TN 11 (03-09)
PR 01010.018 Iowa
A. PR 10-061 Rebutting Presumption of Legitimacy under Iowa Law Harry W. H~, Numberholder
DATE: February 5, 2010
There is a rebuttable presumption of paternity when a child is born in a marriage in Iowa. That presumption of paternity may be rebutted by clear and convincing evidence. Evidence is clear and convincing when it “leaves no serious or substantial doubt about the correctness of the conclusion drawn from it.” In this case, a DNA test showing a 99.9999 percent chance that someone other than the mother’s husband at the time of birth is the claimant’s father combined with a divorce decree in which the court disestablished the husband’s parental relationship to the child are sufficient to rebut the presumption.
You requested a legal opinion regarding whether the presumption of legitimacy provided to a child born during a marriage can be rebutted by deoxyribonucleic acid (DNA) testing showing a 99.99999 percent probability that the child’s father is someone other than the marital father. Based upon the evidence presented and for the reasons discussed below, we believe that the presumption can be, and indeed already has been, rebutted through DNA testing and the divorce decree in place.
The materials that you provided indicate that the numberholder, Harry W. H~ (Mr. H~), was entitled to disability benefits beginning in October 2005. Mr. H~ thereafter married Angeline M. H~ (Ms. H~) on August 14, 2006, and on August 16, 2006, Avah M. H~ (Avah) was born. Avah was enumerated at birth, and Mr. H~ was listed as the father name on the birth certificate.
Benefits were thereafter awarded to Ms. H~ and Avah beginning in May 2007. All parties were domiciled in Iowa when Ms. H~ and Avah applied for benefits.
After receiving advance notice of Avah’s entitlement, Mr. H~’s son, Harrison W. H~ (Harrison), submitted a request for reconsideration on July 9, 2008, alleging that Avah was not Mr. H~’s child and providing the following evidence:
1. A report from DNA testing conducted on March 5, 2008, indicating that someone other than Mr. H~ is the father of Avah, with a combined paternity index of 14,816,616 and a probability of paternity of 99.99999 percent; and
2. A May 7, 2008 divorce decree terminating the marriage of Mr. and Ms. H~. The order disestablished Mr. H~’s paternity of Avah, apparently on the basis of the DNA testing. You have reopened the determination under the rules of administrative finality because the DNA testing report and the divorce decree constitute new and material evidence presented within four years of the initial determination that Ms. H~ and Avah should be entitled to benefits on Mr. H~’s record, and because Harrison has questioned that determination in writing.
Under the Social Security Act, the child of an insured individual entitled to old-age or disability benefits is entitled to child’s insurance benefits when, as relevant here, she has filed for benefits, is under age 18, and was dependent on the disabled individual at the time of the application. See 42 U.S.C. § 402(d)(1); 20 C.F.R. § 404.350(a) (2009). To qualify as the child of an insured individual, the child must be the natural child, legally adopted child, stepchild, grandchild or stepgrandchild, or equitably adopted child of the insured individual. See 20 C.F.R. §§ 404.350(a) and 404.355-404.359.
There is no evidence to suggest that Avah is a legally adopted child, stepchild, grandchild or stepgrandchild, or equitably adopted child of Mr. H~. Thus, the only consideration relevant to this inquiry is whether Avah qualifies as Mr. H~’s natural child, despite the existence of the above-referenced DNA testing and the divorce decree.
To determine entitlement to benefits as an insured individual’s natural child, the Agency applies the law that would determine devolution of intestate personal property by the courts of the state where the insured individual was domiciled at the time the claimant filed an application, or the state in which the insured individual was domiciled at the time of his death. See 42 U.S.C. § 416(h)(2)(A). If, under state intestacy law, the claimant could take a share of personal property as the insured individual’s child, she is considered the insured individual’s child for Social Security benefit purposes. See id.; 20 C.F.R. § 404.355.
Mr. H~ was a resident of Iowa at the time that Avah filed her application for benefits. Therefore, Iowa’s intestacy law is applicable in this case.
Under Iowa law, all surviving issue of an intestate decedent may share in an intestate estate. See Iowa Code § 633.219. The term “issue” is defined as “all lawful lineal descendants of a person, whether biological or adopted, except those who are the lineal descendants of the person’s living descendants.” Iowa Code § 633.3(24). The term “biological” is not defined in the statute; neither is the term “lawful lineal descendant.”
