PR 01010.039 Ohio

A. PR 04-143 Rebuttal of Presumption of Legitimacy - Use of Blood Tests - Ohio - Michael W~ (SSN: ~)

DATE: February 21, 1995

1. SYLLABUS

DNA test results showing a 99.93% probability that another man is the child claimant's father constitute clear and convincing evidence to rebut the presumption of legitimacy under Ohio law.

2. OPINION

This is with reference to your memorandum inquiring whether the evidence in the record, particularly the blood tests and the administrative agency's paternity order, is sufficient to rebut a presumption of legitimacy under Ohio law.

On September 21, 1993, Michael W~, the number-holder, died from esophageal cancer. Ten days later on October 1, 1993, Carol W~, Michael's widowed wife, filed an application for child's insurance benefits for both Cody W~ and Kyley W~. There is a dispute, however, as to whether Michael is Kyley's natural father. In fact, after Kyley's birth in February 1993, Carol sued Brian L~ for child support payments for Kyley. On June 16, 1993, a state administrative agency found that Brian, not Michael, was Kyley's natural father. The administrative agency based its decision on the fact that both Carol and Brian signed an Acknowledgement of Paternity. Moreover, according to DNA blood test results, there is 99.93% probability that Brian is Kyley's father. However, Kyley's birth certificate identifies Michael as Kyley's natural father, and when Michael applied for disability insurance benefits, he named Kyley as his child. In addition, Kyley was conceived while Michael and Carol were married, creating a strong but not irrebuttable presumption that Michael is Kyley's natural father.

Under Ohio law, there is a presumption of legitimacy for a child conceived during a lawful marriage. State ex rel. Walker v. Clark, 144 Ohio St. 305, 58 N.E.2d 773 (1944). Yet this presumption may be rebutted by "clear and convincing evidence." The Walker case determined that proof of "no sexual relations between the husband and wife during the time in which the child must have been conceived" satisfies this standard. 58 N.E.2d at 776. Thirty-three years later the Ohio Court of Appeals in Garrett v. Garrett, 54 Ohio App.2d 25, 374 N.E.2d 654, 660 (1977) expanded the interpretation of the clear and convincing evidence standard to include expert testimony about blood-grouping stating:

We hold that in view of the inevitable conflict between the parties to the action, the direct interest each has in the outcome, and the normally clandestine nature of illicit sexual relations, there is a need for impartial testimony. Expert testimony about blood-grouping, if properly authenticated, fills that need. It may be given great weight in determining whether the husband is to be excluded as the father of the child, and it may be sufficient in itself to meet the burden of clear and convincing evidence. The introduction of evidence tending to show lack of sexual access is not a prerequisite to the production of such scientific evidence. (Emphases added).

In the present situation, DNA tests found that there is a 99.93% probability that Brian is the Kyley's father. The tests were conducted and subscribed to by the Medical College of Ohio. Although evidence that there was no sexual connection between Michael and Carol during the time when Kyley was conceived is lacking, these DNA tests should be given "great weight" in determining whether Michael is to be excluded as the natural father of Kyley. Accordingly, we believe that the blood test results rebut the presumption of legitimacy and may be used by SSA to determine whether Kyley is the natural child of Michael.

In the record, there is also raised the question of whether Social Security Ruling 83-73 applies to this case. S.S.R. 83-73 establishes the criteria which bind SSA to state court decisions in presumption of legitimacy cases. This ruling followed the decision in Gray v. Richardson, 474 F.2d 1370 (6th Cir. 1973), which held that Secretary, while not bound by a decision of a state trial court proceeding to which the Secretary was not a party, is not free, nevertheless, to ignore totally the decision where certain prerequisites are found.*/ See also George v. Sullivan, 909 F.2d 857, 860-61 (6th Cir. 1990).

