TN 27 (04-15)

PR 01010.042 Pennsylvania

A. PR 15-105 Reply to Your Request for a Legal Opinion Regarding Whether Clear and Convincing Evidence Rebutted the Presumption of Legitimacy Under Pennsylvania Law that Number Holder B~ (NH) (SSN: ~ ) was the father of B~ (claimant) (SSN: ~).

DATE: April 2, 2015

1. SYLLABUS

Under Pennsylvania law, when a child is conceived or born during a valid marriage, the court must first consider whether the presumption of paternity applies. If it does, then the court considers whether the presumption has been rebutted by clear and convincing evidence. If the presumption has been rebutted or is inapplicable, the court must then determine whether estoppel applies to bar a party from making the claim of paternity or a defendant from denying paternity.

The presumption of paternity applies only where the underlying policy to preserve marriages would be advanced by application of the presumption.   When there is no longer an intact family or a marriage to preserve, then the presumption of paternity is not applicable. If the married couple has acknowledged that the child is not the husband’s child, then there is no dispute from which the marriage must be protected.

Estoppel applies to prevent an individual who has accepted and supported a child as his own from denying paternity. Estoppel will not apply if the husband has failed to accept the child as his own by holding it out and/or supporting the child.

Pennsylvania courts did not apply the presumption of paternity in this case because there was no marriage to protect at the time of the custody dispute, and they would likely find that estoppel should not be applied because all of the parties involved acknowledged that the number holder (NH) was not the claimant’s father.  Therefore, the claimant is not entitled to receive benefits as the child of the NH because he would not be considered the NH’s child under Pennsylvania law.

2. OPINION

QUESTION PRESENTED

On February 24, 2015, you requested our opinion as to whether a signed statement by the NH and custody documentation – including a Petition to Modify Custody Order (Petition) and Custody Stipulation and Order (Custody Order) filed with the Pennsylvania Court of Common Pleas constituted clear and convincing evidence to rebut the presumption of legitimacy under Pennsylvania law, and, therefore, proscribe the claimant from obtaining child’s insurance benefits (CIB) as the natural child of the NH.

CONCLUSION

We have reviewed the information you provided and have researched the relevant provisions of Pennsylvania law as it pertains to legitimacy and paternity. Based on our review, we believe that the presumption of paternity does not apply to these facts, and that, even if it the presumption applied, it was rebutted by clear and convincing evidence, including an Order from the Court of Common Pleas, finding that the NH was not the claimant’s natural father. Based on the information provided, we conclude that the claimant would not be considered the NH’s child under Pennsylvania law, and, therefore, that he is not entitled to receive CIB as the child of the NH.

BACKGROUND

According to the information you provided, the claimant’s mother, A~ and the NH were married from June 19, 2002 until April 1, 2011.

In an SSA 795 statement dated August 19, 2014, the NH explained that in or around April 2005, he and A~ became legally separated. Between April 2005 and April 2006, the NH stated that he and A~ neither resided together nor had sexual relations with each other. In or around April 2006, A~ contacted the NH and asked to reconcile, but advised the NH that she was approximately one month pregnant with M~’s child. NH agreed to reconcile with A~ in April 2006, and explained that he “accepted the fact that she [A~] was one month pregnant and the child was not mine.”

The claimant was born on January. Claimant’s application for a social security number (numident data) indicated that her mother was A~ and her father was the NH. 1 In his August 2014 statement, the NH stated that he and A~ legally separated in 2008 when “A~ decided to get back together with M~,” and that the NH and A~ ultimately divorced in 2011.

On or around April 8, 2010, M~ filed a Complaint for Custody in the Court of Common Pleas, Docket No. 09-00616, against A~ and the NH. On July 30, 2010, the parties entered into a Custody Stipulation and Order (“Custody Order”) that referred to A~ as claimant’s “Mother” and M~ as claimant’s “Father.” The Custody Order provided that A~ and M~ had joint legal custody of the claimant, that A~ would retain primary physical custody of the claimant, that M~ would retain partial physical custody of the claimant, and that M~ was to pay A~ $50.00 per week toward child related expenses. The Custody Order was signed by M~, A~, and the NH, as well as by M~’s attorney and the Judge.

The NH and A~ divorced on April 1, 2011.

On or around October 24, 2011, M~ filed a Petition to Modify Custody Order seeking joint physical custody of the claimant.

On April 22, 2012, the NH applied for disability benefits under Title II of the Social Security Act. In the application, the NH listed the names of his minor children including the claimant. The NH’s application was approved on July 19, 2012, with an established onset date of

February 29, 2012, and the NH began receiving benefits in August 2012.

On October 18, 2012, A~ filed an application for CIB on behalf of claimant on the record of the NH. The Reading field office awarded claimant CIB benefits effective August 2012 based on a natural legitimate parent-child relationship per GN 00306.010 since, at the time that claimant was born, the NH and A~ were married.

In 2014, the NH contacted the Reading field office and advised that he did not believe that the claimant should continue to receive benefits on his record, and submitted the July 2010 custody order from the Court of Common Pleas and completed the August 2014 statement discussed above.

DISCUSSION

The Social Security Act (Act) provides for payment of CIB on the earnings record of an insured person who is entitled to disability benefits if the claimant is the insured person’s natural child. 42 U.S.C. § 402(d)(1); 20 C.F.R. § 404.350(a)(1) (2007). 2 A claimant is the natural child of an insured individual if the child could inherit the insured’s personal property as his or her natural child under the law of the state in which the insured individual was domiciled at the time the application was filed. 42 U.S.C. § 416(h)(2)(A); 20 C.F.R. § 404.355(a)(1), (b). In this case, since the NH resided in Pennsylvania on the date of claimant’s application for child’s benefits, Pennsylvania law applies.

