reported a common law marriage to another woman, beginning after his claimed 1957 divorce from yet another woman, until they separated in 1981. The marriage of claimant's mother was in 1958. We could find no other basis in the file for your conclusion concerning when the DWE and claimant's mother were together and when they were not. You might wish to clarify your basis.

Additional facts are discussed in the analysis, as appropriate.

ANALYSIS

1. Valid Marriage

There is no evidence to show claimant was the child of the DWE other than the fact of the marriage to claimant's mother, who was married in 1958 to L.G. T~ . Sadie M~ said she never knew the DWE, Grady L. T~, in 12 years to use that name but speculated he might have done so in "shady" dealings. The 1958 marriage license indicates that L.G. T~ was 25. The DWE was 33 in 1958. Norma T~'s death certificate lists her husband as Grady T~ , and Mary B~ appears to have believed Norma B~ and Grady T~ were husband and wife.

There is evidence that DWE was the father of Rogena, Allen's sister, and we take no issue with the finding that she is his child, legitimate or illegitimate, and entitled to benefits. This does not show that he was claimant's father or married to her mother. Sadie M~ also reported that the DWE was a "wanderer," with a number of other paramours even during their relationship.

You may wish to reconsider your conclusion that there was a marriage between the DWE and claimant's mother. We see no evidence to directly support it, and some -- the different name and age on the marriage license -- to doubt it. The DWE's report of a common law marriage to a different woman beginning at the same time and lasting until 1981 also adds to the doubt.

The file makes evident your considerable efforts to be more precise about these matters. But if there was no marriage to DWE, no presumption of legitimacy attaches to Allen as his son (although Allen would be the presumed legitimate child of L.G. T~). Since there is no other evidence that Allen is the DWE's child, he would have no claim to benefits on the basis of Grady L. T~ .

2. Effect of Declaration of Heirship on Presumption of Legitimacy

Under Illinois law, the presumption of legitimacy may be rebutted by clear and convincing evidence. In re Adoption of McFadden, 438 N.E.2d 1362 (Ill. App. 1982), c~ denied, McFayden v. Shure, U.S., 103 S.Ct. 1259 (1983); Happel v. Mecklenburger, 427 N.E.2d 974 (Ill. App. 1981); People v. Mitchell, 412 'N.E.2d 678 (Ill. App. 1980). See Curtis Bush, ~, RA-V (D~) to RC, SSA-V (D~), 1/13/81.

In this matter, the declaration of heirship did not include Allen. You may consider this factor in rebutting the presumption, but to do so you may not rely on the court order by itself. You must go behind the declaration.

This office has previously addressed the issue of whether the Secretary is bound by state court judgments. Lamont D. M~,RA-V

RA-V (D~) to ARC-Programs V (W~), 6/9/82, and prior memoranda cited therein. Consistent with the criteria set forth by the Court of Appeals for the Sixth Circuit, the Secretary is not free to ignore a state trial court decision on an issue involved in a claim for social security benefits where (1) the issue was decided by a state court of competent jurisdiction; (2) the issue was genuinely contested 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. Dennis v. Railroad Retirement Board, 585 F.2d 151 {6th Cir. 1978); Gray v. Richardson, 474 F.2d 1370 (6th Cir. 1973).

The decision in Gray has been adopted by SSA. SSR 83-37c (Jul. 1983). All four criteria need not be met for the Secretary to accept a state trial court decision. 14 In this matter, however, there are two reasons why the state court decision cannot be honored.

First, without knowing the reasons why Allen is not included among the heirs, we cannot determine whether or not his "exclusion" is consistent with the law as enunciated by the State's highest court. It may well be that the court never considered whether Allen was an heir.

The second shortcoming is related to the first. There is no indication that Allen was represented in the heirship proceeding to contest his exclusion. It is more likely that he was not. If so, there was no genuine contest, and there is no competing factor, e.g., notice to Allen and his legal guardian, and a knowing voluntary waiver of the opportunity to contest, that can compensate for the absence of a contest. 15

Therefore, unless claimant's claim to be a heir of the DWE was advanced before the probate court and rejected based on reasoning that is consistent with Illinois law discussed infra, the declaration of heirship cannot rebut the presumption of legitimacy.

