TN 23 (08-14)

PR 01010.021 Louisiana

A. PR 14-143 Louisiana State Law – Acceptance of Disavowal of Child after Louisiana Time Limits and Effect on Entitlement of Child (NH James, SSN ~) - REPLY

DATE: August 4, 2014

1. SYLLABUS

The Agency may reopen/ and revise/ its determination or decision on a claim, which is otherwise final and binding, within 12 months of the date of the notice of the initial determination for any reason; within 4 years of the date of the notice of the initial determination if the agency finds good cause to reopen the case; or at any time if the determination was obtained by fraud or similar fault. In this case, the 12-month period has not yet lapsed from the September 2013 applications, and, thus, the agency may reopen and revise the determinations for any reason. However, because the NH in this case did not timely initiate proceedings to disavow his paternity of C1, the Louisiana Judgment of Disavowal is not binding on the agency. Under the Louisiana law, the NH is still considered to be C1’s father and, on that basis, the agency has no grounds to reopen and revise its earlier determinations.

2. OPINION

QUESTION PRESENTED

You asked whether a Judgment of Disavowal of a Child by the number holder James (NH) obtained after the expiration of the time limit set by Louisiana statutory law affects the status of (C1’s) entitlement to child’s insurance benefits on the NH’s account. If the Social Security Administration (SSA or agency) can accept the Judgment of Disavowal of a Child at face value, you further ask whether SSA can re-open the agency’s initial determination awarding child’s insurance benefits to C1 and spouse’s benefits to Domonique.

ANSWER

Under Louisiana law, the NH is presumed to be C1’s father and the Louisiana Judgment of Disavowal is not binding on the agency. As such, there is no basis for reopening C1’s or Domonique’s applications.

BACKGROUND

According to the information that you provided, the NH married Domonique on May 25, 2012, and she gave birth to C1 on July. The NH became entitled to disability benefits effective October 2012. On September 23, 2013, Domonique filed an application on C1’s behalf for child’s insurance benefits on the NH’s account, but reported that the NH was not C1’s biological father. Based upon a presumption that the NH was C1’s father because C1 was born during the NH’s and Domonique’s marriage, SSA awarded child’s insurance benefits to C1 effective October 2012. It is our understanding that SSA also awarded spouse’s benefits to Domonique as the NH’s wife with a child under age 16 in her care.

On September 30, 2013, the NH filed a petition for divorce, which incorporated a disavowal action, alleging that he was not C1’s father. The 21st Judicial District Court, Parish of Tangipahoa, State of Louisiana, issued a Judgment of Divorce and a Judgment of Disavowal on March 5, 2014. It is our understanding that SSA terminated Dominique’s spouse’s benefits due to the divorce from the NH. The Judgment of Disavowal declared that the NH was not C1’s biological father, that the NH be allowed to disavow paternity of C1, and that his name be stricken from C1’s birth certificate. However, as addressed below, the evidence presented shows that the NH did not timely file an action to disavow paternity under Louisiana statutory law.

DISCUSSION

Requirements for Child’s Insurance Benefits Under the Social Security Act

Section 202(d) of the Social Security Act (Act) provides that a child of an individual entitled to old-age or disability benefits is entitled to child’s insurance benefits beginning with the first month in which the child meets certain criteria. 42 U.S.C. § 402(d)(1); 20 C.F.R. § 404.352(a)(2). To be entitled to child’s benefits on an insured number holder’s account, a child must be (1) the number holder’s child, (2)apply for benefits, (3) under age 18, or a full-time elementary or secondary school student under age 19, or under a disability that began before age 22, (4) be dependent on the insured, and (5) be unmarried. 42 U.S.C. § 402(d)(1), 20 C.F.R. § 404.350(a)(1)-(5). In this case, at the time of the filing of the application for child’s insurance benefits on C1’s behalf on September 23, 2013, C1 was under the age of eighteen and unmarried. Further, SSA found that the presumption of paternity applied because C1 was born during the marriage between the NH and C1’s mother, Domonique, 1 and thus SSA found that C1 was the NH’s natural child, and, as a result, that she was dependent on the NH. 2 See 20 C.F.R. § 404.361(a). Therefore, the question of C1’s entitlement or continuing entitlement to benefits turns on whether the Louisiana court’s judgment binds SSA.

A. Child Status Under Louisiana Law and the Presumption of Paternity

In determining whether an applicant is a number holder’s child when the number holder is living, SSA applies the state inheritance laws of the state where the number holder has his permanent home when the child applies for benefits to determine if the child could inherit the number holder’s property. 42 U.S.C. § 416(h)(2)(A), 20 C.F.R. § 404.355(a)(1), (b). Because the NH had his permanent home in Louisiana at the time of C1’s application, we apply Louisiana inheritance laws to determine C1’s status as the NH’s child. Louisiana intestacy law provides that when a person dies without a valid will, “the undisposed property of the deceased devolves by operation of law in favor of his descendants, ascendants, and collaterals, by blood or by adoption, and in favor of his spouse not judicially separated from him.” La. Civ. Code Ann. art. 880. Descendants include children. La. Civ. Code Ann. art. 882. Louisiana defines a child as “those persons born of the marriage,” and “a child born of marriage is a child conceived or born during the marriage of his parents.” La. Civ. Code Ann. Art. 3506; La. Civ. Code Ann. art. 185 (a mother’s husband is presumed to be the father of a child born during the marriage). Therefore, under Louisiana law, C1, being born during Domonique’s and the NH’s marriage, is the NH’s presumed child for purposes of inheritance. See Succession of V~, 70 So.2d 89, 89-90 (La. 1953) (children conceived and born during a marriage, but admittedly another man’s biological children, were entitled to inherit as children from the husband’s estate where he did not file a timely action to disavow); State, Dept. of Social Services, Office of Family Support ex rel. K.B.D. v. Drew, 70 So.3d 1011, 1012 (La. Ct. App. 2011) (mother’s husband is presumed to be the father of a child born during the marriage, and therefore paternity was established by operation of law). In accordance with Louisiana law, SSA awarded child’s benefits to C1 effective October 2012 based upon a presumption of paternity since Domonique gave birth to C1 during Domonique’s and the NH’s marriage.

B. SSA is Not Bound by the Louisiana State Court’s Judgment of Disavowal

Generally, a state court decision does not bind the agency in a proceeding to which it was not a party. See Gray v. Richardson, 474 F.2d 1370 (6th Cir. 1973). Pursuant to Social Security Ruling (SSR) 83-37c, adopting the rationale of Gray, certain state court determinations on domestic relations matters are entitled to deference. See POMS GN 00306.001(C)(3) (noting that in determining child relationship under state law, where the evidence includes a state court decision on the issue, SSA is not necessarily bound by the court decision. See SSR 83-37c. Per SSR 83-37c, the agency is required to accept a state court’s determination when the following prerequisites exist: (1) a state court of competent jurisdiction has previously determined an issue in a claim for social security benefits; (2) parties with opposing interests genuinely contested this issue before the state court; (3) the issue falls within the general category of domestic relations law; and (4) the State trial court’s resolution is consistent with the law the highest court in the State enunciated. See SSR 83-37c, 1983 WL 31272 at *3. Conversely, when one of these elements is not satisfied, a state court determination does not bind the agency.