Under Pennsylvania law, when a child is conceived or born during a valid marriage, a court must address the following issues: First, the court considers whether the presumption of paternity applies to a particular case. If it does, then the court considers whether the presumption has been rebutted by clear and convincing evidence. 3 Second, if the presumption has been rebutted or is inapplicable, the court must then determine whether estoppel applies to bar a party from making the claim of paternity or a defendant from denying paternity. Brinkley v. King, 701 A.2d 176, 180 (1997).

The presumption of paternity, i.e., the presumption that a child conceived or born during a marriage is the child of a marriage, is always the starting point in a contest involving the parentage of a child born during a marriage. B.S. v. T.M ., 782 A. 2d 1031, 1034 (Pa. Super 2001). The presumption of paternity has been described by the Pennsylvania Supreme Court as “one of the strongest presumptions known to the law.” Strauser v. Stahr, 726 A.2d 1052, 1055 (1999) (quoting Brinkley, 701 A.2d at 180). The policy underlying the presumption is the preservation of marriages. Fish v. Behers, 741 A.2d 721, 723 (1999). Accordingly, the Pennsylvania Supreme Court has held that the presumption of paternity applies only where the underlying policy to preserve marriages would be advanced by application of the presumption. Id.; Brinkley, 701 A.2d at 181. When there is no longer an intact family or a marriage to preserve, then the presumption of paternity is not applicable. Fish, 741 A.2d at 723; Brinkley, 701 A.2d at 181.

For example, in Strauser, the court held that the presumption of paternity applied because the mother and her husband had never separated, and, despite their marital difficulties and the mother’s infidelity, had chosen to preserve their marriage. 726 A.2d at 1055-56. Similarly, in E.W. v. T.S ., 916 A.2d 1197, 1204 (Pa.Super.2007), the court affirmed the trial court’s application of the presumption where the mother and her husband had not lived apart at any time after their marriage, had never filed a divorce complaint, and the husband had fulfilled the duties of a father in the family.

Conversely, in Barr v. Bartolo, 927 A.2d 635, 643 (Pa.Super.2007), the court declined to apply the presumption of paternity because, although the mother and husband remained married and had not sought a divorce at the time of the paternity hearing, they had been separated for several years and there was no intact family to preserve. In Doran v. Doran, 820 A.2d 1279, 1283 (Pa. Super.2003), the court held that the presumption of paternity did not apply to a case in which the mother and her husband had separated and a divorce action was pending prior to the support hearing).

Notably, Pennsylvania courts have refused to apply the presumption in cases where the married couple has acknowledged that the child is not the biological child of the marriage. Lynn v. Powell, 809A.2d 927, 930 (Pa. Super. 2002); B.S. ,782 A.2d at 1036-7. Specifically, courts have indicated that if the married couple has acknowledged that the child is not the husband’s child, then there is no dispute from which the marriage must be protected. B.S., 782 A.2d at 1036.

Here, as in Lynn and B.S., none of the parties dispute that claimant was not the NH’s child. To the contrary, the July 2010 Custody Order signed by the parties and issued by the Court of Common Pleas identifies M~ as claimant’s father, grants him joint legal and partial physical custody of claimant, and orders him to pay child support. Moreover, all of the parties involved – NH, A~, and M~ – acknowledged M~’s paternity in proceedings in the Court of Common Pleas as well as in the July 2010 Custody Order. Further, the NH stated that although he and A~ did not officially divorce until 2011, they were separated from 2008 through 2011, and that A~ was living with M~ for at least part of that time; thus, there was no marriage to protect at the time of the custody dispute. Accordingly, Pennsylvania courts would not (and did not) apply the presumption of paternity in this case.

However, even assuming, arguendo, that a court would apply the presumption to these facts, a court would also likely find that there was clear and convincing evidence to rebut the presumption. Here, there is clear evidence of non-access during claimant’s conception. Pennsylvania courts have defined non-access to mean that it was physically impossible for the presumptive father and mother to have had sexual relations because, for example, they lived apart from each other and had no physical contact. Brinkley, 701 A.2d at 179 n.4. Here, neither A~, the NH, nor M~ dispute that A~ and M~ lived together and were having sexual relations at the time of claimant’s conception, nor that A~ and the NH did not have sexual relations during the period in which claimant was conceived. Moreover, A~, M~, and the NH all acknowledged in writing that M~ was the claimant’s father. Finally, the Custody Stipulation and Order identifies M~ as claimant’s father, grants him joint legal and partial physical custody, and requires him to pay child support. In light of this evidence, even if a court found that the presumption was applicable, it would clearly be rebutted, and the court would have to proceed to determine whether estoppel barred the claim.

The next question, then, is whether estoppel should be applied in this case. Estoppel applies to prevent an individual who has accepted and supported a child as his own from denying paternity. Lynn, 809 A.2d at 930. Estoppel will not apply if the husband has failed to accept the child as his own by holding it out and/or supporting the child. Sekol, 763 A.2d at 410, n.6. Estoppel is founded on the principle that if a person has acted as the parent and bonded with the child, the child should not be required to suffer the potentially damaging trauma that may come from being told that the father he has known all his life is not in fact his father. J.C. v. J.S. , 826 A.2d 1, 4 (Pa. Super. 2003).

Here, it is clear that estoppel is not applicable on these set of facts. Although there is some evidence to suggest that the NH accepted and supported claimant for at least a period of time – including, for example, by giving claimant the NH’s last name – the fact remains that the Court of Common Pleas incontrovertibly adjudicated that M~, and not NH, was claimant’s natural father in July 2010. As discussed above, the Custody Order plainly gave M~, and not the NH, joint legal and partial physical custody of claimant, and ordered M~ to pay child support to cover some of claimant’s expenses. Moreover, M~, A~, and the NH have each acknowledged that M~ is the claimant’s natural father. Accordingly, Pennsylvania courts would likely not find that estoppel should be applied to this case.