3. Whether The Presumption of Legitimacy Is Rebutted by Clear and Convincing Evidence

Your request for a legal opinion raised the effect of the declaration of heirship because you were not able to otherwise rebut the presumption of legitimacy. You might wish to reconsider whether you have applied too stringent a standard.

Your request also states that the NH and the claimant's mother were separated at the time of birth. Although we have suggested that you clarify the basis for this conclusion, our analysis below assumes that you continue to adhere to that conclusion.

a) POMS Criteria

POMS GN 306.050 states generally that the presumption of legitimacy may be considered rebutted if the husband was consistently absent when the child must have been conceived. POMS GN 306.055 provides that doubt as to the presumption is raised by two factors which are present here: the relatives dispute it (Michael T~, by not including Allen in the heirship declaration, Ramona T~ , by filing for benefits on behalf of Rogena but not Allen), and the birth certificate does not name the husband. Under POMS GN 306.060, which then applies, relevant evidence includes the continuity of the relationship, whereabouts and circumstances during conception. §306.060 also accords weight to statements of friends and neighbors "in a position to know."

Thus, if you are satisfied that the NH and claimant's mother were separated, the presumption is rebutted so long as your evidence is clear and convincing. The clear and convincing quantum may be comprised, however, of evidence in addition to that for the fact of separation. You have, for example, the fact that the mother's friend since before the marriage, with whom she was close enough to exchange mutual vows to take care of the other's children, did not actually know whether the NH is the child's father. If he had been, we suggest that she was a person "in a position to know."

b) Illinois Law

Under Illinois law, one test is the same as one under POMS. The presumption may be rebutted simply by sufficient evidence that the husband and wife did not cohabit at relevant times prior to the child's birth. Happel v. Mecklenburger, supra, 427 N.E.2d at 974. The most frequent explanation "of the clear" and convincing standard is this context is " the quantum of proof which leaves no reasonable doubt in the mind of the trier of fact." People v. Mitchell, supra; "Effect of Illinois Law, etc," supra.

The court in Happel also explained that the evidence to rebut the presumption must be "clear and irrefragable," that is, uncontroverted. In a related context, to establish paternity rather than to rebut it, we have interpreted the clear and convincing standard to require "a broad range of convincing evidence which reveals no significant contradiction." "Effect of Illinois law, etc," supra. Applying that test here, this means these can be no credible evidence that Allen is the son of the NH if you are to rebut the presumption.

c) Application to this case

We think that there is no credible evidence that Allen is the son of Grady L. T~; there is only the presumption. The question remains whether the evidence that he is not the son meets the standards we have mentioned. You should ask yourself whether after considering all that you know, you have any reasonable doubt whether Allen is not the NH's son, and whether this conclusion is based on a broad range of evidence.

The range of evidence here includes: the NH's name not on claimant's birth certificate, in contrast to Rogena's; the discrepancy in age given for the father on that certificate; the treatment of Allen as not the NH's son by the NH (on the disability application and with Sadie M~ , by Ramona (on the benefits application), by Michael (in the declaration of heirship), and in the obituary; the lack of certainty by the mother's friend; the separation of claimant's mother and the NH (including his apparent "common law marriage" to another woman during that period). We point out that the NH's treatment of Allen as not his son is due less weight since he treated Michael and Ramona, and Rogena, similarly on one or more of those occasions.

Unless the children or other relatives provide more cooperation than previously, we anticipate that you might be faced with an imprecise conclusion with regard to the separation of the mother and the NH. This raises the question whether, under Illinois law, the presumption of legitimacy can be rebutted by evidence that is not clear and convincing with regard to the question of access.

There is no clear guidance. In weighing paternity decisions, courts have given weight to some factors present here. Cody v. Johnson, 415 N.E.2d 1131, 1134 (Ill. App. 1980) [whether child is mentioned in obituary]; Morelli v. Battelli, 386 N.E.2d 328, 330-332 (Ill. App. 1979) [alleged father referred to other's children as his, long time acquaintances did not support paternity].