The Judgment of Disavowal does not bind the agency in this case. From the information provided, Domonique acknowledged that the NH is not C1’s biological father and did not contest this issue before the court. Thus, the Judgment of Disavowal does not meet the second Gray criteria that parties with opposing interests genuinely contested this issue before the court. Additionally, the State trial court’s granting of a Judgment of Disavowal is not consistent with the law the Louisiana Supreme Court has enunciated. Therefore, the Judgment of Disavowal does not meet the fourth Gray criteria. 3

C. The Judgment of Disavowal is not Consistent with the Law the Louisiana Supreme Court has Enunciated

The only means to disestablish paternity under Louisiana law when paternity is presumed, as in this case, is through a disavowal action showing by clear and convincing evidence that the husband is not the father. Drew, 70 So.3d at 1013; La. Civ. Code Ann. Art. 187. An action to disavowal presumed paternity is subject to a “liberative prescription” of one year. La. Civ. Code Ann. art. 189. The prescription commences to run from the day the husband learns or should have learned of the child’s birth. Id. In the case of Naquin v. Naquin, 370 So.2d 148, (La. Ct. App. 1979), the court held that “birth of the child” refers to learning of the birth under circumstances that would point to the possibility of assertion of paternity. The facts in the current case demonstrate that the NH was aware of Domonique’s pregnancy with C1 during the marriage, that he knew, or should have known, of the “birth of the child” on July 23, 2012, and that he was listed as the father on C1’s birth certificate. Cf. Drew, 70 So.3d at 1013 (Drew was at the hospital when the child was born, signed the child’s birth certificate, and is listed as the child’s father). As such, the NH was required to institute an action for disavowal of paternity within one year of C1’s July 23, 2012, birth, or by July 23, 2013. The NH did not institute the action to disavowal paternity until September 30, 2013.

The Louisiana Supreme Court has noted that in accordance with the State’s civilian tradition, “prescription is defined as a means of acquiring legal rights or of losing certain rights as the result of the passage of time. Taranto v. Louisiana Citizens Property Insurance Corp., 62 So.3d 721, 726 (La. 2011). Prescription and preemption 4 are procedural devices that bar valid substantive claims in Louisiana that have not been timely filed. Id. The creation of prescription periods is exclusively a legislative task. Id., at FN 4. Louisiana statutory law recognizes three kinds of prescription, acquisitive prescription, liberative prescription, and prescription of no-use. La. Civ. Code Ann. art. 3445. “Liberative prescription” which is applicable in this case, is defined as “a mode of barring of actions as a result of inaction for a period of time.” La. Civ. Code Ann. art. 3447. The Louisiana Supreme Court has further defined the term “liberative prescription” as “a period of time fixed by law for the exercise of a right,” Taranto, 62 So.3d at 726, and “repeatedly held” that “prescription bars the remedy sought to be enforced and terminates the right of access to the courts for enforcement of existing rights.” Pounds v. Schori, 377 So.2d 1195, 1198 (La. 1980). If the presumed father fails to bring a timely disavowal action, as in this case, disavowal of paternity is barred by prescription, and the presumption of paternity is irrebuttable. Modisette v. Phillips, 736 So.2d 983, 987 (La. Ct. App. 1999).

Liberative prescription is subject to suspension or interruption. See D~, 70 So.3d at 1014 (citing Who’s Your Momma, Who Are Your Daddies? Louisiana’s New Law of Affiliation, 67 La. Law Rev. 307 at 314 (2007). However, liberative prescription may not be interrupted due to the father’s erroneous belief that he is the biological father, which is subsequently disproved by clear and convincing evidence. As the Louisiana Supreme Court stated, “[t]he Louisiana legislature has decided … that prescription runs from the date the presumed father learned of or should have learned of the ‘birth’ of the child,” and the “statute is clear and unambiguous.” 5 Id . at 1015. The NH should have brought any disavowal action within one year of C1’s birth, and his erroneous belief that he was C1’s biological father does not provide a basis for suspension or interruption of liberative prescription. Accordingly, because the Judgment of Disavowal is not consistent with Louisiana law, it does not bind the agency for purposes of C1’s status as the NH’s child and his continued entitlement to child’s benefits on the NH’s account.

D. The Judgment of Disavowal Does Not Provide a Basis for Reopening the Initial Determinations of C1’s and Domonique’s Applications

You asked whether SSA could reopen C1’s and Domonique’s applications to change the awards to denials. The Agency may reopen 6 and revise 7 its determination or decision on a claim, which is otherwise final and binding, within 12 months of the date of the notice of the initial determination for any reason; within 4 years of the date of the notice of the initial determination if the agency finds good cause to reopen the case; or at any time if the determination was obtained by fraud or similar fault. 20 C.F.R. §§ 404.987, 404.988. Here, the 12-month period has not yet lapsed from the September 2013 applications, and, thus, the agency may reopen and revise the determinations for any reason. However, because the NH in this case did not timely initiate proceedings to disavow his paternity of C1, the Judgment of Disavowal is not binding on the agency. Thus, Louisiana law still considers the NH to be C1’s father and, on that basis, the agency has no grounds to reopen and revise its earlier determinations.

CONCLUSION

Under Louisiana law, the NH is presumed to be C1’s father and the Louisiana Judgment of Disavowal is not binding on the agency. As such, there is no basis for reopening C1’s or Domonique’s applications.

Michael McGaughran
Regional Chief Counsel

By: ________________________
Martin W. Long
Assistant Regional Counsel

B. PR 11-010 Louisiana State Law – Accepting Disavowing Court Orders to Rebut Presumption of Paternity (NH David,~ Jr.: SSN ~) – REPLY

DATE: October 28, 2010

1. SYLLABUS

Louisiana law presumes that the husband of the child’s mother is the father of a child born during the marriage or born within three hundred days from the date of the termination of the marriage. The presumption may be overcome by producing clear and “convincing evidence” The evidence showed that Noah no longer satisfied the conditions to inherit the NH’s personal property under Louisiana intestacy laws.