CONCLUSION

For the reasons stated above, it is our opinion that no parent-child relationship existed between the NH and the claimant under the Act, and, therefore, that the claimant is not entitled to benefits on the NH’s record.

Nora Koch
Regional Chief Counsel
By: ___________________________
Naomi Mendelsohn
Assistant Regional Counsel

B. PR 07-207 Reply to Your Request for a Legal Opinion Regarding the Legal Status of the Parent-Child Relationship Between the Number Holder, Patrick V. D~ SSN: ~, and Austin M. D~

DATE: August 30, 2007

1. SYLLABUS

The highest court in Pennsylvania has ruled that, in any case where the presumption of paternity applies, blood test results (existing or potential) are irrelevant unless and until the presumption has been overcome, or rebutted. In Pennsylvania, that rebuttal can be made only by clear and convincing evidence that the husband was physically incapable of fathering a child, or that he did not have access to his wife during the period of conception.

Even if the presumption were to somehow be rebutted or were to be found in applicable, a paternity challenge may be estopped where a party, by his conduct, has clearly accepted and supported a child as his own. That would almost surely be found to be the situation in this case where the number holder has treated the child as his own since birth.

2. OPINION

QUESTION PRESENTED

On July 20, 2007, you requested our opinion as to whether the "presumption of legitimacy" (hereinafter the "presumption of paternity") of the parent-child relationship between Patrick V. D~ (Number Holder) and Austin M. D~ (Austin) has been rebutted under the laws of Pennsylvania.

SUMMARY

We have reviewed the material you provided and have researched the relevant provisions of Social Security law and Pennsylvania law as it pertains to matters involving paternity. We believe that, under the facts presented, a Pennsylvania court would likely find that the presumption of paternity has not been rebutted in this case. Therefore, Austin should receive child's benefits on the record of the Number Holder.

BACKGROUND

According to the information you provided, in July 1988, the Number Holder married Dawn L. B~-M~ (Dawn). On March 30, 2002, Austin was born. His birth certificate indicates his mother is Dawn and his father is the Number Holder. Austin's application for a Social Security number completed on April 16, 2002 indicates Dawn is his mother and the Number Holder is his father.

The Number Holder became entitled to disability benefits in March 2006. On June 5, 2006, the Number Holder filed an application for child's benefits for Austin, which was allowed. In March 2007, the Number Holder contacted SSA to report that Austin was not his child. He stated that he suspected Dawn of having an affair with another man in September 2006 when he discovered she had lied to him about going on a business trip. The Number Holder subsequently suspected that Austin might not be his child. The Number Holder had blood drawn from himself and Austin at a laboratory in Harrisburg, Pennsylvania, and on November 16, 2006, deoxyribonucleic acid (DNA) tests were performed on the blood samples. The test report indicates there is zero probability that the Number Holder is Austin's biological father.

Sometime during April 2007, the Number Holder met with a claims representative in the Harrisburg field office. At that meeting, the Number Holder completed and signed an undated Statement of Claimant or Other Person (Form SSA-795) stating that Austin is not his child, explaining the circumstances surrounding this discovery, and requesting Austin's benefits be discontinued. The Number Holder had received benefits for Austin for the period March 2006 through March 2007. Austin's benefits were suspended effective April 2007. We have no evidence that Dawn and the Number Holder are divorcing or living apart at this time.

In a February 2, 2006 declaration, Robert indicated that he was sterilized in approximately 1972, and that Bruce is Jonathan's biological father. See Robert V~'s declaration (February 2, 2006). In a March 28, 2006 declaration, Robert stated that he was unable to provide medical records of his vasectomy. See V~ declaration (March 28, 2006).

DISCUSSION

I. Applicable Federal Statutes and Regulations

The Social Security Act provides for payment of child's benefits to a child, where the child is entitled to such benefits on the earnings record of an insured person who is entitled to disability benefits and is the insured person's child. 42 U.S.C. § 402(d)(1) (2005); 20 C.F.R. § 404.350(a)(1) (2007). For a child to be considered as the insured person's child, it must first be established that a relationship exists as described in the regulations. 20 C.F.R. §§ 404.355-.359. In determining whether a child born of a marriage is the "natural child" of an insured person per the regulations, the Commissioner will apply the laws of the state in which the insured person was domiciled at the time the application was filed or, if the insured person is dead, of the state in which the insured individual was domiciled at the time of his death. 42 U.S.C. § 416(h)(2)(A); 20 C.F.R. § 404.355(b). In this case, since the Number Holder resided in Pennsylvania on the date of Austin's application for benefits, Pennsylvania law applies.

II. Pennsylvania Law

In Pennsylvania, it is presumed that a child born to a married woman is the child of the woman's husband. Strauser v. Stahr, 556 Pa. 83, 87, 726 A.2d 1052, 1053-1054 (Pa. 1998); John M. v. Paula T., 524 Pa. 306, 312-13, 571 A.2d 1380, 1383-1384 (Pa. 1990), cert. denied, 498 U.S. 850 (1990). Indeed, the presumption of paternity is "one of the strongest presumptions known to the law." Strauser, 556 Pa. at 87, 726 A.2d at 1053-1054. If the presumption applies, it can be rebutted only by clear and convincing evidence that the husband was physically incapable of fathering a child, or that he did not have access to his wife during the period of conception.