Yet S.S.R. 83-73 and Gray v. Richardson are inapposite to this case. This ruling and decision dealt with contrary state court (or, presumably, administrative agency) decisions. Here, there is no contrary state court or administrative agency decision. In fact, the administrative agency's decision itself rebutted the presumption of legitimacy and found that the husband was not the child's natural father. However, in the litigation that gave rise to the Gray v. Richardson decision, the state court upheld the presumption of legitimacy, contrary to SSA's findings. Therefore, this case offers no occasion to revisit S.S.R. 83-73 and Gray v. Richardson.

Donna M. W~
Regional Chief Counsel

By: _________
Jeffery C~
Assistant Regional Counsel

B. PR 03-046 Number Holder: Dale T. S~, SSN: ~ Claimant: Ryan B~ Acceptability of DNA Evidence of Siblingship to Rebut Presumption of Paternity Under Ohio Law

DATE: November 25, 2002

1. SYLLABUS

DNA test results establishing a 99.92% probability of the child's half-siblingship with the NH's natural legitimate child, as well as a statement from the child's mother, in the absence of any contradictory evidence, would constitute clear and convincing evidence to rebut the presumption of validity under Ohio law and establish the NH as the child's father.

2. OPINION

You have requested a legal opinion as to whether evidence presented to SSA was sufficient to rebut the presumption of legitimacy and establish the right to inherit under Ohio law. We believe that the evidence presented is sufficient to rebut the presumption established under Ohio law, and that the child, Ryan B~, would be entitled to benefits based on the account of the NH, Dale H. S~.

Ryan B~ was conceived and born during the marriage of his mother, Gail B~, to Michael B~. Under the Ohio Parentage Act, a man is presumed to be the natural father of a child where the man and the child's mother are or have been married to each other, and the child is born during the marriage or within three hundred days after the marriage ends by death, annulment, divorce, or dissolution or after the man and the child's mother separate pursuant to a separation agreement. Ohio Rev. Code Ann. § 3111.03(A)(1) (West 2002). Therefore, as you noted, Michael B~ is presumed to be the natural father of Ryan. This presumption of paternity can only be rebutted by clear and convincing evidence, which includes genetic testing. Ohio Rev. Code Ann. § 3111.03(C) (West 2002). The question, therefore, is whether the evidence presented, consisting of DNA testing establishing a 99.92% probability of half-siblingship with a known natural child of the NH, as well as a statement from the child's mother, would satisfy the Ohio standard for “clear and convincing evidence.” Under Ohio law, clear and convincing evidence requires more certainty on the part of the fact-finder than a “preponderance of the evidence” standard (more than 50%), but less certainty than the “beyond a reasonable doubt” standard. See POMS GN 00306.595.

Prior to 2000, the Ohio Parentage Act presumed a man to be the natural father of a child where genetic tests indicated a probability of 99% or greater that the man was the biological father of the child. Ohio Rev. Code Ann. § 3111.03(A)(5) (West 1999). Effective March 22, 2001, the Ohio legislature repealed Section 3111.03(A)(5), and Ohio courts no longer apply a presumption based on DNA test results. Under the current statute, a state court may use genetic testing to determine the existence of a parent-child relationship. Ohio Rev. Code Ann. § 3111.09(a)(1)(b) (West 2002). The Ohio Parentage Act further defines the types of evidence which may be considered in determining paternity. A court may use genetic test results, “weighted in accordance with evidence, if available, of the statistical probability of the alleged father's paternity” as well as “all other evidence relevant to the issue of paternity of the child.” Ohio Rev. Code. Ann. § 3111.10 (West 2002). Each of these provisions, however, presupposes that the putative father will undergo genetic testing. The statute is silent as to the probative value of genetic testing of other relatives. Furthermore, neither the Ohio legislature nor the courts have articulated the standard of proof necessary to establish paternity where the putative father is deceased. Based on holdings in other cases, it appears that a court would use a “clear and convincing” standard. See Brookbank v. Gray, 658 N.E.2d 724, 727, 729 (Ohio 1996).