2. OPINION

The purpose of this memorandum is to respond to your request for a legal opinion on whether a Louisiana court judgment disavowing the number holder’s (NH) paternity issued after the NH’s death rebuts the presumption of paternity between the NH and Noah , a child conceived during the NH’s marriage to Noah’s mother. 8 In our opinion, the Louisiana court judgment that found Noah was not the NH’s child rebuts the presumption that Noah is the NH’s child. Because the judgment disavowing paternity provides the agency with good cause to reopen Noah’s case, the agency should reopen Noah’s case and find that Noah’s entitlement to child’s insurance benefits under the NH’s account ceased as of January 5, 2010, the date of the judgment disavowing paternity. 9

BACKGROUND

As we understand the facts, the NH and Natalie (a/k/a Natalie ) were married and divorced. 10 Two children were born of the marriage between the NH and Natalie, Clifford , born on December, and Marti , born on April. After his divorce from Natalie, the NH married Tracy on July 3, 2007. The NH died on November 12, 2008, while domiciled in Louisiana, and while married to, but not living with, Tracy. In November 2008, Natalie filed, on Marti’s and Clifford’s behalf, applications for child’s insurance benefits on the NH’s account, and the agency approved the applications. On May 21, 2009, Tracy gave birth to Noah. In August 2009, Tracy filed an application for child’s insurance benefits, on Noah’s behalf, on the NH’s account. The agency approved Noah’s application, with benefits beginning October 2009, because there was no documentation to rebut the presumption that Noah was the NH’s child. 11

On October 2, 2009, Natalie received a letter notifying her that the agency would reduce Marti’s and Clifford’s benefits because Tracy had applied for child’s insurance benefits on Noah’s behalf, and the agency had approved the application. 12 On October 7, 2009, Natalie contested the agency’s decision to reduce Marti’s and Clifford’s benefits, stating that the NH could not be Noah’s father because the NH had a vasectomy nine years after Marti’s birth and because Tracy had admitted to Natalie that Noah was not the NH’s child. 13 On November 10, 2009, Natalie filed on Clifford’s and Marti’s behalf a Petition to Disavow Paternity, asserting that any additional children born of the NH adversely affected Clifford’s and Marti’s Social Security benefits and asking the court to issue a judgment decreeing that the NH was not Noah’s father. In response, on January 5, 2010, a Louisiana court issued a judgment disavowing paternity, finding that Noah was not the NH’s child. 14 On April 12, 2010, the Louisiana court issued an amended judgment disavowing paternity finding that Noah was not the NH’s child and ordering, “[A]ll necessary documents including that of Vital Records and the Social Security Administration be changed to reflect that David , Jr., is not the father of the minor child, Noah. 15

DISCUSSION

The Social Security Act (Act) provides that a child of an individual who dies a fully or currently insured individual (insured) is entitled to child’s insurance benefits, beginning with the first month in which the child meets the criteria for child’s insurance benefits. 42 U.S.C. § 402(d)(1); 20 C.F.R. § 404.352(a)(1). In the case of a child of such deceased individual who has died, the child must meet the following criteria: (1) the child must have filed an application for child’s insurance benefits; (2) the child is the insured’s child; (3) the child is dependent on the insured; 16 and (4) the child is under age 18, or 18 years old or older and had a disability that began before the child became 22 years old, or the child is 18 years or older and qualified for benefits as a full-time student. 42 U.S.C. § 402(d)(1); 20 C.F.R. § 404.350(a). Tracy filed an application for child’s insurance benefits on Noah’s behalf, and Noah was under age 18 at the time she filed the application. Thus, to meet the criteria for child’s insurance benefits, Noah must show that he was the NH’s child under the Act.

To be considered an insured’s child for the purposes of the Act, the child must show that he or she would be entitled to inherit property through the intestacy laws of the state in which the insured was domiciled when the insured died; or that the child’s parents went through a marriage ceremony, but the marriage was invalid because of a legal impediment. 42 U.S.C. § 416(h)(2)(A)-(B); 20 C.F.R. § 404.355. The agency will nevertheless deem a child, who is not the deceased insured’s child under 42 U.S.C. § 416(h)(2)(A)-(B), to be the deceased insured’s child if the deceased insured had acknowledged in writing that the child was his, was decreed by a court to be the child’s parent, or was ordered by a court to provide child support because the child was his, and such acknowledgment, court decree, or court order was made before the death of such insured; or satisfactory evidence shows that the insured is the child’s parent and was living with or contributing to the support of the child when the insured died. 42 U.S.C. § 416(h)(3)(C)(i)-(ii); 20 C.F.R. § 404.355(a)(3)-(4).

In this case, Louisiana law applies because the NH lived in Louisiana when he died. Thus, we first look to whether Noah could inherit the NH’s personal property under Louisiana intestacy law.

Louisiana intestacy law provides that when a person dies without a valid will, “the undisposed property of the deceased devolves by operation of law in favor of his descendants, ascendants, and collaterals, by blood or by adoption, and in favor of his spouse not judicially separated from him.” La. Civ. Code Ann. art. 880. Descendants include children. La. Civ. Code Ann. art. 882. Louisiana law presumes that the husband of the child’s mother is the father of a child born during the marriage or born within three hundred days from the date of the termination of the marriage. 17 La. Civ. Code Ann. art. 185. The husband may disavow the child’s paternity within a liberative prescription 18 of one year from the day the husband learns or should have learned of the child’s birth. La. Civ. Code Ann. arts. 187, 189. If the liberative prescription has commenced to run and the husband dies before the liberative prescription has ended, his heirs, 19 whose interest are adversely affected, may institute an action for disavowal of paternity. La. Civ. Code Ann. art. 190; see Guidry v. Coregis Insurance Company, et al., 04-325, (La.12/29/04); 896 So.2d 164, 186-87 (Civil Code explicitly permits the father, or his heir if the father is deceased, to seek to disavow a legitimate child’s paternity). The heirs must commence the action within the liberative prescription of one year, running from the day of the husband’s death. La. Civ. Code Ann. art. 190.

The record shows uncontested evidence that Marti and Clifford are the NH’s children and heirs under Louisiana law. Within the liberative prescription, on November 10, 2009, Natalie filed, on Marti’s and Clifford’s behalf, a Petition to Disavow Paternity, asserting that the NH was not Noah’s father and that any additional children born of the NH adversely affected Clifford’s and Marti’s Social Security benefits. The Petition to Disavow Paternity asked the Louisiana court to issue a judgment decreeing, among other things, that the NH was not Noah’s father. On January 5, 2010, the Louisiana court issued a judgment disavowing paternity, finding that Noah was not the NH’s child. On that date, Noah ceased to satisfy the conditions to inherit the NH’s personal property under Louisiana intestacy law. La. Civ. Code Ann. arts. 880 and 882 (undisposed property of deceased devolves in favor of his children). Because the evidence shows that Noah no longer satisfied the conditions to inherit the NH’s personal property under Louisiana intestacy law, he also ceased, as of January 5, 2010, to be eligible for child’s insurance benefits as the NH’s child under section 216(h)(2)(A) of the Act.

We next look to whether Noah would be eligible for Social Security benefits as the NH’s natural child under section 216(h)(2)(B) of the Act. The judgment adopting a Hearing Officer Conference Report shows that Tracy and the NH were legally married. 20 Thus, Noah is not the NH’s natural child and not eligible for child’s insurance benefits as the NH’s child under section 216(h)(2)(B) of the Act.

We next look to whether the agency will deem Noah to be the NH’s child even though he does not meet the requirements of section 216(h)(2)(A)-(B) of the Act. 42 U.S.C. § 416(h)(3)(C)(i)(-ii); 20 C.F.R. § 404.355(a)(3). In this case, the NH died prior to Noah’s birth. Thus, Noah does not meet the requirements of section 216(h)(3)(C)(i)-(ii) of the Act.