556 Pa. at 88, 726 A.2d at 1054; B.S. and R.S. v. T.M., 782 A.2d 1031, 1034 (Pa.Super. 2001). However, the presumption is irrebuttable when a third party seeks to assert his own paternity as against a husband in an intact marriage. 556 Pa. at 88, 726 A.2d at 1054. The necessity to follow the common law requirement of proving non-access, impotency, or sterility has not been abrogated by the Uniform Act on Blood Tests to Determine Paternity. McCue v. McCue, 413 Pa.Super. 71, 78, 604 A.2d 738, 741 (Pa.Super. 1992); John M.~, 524 Pa. at 312-13, 571 A.2d at 1383-1384; 23 Pa. Cons. Stat. § 5104. The presumption of paternity applies in any case where the policy underlying the presumption, namely the preservation of marriages, would be advanced by its application; in all other cases, it does not apply. Brinkley v. King, 549 Pa. 241, 250-251, 701 A.2d 176, 181 (Pa. 1997) (footnote omitted).

Even if the presumption does not apply, or evidence exists that rebuts the presumption, if the family remains intact up to and beyond the birth of the child, a paternity challenge may be estopped where a party, by his conduct, has clearly accepted and supported a child as his own. Brinkley, 549 Pa. at 248-249, 701 A.2d at 180. In the absence of fraud or misrepresentation, the law does not allow a person to deny parentage or challenge his role as a parent once he has accepted it, even with contrary DNA and blood tests. Lynn v. Powell, 809 A. 2d 927, 929-930 (Pa.Super. 2002). Existing DNA evidence of non-paternity would be irrelevant and non-admissible in a court unless and until the presumption of paternity has been rebutted or does not apply, and principles of estoppel have been overcome based on evidence that they should not apply. Strauser, 556 Pa. at 89-90, 726 A.2d at 1055; Brinkley, 549 Pa. at 250, 701 A.2d at 180.

III. The Presumption of Paternity Applies in This Case and the Number Holder Would Be Estopped From Challenging Austin's Paternity Under Pennsylvania LawNotwithstanding the DNA Evidence

Given the facts presented, we believe that a Pennsylvania court would likely find that a presumption of paternity would apply in this case. It appears that the Number Holder and Dawn remain married, divorce is not impending, and they are currently living together with Austin as a family unit. For purposes of analysis, therefore, we presume they will continue to remain married indefinitely and the family will remain extant. The highest court in Pennsylvania has ruled that, in any case where the presumption of paternity applies, blood test results (existing or potential) are irrelevant unless and until the presumption has been overcome, or rebutted. Strauser, 556 Pa. at 88, 726 A.2d at 1054. Here, there appears to be no evidence to rebut the presumption of paternity based upon non-access, impotency, or sterility of the Number Holder. These grounds remain the test for admission of contrary evidence. Id. Therefore, since there is no evidence to rebut the presumption of paternity, the DNA test results would not be relevant or admissible in a Pennsylvania court.

Even if the presumption of paternity did not apply, or if it were to be successfully rebutted, the Number Holder most likely would be estopped from denying his identity as Austin's father. There is no indication that the Number Holder has alleged fraud on the part of Dawn, or that she, in fact, has committed fraud. There is no indication that the Number Holder has taken action to try to remove his name from Austin's birth certificate. We assume that the Number Holder never suspected Austin was not his child earlier than what he attested to in his Statement. Prior to the report of contact in April 2007, there is no evidence to suggest that at all other times since his birth, the Number Holder had not openly held out Austin to be his child and received him into his home, provided support for Austin, and generally treated Austin as if he were his own child. Although the report of contact may constitute some evidence that the Number Holder now wishes to withhold financial support from Austin, without more a Pennsylvania court would not permit the Number Holder to do so unilaterally at this time. Accord, McConnell v. Berkheimer, 781 A.2d 206, 210 (Pa.Super. 2002); McCue, 413 Pa.Super. at 76-77, 604 A.2d at 740-741. Furthermore, this action by the Number Holder is not necessarily conclusive evidence of the Number Holder's intentions. Since the family evidently remains intact, the doctrine of paternity by estoppel would be compelled. B.S. and R.S. v. T.M., 782 A.2d 1031, 1035 (Pa.Super. 2001). However, since the presumption of paternity applies and has not been rebutted, in this case estoppel would even not be relevant since we would not reach that analysis. E.W. v. T.S. and C.S., 916 A.2d 1197, 1205 (Pa.Super. 2007).

CONCLUSION

Based on all the above, we believe that under Pennsylvania law, the presumption of paternity applies, and the presumption has not been rebutted. Furthermore, even if the presumption were rebutted, principles of estoppel would bar the Number Holder from denying paternity and support. As a result, the DNA test results obtained by the Number Holder would not be admissible or relevant in a Pennsylvania court, under the facts as presented. See 23 Pa. Cons. Stat. § 5104(c); McCue, 413 Pa.Super. at 76-77, 604 A.2d at 740-741. Therefore, notwithstanding that the Number Holder is not Austin's biological father, we believe that Austin remains entitled to receive child's benefits on the Number Holder's account.

Michael M~
Regional Chief Counsel
By: ___________________________
Stephen M. B~
Assistant Regional Counsel

C. PR 06-350 Claims for Insurance Benefits of Child Conceived by Artificial Insemination on the Account of Semen Donor in the State of California (1) or of Resumed Father in the State of Pennsylvania (2) Claimant: Laurie A. A~ o/b/o Jonathan V~ Wage Earners: Bruce B~ (1); and Robert V~ (2)

DATE: September 30, 2006

1. SYLLABUS

In California in a case where a claim has been filed for an artificially conceived child on the record of the sperm donor, courts would not find the donor to qualify as the child's father for inheritance purposes since he had never acknowledged or held the child out as his own. Additionally, the mother's husband at the time of the child's birth had taking the child in to his home as his own and raised him for seven years. There is no likelihood that a California court would entertain a challenge to the presumed father's paternity of a child born, like the claimant, over 10 years ago. Finally, it is unlikely that the claimant could show that his best interest requires disregarding a longstanding father-child relationship.