We believe that the portions of the Act which refer directly to genetic testing would not be applicable to this case. However, the DNA test performed on the putative half-sibling would constitute “other evidence” which may be considered in determining whether a father and child relationship existed between the wage earner and child. The DNA Siblingship Test Report, prepared by DNA Diagnostics Center, indicates that testing was performed on Ryan B~, Gail B~, Ryan's mother, and Rusty D. S~, the natural, legitimate child of the NH. According to this report, “the probability of half-siblingship is 99.9%. The likelihood that they share the same biological father is 1,300 to 1 [99.92%].”

We believe that the evidence presented here would meet the “clear and convincing” standard required by Ohio law. The statement from the child's mother that the NH is the father of Ryan would be of limited probative value. However, combined with the DNA testing, and in the absence of any contradictory evidence, we believe that it provides further proof of a parent-child relationship. Together, the DNA test results and the mother's testimony would seem to provide clear and convincing evidence sufficient to overcome the presumption of legitimacy and establish NH as Ryan's father. We therefore conclude that sufficient evidence has been presented to establish that Ryan B~ is the child of the NH, Dale T. S~, for purposes of entitlement to benefits.

Mary Ann S~
Regional Chief Counsel

By:
Michael S. F~
Assistant Regional Counsel

C. PR 95-002 Rebuttal of Presumption of Legitimacy - Use of Blood Tests - Ohio - Michael W~ (SSN)~

DATE: February 21, 1995

1. SYLLABUS

Presumption of Legitimacy

Although evidence that there was no sexual connection between a child's mother and her husband at the time of conception is lacking, DNA test results showing that there is a 99.93% probability that a man other than the mother's husband is the child's father should be given great weight under Ohio law. Accordingly, the blood test results rebut the presumption of legitimacy.

2. OPINION

This is with reference to your memorandum inquiring whether the evidence in the record, particularly the blood tests and the administrative agency's paternity order, is sufficient to rebut a presumption of legitimacy under Ohio law.

On September 21, 1993, Michael W~, the number-holder, died from esophageal cancer. Ten days later on October 1, 1993, Carol W~, Michael's widowed wife, filed an application for child's insurance benefits for both Cody W~ and Kyley W~. There is a dispute, however, as to whether Michael is Kyley's natural father. In fact, after Kyley's birth in February 1993, Carol sued Brian L~ for child support payments for Kyley. On June 16, 1993, a state administrative agency found that Brian, not Michael, was Kyley's natural father. The administrative agency based its decision on the fact that both Carol and Brian signed an Acknowledgement of Paternity. Moreover, according to DNA blood test results, there is 99.93% probability that Brian is Kyley's father. However, Kyley's birth certificate identifies Michael as Kyley's natural father, and when Michael applied for disability insurance benefits, he named Kyley as his child. In addition, Kyley was conceived while Michael and Carol were married, creating a strong but not irrebuttable presumption that Michael is Kyley's natural father.

Under Ohio law, there is a presumption of legitimacy for a child conceived during a lawful marriage. State ex tel. Walker v. Clark, 144 Ohio St. 305, 58 N.E.2d 773 (1944). Yet this presumption may be rebutted by "clear and convincing evidence." The Walker case 'determined that proof of "no sexual relations between the husband and wife during the time in which the child must have been conceived" satisfies this standard. 58 N.E.2d at 776. Thirty-three years later the Ohio Court of Appeals in Garrett v. Garrett, 54 Ohio App.2d 25, 374 N.E.2d 654, 660 (1977) expanded the interpretation of the clear and convincing evidence standard to include expert testimony about blood-grouping stating:

We hold that in view of the inevitable conflict between the parties to the action, the direct interest each has in the outcome, and the normally clandestine nature of illicit sexual relations, there is a need for impartial testimony. Expert testimony about blood-grouping, if properly authenticated, fills that need. It may be given great weight in determining whether the husband is to be excluded as the father of the child, and it may be sufficient in itself to meet the burden of clear and convincing evidence. The introduction of evidence tending to show lack of sexual access is not a prerequisite to the production of such scientific evidence. (Emphases added).