As previously noted, the agency originally approved Noah’s application for child’s insurance benefits, with benefits beginning October 2009. Because the NH was Noah’s presumed father, Noah met all the requirements for entitlement to child’s insurance benefits on the NH’s account at the time Tracy filed the application for child’s insurance benefits on Noah’s behalf. The evidence shows, however, that on January 5, 2010, a Louisiana court issued a judgment disavowing paternity, finding that Noah was not the NH’s child. Thus, Noah’s relationship to the NH ceased as of January 5, 2010.

The agency may reopen and revise a determination or a decision made in a claimant’s case within four years of the date of the notice of the agency’s initial determination if the agency finds good cause to reopen the case. 20 C.F.R. §§ 404.987, 404.988(b). The agency will find that there is good cause to reopen a determination or decision if new and material evidence is furnished, or that the evidence the agency considered in making the determination or decision clearly shows on its face that the agency made an error in the decision. Id. at § 404.989. We conclude that the Louisiana judgment disavowing paternity, finding that Noah is not the NH’s child, constitutes new and material evidence and provides the agency with good cause to reopen Noah’s case.

CONCLUSION

In summary, Natalie properly and timely filed, on Marti’s and Clifford’s behalf, a Petition to Disavow Paternity, asking the Louisiana court to issue a judgment decreeing that the NH was not Noah’s father. The judgment disavowing paternity, issued on January 5, 2010, finding that Noah is not the NH’s child, rebuts the presumption that Noah is the NH’s child. As such, Noah cannot inherit the NH’s personal property under Louisiana intestacy law. Noah ceased to meet the requirements of entitlement to child’s insurance benefits as the NH’s child the date the Louisiana court issued the judgment disavowing paternity. The judgment disavowing paternity provides the agency with good cause to reopen Noah’s case. Therefore, the agency should reopen Noah’s case and find that Noah’s entitlement to child’s insurance benefits under the NH’s account ceased as of January 5, 2010.

Michael McGaughran
Regional Chief Counsel

By: ________________________
Ruben Montemayor
Assistant Regional Counsel

C. PR 08-004 Granting Inheritance Rights, Louisiana - NH Brian SSN ~

DATE: October 3, 2007

1. SYLLABUS

In this case, the claimant has submitted DNA test results showing a 99.9388% probability that the deceased number holder is the father along with a letter from the number holder's parents confirming that he was told prior to death that he is the claimant's father.

Louisiana law provides the presumption that the husband of the mother is the legal father of her child while it recognizes a biological father's actual paternity. Based on this, the mother's husband being listed on the birth certificate as the father does not preclude the presumption that the number holder is the actual father.

The DNA evidence and the letter from NH's parents indicate a high probability that the claimant was the number holder's child, thereby meeting the meet the clear and convincing evidence standard for proof of paternity.

2. OPINION

QUESTION

You asked whether a child claimant is the child of the deceased number holder for the purposes of determining the child's eligibility to child's benefits on the earnings record of the deceased number holder, based upon DNA test results and a letter from the number holder's parents.

ANSWER

Yes, the child claimant would be considered the child of the deceased number holder. Christie is entitled to child's benefits on the number holder's account based upon the evidence provided.

BACKGROUND

On May 16, 2007, Christie (Claimant) applied for child's benefits on the earnings record of Brian, the deceased number holder (NH). Claimant presented her birth certificate, which listed her father as Charles . However, she also presented DNA test results dated April 23, 2007, that showed with a probability of 99.9388%, NH was her father. Claimant also provided a letter form NH's parents, Edgar and May , wherein they stated Claimant was their granddaughter and that NH was her father. NH's parents further stated that prior to his death NH indicated that Claimant's mother, Julie, told NH that he was Claimant's father. NH died on December 31, 2005, while domiciled in Louisiana. The facts as presented do not indicate that NH and Claimant's mother were married.

STATUTORY AUTHORITY

Federal Law

Under section 202(d) of the Social Security Act (the Act), a child is entitled to benefits on the earnings record of an insured individual who died, if the child could inherit the insured's property under the intestacy laws of the state in which the insured was domiciled when he or she died. 42 U.S.C. § 416(h)(2)(A). To determine whether a child is eligible for benefits under section 416(h)(2)(A), the Commissioner will first apply the version of state law that is in effect when the Commissioner makes a final decision on an application for benefits. 20 C.F.R. § 404.355(b)(4)(2007).

To be considered an insured person's child for the purposes of the Act, the child must show one of the following: (1) she would be entitled to inherit property through intestate succession under the laws of the state in which the insured person had his permanent home when the application for Social Security benefits was filed; or (2) her parents went through a marriage ceremony, but the marriage was invalid because of a legal impediment; or (3) the deceased acknowledged in writing that the applicant is his or her son or daughter, had been decreed by a court to be the mother or father of the applicant, or been ordered by a court to contribute to the support of the applicant because the applicant was his or her son or daughter, and such acknowledgment, court decree, or court order was made before the death of such insured individual, or such insured individual is shown by evidence satisfactory to the Commissioner of Social Security to have been the mother or father of the applicant, and such insured individual was living with or contributing to the support of the applicant at the time such insured individual died. See 42 U.S.C. §§ 416(h)(2)(A)-(B), (3)(C).

Louisiana Law

Because NH was domiciled in Louisiana at the time of his death, Louisiana intestacy law applies in this case. See Act § 216(h)(2)(A); 20 C.F.R. § 404.355(b)(4). Louisiana intestacy law provides that when a person dies without a valid will, his descendants may inherit property from him. See LA. CIV. CODE ANN. art. 880 (West 2007). Descendants include children. See LA. CIV. CODE ANN. art. 882 (West 2007).

In Louisiana, a certified report of blood or tissue sampling which indicates by a ninety-nine and nine-tenths percentage point threshold probability that the alleged father is the father of the child creates a rebuttable presumption of paternity. LA. REV. STAT. ANN. § 9:397.3(B)(2)(b) (West 2007). Although insufficient to prove paternity alone, scientific testing provides persuasive and objective evidence that can help establish paternity by a preponderance of evidence. LA. CIV. CODE ANN. art. 197, cmt. (c). However, if the child institutes the paternity action after the death of the alleged father, the child must prove paternity by clear and convincing evidence. Id. art. 197, cmt. (d). In Louisiana, to meet the clear and convincing evidence standard of proof, the evidence, taken as a whole, must show that the facts sought to be proven are highly probable. Talley v. Stuckey, 560 So.2d 111, 112-113 (La. Ct. App. 1990).

