You asked us to determine whether a parent-child relationship exists between Edrommel
N~ ("NH") and Victoria and Veronica R~, and if so, when that relationship began and
whether there is a presumption of legitimacy that has been successfully rebutted so
that survivor benefits should be discontinued. We conclude that there is a presumption
under New Jersey State law that Victoria J. and Veronica J. R~ are the legitimate
children of NH, thereby establishing a parent-child relationship the day each child
was born. Further, we conclude that, in the absence of additional evidence, this presumption
of legitimacy has not been successfully rebutted by the evidence presented. Therefore,
survivor benefits should continue to be paid to Victoria J. and Veronica J. R~. However,
the allegation that a fraudulent Social Security claim has been filed should be referred
to the Social Security Administration's Office of the Inspector General for further
investigation if that has not already been done.
The number holder ("NH") (Edrommel N~) was a resident of New Jersey. He was born
on May 11, 1976. He married Jennifer R~ on December 26, 1996. Victoria J. R~ was born
December 2, 1997. Victoria's February 25, 1998 and April 24, 2002 applications for
a social security number indicate that NH is her father and Jennifer G. R~ is her
mother. A second child, Veronica J. R~, was born on January 21, 1999. Veronica's March
19, 1999 and April 24, 2002 applications for a social security number indicate that
Jennifer G. R~ is her mother. Father information is indicated "unknown." NH and Jennifer
R~ divorced in August 2003. NH died in a car accident on March 7, 2004 in Nutley,
On April 6, 2004, Jennifer R~ filed an application for surviving child benefits and
the lump sum death payment on behalf of Victoria J. and Veronica J. R~ as the natural
legitimate children of NH. Benefits were awarded effective March 2004.
Sam S. L~, NH's stepfather, wrote a letter to Senator John W~, dated December 28,
2004, in which he alleged that NH is not the natural legitimate father of Victoria
J. or Veronica J. R~. Specifically, Mr. L~ indicated that NH and Jennifer R~ had an
arranged marriage so that NH could gain United States citizenship. Mr. L~ claimed
that NH did not live with Ms. R~, but that she had lived with another man for ten
years who fathered three of her children, Jesse A. Z~, Victoria, and Veronica. Mr.
L~ indicated that NH and Jennifer R~ agreed to put NH's name on Victoria's birth certificate
("BC") to insure his stay in the United States. Mr. L~ claimed that once NH received
citizenship, Jennifer R~ was to marry the father of her three children. However, Mr.
L~ noted that NH died before he attained citizenship. He believed that Jennifer R~
has filed a fraudulent Social Security claim on the record of NH, since NH is allegedly
not the natural legitimate father of Victoria J. or Veronica J. R~.
Jennifer R~, on the other hand, signed form SSA-795 attesting that Veronica is the
natural legitimate daughter of NH even though he is not listed as the father on Veronica's
BC. Jennifer R~ indicated that she did not list NH as Veronica's father because she
was angry with him for not being with her at the hospital for Veronica's birth. Jennifer
R~ further indicated that NH had always acknowledged that Veronica was his child and
that he provided financial support. An MCS Remarks Screen indicates that it was Jennifer
R~'s wish that Victoria and Veronica keep her last name of "R~" instead of "N~," NH's
last name. Jennifer R~ had never taken NH's name even when she was married to him.
With respect to Victoria, NH does appear as the father of record on her BC.
Section 216(h)(2) of the Social Security Act, 42 U.S.C. § 416(h)(2), provides that
in determining a child's relationship to a number holder ("NH") when a child files
a survivor benefits application, the Social Security Administration ("SSA") applies
the law of the NH's State of domicile at the time of the NH's death to determine if
the child would be considered the NH's child under State law. The regulations explain
that we look to the laws of the State where the NH had his permanent home when he
died. 20 C.F.R. § 404.355(b). New Jersey law applies here because the NH was domiciled
in New Jersey at the time of his death.
New Jersey law provides a number of methods to establish paternity. Applicable here
is section 9:17-43(a)(1) of the New Jersey Parentage Act, which provides that a man
is presumed to be the biological father of a child if he and the child's biological
mother are or have been married to each other and the child is born during the marriage,
or within 300 days after the marriage is terminated by death, annulment or divorce.
N.J. Stat. Ann. § 9:17-43(a)(1)(2005), see also POMS GN 00306.565(7)(a). If the child's mother was married when the child was born, New Jersey law
establishes a presumption that the child is in fact the legitimate child of the mother's
husband. Id. "The presumption of legitimacy 'remains one of the strongest rebuttable presumptions
known to the law, and the interests of society require that it be given effect unless
overcome by the strongest sort of evidence, in the absence of which the presumption
remains conclusive.'" In the Matter of the Trust Created by Agreement Dated December 20, 1961,166 N.J. 340, 352; 765 A.2d 746, 753 (2001) (quoting 41 Am. Jur. 2d Illegitimate Children § 10, at 213 (1995)). Further, under N.J. Stat. Ann. § 9:17-43(b), the presumption of paternity
is rebuttable in an appropriate action only by clear and convincing proof. That is
to say "the presumption is rebutted by a court order terminating the presumed father's
paternal rights or by establishing that another man is the child's biological or adoptive
father." N.J. Stat. Ann. § 9:17-43(b). Id.