In the same case, the claimant also filed for benefits on the record of his presumed father, the man married to his mother at the time of conception. In Pennsylvania, the State where the presumed father now resides, the claimant is presumed to be the child of his mother's former husband as the child of a marriage.

Even if the presumption could be successfully overcome, the former husband would be estopped from denying paternity because he consented to the artificial insemination, supported the child as his own for more than seven years, agreed to do so in a marital settlement agreement, and did not appeal the court's support order. Pennsylvania courts would find the claimant to be the child of his mother's former husband.

2. OPINION

You asked whether a child conceived by artificial insemination qualifies for child's insurance benefits as the child of the semen donor or the mother's husband at the time of conception and birth.

PROCEDURAL HISTORY

On January 19, 2006, Laurie A. A~, a.k.a. Laurie P~ (the claimant's mother) filed an application for child's insurance benefits (life claim) on behalf of Jonathan H. V~ (the claimant) on the account of Bruce B~ (the alleged biological father), her husband from a prior marriage. See January 19, 2006 application. You indicated that the biological father was domiciled in the State of California at the time the application was filed. The application was granted with payments retroactive to September 2005. See Notice of Award.

The claimant's mother, however, was married to another man, Robert V~, at the time of the claimant's conception and birth. See Worksheet Remarks. She had not provided medical evidence that the presumed father was sterile. See id. Thus, on November 22, 2005, the claim on the biological father's account was disallowed on reconsideration. See id.

On June 26, 2006, Laurie filed a new application (life claim) on Jonathan's behalf on the account of the presumed father, Robert V~. See Development Worksheet dated June 26, 2006. You indicated that the presumed father was domiciled in the State of Pennsylvania at the time the application was filed.

We consolidated the review of the claimant's successive applications in this opinion. The following is a summary of the evidence presented in support of these applications.

SUMMARY OF EVIDENCE

Laurie P~ married Robert V~ in Placerville, California. See marriage certificate. They divorced on July 1, 2003 in the State of Nevada. See Decree of Divorce (filed July 1, 2003). Starting in 1991, Laurie underwent a course of artificial insemination in a California clinic "due to her husband's history of vasectomy." Report by L.V. B~, M.D., dated February 25, 1994; see also April 27, 2006 letter from Emerald Bay Center for Women's Health.

The record suggests that Robert was aware of, and consented to the artificial insemination of his wife. There is no written record of his consent because the clinic's policy did not require a husband's consent. See Report of Contact with Practice Manager at Emerald Bay Center for Women's Health on July 6, 2006. There is nonetheless a later record indicating that Laurie was accompanied by Robert for a pregnancy care visit. See July 21, 1995 treatment notes.

In addition, Laurie stated that Robert and the biological father agreed to her artificial insemination with the latter's semen. See Report of Contact of Claimant's mother on October 7, 2005. According to Laurie, the artificial insemination was performed not at the clinic, but at the family's home. See Report of Contact of Claimant's mother on October 7, 2005. Robert and Laurie lived together at the time. See their declarations of March 14 and 28, 2006. On October 19, 1995, Laurie gave birth to Jonathan in California. See Claimant's birth certificate. The birth certificate lists Laurie as the mother and informant, and Robert as the father. See id. According to Laurie, Robert raised Jonathan as his child during the marriage. See Report of Contact of Claimant's mother on October 7, 2005.

On July 1, 2003, a Nevada court entered a final decree of divorce incorporating the parties' marital settlement agreement. See Property Settlement and Child Custody Agreement (Agreement) and Decree of Divorce (filed July 1, 2003). In the Agreement, they acknowledge the existence of "one minor child the issue of this marriage, to-wit: Jonathan H. V~, born 10/19/95 . . . ." Agreement. The court ordered Robert to pay child support for Jonathan and granted legal custody of Jonathan to both parents. See id. According to Laurie, however, Robert "now since they are no longer married refuses to pay child support." See Report of Contact of Claimant's mother on October 7, 2005.

On or about January 11, 2006, Laurie, Jonathan, Robert, and Bruce were genetically tested. See DNA Parentage Test Report dated January 11, 2006. The results established a 99.99+ percent probability that Bruce is Jonathan's biological father. See id. On January 19, 2006, Bruce acknowledged that he is the biological father based on that evidence. See Child Relationship Statement - Bruce B~. He explained, however, that he did not otherwise acknowledge, provide for, or hold out the child as his own. See id.

In a February 2, 2006 declaration, Robert indicated that he was sterilized in approximately 1972, and that Bruce is Jonathan's biological father. See Robert V~'s declaration (February 2, 2006). In a March 28, 2006 declaration, Robert stated that he was unable to provide medical records of his vasectomy. See V~ declaration (March 28, 2006).

ANALYSIS

A. Federal Law

We determine a claimant's eligibility for child insurance benefits under section 202(d)(1) of the Social Security Act by determining whether he is the "child" of an insured individual as defined in section 216(e) and was dependent on the insured under section 202(d)(3). See Social Security Act § 202(d)(1); 20 C.F.R. § 404.350 (2006). In cases where parentage is in dispute or the child is illegitimate, section 216(h) remains the appropriate analytical framework for determining "child" status under section 216(e). See Gillett-Netting v. Barnhart, 371 F.3d 593, 596-97 (9th Cir. 2004) (holding that parentage need not be established under § 216(h) unless parentage is in dispute or the child is illegitimate); see also Acquiescence Ruling (AR) 05 1(9), 70 Fed. Reg. 55,656 (September 22, 2005).