DISCUSSION

The facts as presented do not indicate that NH and Claimant's mother were married. Further, according to the facts presented, at the time of his death NH had not acknowledged in writing that Claimant was his child, and no court decreed that he was her father. As we understand the facts, no court ever ordered NH to pay child support for Claimant. NH apparently never lived with Claimant or contributed to her support. Given these facts, Claimant cannot establish she is the child of NH under section 216(h)(3). Therefore, to establish that she is NH's child for the purposes of the Act, Claimant must show that she would be entitled to inherit property from him through intestate succession under Louisiana law. See Act § 216(h)(2)(A); 20 C.F.R. § 404.355(b)(4).

DNA test results in this case show a 99.9388% probability that NH was Claimant's father. Consequently, he is presumed to be her father under Louisiana law. See LA. REV. STAT. ANN. § 9:397.3(B)(2)(b). We note that Charles was listed as Christie’s father on her birth certificate; however this does not nullify the presumption that NH is Claimant's biological father. Louisiana law provides the presumption that the husband of the mother is the legal father of her child while it recognizes a biological father's actual paternity. Smith v. Cole, 553 So.2d 847, 854-55 (La. 1989).

However, DNA test results, alone, are not sufficient to prove paternity in Louisiana. Simpson v. Stevenson, 852 So.2d 1093, 1096 (La. App. 2003). Scientific testing provides persuasive and objective evidence that can help establish paternity by a preponderance of evidence. LA. CIV. CODE ANN. art. 197, cmt. (c). However, if the child institutes the paternity action after the death of the alleged father, the child must prove paternity by clear and convincing evidence. Id. art. 197, cmt. (d). To meet the clear and convincing evidence standard of proof, the evidence, taken as a whole, must show that the facts sought to be proven are highly probable. T~, 560 So.2d at 112-113. Here, in addition to the DNA test results, Claimant presented a statement from NH's parents indicating that she was their granddaughter and that NH was her father. NH's parents also stated that prior to NH's death, Claimant's mother told NH that he was Claimant's father. We believe that the DNA evidence and the letter from NH's parents indicate a high probability that Claimant was NH's child, thereby meeting the meet the clear and convincing evidence standard for proof of paternity.

CONCLUSION

As such, Claimant has the right to inherit property from NH under Louisiana intestacy law, and she is entitled to Social Security benefits on NH's account.

Mary Ann Sloan
Regional Chief Counsel

By: ________________________
Natalie K. Jemison
Assistant Regional Counsel

D. PR 04-160 Effect of Louisiana Disavowal of Paternity on Entitlement of Child - NH - Steve , SSN ~

DATE: May 18, 2000

1. SYLLABUS

Under Louisiana law, a child whose paternity is disavowed by the number holder could still be entitled to Social Security benefits received prior to the filing date of that ultimately successful petition.

2. OPINION

We are responding to your request for our opinion as to the effect of a judgment granting a petition of disavowal of paternity on a disavowed child's entitlement to Social Security child's insurance benefits. For the reasons set forth below, we believe that, under Louisiana state law, the disavowed child is entitled to benefits accruing from her status as a child up to the date of the filing of the petition to disavow paternity by the disputed father.

Brandy (“Brandy”) was born on October. Effective November 1997, based on an application filed on her behalf by her mother Lisa (Lisa), she became entitled to child's insurance benefits on the record of Steve (Steve) who was receiving Social Security disability benefits, SSN ~. On February 25, 1998, Steve filed an original petition for disavowal of paternity and divorce. Steve filed this petition within one year of knowledge of Brandy's birth, thus, meeting the time limitation for rebutting the presumption of paternity under Louisiana state law. La. Civ. Code Ann. Art. 189. Steve's petition for divorce and to disavow paternity was granted on June 5, 1998; the Judgment was signed on June 17, 1998. Steve died on October 7, 1998. Brandy's benefits were suspended due to the petition to disavow paternity.

Under Section 216(e) of the Social Security Act (the Act), the term “child” means “. . . the child or legally adopted child of the individual . . . .” 42 U.S.C. § 416(e). A child of an insured disabled person is entitled to benefits under certain circumstances. 20 C.F.R. § 404.350. Section 216(h)(2)(A) of the Act provides, “In determining whether an applicant is the child . . . of a fully or currently insured individual . . . the Commissioner of Social Security shall apply such law as would be applied in determining the devolution of intestate personal property by the courts of the State in which such insured individual is domiciled . . . [or] was domiciled at the time of his death . . . .” 42 U.S.C. § 416(h)(2)(A); see also 20 C.F.R. § 404.355(b).

Thus, inheritance rights turn on the issue of domicile, among others. See Lawrence v. Chater, 516 U.S. 163, 164 (1996) (citing Section 216(h)(2)(A) of the Act). At the time Brandy's application was filed, Steve was domiciled in the state of Louisiana. In order to be entitled to benefits on Steve's record, Brandy had to show she could inherit Steve's personal property under Louisiana law. See Section 216(h)(2)(A) of the Act, see also 20 C.F.R. § 404.355(a)(1). Under Louisiana law, the “husband of the mother is presumed to be the father of all children born or conceived during the marriage.” La. Civ. Code Ann. Art. 184.

Barring an exception, the child of an insured individual is entitled to Social Security benefits if the child is dependent on the insured individual. 20 C.F.R. §§ 404.350. A child's Social Security benefits will ordinarily be discontinued under the Act if the child reaches age 18, unless she is a full-time student or disabled, or if the child marries, or if the insured's entitlement to benefits ends for reasons other than death, or if the child dies. 42 U.S.C. § 402(d); see also 20 C.F.R. § 404.352(b). The regulations specify that entitlement to benefits is subject to reconsideration. See 20 C.F.R. §§ 404.730, 404.731. Under 20 C.F.R. §§ 404.730 and 404.731, if evidence raises some doubt about a child's relationship to the insured individual, the Social Security Administration (SSA or the Agency) is authorized to seek other evidence to verify the relationship. That evidence can include proof that the child “would be able to inherit [the insured's] personal property under state law where [the insured] . . . had a permanent home. . .” 20 C.F.R. § 404.731. Here, the evidence of the judgment granting the disavowal of paternity raises doubt of Brandy's relationship to Steve as the disavowal prevents Brandy from inheriting Steve's personal property under Louisiana law. La. Civ. Code Ann. Arts. 184 and 189. The statutes clearly envision SSA's reconsideration of entitlement to benefits under a change of circumstances such as presented here.

If Brandy were not entitled to inherit intestate personal property under Section 216(h)(2)(A) of the Act, e.g. because the presumption of paternity under Louisiana law had been rebutted, it is clear that she would not meet the definition of “child” under Section 216(e) of the Act, and thus would not be entitled to benefits. See 42 U.S.C. § 416(e), see also 20 C.F.R. § 404.350(a).

Brandy was conceived and born during Steve's marriage to Lisa, which began on August 11, 1984, according to the petition for divorce. Thus, under Louisiana law, Steve was presumptively Brandy's legal father. However, the Louisiana Legislature's 1976 amendments to La. Civ. Code Ann., Articles 184 -190, state that the presumption of paternity, which had previously been irrebuttable in most instances, is currently rebuttable. See In re M~, 445 So. 2d 21, writ denied, 447 So. 2d 1079 (La. 1984). Louisiana law allows a presumed father to file a disavowal of paternity within one year of knowledge of the child's birth. If granted, the effect of disavowal under Louisiana law is to relieve the petitioner of the responsibility of paying future child support benefits. La. Civ. Code Ann. Art. 189.