However, we have found no Illinois case where the evidence rebutting the presumption did not include proof of non-access by the husband. Where the husband's absence was proved only in general, e.g., did not live together, had not seen for 10 years, there was also evidence of access during the relevant time by an alleged father other than the husband. People v. Mitchell, supra; People v. Cobb, 337 N.E.2d 313 (Ill. App. 1975). Here there is no such alternative father.

The trend in Illinois law has been to make it easier to rebut the presumption of legitimacy. People v. Mitchell, supra. The requirement that proof include non-access by the husband in some fashion appears to be a non-waivable element, however. Happel v. Mecklenburger, supra, 427 N.E.2d at 979. Thus, so long as you are satisfied there was a marriage between claimant's mother and the NH, you must also be satisfied that they were separated when claimant was conceived in order to rebut the presumption of legitimacy and deny benefits.

If after further consideration, your conclusion on separation is no more precise than now, we would recommend that you err on side of concluding that the presumption is not rebutted. It appears to us that the most likely source of information with regard to where the DWE was living in 1974 is Sadie M~. In addition, you might ask Mary B~ and Rogena whether Norma T~ knew anyone with the surname M~.

d) Consistency with the Statute

Thus, if the evidence of non-cohabitation is inconclusive, you appear required to award benefits based on the presumption alone even where the evidence otherwise strongly supports the conclusion that claimant was not the NH's son, and more important, was not living with or being supported by the NH at the time of his death. Although this result is at odds with the spirit of the statute, it is not in conflict with its letter, as established by Congress and implemented by the Secretary.

In Mathews v. Lucas, 427 U.S. 495, 96 S.Ct. 2755 (1976), the Court held that each of the classifications under the statute -- legitimate and illegitimate, inheritance under state intestacy law, the "federal law" tests, etc. --represent Congressional judgments establishing criteria which give rise to a reasonable presumption of dependency. 427 U.S. at 515-16, 96 S.Ct. at 2726.

Central to this conclusion was the Court's construction of the purpose of the statute. Rather than a general welfare provision, the statute was intended to replace the support lost by a child when a father dies. Id. at 507, 2763. With regard to establishing dependency through state intestacy law, the Court observed:

Similarly, we think, where state intestacy law provides that a child may take personal property from a father's estate, it may reasonably be thought that the child will more likely be dependent during the parent's life and at his death. For in its embodiment of the popular view within the jurisdiction of how a parent would have his property devolve among his children in the event of death, without specific directions, such legislation also reflects to some degree the popular conception within the jurisdiction ... of the likelihood of actual parental support during, as well as after, life. (footnotes and citations omitted).

Id. at 514-15, 2766-2767.

The Court recognized that because the class of benefit recipients under the various tests was "incrementally over-inclusive," those not actually supported by the "father" would receive benefits. But it found these critera to be "matters of practical judgment and empirical calculation for Congress...reasonably supportive of its conclusions that individualized factual inquiry in order to isolate each non-dependent child...is unwarranted ...." Id. at 509, 515-16; 2764, 2767. The Court concluded that it had "no basis to question their detail beyond the evident consistency and substantiality." Id.

The presumption that a child was an actual dependent at the time of the father's death is the least strong of the statutory criteria when it is based solely on the law of devolution of intestate personal property or the mere presumption of legitimacy. (Here, because of the presumption of legitimacy, claimant is the NH's intestate heir despite the declaration of heirship.) As a basis for presuming dependency, these grounds are even less persuasive where the evidence acquired by SSA fails to show that the wage earner did in fact live with or support the child, as in the case here. But such evidence will not defeat the presumption based on intestacy law, or of legitimacy, id. at 2764, even though, under Mathews v. Lucas, the rationale that sustains the constitutionality of the federal statute is that the state intestacy law or the presumption of legitimacy reflects the likelihood of actual support.

CONCLUSION

The declaration of heirship here does not rebut the presumption of legitimacy. Assuming a valid marriage, you must assess whether the evidence of non-access by the husband to the mother at the time of conception, taken together with other evidence, is sufficiently clear and convincing to rebut the presumption. If you cannot dispel reasonable doubt that the husband did not have access, the presumption controls and requires that benefits be given to the claimant because the federal statute as implemented defers to state law on such matters.

The claims folder is returned herewith.