Section 216(h)(2)(A) directs us to "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 . . . at the time the application was filed . . . ." Social Security Act § 216(h)(2)(A). We would apply California law to the claimant's January 19, 2006 application on the account of his alleged biological father who was domiciled in California at that time. If we find that that application was properly denied, we would apply Pennsylvania law to the claimant's June 26, 2006 application on the account of his presumed father who was domiciled in Pennsylvania.

B. California Intestacy Laws and Claimant's Application on the Account of his Alleged Biological Father, Bruce B~

Under California intestacy law, a child may inherit the intestate estate of his natural parent. Cal. Prob. Code §§ 6401, 6402, 6450 (2006). A natural parent and child relationship for purposes of intestate succession may be established based on a "presumed father" status under the Uniform Parentage Act (Cal. Fam. Code § 7600, et seq.). Cal. Prob. Code § 6453. A man who was neither legally married nor attempted to legally marry the mother of his child cannot, however, be a "presumed father" unless he receives the child into his home and openly holds out the child as his natural child. Cal. Fam. Code § 7611(d). Further, a "donor" who provided semen for use in the artificial insemination of a woman other than his wife through a physician has no valid paternity claim. See Cal. Fam. Code § 7613(b).

Here, even if Bruce's semen was used, he was only a "donor," and never attained "presumed father" status. See id. Notwithstanding the fact that Bruce may have been Laurie's husband by a prior marriage, he was not married or attempted to marry her at any relevant time, and had no relationship with the claimant. See Cal. Fam. Code § 7611. There is no indication that he attempted to create a relationship with the claimant either before or after Laurie's divorce from Robert. See id.

As further consideration, California law would not recognize Bruce's biological paternity since he had not taken the child into his home nor developed a parent-child relationship; on the other hand, the claimant's longstanding father-child relationship with Robert, his presumed father militates against the existence of presumed or natural father status with Bruce. For more than seven years after the child's birth, Robert assumed the obligations and functions characteristic of a father-child relationship. See, e.g., Agreement; and Cal. Fam. Code § 7611(d) (presumed father status based on actual parenting). The existence of a longstanding relationship provides the strongest policy consideration for preserving Robert's status in this case. See Guardianship of Claralyn S., 148 Cal. App. 3d 81, 86 (1983) ("in the case of an older child the familial relationship between the child and the man purporting to be the child's father is considerably more palpable than the biological relationship of actual paternity") (internal quotes and citation omitted). In addition, the claimant was born during Robert and Laurie's marriage. See Cal. Fam. Code § 7611(a) (husband presumed father of child born in wedlock).

That the presumed father Robert belatedly disclaimed paternity is of no consequence to his status. As the California Supreme Court reasoned in a leading case:

[o)ne who consents to the production of a child cannot create a temporary relation to be assumed and disclaimed at will, but the arrangement must be of such character as to impose an obligation of supporting those for whose existence he is directly responsible.

People v. Sorenson, 68 Cal. 2d 280, 285 (1968). In Sorenson, the California Supreme Court held the father criminally liable for unpaid child support for a child who was not genetically related to him, when he consented to the procreation of the child through artificial insemination of his wife by an anonymous sperm donor. Based in part on the decision in Sorenson and other case law cited therein, we advised that a husband who had consented to artificial insemination of his wife was the legal father of the child, even though the father and mother separated before the child was born, and the biological father never had any contact with the child. See POMS PR 01105.006.A, Claim for Child Insurance Benefits on account of wage earner, Joseph B~ (September 24, 2003).

Here, the presumed father Robert took Jonathan into his home and raised him as his own for seven years. Thus, even if Robert later chose to have his DNA tested to disclaim paternity, such evidence would not be admissible because he consented to the claimant's conception by artificial insemination and assumed the obligations of a father for seven years. See Cal. Fam. Code § 7541(e).

Finally, the Nevada stipulated court order would be given full faith and credit by courts and have the same effect as a paternity determination made in California. See Cal. Fam. Code § 5604. The order would be binding on the parties and their privies. See Guardianship of Claralyn S., 148 Cal. App. 3d 81, 85 (1983). In addition, Cal. Fam. Code § 7630(a)(2) would require that an action to declare the nonexistence of a presumed parent and child relationship be "brought within a reasonable time." Cal. Fam. Code § 7630(a)(2). The statute reflects the strong California public policies of maintaining established parent-child relationships and ensuring the finality of paternity judgments, which go beyond the doctrines of res judicata and collateral estoppel. See Guardianship of Claralyn S., 148 Cal. App. 3d at 85 (applying policy to preclude a challenge brought by grandparents who were not parties to the action in which the parentage finding was made). There is no likelihood that a court would entertain a challenge to the presumed father's paternity of a child born, like the claimant, over 10 years ago. Finally, it is unlikely that the claimant could show that his best interest requires disregarding a longstanding father-child relationship.

As the foregoing analysis indicates, the court's determination appears to be fair and correct under California law, and is not the result of a judgment by defA~. There is no reason why it should be disturbed by the Agency. See Gray v. Richardson, 474 F.2d 1370, 1372 (6th Cir. 1973) (Agency is not free to ignore the adjudication of a state trial court in a contested proceedings where it is fair and consistent with the law as enunciated by the highest court of the State); see also SSR 83-37c, http://www.socialsecurity.gov/OP_Home/rulings/oasi/09/SSR83-37-oasi-09.html (adopting that circuit court decision), and Memorandum from Regional Chief Counsel, San Francisco, to Ass't Reg. Comm.-MOS, Richmond, Claim for Child's Insurance Benefits on Account of Wage Earner Michael Phillip Ferrel, Jr. (August 22, 2005) (reprinted in POMS PR 01215.006).