In the present situation, DNA tests found that there is a 99.93% probability that Brian is the Kyley's father. The tests were conducted and subscribed to by the Medical College of Ohio. Although evidence that there was no sexual connection between Michael and Carol during the time when Kyley was conceived is lacking, these DNA tests should be given "great weight" in determining whether Michael is to be excluded as the natural father of Kyley. Accordingly, we believe that the blood test results rebut the presumption of legitimacy and may be used by SSA to determine whether Kyley is the natural child of Michael.

In the record, there is also raised the question of whether Social Security Ruling 83-73 applies to this case. S.S.R. 83-73 establishes the criteria which bind SSA to state court decisions in presumption of legitimacy cases. This ruling followed the decision in Gray v. Richardson, 474 F.2d 1370 (6th Cir. 1973), which held that Secretary, while not bound by a decision of a state trial court proceeding to which the Secretary was not a party, is not free, nevertheless, to ignore totally the decision where certain prerequisites are found.1 See also George v. Sullivan, 909 F.2d 857, 860-61 (6th Cir. 1990).

Yet S.S.R. 83-73 and Gray v. Richardson are inapposite to this case. This ruling and decision dealt with contrary state court (or, presumably, administrative agency) decisions. Here, there is no contrary state court or administrative agency decision. In fact, the administrative agency's decision itself rebutted the presumption of legitimacy and found that the husband was not the child's natural father. However, in the litigation that gave rise to the Gray v. Richardson decision, the state court upheld the presumption of legitimacy, contrary to SSA's findings. Therefore, this case offers no occasion to revisit S.S.R. 83-73 and Gray v. Richardson.

The claims folder is returned herewith.

a. an issue in a claim for Social Security benefits previously has been determined by a State court of competent jurisdiction;

b. the issue was genuinely contested before the State court by parties with opposing interests;

c. the issue falls within the general category of domestic relations law; and

d. the resolution by the State trial court is consistent with the law enunciated by the highest court in the State. Gray, 474 F.2d at 1373

D. PR 95-001 Rebuttal of Presumption of Legitimacy - Use Of Blood Tests - Ohio - Miachael W~ (SSN)~

DATE: February 21, 1995

1. SYLLABUS

Presumption of Legitimacy

DNA tests finding that there is a 99.93% probability that a man other than the NH is the child claimant's father rebut the presumption of legitimacy under Ohio law.

2. OPINION

This is with reference to your memorandum inquiring whether the evidence in the record, particularly the blood tests and the administrative agency's paternity order, is sufficient to rebut a presumption of legitimacy under Ohio law.

On September 21, 1993, Michael W~, the number-holder, died from esophageal cancer. Ten days later on October 1, 1993, Carol W~, Michael's widowed wife, filed an application for child's insurance benefits for both Cody W~ and Kyley W~. There is a dispute, however, as to whether Michael is Kyley's natural father. In fact, after Kyley's birth in February 1993, Carol sued Brian L~ for child support payments for Kyley. On June 16, 1993, a state administrative agency found that Brian, not Michael, was Kyley's natural father. The administrative agency based its decision on the fact that both Carol and Brian signed an Acknowledgement of Paternity. Moreover, according to DNA blood test results, there is 99.93% probability that Brian is Kyley's father. However, Kyley's birth certificate identifies Michael as Kyley's natural father, and when Michael applied for disability insurance benefits, he named Kyley as his child. In addition, Kyley was conceived while Michael and Carol were married, creating a strong but not irrebuttable presumption that Michael is Kyley's natural father.