G. PR 83-038 Rebuttal of Presumption of Legitimacy Under Illinois Law William M~,

DATE: November 10, 1983

1. SYLLABUS

FR LEGITIMACY AND LEGITIMATION -- PRESUMPTIONS AND EVIDENCE -- ILLINOIS

Under Illinois law, in order to overcome the presumption of the legitimacy of the children born to a person who was legally married at the time, there must be "clear, convincing and irrefragable proof" of lack of access.

While this standard has been given a somewhat relaxed application in practice by the Illinois courts, statements of friends and relatives, as well as the parties themselves, which tend to show that other individuals were the fathers of the children or that the husband did not father the children in question, do not address the issue of lack of access and thus, in themselves, do not satisfy the requirement of State law for overcoming the presumption. (M~, William, ~ -- RAV (Dorn), to RC, 11/10/83.)

OD 2110 -- IL

2. OPINION

This responds to your request for assistance in determining whether Kathleen, Beverly, Don, and Marlena M~ qualify for benefits as the children of the .deceased wage earner, William M~. We conclude, for the reasons discussed below, that the children are each entitled to benefits and that their mother, La Donna M~, is entitled to benefits as a surviving divorced mother.

The relevant facts may be briefly summarized: The wage earner and La Donna M~ were married on August XX, 1965 in Chicago, Illinois. According to La Donna, the parties separated in December, 1966. The wage earner obtained an ex parte, default divorce from La Donna in Cook County Circuit Court on September XX, 1978. Between the time of separation and divorce, four children were born to La Donna: Kathleen (1970), Beverly (1975), Don (1976), and Marlena (1977). The wage earner died on May XX, 1980 in Chicago, Illinois.

In her various statements, La Donna M~ asserts that a John W~ fathered Kathleen, and that a Richard P~ fathered her other three children. However, she also states that she continued "seeing" the wage earner after their separation in December, 1966. According to La Donna, her relationship with the wage earner continued during her relationships with both W~ and P~, and in particular continued during the periods of conception for each child. At least during the period of her relationship with W~ , La Donna saw the wage earner on a "frequent basis" of at least twice a week when they would stay with each other for one or two days. La Donna states that she believes that John W~ is Kathleen's father because of the child's physical resemblance to W~. La Donna believes that Richard P~ fathered her other three children because she was seeing less of the wage earner and more of P~ during the periods of conception for each of the children. La Donna states that she never lived with either W~ or P~. Kathleen's birth certificate lists a "John M~" as the father; the birth certificates of the other three children do not list a father. La Donna states that the wage earner brought Kathleen gifts on several occasions. She also states that it is "possible" that the wage earner was the father of the four children.

According to La Donna, both the wage earner's family and her own family considered the parties to be husband and wife after their separation, although both families knew that she was seeing P~ and W~ in addition to the wage earner. La Donna states that the wage earner also knew of her relationships with P~ and W~ and that neither the wage earner nor either of their families "ever questioned the paternity of any of the children." La Donna also states that her family considers P~ to be the father of her three youngest children.

As already noted, the wage earner obtained an ex parte, default divorce from La Donna on September 26, 1978. The decree, prepared by the wage earner's attorney, states that "as a result of said marriage, no children were born to the parties." In addition, the wage earner's two sisters orally indicated to an SSA claims representative that the wage earner fathered no children by La Donna. One of these sisters executed a brief, conclusory written statement to that effect; the other sister was unwilling to provide a written statement. Neither sister was willing to provide additional information or furnish the names of others who could provide information. Finally, a friend of the wage earner (Mattye S~) stated that the wage earner fathered only one child, Jeffrey M~ , born in April 1973 to a Kina M~. Kina M~ stated in writing that she lived with the wage earner for an unspecified time during the period 1968-1980 and that the wage earner had told her that he had fathered no children by La Donna. Jeffrey M~ is currently receiving benefits on the wage earner's account; Kina M~ has protested the proposed entitlement of La Donna's children.