Here, an Iowa court has affirmatively declared, through a divorce decree, that Mr. H~ is not the father of Avah, apparently on the basis of the DNA test. Social Security Ruling 83-37c, which adopted the ruling in Gray v. Richardson, 474 F.3d 1370 (6th Cir. 1973), provides that the Agency must defer to a determination by a state court where (1) an issue in a claim for benefits has been previously determined by a state court of competent jurisdiction; (2) the issue was genuinely contested before the state court by parties with opposing interests; (3) the issue falls within the general category of domestic relations law; and (4) the resolution by the state trial court is consistent with the law enunciated by the highest court in the state. Mr. H~’s divorce decree appears to meet the requirements of (1), (3), and (4), but it is unclear whether the issue was genuinely contested such that the Agency is required to accept the state court determination. Therefore, the Agency should make a paternity determination using the standard of proof that the state court would use. See 20 C.F.R. § 404.355(b)(2).
There is a presumption of paternity when a child is born in a marriage in Iowa. See In re Marriage of Bethards, 526 N.W.2d 871, 873 (Iowa 1994) (noting that such presumptions “have historically been very strong”) (citing Kuhns v. Olson, 141 N.W.2d 925, 926 (Iowa 1996)). However, that presumption is rebuttable. See Iowa Code § 600B.41A(1) (“[T]his section applies to the overcoming of paternity which has been established . . . by operation of law when the established father and the mother of the child are or were married to each other.”); Dye v. Geiger, 554 N.W.2d 538, 539 (Iowa 1996) (noting that section 600B.41A permits a father whose paternity has been established by marriage “to overcome that legal presumption when genetic testing indicates he is not the biological father”).
Iowa statutes provide for the establishment or disestablishment of paternity as a result of, inter alia, genetic testing. First, Iowa law provides for the affirmative establishment of paternity, either administratively or by private action. See generally Iowa Code ch. 252F (administrative establishment) and 600B (private right of action). Where blood or genetic testing determines a probability of 95 percent or greater that a man alleged to be the father is, in fact, the father of the child at issue, “there shall be a rebuttable presumption that the putative father is the biological father, and the evidence shall be sufficient as a basis for administrative establishment of paternity.” Iowa Code § 252F.3(6)(i). See also Iowa Code § 600B.41(5)(b). That presumption of paternity may be rebutted by clear and convincing evidence. See Iowa Code §§ 252F.3(6)(i)(4) and 600B.41(5)(b)(3). Evidence is clear and convincing when it “leaves ‘no serious or substantial doubt about the correctness of the conclusion drawn from it.’” In re D.D., 653 N.W.2d 359, 361 (Iowa 2002) (quoting Raim v. Stancel, 339 N.W.2d 621, 624 (Iowa Ct. App. 1983).
Similarly, a legally established paternity may be overcome if subsequent blood or genetic testing indicates that the previously established father of the child is not the biological father of the child. See Iowa Code § 600B.41A. The process requires that blood or genetic testing be conducted as set forth in chapters 252F and 600B and further states that section 600B.41 applies to those tests. See Iowa Code § 600B.41A(3)(e). As a result, the 95 percent baseline set forth in section 600B.41(5)(b) applies to tests seeking to disprove paternity as well. Under section 600B.41A, where genetic testing conducted pursuant to section 600B.41 establishes that the established father is not the biological father of the child and where certain other conditions are met, the court must relieve the established father of all future support obligations. See Iowa Code § 600B.41A(4).
In this case, we believe the divorce decree and DNA test results effectively rebut the presumption that Mr. H~ is Avah’s father by clear and convincing evidence. This rebuttal of Mr. H~’s legally established paternity is consistent with Iowa Code § 600B.41A, as set forth above, and disestablishes any legal paternal relationship between Mr. H~ and Avah. We therefore believe that Avah is not a “lawful lineal descendant” of Mr. H~ for purposes of Iowa intestacy law and, as a result, does not qualify as the child of the insured numberholder, Mr. H~, in this case. See 42 U.S.C. § 416(h)(2)(A); 20 C.F.R. § 404.355.
In addition, because Avah is not Mr. H~’s child, Ms. H~ did not have a child of the numberholder in her care at any time relevant hereto. Therefore, she was ineligible for mother’s benefits. See 20 C.F.R. § 404.341.
Kristi A. S~
Chief Counsel, Region VII
Matthew C. M~
Assistant Regional Counsel
B. PR 09-049 Entitlement to Surviving Child Benefits - Rebuttable Presumption of Paternity Charles L~, Deceased Wage Earner; Jeramey S~, SSN ~
DATE: August 7, 2008
Because Indiana gives full faith and credit to the judgments of other states, that state would consider itself bound by Iowa's law stating that a child born during the marriage is presumed to be a child of that marriage. Since no evidence overcoming the presumption of paternity has been provided, the ex-husband of the claimant's mother is the established father under Iowa law.
Therefore, the child is not entitled to surviving child's benefits on the record of the deceased wage earner.
