TN 10 (12-08)

PR 01010.026 Minnesota

A. PR 09-023 Minnesota: Rebuttal of Presumption of Legitimacy-REPLY Your Reference: S2D5G6 ( G~, J.) Our Reference: 07-0310-nc

DATE: November 17, 2008

1. SYLLABUS

In a case where the claimant was awarded benefits as the child of the number holder based on the presumption of legitimacy but a subsequent DNA test showed a 99.9509% probability that another man was the claimant's father and order of divorce declared the number holder not to be the father, a Minnesota court would likely rule that the claimant cannot inherit from the number holder, based on that new evidence. The new evidence also provides a sufficient basis to reopen and revise the award of child's benefits on the number holder's account.

Additionally, the evidence provided is also sufficient for the court to rule that the other man is the claimant's father, that the relationship is retroactive to the birth of the claimant, and to permit the awarding of child's benefits on that worker's record.

2. OPINION

Jordan G~ was awarded child's benefits, effective June 2006, on the record of Jeffrey G~. Mr. G~ was presumed to be Jordan's father because Mr. G~ was married to Jordan's mother at the time of Jordan's birth. However, DNA tests now show a 99.9509% chance that Paul F~ is Jordan's biological father. And, even more recently, Jordan's mother and Mr. G~ were granted a divorce, and the court found, in its order granting the divorce, that Mr. G~ is not Jordan's father.

An application has now been filed for child's benefits on Mr. F~ record, as well. You asked whether the DNA test is sufficient to rebut the presumption that Jordan is Mr. G~'s child, or whether SSA should continue to pay Jordan child's benefits on Mr. G~'s record, based on the presumption of legitimacy. We conclude that a Minnesota court would most likely rule, based on the DNA test results and other evidence in the record, that Jordan cannot inherit from Mr. G~ as his child. Therefore, the DNA test results provide a basis for reopening and revising the award of benefits on Mr. G~'s account. Furthermore, we believe that a Minnesota court would now likely find that Jordan is Mr. F~ child and that this finding would relate back to Jordan's birth, so that Jordan would be entitled to benefits on Mr. F~ account even before the DNA test results were obtained.

Background

Jordan's mother married Mr. G~ in 1984. Jordan was born during the marriage in 1997. Mr. G~ is listed as Jordan's father on Jordan's birth certificate and on Jordan's SS-5. Jordan was awarded child's benefits on Mr. G~'s record effective June 2006, based on an application filed that month.

In February 2007, DNA testing showed a 99.95% probability that Mr. F~ is Jordan's biological father. Jordan's mother has stated that she and Mr. G~ were separated at the time of Jordan's conception, and that she developed a relationship with Mr. F~ in 1995.

In October 2008, a court issued an order granting Jordan's mother and Mr. G~ a divorce. In the divorce order, the court found that Jordan was born during the marriage, but that Mr. G~ did not have sexual intercourse with Jordan's mother during the possible time of conception and that Jordan's mother did have sexual intercourse during that time with the person (presumably Mr. F~) who was determined, by blood tests, to have a probability of parentage of 99.95 %. The court found that "for these reasons and by the agreement of the parties" Mr. G~ "is not the biological father" of Jordan. The court ordered that Jordan's mother and Mr. G~ had joint custody of another child born during the marriage, who the court found is Mr. G~'s child. The court further ruled that, although Jordan "is not the child of" Mr. G~, the parties agreed that Jordan should accompany "his half-sister" when she is in Mr. G~'s custody.

You indicated that Jordan's mother plans to request that Jordan's birth certificate be amended. You informed us that Mr. F~ has asked to be named on the birth certificate and wants to rename Jordan's middle name (presumably using his own last name). However, you indicated that Jordan's mother was advised to complete the divorce proceedings before adjudicating the paternity issue in court. It appears that no separate paternity action has yet been filed.

You informed us that Jordan has bonded with both Mr. G~ and Mr. F~ and apparently considers Mr. G~ to be his "dad" and Mr. F~ to be his "father." You previously advised that Jordan was living part-time with his mother and part-time with Mr. G~ (which appears consistent with the divorce order), and that Jordan also sees Mr. F~ twice a week. Jordan does not have a relationship with Mr. F~ family, but he has a relationship with Mr. G~'s mother and sister.