In Al S~ ,~ , RA V (Dorn) to ARC-Programs, 7/28/80, we stated that under Illinois law, a child born during a marriage is presumed to be legitimate, in the absence of "clear, convincing, and irrefragable proof" that the husband had no access to the mother during the period of possible conception. 16 This presumption applies even though the parties were separated during the period of possible conception. We explained in the S~ memorandum (page 4) that although the standard for rebutting the presumption appears to be particularly onerous, the Illinois courts have in practice allowed credible proof of non-access to overcome the presumption. Physical impossibility of access to the mother by her husband (as, for example, when the husband is incarcerated) does not appear to be absolutely required. 17 Instead, as we explained in Smith, the Illinois courts have generally found that the presumption of legitimacy is rebutted where there is: (1) credible testimony by both the husband and wife of non-access to each other during the period of conception, (2) evidence of a relationship-between the mother and putative father during the period of conception, and (3) other persuasive evidence corroborates the testimony of the mother and her children.

In the present case, the four claimants - Kathleen, Beverly, Don, and Marlena M~ - were born to La Donna M~ during the latter's marriage to the wage earner. Although the paternity of these children is an open question, we are unable to conclude that the presumption of legitimacy conferred by Illinois law is, on the basis of the available record, rebutted by "clear, convincing, and irrefragable proof" to the contrary, even given the somewhat relaxed application of this standard in practice by the Illinois courts. La Donna M~ states that her relationship with the wage earner continued throughout the periods of conception of all four children. The file contains no evidence of statements by the wage earner contradicting La Donna's statements or indicating lack of access. Although the divorce decree and the statements of Mattye S~ and Kina M~ suggest that the wage earner stated that he fathered no children by La Donna, this evidence does not bear on the issue of access (or non-access).of the parties to each other during the periods of conception. The statements of the wage earner's sisters that the wage earner fathered no children by La Donna are not persuasive in rebutting the presumption: one of the sisters furnished only a short, conclusory written statement to this effect; the other sister was unwilling to provide a written statement; neither sister was willing to give additional information; and neither statement establishes lack of access between the wage earner and La Donna. Similarly, La Donna's statement that neither her family, the wage earner, or the wage earner's family considered the wage earner to be the father of any of the children, even if true, is irrelevant to the critical issue of access. Finally, the file contains no evidence corroborating La Donna's statements concerning her relationships with Price and Williams.

We recognize that La Donna's statements concerning her continuing relationship with the wage earner may be motivated by her desire for benefits, especially in view of the fact that La Donna herself states that she does not believe the wage earner to be the father of the children. Nevertheless, under Section 216 (h)(2)(A) of the Social Security Act we are bound by State law in determining whether the children are entitled to benefits. The claimants are presumed under Illinois law to be the legitimate children of La Donna M~ and William M~. Regardless of La Donna's motivation in invoking the presumption, the presumption operates in her favor; the evidentiary standard for rebutting the presumption, while not as onerous as it might initially appear, nevertheless remains a heavy one. The available evidence is simply insufficient to rebut the presumption. Indeed, even had La Donna not stated that her relationship with the wage earner continued after the separation, we would still conclude that the presumption of legitimacy applies.

We do not accept the divorce decree as dispositive of the paternity issue. That decree states that "no children were born to the parties." This decree was entered pursuant to a default judgment of divorce in favor of the wage earner. Whether La Donna would have actually contested the paternity issue is debatable.

Nevertheless, the paternity issue does not appear to have been genuinely considered by the court. Instead, the court's "finding" was based solely on the wage earner's testimony, without apparent application of the presumption of legitimacy or of the evidentiary standard for rebuttal. 18 We do not consider the mere recitation of non-paternity in a default decree--to be sufficient to render the children illegitimate under Illinois law. We do not believe that the aforementioned statement .in the divorce decree represents a conclusive determination of paternity.

In Martin v. Martin, 373 N.E.2d 602 (Ill. App. 1978), the parties stipulated to a divorce decree stating that no children had been born of the marriage. The wife testified that no children had been born of the marriage, and the husband's attorney also stated in open court that no children were born of the marriage. Eighteen months after entry of the decree, the husband filed a petition seeking to vacate that portion of the decree stating that no children had been born of the marriage in that such statement was untrue and represented a fraud on the court. The husband submitted a birth certificate signed by the wife and listing the husband as the father of a child born to the wife during the marriage. The husband testified that he had stipulated to the original decree because he had been told that deletion of any reference to children would expedite the divorce and that he could later arrange for visitation and child support. The wife acknowledged the existence of a child, but alleged that the husband had stipulated to the original decree because he knew he was not the child's father.