Because the purpose of Social Security child's insurance benefits is to replace support lost by a child dependent on an insured person who dies or becomes disabled, terminating Social Security child's insurance benefits under these circumstances can be compared generally to terminating child support payments under Louisiana's disavowal law. S. Rep. No. 404, 89th Cong., 1st Sess., 110 (1965), reprinted in 1965 U.S.C.C.A.N. 1943, 2050. There is no Federal law on the issue of whether a disavowal of paternity should have a retroactive effect on a child's entitlement to Social Security insurance benefits. Thus, looking to Louisiana's law, the issue is whether the disavowal of paternity has a retroactive effect on Brandy's entitlement to benefits under state law. A 1997 amendment to the Louisiana Revised Statutes (La. Rev. Stat. Ann.) § 9:305 provides: “[N]o provision of this Section shall affect any child support payment or arrears paid, due, or owing prior to the filing of a disavowal action if an order of disavowal is subsequently obtained in such action.”

Although no Louisiana court has addressed the issue of retroactive application of the disavowal statute to Social Security benefits, two cases, Brannan v. Talbott, 728 So. 2d 1023, and Whiddon v. Whiddon, 736 So. 2d 296, 298, have arisen involving child support payments. We believe these cases indicate, by analogy, that Louisiana would not apply the disavowal statutes to benefits received prior to the date the petition was filed. In these cases, the courts found that the disputed father was not obligated to make child support payments after the date the ultimately successful disavowal action was filed, but was liable for previously accrued child support amounts.

In Brannan v. Talbott, 728 So. 2d 1023, the disputed father brought an action to disavow paternity of a child born during the marriage. The court noted that La. Rev. Stat. Ann. §9:305(B) was an interpretive law, not a substantive law. Specifically, the court stated “we conclude that the 1997 amendment to this statute is not substantive, but is merely interpretive of the original purpose for the 1993 Act. When the legislature added this section, it did not create a new right or duty, but merely clarified that a disavowal would not affect any past child support obligation paid, due or owing but would only affect subsequent child support following a successful disavowal action.” Id. at 1027.

The court found that “the trial court had no authority to eliminate any past-due accumulated arrearage owed by the (disputed father) pursuant to a previous child support judgment prior to his September 30, 1993 filing of the disavowal action. . . .” Id. The court stated that the “rule of law concerning the inability of a court to eliminate arrearage accumulated prior to a subsequent judgment altering or amending the child support has been upheld in numerous cases.” Id. at 1026 citing Tutorship of Shea, 619 So.2d 1236, writ denied, 626 So.2d 1165 (La. 1993); Hendricks v. Hendricks, 594 So.2d 1129; Pennison v. Pennison, 542 So.2d 666. The court further found that the disputed father's “status remained as a judgment debtor until such time that he commenced this action to redetermine his status as the proper payor of child support.” Id .; see also Whiddon v. Whiddon, 736 So.2d 296, 298 (an order of disavowal shall not affect any child support payments or arrears paid, due, or owing prior to the filing of the disavowal action).

The amendments to the Louisiana Revised Statutes show that the Louisiana Legislature intended that a disavowed child should only be entitled to court-awarded support by a disputed father before the date the disavowal petition is filed. By analogy, it is our opinion that under the laws of Louisiana, a disavowed child would be entitled to Social Security benefits received before the filing of an ultimately successful disavowal petition. After that date, a state court would find that a disputed father would have no support obligations because he would no longer be considered as the father of the child. Accordingly, we believe that the child would no longer be considered a “child” under the Act and would, therefore, no longer be entitled to collect Social Security benefits.

Based on the foregoing discussion, we believe that Brandy was entitled to child's insurance benefits on the record of Steve from the date of her entitlement in November of 1997, up to February 25, 1998, the Steve filed his original petition for disavowal of paternity.

Tina M. Waddell
Regional Chief Counsel

By: ________________________
Katauna J. King
Assistant Regional Counsel

E. PR 81-006 Determining Legitimacy Under State Laws of Louisiana and Georgia - A/N ~ William, DWE

DATE: June 3, 1981

1. SYLLABUS

LEGITIMACY--Presumption and Proofs -GEORGIA-LOUISIANA

Under Georgia's law of the case doctrine, a judgment of divorce not appealed or set aside is binding on any other Georgia court. Nalley v. Aiken, 171 S.E.2d 377 (1969).

OD 2100-Ga.

under Georgia law, the lex loci determines the validity of a marriage and the status of persons provided the application of a foreign state's law would not violate a Georgia law or contravene an established public policy of Georgia or offend against good morals. Eubanks v. Eubanks, 34 Ga. 407 (1866); Zwerling v. Zwerling, 244 S.E.2d 311 (1978.

OD 0230 -Ga

Children born in wedlock are presumed to be legitimate under both Georgia and Louisiana law. Ga. Code Ann. §74-101; La. Civ. Code Ann. Art. 184; Burrell v. Burrell, 154 So.2d 103 (1963).

OD 2110-Ga., La.

Under Louisiana law, the husband must bring an action to disavow paternity during his lifetime or his heirs must bring such an action or the presumption of legitimacy becomes conclusive. Murphy v. Houma Will Service, 409 F.2d 804 (5th Cir. 1969), rehearing denied, 413 F.2d 509.

OD 2110-La.

2. OPINION

In your memorandum of June 12, 1980, you asked whether the law of Louisiana would be applied in, determining whether the wage earner is the father of three children born to the wage earner's wife during a 12 year period of voluntary separation and during which time the wage earner remarried.

The wage earner married his first wife, Dianne on June 21, 1959 in St. Bernard Parish, Louisiana. There is no dispute that at least two children namely Tammy and Steven were born of that union. In September and subsequent to the births of Tammy and Steven, the wage earner and Dianne separated. No divorce was procured by either party until the wage earner procured a divorce in DeKalb County, Georgia on September 24, 1976. The Georgia divorce judgment incorporated a settlement agreement executed by the parties on July 29, 1976 in which the parties specified that two children were born of their marriage namely, Tammy and Steven. Dianne was awarded the custody of the children, and the wage earner was obligated to pay reasonable support and to provide hospitalization insurance for these children.

Subsequent to the separation in September 1964 and prior to the Georgia divorce on September 24, 1976, the wage earner ceremonially married Clara in York County, South Carolina on March 7, 1970. Prior to their ceremonial marriage, the wage earner and Clara lived together and four sons were born to Clara. While living in Chicago in 1968, the wage earner listed Clara and her four children as his dependents. Sub- sequent to their marriage, the wage earner adopted three of Clara's four sons.

According to Clara (second wife), she and the wage earner married under the mistaken belief that Dianne (first wife) had divorced the wage earner. Clara states she and the wage earner were notified of such a divorce by an unspecified welfare office in 1969. It was not until 2 or 3 years prior to his death that the wage earner learned as a result of a phone call from Dianne, that his first marriage was not terminated by divorce.