Everyone involved is domiciled in Minnesota.

Discussion

Under section 216(h)(2) of the Social Security Act, a child is entitled to benefits on the earnings record of an insured individual if the child could inherit the insured's property as his or her natural child under the intestacy laws of the state in which the insured was domiciled at the time of the application. 42 U.S.C. § 416(h)(2); see also 20 C.F.R. § 404.355(a)(1). If state inheritance law requires a court determination of paternity, the Agency does not require the claimant to obtain a court determination, but decides paternity using the standard of proof that the state court would use as the basis for a determination of paternity. See 20 C.F.R. § 404.355. If a child would not qualify as a child of the insured under the State law in effect at the time the child's application was filed, the Agency must look at all versions of State law that were in effect from the first month for which the child could be entitled to benefits up until the time of the final decision and apply the version of State law that is most beneficial to the child claimant. 20 C.F.R. § 404.355(b)(3). Here, we must determine whether Jordan still could inherit from Mr. G~, as well as whether Jordan could now inherit from Mr. F~

To inherit from Mr. G~ as his child, Jordan would need to rely on the Parentage Act's presumption of paternity based on Mr. G~'s marriage to his mother at the time of his birth. See MINN. STAT. ANN. § 257.55(1)(a). However, we believe that a Minnesota court would likely find that Mr. F~, rather than Mr. G~, is Jordan's father under the Parentage Act, based on the new evidence now available.

We note first that the divorce decree would not be decisive in such a case. A court determination of non-paternity is usually binding for all purposes. See MINN. STAT. ANN. § 257.66(1). However, the Minnesota Supreme Court has held that, if the child is not a party to a paternity action, the child is not bound by the decision in that case and can bring a separate action to establish paternity. See Johnson v. Hunter, 447 N.W.2d 871, 874, 876 (Minn. 1989). Here, it does not appear that Jordan was a party to the divorce proceeding. Nor was he represented in that action. Therefore, Jordan would not be bound by any finding in the court's order and could attempt to inherit from Mr. G~ under the Parentage Act based on the presumption of paternity. Nevertheless, it appears that, even if the court were to consider the issues anew, the court would still likely find that Mr. F~, rather than Mr. G~, is Jordan's father.

The Minnesota Supreme Court has recently held that, in an inheritance action:

When a party benefits from a Parentage Act presumption of paternity and relies on that presumption to establish paternity in a probate proceeding, the party has chosen to establish paternity under the Parentage Act, as expressly authorized by the Probate Code. See Minn. Stat. § 524.2-114. In such a situation, the provisions of the Parentage Act must apply in their entirety.

Estate of Jotham, 722 N.W. 2d 447, 452 (Minn. 2006). The Court further held that a court can entertain an effort to rebut a presumption of paternity in an inheritance proceeding only if "the party seeking to rebut a paternity presumption would not be barred by the standing or timeliness requirements in [MINN. STAT. ANN. §] 257.57 from bringing an action to declare the nonexistence of the presumed father-child relationship." Estate of Jotham, 722 N.W. 2d at 455. The time for bringing an action to establish Mr. G~'s non-paternity lapsed, at the latest, in 2001 (three years after Jordan's birth). See MINN. STAT. ANN. § 257.57(1)(b) (presumption of paternity based on marriage to mother of child lapses three years after the child is born). After that time, no one could bring an action to establish that Mr. G~ is or was not Jordan's father. While SSA ignores time limits placed on claimants for establishing paternity, 20 C.F.R. § 404.355(b); POMS GN 00306.075(B)(3), we have confirmed with the Office of Income Security Programs that SSA does not ignore state law time limits for establishing non-paternity. Therefore, the court would not consider an allegation that Mr. G~ is not Jordan's father.