The trial court dismissed the husband's petition but the appellate court reversed, stating that the husband had presented sufficient evidence to indicate that the divorce decree erroneously concluded that no children were born of the marriage. The court noted that Illinois law presumed that a child born to a married woman is legitimate absent clear and convincing proof to the contrary. The court recognized that the husband may have willfully or negligently participated in the fraud on the court, but concluded that the divorce decree could not strip the husband of parental rights in view of the ample evidence of paternity. The court also stated that neither the child nor the State, as a third party to every divorce suit, were bound by the divorce decree, although both would be affected by the finding that no children were born to the parties. We believe that somewhat similar considerations apply in this case. The divorce decree stated that no children had been born of the marriage of the wage earner and La Donna, contrary to evidence that four children were born to La Donna and contrary to the Illinois presumption in favor of legitimacy. Moreover, the interests of the State in the legitimate status of the children and the interests of the children themselves dictate against a conclusion that the divorce decree conclusively rendered the children illegitimate.

Finally, we decide here only that the available record contains insufficient evidence to rebut the presumption of legitimacy. We do not foreclose the possibility that Kina M~ present evidence sufficient , to rebut the presumption, in support of her protest against the proposed entitlement of the four children. For example, Kina may be able to present independent evidence concerning La Donna's relationships with P~ and W~ (including statements by P~ and W~ themselves). She may also present statements or testimony by friends and relatives of the wage earner and of La Donna contradicting La Donna's statements concerning her continued access to the wage earner following the parties' separation. Kina may also present evidence that the wage earner stated to friends and relatives that he did not see La Donna after their separation. Such evidence may be sufficient to overcome La Donna's statements concerning her continued relationship with the wage earner, especially in view of her possible pecuniary motivation in making such statements.

We conclude here that based on the evidence before us, Kathleen, Beverly, Don, and Marlena M~ are considered the legitimate children of La Donna M~ and William M~ under Illinois law. Accordingly, the four children are entitled to benefits on M~ account. La Donna M~ is entitled to benefits on M~ account as a surviving divorced mother. The claims folder is returned herewith.


Footnotes:

[1]

In July 2015, the new Illinois Parentage Act of 2015 (P.A. 99-85) was signed into law and completely repealed the prior Illinois Parentage Act of 1984. The 2015 Act took effect on January 1, 2016, and the new statutory provisions are cited herein. The presumption of paternity at issue in this case, however, is essentially the same as the prior marital presumption of paternity under the 1984 Act. See 750 ILCS 45/5(a)(1) (“A man is presumed to be the natural father of a child if . . . he and the child’s mother are or have been married to each other, even though the marriage is or could be declared invalid, and the child is born or conceived during such marriage.”). The prior presumption similarly could only be rebutted by clear and convincing evidence. See 750 ILCS 45/5(b).

[2]

Pursuant to 20 C.F.R. § 404.355(b)(3), to determine whether an individual is considered the natural child of the insured, the agency applies “the version of State law in effect when we make our final decision . . . If you do not qualify as a child of the insured under that version of State law, we look at all versions of State law that were in effect from the first month of which you could be entitled to benefits up until the time of our final decision and apply the version of State law that is most beneficial to you.” Here, the provisions of the Illinois Vital Records Act regarding the steps necessary to substitute the biological father for the presumed father on a child’s birth certificate have been the same since 2007, when S~ was first awarded disability benefits and, consequently, when L~ and M~ first would have been entitled to child’s benefits on his record. See 410 ILCS 535/12. Similarly, since 2007, Illinois law also has provided that completing the prerequisite acknowledgement of parentage and corollary denial of paternity conclusively establishes the biological father—not the presumed father—as the legal father under the Illinois Parentage Act. See id.

[3]

See, e.g., Robert C~, A/N~, RA-V (M~) to ARC- (C~) to Chicago PC (B~), 6/18/63; Kenneth A. S~,A/N ~, RA-V (C~) to E~ DO (S~), 1/31/56.