Under Ohio law, there is a presumption of legitimacy for a child conceived during a lawful marriage. State ex tel. Walker v. Clark, 144 Ohio St. 305, 58 N.E.2d 773 (1944). Yet this presumption may be rebutted by "clear and convincing evidence." The Walker case determined that proof of "no sexual relations between the husband and wife during the time in which the child must have been conceived" satisfies this standard. 58 N.E.2d at 776. Thirty-three years later the Ohio Court of Appeals in Garrett v. Garrett, 54 Ohio App.2d 25, 374 N.E.2d 654, 660 (1977) expanded the interpretation of the clear and convincing evidence standard to include expert testimony about blood-grouping stating:

We hold that in view of the inevitable conflict between the parties to the action, the direct interest each has in the outcome, and the normally clandestine nature of illicit sexual relations, there is a need for impartial testimony. Expert testimony about blood-grouping, if properly authenticated, fills that need. It may be given great weight in determining whether the husband is to be excluded as the father of the child, and it may be sufficient in itself to meet the burden of clear and convincing evidence. The introduction of evidence tending to show lack of sexual access is not a prerequisite to the production of such scientific evidence.

In the present situation, DNA tests found that there is a 99.93% probability that Brian is the Kyley's father. The tests were conducted and subscribed to by the Medical College of Ohio. Although evidence that there was no sexual connection between Michael and Carol during the time when Kyley was conceived is lacking, these DNA tests should be given "great weight" in determining whether Michael is to be excluded as the natural father of Kyley. Accordingly, we believe that the blood test results rebut the presumption of legitimacy and may be used by SSA to determine whether Kyley is the natural child of Michael.

In the record, there is also raised the question of whether Social Security Ruling 83-73 applies to this case. S.S.R. 83-73 establishes the criteria which bind SSA to state court decisions in presumption of legitimacy cases. This ruling followed the decision in Gray v. Richardson, 474 F.2d 1370 (6th Cir. 1973), which held that Secretary, while not bound by a decision of a state trial court proceeding to which the Secretary was not a party, is not free, nevertheless, to ignore totally the decision where certain prerequisites are found. 2 See also George v. Sullivan, 909 F.2d 857, 860-61 (6th Cir. 1990).

Yet S.S.R. 83-73 and Gray v. Richardson are inapposite to this case. This ruling and decision dealt with contrary state court (or, presumably, administrative agency) decisions. Here, there is no contrary state court or administrative agency decision. In fact, the administrative agency's decision itself rebutted the resumption of legitimacy and found that the husband was not the child's natural father. However, in the litigation that gave rise to the Gray v. Richardson decision, the state court upheld the presumption of legitimacy, contrary to SSA's findings. Therefore, this case offers no occasion to revisit S.S.R. 83-73 and Gray v. Richarson.

The claims folder is returned herewith.

a. an issue in a claim for Social Security benefits previously has been determined by a State court of competent jurisdiction;

b. the issue was genuinely contested before the State court by parties with opposing interests;

c. the issue falls within the general category of domestic relations law; and

d. the resolution by the State trial court is consistent with the law enunciated by the highest court in the State. Gray, 474 F.2d at 1373

E. PR 91-001 Rebuttal of Presumption of Legitimacy - Use of Blood Test - Ohio - Robert A. C~ (SSN)~

DATE: January 8, 1991

1. SYLLABUS

OHIO — Under Ohio law, a presumption of legitimacy for a child may be rebutted by clear and convincing evidence. Expert testimony about blood test results may be given great weight in determining whether the presumption is overcome, and may be sufficient in itself to meet the burden of clear and convincing evidence, even if there is no evidence tending to show lack of sexual access. (C~, Robert A., RAV (W~) to Director, RSI/SSIB, 01/08/91)

OD2100

2. OPINION

This is with reference to your memorandum inquiring whether use of the divorce decree finding or the paternity test results is allowable under Ohio law to rebut a presumption of legitimacy.

The number-holder, Robert A. C~, married Stella C. H~ on April 6, 1970. On September 14, 1980, Stella gave birth to Jewel L. C~. Ten years later the marriage ended by divorce on August 1, 1990. In the divorce decree, the court found that according to the results of blood tests Jewel was not Robert's natural child. On September 17, 1990, SSA received a letter from Robert which stated his belief that Jewel was not his biological daughter.