In light of the foregoing, we believe that the claimant's application for child's insurance benefits on the account of Bruce B~ was properly disallowed on reconsideration. We thus turn to the claimant's application on the account of his presumed father in light of Pennsylvania intestacy laws.

C. Pennsylvania Intestacy Laws and Claimant's Application on the Account of his Presumed Father, Robert V~

Pennsylvania law vests intestate inheritance rights in "the issue of the decedent." 20 Pa. C.S. § 2103 (2006). As to the determination of Jonathan's paternity, Pennsylvania law relies on the same policy considerations as California. As indicated below, these considerations lead us to conclude that Robert is the claimant's father.

Specifically, Robert is presumed to be the legitimate father of the claimant as a child of the marriage. Miscovich v. Miscovich, 688 A.2d 726, 728-29 (Pa. Super. Ct. 1997). "Although the presumption is rebuttable, one who attempts to overcome it bears a heavy burden." Id.

Even if the presumption could be successfully overcome, Robert would be estopped from denying paternity because he consented to the artificial insemination, supported Jonathan as his own for more than seven years, agreed to do so in a marital settlement agreement, and did not appeal the court's support order. See, e.g., McConnell v. Berkheimer, 781 A.2d 206, 211 (Pa. Super. Ct. 2001) (applying estoppel doctrine where, in particular, father lived with the mother and the child for four months after the child's birth, accepted the child as his own for over a year; and failed to timely appeal support and contempt order); Miscovich, 688 A.2d at 726 (denying husband's request for blood tests to disprove paternity where husband had an established relationship with child that did not deteriorate until after relationship with wife deteriorated, a familial relationship existed at the time the child was born, and no evidence of nonaccess, sterility, or impotency was offered); Commonwealth ex rel. Gonzalez v. Andreas, 369 A.2d 416, 418 (Pa. Super. Ct. 1976) (same where, for approximately three years, parties lived together following the child's birth and father supported the child as his own and never expressed any doubts about the child's parentage).

That the alleged biological father belatedly acknowledged paternity is of no consequence. As previously indicated and as opposed to Robert's conduct, Bruce has not played any significant role in the child life. As a result, he would be estopped from asserting paternity. See Buccieri v. Campagna, 889 A.2d 1220, 1228 (Pa. Super. Ct. 2005) (finding that delay and inactivity for eight years barred alleged biological father from asserting paternity where mother's husband was involved in child parenting for three years).

Finally, the Nevada court's July 1, 2003 final order would be given full faith and credit by Pennsylvania courts and have the same effect as a paternity determination made in Pennsylvania. See Chrzanowski v. Chrzanowski, 472 A.2d 1128, 1131 (Pa. Super. Ct. 1984). Because Robert was afforded the opportunity to litigate, he would be barred from relitigating the issue of his paternity that was determined by a court of competent jurisdiction. See Ruth F. v. Robert B., 690 A.2d 1171, 1174-75 (Pa. Super. Ct. 1997) ("Principles of res judicata are also applicable to determinations of paternity."). Again, the Agency is not free to disregard the court order, which appears to be fair and correct.

In sum, we believe that the claimant's application for child's insurance benefits on the account of Robert V~ should be granted.

D. PR 05-168 Reopening of a Surviving Child's Benefits Claim Based on DNA Test Results Indicating the Probability of Parental Grandparentage is 0.0% - Christopher M. C~ (SSN: ~), Number Holder (NH)

DATE: June 1, 2005

1. SYLLABUS

In Pennsylvania, given the absence of any evidentiary or legal support for the mother of the deceased number holder's current allegation that her husband was not the number holder's father, DNA testing of the number holder's mother and the man she alleges is the father showing a 0.0% probability that they are the grandparents of the child beneficiary does not constitute the new and material evidence necessary to reopen the child's original entitlement to benefits.

2. OPINION

QUESTION PRESENTED

On May 6, 2005, you asked us whether DNA test results, indicating the probability of parental grandparentage is 0.0%, can be used to reopen and revise the entitlement determination of Christina A~ (Christina), the claimant (SSN: ~).

SUMMARY

Based on our review of the facts of this case and our research of the relevant Federal and Pennsylvania law, we have determined that DNA test results, indicating a probability of parental grandparentage of 0.0%, should not be used to reopen Christina's original entitlement determination that a parent-child relationship was established between Christina and the NH.

BACKGROUND

According to the information you provided, Christina was born on January 6, 1997. Erica A~ (Erica) and the NH are named, respectively, as Christina's mother and father on her birth certificate. Erica and the NH were never married. On January 24, 2000, the Court of Common Pleas of Philadelphia County, Pennsylvania, ordered primary physical and legal custody of Christina to Erica. The order also identified the NH as Christina's father and granted him partial custody of her every other weekend. Valerie A~ (Valerie), Christina's grandparent, said the NH was never ordered by the court to contribute to Christina's support. The NH died on July 18, 2001. The NH was domiciled in Pennsylvania at the time of his death.

On May 21, 2002, Valerie applied for surviving child's benefits on behalf of Christina. On July 5, 2002, Lucie C~ (Lucie), the NH's mother, provided a statement to the Agency acknowledging the NH had three children and mentioning Christina as one of his children. The Agency subsequently adjudicated Christina's claim in July 2002 and awarded surviving child's benefits to Christina, effective November 2001.

In October 2004, Lucie visited a local field office and submitted DNA tests results of herself, Christina and Dwayne C~ (Dwayne), the alleged paternal grandparents of Christina. Lucie reported that she had decided to undergo DNA testing because Erica had "admitted" to her that Christina was not the NH's daughter. The DNA test results excluded Lucie and Dwayne as the biological paternal grandparents of Christina. Based on testing results obtained from the analyses of 15 different DNA probes, the probability of grandparentage was 0.0%. The Agency used the DNA test results to reopen Christina's entitlement determination under the "New and Material Evidence" provisions of POMS GN 04010.030 and stopped paying her benefits.