In New Jersey courts, the "clear and convincing" standard is articulated as follows:
"in order to establish the illegitimacy of a child born in wedlock, the proof must
be such that 'there is no possible escape' from that conclusion."In re Rogers' Estate, 30 N.J Super. 479, 486, 105 A.2d 28 (App. Div. 1954) (quoting Wallace v. Wallace, 73 N.J.Eq. 403, 67 A. 612 (E. & A.1907); Egnozzi v. Egnozzi, 17 N.J.Super. 433, 437, 86 A.2d 272 (App.Div.1952)). The presumption of legitimacy
of a child born in wedlock cannot be demolished by proof of circumstances which create
only doubt and suspicion. In re Rogers' Estate, 30 N.J. Super. at 486; see also In re Adoption by K., 92 N.J. Super. 204, 222 A.2d 552 (Cty. Ct. 1966) (in a pre-Parentage Act case, the court held that mother's statement
in writing to adoption agency to the effect that her former husband was not the child's
father, court could not conclude that former husband was not the father of child).
By way of example, a blood test excluding the man the child's mother was married to
at time of the child's birth as the child's biological father overcame the presumption
that the mother's husband was the child's natural father. M.A. v. Estate of A.C., 274 N.J.Super. 245, 249, 643 A.2d 1047, 1049 (1993). Similarly, the presumption
of legitimacy was overcome when a defendant's biological paternity was established
by blood tests and expert testimony showing that it was "genetically impossible" for
the mother's husband to be the natural father and that there was 99.97% likelihood
that defendant was the child's biological father. J.W.P. v. W.W., 255 N.J.Super. 185, 188, 604 A.2d 695, 697 (1990). New Jersey courts have also held
that the presumption of legitimacy may be rebutted by proof of nonaccess, demonstrated
by clear and convincing evidence. B. v. O., 50 N.J. 93, 232 A.2d 401 (1967); Cortese v. Cortese, 10 N.J.Super. 152, 76 A.2d 717 (App.Div.1950); see also Sarte v. Pidoto, 129 N.J.Super. 405, 411, 324 A.2d 48, 52 (App. Div. 1974). However, testimony that
husband had undergone vasectomy in July of 1972, that it was not likely that sperm
would remain six months after the operation, and that, on the basis of tests performed
in October of 1973 and April of 1974, which showed a zero sperm count, the probability
of his sterility at time of conception in April of 1973 was great, though not 100%,
did not establish by clear and convincing evidence that husband was not the father
of the child, especially where the wife testified that she had no sexual relations
with any other man, where there was no evidence to the contrary, and where wife testified
that she had occasional sexual relations with her husband in April of 1973. L. v. M., 134 N.J.Super. 69, 72, 338 A.2d 227, 229 (1975).
Here, NH was domiciled in New Jersey when he died. Therefore, pursuant to Section
216(h)(2) of the Social Security Act, the laws of the state of New Jersey apply. NH
and Jennifer R~ were married when Victoria and Veronica were born. This creates a
presumption that Victoria and Veronica are in fact the legitimate children of NH.
N.J. Stat. Ann. § 9:17-43(a)(1); see also POMS GN
00306.565(7)(a). Additionally, Jennifer R~ has reported that NH is Veronica's father even though
his name does not appear on Veronica's BC. However, NH's stepfather, Mr. L~, has alleged
that NH and Jennifer R~ had an arranged marriage so that NH could gain United States
citizenship, and that Jennifer R~ was living with another man when both Victoria and
Veronica were born.
Presented with solely this evidence, it is likely that a court applying New Jersey
law would find that the presumption of legitimacy has not been successfully rebutted
in this matter. Mr. L~'s letter, standing alone, does not constitute "clear and convincing
evidence" that another man is Victoria's and Veronica's biological or adoptive father.
Statements from relatives who are aware of the facts may constitute acceptable evidence
to rebut the presumption of legitimacy pursuant to POMS GN 00306.021(A), but no such evidence has been presented here. Mr. L~'s statements may create
doubt and suspicion; however, in New Jersey, "doubt and suspicion" are not enough
to overcome "one of the strongest rebuttable presumptions known to the law." In the Matter of the Trust Created by Agreement Dated December 20, 1961,166 N.J. at 352; 765 A.2d at 753 (internal quotation omitted); In re Rogers' Estate, 30 N.J. Super. at 486. The case of In re Adoption by K. is instructive on this point. 92 N.J. Super. 204, 222 A.2d 552 (Cty. Ct. 1966). In
that case, the court held that a mother's statement in writing to an adoption agency
that her former husband was not the child's father was not clear and convincing evidence
sufficient to rebut the presumption of legitimacy. In re Adoption by K., 92 N.J. Super. at 206, 207, 222 A.2d at 553. Similarly, the only evidence presented
here in rebuttal of the presumption is an unsworn statement by a relative. In the
absence of any further evidence, such as a blood test, expert testimony, or proof
of NH's non-access, it is unlikely that the evidentiary value of Mr. L~'s statement
meets the high 'clear and convincing' standard necessary to rebut the presumption
of Victoria and Veronica's legitimacy.
Absent any additional evidence, the presumption that Victoria and Veronica are the
natural legitimate children of NH has not been rebutted.
Barbara L. S~
Chief Counsel, Region II
Suzanne M. H~
Assistant Regional Counsel