Under Ohio law, there is a presumption of legitimacy for a child conceived during a lawful marriage. State ex rel. Walker v. Clark, 144 Ohio St. 305, 58 N.E.2d 773 (1944). Yet this presumption may be rebutted by "clear and convincing evidence." The Walker case determined that proof of "no sexual relations between the husband and wife during the time in which the child must have been conceived" satisfies this standard. 58 N.E.2d at 776. Thirty-three years later the Ohio Court of Appeals in Garrett v. Garrett, 54 Ohio App.2d 25, 374 N.E.2d 654, 660 (1977) expanded the interpretation of the clear and convincing evidence standard to include expert testimony about blood-grouping by stating:

We hold that in view of the inevitable conflict between the parties to the action, the direct interest each has in the outcome, and the normally clandestine nature of illicit sexual relations, there is a need for impartial testimony. Expert testimony about blood-grouping, if properly authenticated, fills that need. It may given great weight in determining whether the husband is to be excluded as the father of the child, and it may be sufficient in itself to meet the burden of clear and convincing evidence. The introduction of evidence tending to show lack of sexual access is not a prerequisite to the production of such scientific evidence.

In the present situation, the MNSs, Kidd, and HLA blood-grouping systems all excluded Robert as the father of Jewel. Dr. Kamala B~ , the Director of HLA Laboratory, and Dr. Colin R. M~, Deputy Director of the Hoxworth Blood Center, subscribed to and validated these results. Although evidence that there was no sexual connection between Robert and Stella during the time when Jewel must have been conceived is lacking, these blood-grouping tests should be given great weight in determining whether Robert is to be excluded as the father of Jewel. Accordingly, we believe that the blood test results rebut the presumption of legitimacy and may be used by SSA to determine whether Stella is the natural child of Robert.

F. PR 84-040 Length of Gestation Period - Legitimacy of Child Born 317 Days After Death of Wage Earner — Joseph B~

DATE: October 16, 1984

1. SYLLABUS

FR LEGITIMACY AND LEGITIMATION — PRESUMPTIONS AND EVIDENCE — OHIO

The fact that a child was born 317 days after its mother's husband's death and the mother reported having her last menstrual period eight days after her husband's death are not sufficient to rebut the presumption of legitimacy of the child under Ohio law. (B~, Joseph, ~—RAV (P~), to ARC, 10/16/84.)

0D 2110 — OH

2. OPINION

You have requested our opinion as to whether Telisha B~ may collect benefits from the account of Joseph B~ as his natural legitimate child under Ohio Law. Although we conclude that it is legally supportable to grant benefits in this case, you may wish to further develop facts which are not currently in the file.

Virginia S~ and Joseph B~ were married at the time of his death as a result of a car accident in Ohio on June 12, 1980. Telisha B~ was born 317 days later on April 25, 1981 at Dittmer Hospital, Miami County, Ohio. The birth certificate lists Joseph and Virginia B~ as Telisha's parents.

Virginia S~ saw her physician, Dr. Edward K~ , on June 27, 1980, and was diagnosed as pregnant on August 6, 1980. She stated that her last menstrual period was June 25, 1980. Her expected due date was April 2, 1981. Dr. K~ performed no tests to determine how long she was pregnant during the August, 1980 visit.

The hospital records indicate that Teltsha weighed 4,026 grams at birth (approximately 9.4 pounds) and was a post mature baby with a 43 week gestation period (301 days).

APPLICABLE LAW

Ohio Law favors legitimacy and "will indulge in all presumption" to make a child legitimate. Dirion v. Brewer, 151 N.E. 818,20 Ohio App. 298 (1925). A child conceived during wedlock under Ohio Law is presumed to be the child of his mother's husband, but the presumption may be rebutted by clear and convincing evidence that the husband could not be the father of the child. Gray v. Richardson, 474 F.2d 1370 (6th Cir. 1973); Rose v. Rose, 242 N.E.2d 677, 16 Ohio App. 2d 123 (1968). Ohio recently amended its statute to adopt parts of the Uniform Parentage Act. 3 Section 3111.03 of the Ohio Revised Code states that the presumption that a married father is the natural parent of a child born to his wife applies to a birth within 300 days of his death. There is no explanation of the reason 300 days was chosen or the effect of a birth which occurred after 300 days.