The wage earner died on August 19, 1978 domiciled in Georgia, and the wage earner's will was probated in Georgia. On August 25, 1978, Clara filed child's benefit applications on behalf of three of her children adopted by the wage earner. These children were subsequently awarded benefits. The wage earner's children by his first wife Steven and Tammy were also receiving child's benefits.

On November 13, 1979 Dianne on behalf of three of her children born subsequent to the September separation between her and the wage earner, filed applications for child's benefits alleging these children were the natural children of the wage earner. The dates of birth of these children are April, November, and December. According to the records in the Gret Courthouse in Louisiana, there was no disavowal proceeding initiated by the wage earner regarding the three children born to Dianne during the 13 year separation. The wage earner was apparently aware that Dianne had given birth to three children during the separation according to Clara.

The file does not reflect that Dianne asserted any claim against the wage earner's estate on behalf of any of the children born during the separation who she alleges were fathered by the wage earner. The wage earner's will was probated in solemn form in DeKalb County, Georgia. Tammy and Steven, who were born of the wage earner's marriage to Dianne, and the four sons born to Clara are listed as wage earner's heirs at law. At the time of the insured's death, he was domiciled in Georgia. It is apparently undisputed that during the period in which Dianne's three children were conceived and born, the insured and Dianne were legally married. The insured did initiate and procure a divorce from Dianne in 1976, but there is nothing in the file to indicate Clara and the insured married ceremonially subsequent to the divorce.

In determining whether an applicant for child's benefits is the child of the wage earner for Social Security purposes, the Secretary must apply the intestacy law of the state in which the wage earner was domiciled at the time of the wage earner's death. Section 216(h) (2) (A) of the Social Security Act. Since the wage earner died domiciled in Georgia, the Secretary must apply Georgia's intestacy law. Pursuant to Ga. Code Ann. §113-903, children of a deceased shall inherit equally property of every description.

In the present case, it is apparently undisputed that the deceased wage earner and Dianne were validly married on June 21, 1959. It is also undisputed that no divorce was granted terminating this marriage prior to that divorce judgment rendered on September 24, 1976 by the Superior Court of DeKalb County, Georgia. The three children at issue here were born to Dianne in Louisiana during the period of voluntary separation and prior to the DeKalb County, Georgia divorce. Additionally, the wage earner ceremonially married Clara in South Carolina during this period of voluntary separation.

Whether the three children born to Dianne would be considered the wage earner's children and entitled to participate in the devolution of his intestate personal property necessarily involves the application of Georgia's choice of law rules on the issues of the validity of the first and second marriages and ultimately, the status of the three children born to Dianne in Louisiana during the 12 years separation. Under Georgia law, the lex loci (the law of the state) of the marriage governs the validity of that marriage. Eubanks v. Banks, 34 Ga. 407 (1866); Zwerling v. Zwerling, 244 S.E.2d 311 (1978). The status of a person as legitimate or illegitimate is also to be determined by the lex loci (the law of the place where the person is born). Eubanks v. Banks, supra.

Although Georgia's choice of law rules require the application of South Carolina law to determine the validity of the purported marriage between the wage earner and Clara in South Carolina, and the application of Louisiana law to determine the status of the three children born in Louisiana during the period of separation, Georgia is not required to apply such foreign state laws if such laws would violate some Georgia law, contravene some established public policy of Georgia, or offend against the good morals of Georgia. 10 Am Jur 2d Bastards, §9 (1963); Eubanks v. Banks, supra.

Assuming Dianne entered into a valid marriage in Louisiana, the wage earner's subsequent ceremonial marriage to Clara in South Carolina would be void under both the law of South Carolina and Georgia, despite the presumption in favor of the second marriage common to the law of both South Carolina and Georgia. Under the laws of both South Carolina and Georgia, a marriage between parties, at least one of which has a living spouse, is void. Ga. Code Ann. §53-102, 103; Lovett v. Zeigler, 769 $.E.2d 360 (1968), S.C. Code §20-1-80; Day v. Day, 58 S.E.2d 83 (1950). Therefore, under the law of South Carolina and Georgia, the purported ceremonial marriage on March 7, 1970 between the wage earner and Clara was void. Under the laws of both South Carolina and Georgia, the wage earner would be considered legally married to Dianne from the inception of this presumably valid marriage on June 21, 1959 until that marriage was terminated by divorce on September 24, 1976.

Since the wage earner would be considered legally married to Dianne during that period of time when the three children at issue here were born, the ultimate issue of the status of these three children born during wedlock is determined by first reviewing Louisiana law and then by determining whether the Louisiana law as applied by Georgia would be violative at an established Georgia policy or law. Eubanks v. Banks, supra.

Under both the law of Louisiana and Georgia, the husband of a wife who bears children during wedlock is presumed to be the father of those children. La. Civ. Code Art. 184; Burrell v. Burrell, 154 So.2d 103 (1963).

However, the law of the two states differs substantially regarding the procedure for rebutting the presumption of paternity and the nature of the admissible evidence necessary to rebut this presumption. Under Louisiana law, the husband must bring an action to disavow paternity during his lifetime or his heirs must bring such an action following the husband's death. On failing to bring such an action the presumption becomes conclusive. Murphy v. Houma Will Service, 409 F.2d 804 (5th Cir. 1969), rehearing denied, 413 F.2d 509. To establish non paternity and thereby disavow the child, the husband must rebut the presumption of paternity by proving one of the following: (1) that he was sufficiently physically remote from his wife to have made cohabilitation physically impossible, or (2) that his wife committed adultery and concealed the pregnancy and birth of the child, or (3) that his paternity is negated by blood tests. Dugas v. Henson, 307 So.2d 650 (1975). These grounds for disavowal are strictly interpreted by Louisiana courts and where the husband and wife voluntarily separate as in the present case, the fact of cohabitation is presumed. Dugas v. Henson, supra. The presumption cannot be rebutted by declarations of the mother or by information contained in birth records of the child. Any testimony by the mother which would have the effect of making the child illegitimate must be disregarded and cannot be used to overcome the presumption of paternity. Hodges v. Hodges, 348 So,2d 1284 (1977).

In contrast, the policy of Georgia is to admit evidence even if its admissibility is doubtful because it is believed more dangerous to suppress the truth than to allow a loophole for a falsehood. Simeonides v. Zervis, 194 S.E.2d, 324 (1974). In Georgia the presumption of paternity arising from the birth of a child during wedlock may be rebutted by evidence of habits of life and relative situations of the parties, their conduct and declarations to include information contained in birth records, or the impossibility of access. Simeonides v. Zervis, supra. There appear to be profound policy differences between Louisiana and Georgia on the nature of evidence necessary to rebut the presumption of paternity. If Louisiana law is applied, the three children born to Dianne but during the voluntary separation would be conclusively presumed to be the children of the wage earner. If Georgia law were applied, one could reasonably conclude that the three children were not the wage earner's children.