[4]

Robert C~ A/N ~, supra; Harvey L. A~, A/N ~-, RA-V (B~) to OASI RR, 10/29/52, and to Chief, Chicago Area Office, 6/8/53, and opinions cited therein.

[5]

John S~ , A/N~ , RA-V (R~) to OASI RR 4/25/50, and opinions cited therein; Harvey L. A~, A/N ~, supra, and opinions cited therein.

[6]

See, e.g., Timothy J.F~ ,A/N ~, RA-V (U~) to ARC- Programs (M~)ú 10/9/80; Joseph H~ , A/N ~ , RA-V (C~) to Chicago PC (B~)ú 6/18/63; Kenneth A.S~ , A/N~ RA-V (C~) to E~ DO (S~), 1/31/56.

[7]

Timothy/ J. F~ , A/N ~ ,supra.

[8]

Harvey L. A~ , A/N ~ ,RA-V (B~) to OASI RR, 10/29/52, and to Chief, Chicago Area Office, 6/8/53, and opinions cited therein.

[9]

John S~,A/N ~, RA-V (R~) to OASI RR, 4/25/50, and opinions cited therein.

[10]

Since Illinois follows the Lord Mansfield Rule, the mother: could not offer evidence which would serve to bastardize the child.

[11]

See Gray, Attorney's Textbook of Medicine, ".1307.42 (Matthew B~ 1970).

[12]

See opinions cited in footnotes 1, 3 and 4 above.

[13]

we note that POMS GN 00306.055 E requires referral to the regional attorney of cases involving legitimacy of a child born over 287 days from the death or divorce of the wage earner only where available facts do not permit a determination or there is no precedent opinion available.

[14]

See Howard P~, Jr., ~, RA-V (M~) to ARC-Programs V, 6/21/83; Larry G~ , ~ ,RA-V (H~) to ARC-Programs V (Washington), 7/8/82. In Larry G~, for example, we indicated that to require a genuine contest where the decreased wage earner's family agrees that the wage earner is the father is to impose a condition that is impossible to satisfy. SSA must be sure, however that collusion does not replace the absence of a contest.

[15]

In addition, even if Allen had been represented and contested the matter, we think Illinois law would also preclude relying on the declaration by itself. Under Ill. Rev. Stats. ch. 110 1/2 ~ 2-2, the illegitimate intestate heir of a father may be established by a court order during the father's lifetime. Where the decree is posthumous, as here, the clear and convincing evidence on which the decree is based must be shown. See "Effect of Illinois Law P.A. 80-1429 on Requirements for Entitlement of Illegitimate Children," RA-V (P~) to ARC-Programs (M~), SSA-V, 5/19/80. Principles of consistency and Equal Protection of the Law in applying state law strongly suggest that both an Illinois court and the Department should look behind posthumous decrees that disinherit children as much as decrees that legitimate them.

[16]

In addition to the cases cited at pages 3-4 of the S~ memorandum, see also Happel v. Mecklenburger, 427 N.E.2d 974 (Ill. App. 1981 People v. Clark, 426 N.E.2d 294 (Ill. App. 1981); Santiago v. Silva, 413 N.E.2d 139 (Ill. App. 1980); People v. Mitchell, 412 N.E.2d 678 (Ill. App. 1980); In re Ozment, 378 N.E.2d 409 (Ill'. App. 1978); Collins v. Collins, 361 N.E.2d 787 (Ill. App. 1977).

[17]

In People v. Schmitt, 242 N.E.2d 275 (Ill. App. 1968), the court held that the presumption had been rebutted even though the mother and her husband occupied separate bedrooms in the same home during the time of conception, where both testified that they had no intercourse with each other during the time of conception and where the putative father gave money to the mother on behalf of the child and told a third party that "he looks like me."

[18]

It is possible that neither the wage earner nor the court was aware that any children (whether or not legitimate) had been born to La Donna. However, given the fact that four children were indeed born to La Donna while she was still married to the wage earner, the presumption of legitimacy still attaches.


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PR 01010.016 - Illinois - 06/29/2016
Batch run: 06/29/2016
Rev:06/29/2016