You requested a legal opinion regarding whether a child who was allegedly conceived during a relationship between his mother and the deceased wage earner while the mother was married to another man is eligible for surviving child's insurance benefits on the deceased wage earner's record. Based upon the evidence presented and for the reasons discussed below, we believe the child is not entitled to benefits on the deceased wage earner's record.
The materials you provided indicate that Angela S~, the child's mother, reported that she was involved with the deceased wage earner, Charles L~, while she was separated from her husband, Steve S~. During the separation, Mrs. S~ stated she went to Indiana from Iowa in May 1996 and had a relationship with Charles L~. Mrs. S~ stated she became pregnant during that time, and was five months pregnant when she separated from Charles L~ and returned to her husband in Iowa. Jeramey S~ was born on December 29, 1997, in Cedar Rapids, Iowa. According to Mrs. S~, she and Mr. S~ separated again in 1998 and later divorced on February 27, 2001.
Upon our request, you obtained a copy of the divorce decree. In the divorce decree, filed in Iowa District Court, Jeramey was described as a child of the marriage. The decree provided that Mr. and Mrs. S~ would have shared physical custody of Jeramey as well as another child of the marriage. Mr. S~ was ordered to pay child support for both children, and was awarded the right to claim Jeramey on his income tax returns beginning in the year 2000 and every year thereafter. In addition, Mr. S~ was ordered to provide Jeramey's medical insurance.
The evidence you provided also shows that the wage earner passed away on May 14, 2005, while domiciled in the state of Indiana. Although Charles L~ was never legally declared to be Jeramey's father, Mrs. S~ informed the Field Office that she can provide the names of Mr. L~' mother, brother, and a friend who will sign statements that Charles L~ is the father of Jeramey S~. Their statements would be based on comments allegedly made by the deceased wage earner, and Jeramey's ethnicity. The deceased wage earner was Native American and Mrs. S~ describes Jeramey as "obviously Native American."
Under the Social Security Act, a child may establish that he is a child of a wage earner and, thus, eligible to receive child's insurance benefits on his account if, under state law, he would be entitled to inherit from the deceased wage earner if the wage earner died intestate. See 42 U.S.C. § 416 (h)(2)(A); 20 C.F.R. § 404.355(a)(1). If the child cannot qualify for child's benefits based on the right to inherit under state law, he can establish that he is eligible for benefits if the deceased wage earner either acknowledged paternity of the child in writing, was decreed by a court to be the child's father, or was ordered by a court to pay child support for the child. See 42 U.S.C. § 416 (h)(3)(B)(i); 20 C.F.R. § 404.355(a)(3).
The deceased wage earner died domiciled in Indiana. Therefore, Indiana's intestacy law is applicable in this case. See 20 C.F.R. § 404.355(b)(1).
Because Jeramey is under the age of 20, his paternity could have been established by law in a cause of action that was filed either during the putative father's lifetime or within five months after the putative father's death. See Ind. Code Ann. § 29-1-2-7(b)(2)(b). Paternity can also be established under this statute if the putative father executed a paternity affidavit as set forth in Ind. Code Ann. § 16-37-2-2.1. See Ind. Code Ann. § 29-1-2-7(b)(5). No action to establish paternity was filed and no affidavit has been provided.
That is not the end of the matter, however, because the Agency does not require that a child obtain a court order of paternity. Rather, the Agency decides the issue of paternity using the standard of proof the state court would use to determine paternity. See 20 C.F.R. § 404.355(b)(2). Under Indiana law, paternity must be established by a preponderance of the evidence. See Humbert v. Smith, 655 N.E.2d 602, 605 (Ind. App. 1995) (paternity actions are civil proceedings and the alleged father must be proved to be such by a preponderance of the evidence). Thus, if Jeramey could establish paternity according to the evidentiary requirements of Indiana law, he would be deemed a natural child of the deceased wage earner and would be entitled to child's benefits on the deceased wage earner's account. See 20 C.F.R. § 404.355(a)(1). Evidence regarding Jeramey's paternity from Mr. and Mrs. S~'s divorce in Iowa would be considered by Indiana courts. The Iowa divorce decree between Mr. and Mrs. S~ implicitly addressed the paternity of Jeramey. We believe Indiana courts would look to it for guidance on this issue and would give full faith and credit to the Iowa divorce decree. Indiana courts would consider themselves bound by such judgments so long as the state court which issued the order had jurisdiction over the subject matter and the relevant parties. See Ind. Code Ann. § 31-14-19-1 (West 2008); Lucas v. Estate of Stavos, 609 N.E. 2d 1114, 1116, 1120 (Ind. Ct. App. 1993), modified by Stidham v. Welchel, 698 N.E.2d 1152, 1155-56 (Ind. 1998). In assessing whether another state's jurisdiction was proper, the Indiana courts look to the substantive law of the other state. See id. at 1117. In this case, jurisdiction was proper. Mr. and Mrs. S~ were domiciled in Iowa at the time of the child's birth and when they divorced. In Iowa, a child born during the marriage is presumed to be a child of that marriage. See Iowa Code Ann. § 600B.41A; Calendar v. Skiles, 591 N.W. 2d 182 (Iowa 1999). Therefore, Jeramey is presumed to be Mr. S~'s child under Iowa law. See Iowa Code Ann. § 598.31. Iowa allows presumed paternity to be overcome, but requires that a formal action be filed. See Iowa Code Ann. § 600B.41.A. Mrs. S~ did not file an action to overcome paternity in Iowa.
