TN 4 (04-06)

PR 01010.033 New Jersey

A. PR 05-193 Rebuttal of Acknowledgment of Parent-Child Relationship Between NH (Edrommel N~) and Victoria J. and Veronica J. R~

DATE: June 30, 2005

1. SYLLABUS

A statement from the deceased number holder's stepfather that the marriage between the beneficiaries' mother and the number holder was "arranged" for citizenship purposes and that he was not the actual father does not constitute "clear and convincing evidence" to overcome the presumption of paternity in New Jersey.

Additional evidence should be undertaken and the case should be referred to OIG for fraud investigation.

2. OPINION

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.

FACTS

The number holder ("NH") (Edrommel N~) was a resident of New Jersey.[1] 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, New Jersey.

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~.[2]

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.

LAW

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.[3] 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).

ANALYSIS

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.[4] 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

By: _________________
Suzanne M. H~
Assistant Regional Counsel


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PR 01010.033 - New Jersey - 03/31/2011
Batch run: 03/31/2011
Rev:03/31/2011