Prior Ohio decisional law reviewed the possible gestation period and determined that a presumption of legitimacy should apply for births between 220 and 330 days from conception. See Rose v. Rose, supra; State ex tel Walker v. Clark, 144 Ohio St. 305, 58 N.E.2d 773 (1944), Similarly, in SSR' 73-28' the Social Security Administration adopted a New Jersey decision which presumed the legitimacy of a child born 327 days after the purported father's death. The court stated that "a pregnancy of 327 days is well within the limits of medical possibility as recognized by the courts" and further noted there "are references to protracted pregnancies of up to 334 days duration." The court found the presumption of legitimacy was not rebutted where the husband and wife lived together until death and there was no evidence of extramarital activity by the wife.

The presumption of legitimacy has been rebutted where the purported father was sterile, in prison during the period of conception, shown not to have had sexual relations with his wife during the period of conception or where blood tests excluded paternity. See for example, Social Security Ruling 73-52C and 81-10C.

ANALYSIS

While the fact that the child was born 317 days after the wage earner's death does not as a matter of law rule out the possibility that the child is the wage earner's daughter, it obviously raises some doubt as to whether the wage earner is the child's father. The medical records showing that the baby was large and post mature suggest the child is legitimate. The birth certificate listing the purported father as the child's natural father is probative evidence of legitimacy. Virginia S~ 's full release of all records for development and examination by the Social Security Administration further indicates her belief in the legitimacy of the child.

On the other hand, Ms. S~ 's statement that her last menstrual period occurred at the end of June, 1980 is probative although inconclusive evidence that the wage earner is not the father. Uterine bleeding that simulates menstruation is occasionally noted after conception. See Williams, Obstetrics, (13th Edition), 1966, p. 267. Ms. S~'s failure to apply for benefits for several years after her child's birth is further evidence that she may not have believed she was entitled to them.

We believe the documentation in the file falls somewhat short of clear and convincing evidence which would overturn a strong presumption of legitimacy.4 Thus, it is legally supportable to grant benefits to Telisha B~ .

However, you may wish to develop additional evidence which may lead to more conclusive evidence of the legitimacy or illegitimacy of Telisha B~ . There is no evidence concerning the wage earner's sexual access to his wife prior to his death. You may wish to develop additional evidence from relatives, friends, neighbors or employers concerning whether the couple lived together until Joseph B~'s death. You may also wish to order genetic tests (e.g. blood, immunological, biochemical) pursuant to RC 3111.09 of the Ohio Code.

The claims folder is returned herewith.

"Ordinary Coverage - Presumption of Legitimacy, Ohio." RA V (K~) to Regional Representative, SSA, December 28, 1973 (where there is strong medical evidence indicative of an unusually long gestation period, the presumption of legitimacy would be applicable even where the child is born 290 days after the mother's divorce from the decedent, the alleged father, and 316 days after the last reported date of access of the decedent to the mother of the child);

"Ordinary Coverage - Period of Gestation Exceeding 287 Days - Ohio - James C. C~ A/N ~ "RA V (P~) to BRSI, January 5, 1973 (fact that gestation period approaches "outer limits of possibilities for a normal child" does not, of itself, overcome presumption of legitimacy).


Footnotes:

[1]

The prerequisites are:

[2]

The prerequisites are:

[3]

The amendment which was effective on June 29, 1982 notes that it applies to children born either prior to or after its enactment.

[4]

See "Ordinary Coverage - Presumption of Legitimacy - Ohio James T. B~, A/N ~"RA V (K~) to Regional Commissioner, SSA, March 28, 1978 (evidence from a friend and relative that wage earner lived apart from his wife during period of conception is not clear and convincing evidence sufficient to rebut presumption of legitimacy);


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PR 01010.039 - Ohio - 03/31/2011
Batch run: 03/31/2011
Rev:03/31/2011