However, while an action to establish non-paternity is time-barred, an action to establish paternity based on DNA evidence can be brought at any time by the child, the child's mother, or the man alleging himself to be the father based on the presumption arising from the DNA test results. WIS. STAT. ANN. § 257.57(2)(1). Therefore, Jordan, Jordan's mother, or Mr. F~ could, in theory, bring an action at any time to assert that Mr. F~ is Jordan's real father (which effectively would also establish that Mr. G~ is not the father). Although we did not find any cases directly on point, it appears that any one of these individuals could potentially assert, in the inheritance proceeding for Mr. G~, that Mr. F~ is Jordan's real father. In this way, the inheritance court would be able to consider that someone other than Mr. G~ is Jordan's father under the Parentage Act. See Dorman v. Steffen, 666 N.W.2d 409, 411-12 (Minn. App. 2003) (actions to establish paternity may be brought at any time, even though the effect is to declare the non-paternity of a presumed father and the action is brought past the time to bring an action to establish non-paternity of a presumed father).

We assume that Jordan would not assert that Mr. F~ is his real father if he were attempting to inherit from Mr. G~ as his son. However, if Jordan were attempting to inherit from Mr. G~ as his son under the Parentage Act, then, according to the Jotham decision, all provisions of the Parentage Act would apply to the case. Estate of Jotham, 722 N.W. 2d at 452. Under the Parentage Act, Jordan's mother would be made a party to the action, if still living and subject to the jurisdiction of the court where the inheritance proceeding would be held (which she would be at least at this point in time). See WIS. STAT. ANN. § 257.60. Although we did not find any cases on this specific issue, we assume that, under the holding in the Jotham decision and under the plain language of the Parentage Act, Jordan's mother would be made a party to the inheritance proceeding on Mr. G~'s estate, not as a potential heir, but as a necessary party under the Parentage Act, since Jordan would be proceeding under that Act to establish paternity.

Once Jordan's mother were made a party to the action she would, presumably, assert that Mr. F~, and not Mr. G~, is Jordan's father, since to take any other position would be inconsistent with her position in the divorce proceeding against Mr. G~. In fact, she may now be estopped from taking any other position. See Markert v. Behm, 394 N.W.2d 239, 241-42 (Min. App. 1986) (ex-wife precluded by collateral and equitable estoppel, as well as res judicata, from challenging ex-husband's paternity where she was party to prior divorce action finding him to be the child's father). At that point, Mr. F~ would also be made a party to the action. See MINN. STAT. ANN. § 257.60 (any man alleged to be the biological father shall be made a party to the action if subject to the court's jurisdiction). If SSA credits the information provided to us, it appears that Mr. F~ would not contest the allegation that he is Jordan's father.

Since Jordan's mother would be asserting that Mr. F~, rather than Mr. G~, is Jordan's father, and since it appears from the information you provided that Mr. F~ would also try to establish that he is Jordan's father, the court would be faced with competing presumptions of paternity: (1) the presumption, under MINN. STAT. ANN. § 257.62(5)(b), that Mr. F~ is Jordan's father, based on the DNA test results; and (2) the presumption under MINN. STAT. ANN. § 257.55(a)(1), that Mr. G~ is Jordan's father because Mr. G~ was married to Jordan's mother at the time of Jordan's birth.

Under the Parentage Act, "[i]f two or more presumptions arise which conflict with each other, the presumption which on the facts is founded on the weightier considerations of policy and logic controls." MINN. STAT. ANN. § 257.55(2). Under Minnesota law, none of the presumptions is necessarily weightier or controlling. See Witso v. Overby, 609 N.W.2d 618, 620-21 (Minn. App. 2000), aff'd 627 N.W.2d 63 (Minn. 2001), cert. denied 534 U.S. 1130 (2002). However, the case law is instructive as to which factors courts consider most important in determining which presumption should control in particular cases.

In In re C.M.G., 516 N.W.2d 555 (Minn. App. 1994), the court found that, on the particular facts of that case, the presumption of paternity based on a declaration of parentage was weightier than the presumption of paternity based on blood/DNA testing. In that case, the man who had executed the declaration of parentage wanted to be the father and was willing and able to support the child; the child viewed that man as his father and had bonded with him, as well as the man's parents; and the man presumed to be the father based on blood/DNA test results did not want to develop a paternal relationship with the child. Id. at 561.