Indiana law recognizes a divorce decree as a determination of paternity and precludes, except in extraordinary circumstances, a husband and wife from later challenging an explicit or implicit finding of paternity in the context of a dissolution action. See In re Marriage of Huss, 888 N.E. 2d 1238, 1242 (Ind. 2008) (citing Russell v. Russell, 682 N.E. 2d 513, 518 (Ind. 1997) ("In many cases, the parties to the dissolution will stipulate or otherwise explicitly or implicitly agree that the child is a child of the marriage. In such cases, although the dissolution court does not identify the child's biological father, the determination is the legal equivalent of a paternity determination in the sense that the parties to the dissolution . . . will be precluded from later challenging that determination, except in extraordinary circumstances."). The Iowa divorce decree would be entitled to full faith and credit by Indiana courts, and Indiana law would require a showing of extraordinary circumstances to overcome that presumption. No evidence of extraordinary circumstances has been presented.
If a cause of action was filed in Indiana, a paternity finding based on Mrs. S~'s testimony could be used to establish inheritance rights, but only if sufficient corroborative evidence or circumstances exist to support her testimony. See Ind. Code. Ann. § 29-1-2-7(b) and (c); Burnett v. Camden, 254 N.E. 2d 199, 201 (Ind. 1970), reh'g denied 255 N.E. 2d 650 (Ind. 1970). Mrs. S~ has stated that she can provide statements from the deceased wage earner's relatives/friends stating that the deceased wage earner was the child's father. This evidence combined with Mrs. S~'s testimony that she was not living with her husband and was involved with the deceased wage earner at the time she became pregnant would likely not satisfy the Indiana intestacy statute based on a review of other similar cases which had stronger evidence of paternity. See Green v. Estate of Green, II, 724 N.E. 2d 260, 265 (Ind. Ct. App. 2000) (where alleged father's unequivocal designation of putative heir as his son on signed documents was found to constitute corroborative evidence); Matter of Estate of Hendren, 459 N.E.2d 437, 442 (Ind. Ct. App. 1984) (evidentiary requirement of intestacy statute was met where paternity finding was based upon putative father's written acknowledgment of paternity); S.M.V v. Littlepage,442 N.E. 2d 103, 110 (Ind. Ct. App. 1982) ("No facts are disclosed in the evidentiary materials from the proceedings on the motion for summary judgment which would indicate that (1) paternity of the decedent had been established during his lifetime; or (2) Bonham and S.M.V. had married and he had acknowledged the paternity of the Child; or (3) Bonham had acknowledged the paternity of the Child in writing; or (4) that there was past performance of Bonham's obligation). Indiana courts have routinely required that there be written acknowledgement by the putative father to establish paternity posthumously.
We conclude that Jeramey S~, who was born during the marriage of Mr. and Mrs. S~, could not inherit the intestate property of Charles L~, the deceased wage earner. Because Indiana gives full faith and credit to the judgments of other states, and because no evidence overcoming the presumption of paternity has been provided, Mr. S~ is Jeramey's established father under Iowa law. Based upon the information provided, we do not believe the child is entitled to surviving child's benefits on the record of the deceased wage earner.
Kristi A. S~
Acting Chief Counsel, Region VII
Jennifer L. M~
Assistant Regional Counsel
Alternatively, even if the child could not share in the intestate personal property of the insured individual, the child will nonetheless be deemed the child of the insured individual if the insured individual has acknowledged in writing that the child is his daughter or if a court order has determined that he is the father of the child or has directed him to pay child support because the child is his daughter. See 42 U.S.C. § 416(h)(3). Here, there is no evidence to suggest that Mr. H~ has acknowledged Avah as his daughter in writing. Moreover, the court stated in its divorce decree that Mr. H~ is not Avah’s father. Thus, the procedures contained in 42 U.S.C. § 416(h)(3) do not appear to apply.
Indeed, the accuracy of the genetic testing (99.99999 percent probability) vastly exceeds the 95 percent threshold required by Iowa law to overcome the presumption of paternity afforded where a child is born to a married couple. See Iowa Code § 252F.3(6)(i).