In addition to the policy differences on evidence, there is a more important policy consideration which Georgia would find compelling. In Georgia, a judgment is considered the “law of the case” unless the judgment is set aside or re- versed. Hill v. Willis, 161 S.E.2d 281 (1968). In the present case, the wage earner and Dianne were parties to a divorce in an action initiated by the wage earner in the Superior Court of DeKalb County, Georgia. The parties executed an agreement in which all rights and claims to alimony, child support, child custody and property division were settled. Both parties represented that only two children, Steven and Tammy were born of their marriage. It was agreed that Dianne would have custody of the two children an that the wage earner would provide reasonable support on a monthly basis for these two children. The final judgment and decree of divorce incorporated this agreement between the parties and made it part of the final divorce decree dated September 24, 1976. This divorce judgment remains in effect, never having been appealed, set aside or otherwise attacked. Under the “law of the case doctrine”, the finding of this Superior Court, under these circumstances, would be binding on any appellate court in Georgia. Nalley v. Aiken, 171 S.E.2d 377 (1969).

Additionally, the wage earner's Will was probated in Georgia and the heirs at law were determined to include Steven and Tammy as did the divorce judgment, but no other children from the wage earner's first marriage were included. This probate proceeding has not been attacked by anyone alleging to be an heir at law of the wage earner. Consequently, these two separate courts within the State of Georgia have previously found that only Steven and Tammy were issue of the marriage between the wage earner and Dianne, and the wage earner's only heirs at law from his first marriage are Steven and Tammy.

Despite its general adherence to the lex loci doctrine, it is the opinion of this office that Georgia would not apply Louisiana law to determine the status of the three children born to Dianne during her marriage to the wage earner but subsequent to their separation. To apply lex loci in this instance Georgia would be forced to ignore its established evidentiary policy and apply a doctrine far more restrictive and contrary to its own. Further, to apply lex loci, Georgia would be ignoring the decisions of two of its courts on the ultimate issue in this matter and thereby ignoring Georgia's “law of the case” doctrine.

Therefore, it is the opinion of this office that Georgia would apply its own law to determine whether or not the wage earner is the father of the three children born to Dianne during her separation from the wage earner. Further, Georgia would be bound by its own prior judicial fundings that Tammy and Steven were the only issue of the marriage between the wage earner and Dianne.


Footnotes:

[1]

Agency policy presumes that a child born in wedlock is the mother’s husband’s natural legitimate child. Program Operations Manual System (POMS) GN 00306.020(A).

[2]

To qualify as a child of an insured individual under section 216(e) of the Act, the applicant must be the natural child, legally adopted child stepchild, grandchild, stepgrandchild, or equitably adopted child of the insured individual. See 42 U.S.C. § 416(e); see also 20 C.F.R. §§ 404.354 – 404.359. Here there is no evidence or allegation of adoption, or that C1 was the NH’s stepchild, and thus we presume that SSA found C1 to be the NH’s natural child based on a presumption of paternity.

[3]

The first and third Gray criteria are met because a State court of competent jurisdiction decided the issue of disavowal, and the issue of paternity generally falls within the category of domestic relations law.

[4]

In Pounds v. Schori, 377 So.2d 1195, 1199 (La. 1979), the Louisiana Supreme Court noted that peremption is a form of prescription, but with the characteristic that it is not subject to interruption or suspension.

[5]

The Drew court acknowledged that the legislature’s intent to protect children over the husband’s interest is evidenced by the repeal of La. Rev .Stat. Ann. § 9:305, which provided that “if the husband, or the legal father who is presumed to be the father of the child, erroneously believed, because of misrepresentation, fraud, or deception by the mother, that he was the father of the child, then the time for filing suit for disavowal of paternity shall be suspended during the period of such erroneous belief or for ten years, whichever ends first.” Id. The Drew court noted that the legislature’s repeal of section 9-305 was also consistent with Louisiana’s public policy to “protect innocent children, born during marriage, against scandalous attacks upon their paternity by the husband of the mother, who may be seeking to avoid paternal obligations to the child. Thus, the traditional and historical position of Louisianan jurisprudence was to zealously guard and enforce the presumption created by Article 18[5]. The fundamental ends achieved by such court action were preservation of the family unit, avoidance of the stigma of illegitimacy, and aversion to the disinheritance that resulted from a successful disavowal action. There is a public interest in dispelling doubts as to legitimacy which demands the establishment of a relatively short time for bringing challenges.” Id. (citing Galo v. Gallo, 861 So.2d 168, 173-174 (La. 2003).

[6]

means to take another look even if the determination or decision is not revised.” POMS GN 04001.001(D).

[7]

“Revision of a determination or decision” occurs when: (1) the end result is changed (e.g., disallowance changed to an award); or (2) based on new and material evidence, the basis for the determination is changed (even though the end result may not differ). POMS GN 04001.001(D).

[8]

Although the agency is not bound by a state court’s decision in a proceeding to which the agency was not a party, the agency is not free to ignore an adjudication of a state trial court where it is fair and consistent with the law as enunciated by the highest court of the State. Gray v. Richardson, 474 F.2d 1370, 1373 (6th Cir. 1973).

[9]

In Louisiana, the action to disavow paternity of a child is the means by which one who is presumed to be a child’s father, or his heirs, may rebut the presumption of paternity. See La. Civ. Code Ann. arts. 187, 190. In this case, the Louisiana court issued a judgment disavowing paternity, rebutting the presumption of paternity between the NH and Noah and disavowing the NH’s paternity of Noah. Thus, we do not need to discuss whether the evidence rebuts the presumption of paternity between the NH and Noah, or whether we can use the statements the parties made to the agency to rebut the presumption of paternity between the NH and Noah.

[10]

Evidence of record does not include any documents proving the existence of the marriage or divorce.

[11]

Agency policy presumes that a child born in wedlock is the natural legitimate child of the mother’s husband. Program Operations Manual System (POMS) GN 00306.020(A). If the mother’s marriage ended before the child’s birth, agency policy generally presumes that the child is the natural legitimate child of her husband at the time of conception. Id. The agency will question a child’s legitimate status if the child was born more than 287 days after the death of the mother’s husband. Id. GN 00306.020(B)(5). Noah was born 190 days after the NH’s death; thus, the agency properly presumed that Noah was the NH’s child, since at the time Tracy filed the application for child’s insurance benefits, on Noah’s behalf, there was no evidence rebutting the presumption of the NH’s paternity to Noah.

[12]

There is a maximum amount of benefits payable on each insured person’s earning record. 20 C.F.R. § 404.304(d). The agency may reduce a person’s dependent or survivor benefits to keep total benefits payable to the insured’s family within family maximum limits. Id.

[13]

We do not address the accuracy of the statements Natalie submitted to the agency to rebut the presumption of paternity between the NH and Noah because the Louisiana court issued a judgment disavowing paternity that rebuts the presumption of paternity and finds that Noah is not the NH’s child.