In Paternity of BJH v. MTH, 573 N.W.2d 99 (Minn. App. 1998), both the man who was married to the child's mother and the man who was the biological father, according to blood tests, petitioned to be the child's father. The court ruled in favor of the biological father. The court listed several reasons for its decision, including the fact that the man was the biological father; he wanted a relationship with the child; he introduced the child as his own; there were doubts about the continued stability of the marriage between the mother and the other man; the child would eventually want to know his biological father; and the child was young enough to establish a relationship with the biological father, even though he had spent the majority of his life to that point with the other man. Id. at 103.

In State v. Thomas, 584 N.W.2d 421 (Minn. App. 1998), neither the man presumed to be the father based on blood tests nor the man presumed to be the father based on marriage wanted to be named as the father of the child at issue. In that case, the court also found that the biological father should be adjudicated to be the father, since he could not avoid his obligation to support his child by arguing that another man would be a better parent. The court also noted that there is a policy of not impairing blood relationships and that the marriage between the mother and the man presumed to be the father based on marriage had ended. Id. at 425.

It is not entirely clear how a court would weigh the factors in this case. Jordan has developed a relationship with both men and considers one to be his "dad" and the other to be his "father." Some factors weigh in favor of finding that Mr. G~ should be named the father, since Jordan lives part-time with Mr. G~, whereas he sees Mr. F~ twice a week but does not live with him; and Jordan has a relationship Mr. G~'s mother and sister, but does not have a relationship with Mr. F~ family. However, the court seems to weigh the biological relationship very heavily, and seems to find that the biological father should be named as father unless the biological father does not want to be the child's father and another man who is presumed to be the father is willing and able to be the child's father and has developed a relationship with the child. See In re C.M.G., 516 N.W.2d 555; Paternity of BJH, 573 N.W.2d 99; Thomas, 584 N.W.2d 421. Here, if you credit the evidence in the record, it appears that Mr. F~ would like to be named as Jordan's father. Furthermore, it appears that Mr. G~ does not want to be considered Jordan's father, since he has agreed to a court order finding that he is not Jordan's father. Based on these facts, we believe that a Minnesota court would likely find Mr. F~ should be named Jordan's father under the Parentage Act.

Thus, it is likely that, in an inheritance proceeding on Mr. G~'s estate, the probate court would consider the competing presumptions of paternity and find that Mr. F~, rather than Mr. G~, is Jordan's father. Under Minnesota law, a determination of the existence or nonexistence of the parent and child relationship under the Parentage Act is determinative for all purposes, and the court must order a new birth record be issued consistent with the determination. MINN. STAT. ANN. § 257.66(1)-(2) (West 2007). Thus, any determination under the Parentage Act that Mr. F~ is Jordan's father would "legitimate" Jordan and relate back to his birth. For these reasons, the DNA test results would provide a basis for reopening the award of benefits on Mr. G~'s account and denying that claim for benefits. See 20 C.F.R. §§ 404.988(b), 989(a)(1) (determination can be reopened within four years based on new and material evidence); POMS GN 04010.030.

By the same token, if Jordan attempted to inherit from Mr. F~ as his son, the court would likely conclude that the DNA evidence, together with other evidence of record, is sufficient to find that Jordan is Mr. F~ child under the Parentage Act. Since that finding would relate back to Jordan's birth, he would be entitled to benefits on Mr. F~ record even before the DNA tests were performed. See POMS GN 00306.050 (child legitimated after birth is considered legitimate from birth). Accordingly, it would be reasonable to reopen the award of benefits on Mr. G~'s account, based on the DNA evidence and the other new evidence, and find that Mr. F~, rather than Mr. G~, is Jordan's father.

Conclusion

In sum, we conclude that a Minnesota court would likely rule that Jordan cannot inherit from Mr. G~ as his child, based on the new DNA and other evidence provided. The new evidence, therefore, provides a sufficient basis to reopen and revise the award of benefits on Mr. G~'s account. We further conclude that a Minnesota court would likely find that Jordan should be considered Mr. F~ child, for purposes of inheritance, and for all purposes, relating back to his birth. Therefore, Jordan would be eligible for benefits on Mr. F~ account as his child even before the DNA test results were obtained.

Donna L. C~
Regional Chief Counsel, Region V
By:_____________________________
Suzanne D~
Assistant Regional Counsel


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PR 01010.026 - Minnesota - 12/03/2008
Batch run: 01/27/2009
Rev:12/03/2008