In February 2005, a request for reconsideration was filed on Christina's behalf. Investigation revealed the NH's numident record listed Lucie as the NH's mother and A. C~ () as the NH's father. The field office then interviewed Lucie to determine if Dwayne, who was listed as the alleged paternal grandfather on the DNA test results, was the biological father of the NH. Lucie advised Dwayne was the NH's biological father. Lucie explained she had separated from, her husband, for a time and during this separation, the NH was born. Lucie said she was with Dwayne for only a short period of time and she did not tell him about the NH. Lucie reported she and eventually reunited and wanted to give the NH his name. Lucie acknowledged the only proof she had that Dwayne was the NH's biological father was that "he looks just like him." Lucie reported that the DNA testing was conducted on her, Dwayne and Christina because the laboratory had told her that the testing needed to include the grandfather. However, you subsequently contacted the laboratory that administered the test and the laboratory advised you that the alleged paternal grandmother only could be tested.

DISCUSSION

A determination, revised determination, decision, or revised decision may be reopened within four years of the notice of the initial determination if there is good cause, as defined in § 404.989, to reopen the case. 20 C.F.R. § 404.988(b) (2004). There is good cause to reopen a determination or decision if:

  1. New and material evidence is furnished;

  2. A clerical error in the computation or recomputation of benefits was made; or

  3. The evidence that was considered in making the determination or decision clearly shows on its face that an error was made.

20 C.F.R. § 404.989(a) (2004). Given the information provided and the Agency's actions to-date in this case, the only provision that appears applicable to this case is the new and material evidence provision. The Agency defines new and material evidence as any evidence which was not part of the claims, disability or earnings discrepancy file when the final determination/decision was made, but relates back to the date of the original determination/decision and shows facts that would result in a conclusion different from that originally reached had the new evidence been introduced or available at the time of the original determination. POMS GN 04010.030A.

Here, the DNA test results were not part of the claims file when the initial determination was made. The Agency has already determined that the DNA results relate back to the date of the initial determination inasmuch as it originally relied on them to reopen Christina's entitlement determination. Thus, the central issue is whether the DNA results show facts that would have resulted in a conclusion different from the original determination that a parent-child relationship was established, had the results been introduced at the time of the original determination. From the information you have provided, we do not believe the DNA results show facts that would have resulted in a conclusion different from the original determination. While the DNA results indicate the probability of Lucie's and Dwayne's paternal grandparentage of Christina is 0.0%, there is a dispute in the record regarding whether Dwayne was the NH's father. Although Lucie alleges Dwayne was the NH's biological father, she admits there is no objective evidence which supports her allegation. Lucie's allegation is disputed by the NH's numident record, which identifies as the NH's father. The NH's numident record is, itself, consistent with Pennsylvania law. Lucie admits she and were married at the time of the NH's birth. Pennsylvania law recognizes a presumption of paternity which provides that a child conceived or born during a marriage will be presumed to be a child of the marriage. B.S. and R.S. v. T.M., 782 A.2d 1031, 1034 (Pa. Super. Ct. 2001). Thus, under Pennsylvania law, is presumptively considered the NH's father for paternity purposes because he was married to the NH at the time of the NH's birth. Accordingly, given the absence of any evidentiary or legal support for Lucie's allegation that Dwayne was the NH's biological father, the DNA test results are not relevant evidence and cannot be construed as new and material evidence.

CONCLUSION

For the above reasons, we conclude that DNA test results, indicating a probability of parental grandparentage of 0.0%, should not be used to reopen Christina's original entitlement determination that a parent-child relationship was established between Christina and the NH.

Donna L. C~
Regional Chief Counsel

By:_________________________
Lori K~
Assistant Regional Counsel

E. PR 05-051 Whether a Parent-Child Relationship Exists Between Number Holder (Russell P. B~) and Savanna D. E~ and, if so, the Effective Date of the Relationship. SSN: ~

DATE: December 14, 2004

1. SYLLABUS

The State of Pennsylvania did not find the Presumption of Legitimacy to apply in this case. At the time of conception, the claimant's mother was having relations with two men and is unsure who fathered the child. It is unclear whether the NH accepted the child as his own child, held himself out to be the father of the child, or the family remained intact beyond the child's birth. It is arguable whether the marriage needs to be protected. However, since the number holder has supported the child as his and he did not attempt to rebut either the decision of Pennsylvania Domestic Relations to order child support or of SSA to garnish his disability benefits, the rules of estoppel would apply.

The date of the parent-child relationship is the date of the garnishment order.

2. OPINION

QUESTION PRESENTED

On November 29, 2004, you asked us to advise you whether a parent-child relationship exists and the effective date of that relationship. Specifically, you asked whether Pennsylvania law accepts statements to rebut the legitimacy of a child and, if not, whether Savanna D. E~ is entitled to child benefits. Additionally, if a parent-child relationship can be established, you asked for the effective date of that relationship and whether retroactive benefits should be paid.

SUMMARY

Based on our review of the facts of this case and our research of the relevant Pennsylvania statutes and case law, we have determined that a court could find that the evidence provided to us constitutes clear and convincing evidence of paternity under Pennsylvania intestacy law.

BACKGROUND

In your request, you indicated that the number holder, Russell P. B~ (B~), became entitled to disability benefits in September 1999. On May 4, 1995, he married Helen B~ (E~). Savanna D. E~ (Savanna), a minor child, was born on March 20, 2003. E~ was still married to B~ at the time of Savanna's birth and they have never divorced. Savanna's birth certificate, however, does not identify a father. The application for a social security number completed on April 14, 2003, listed Savanna's mother as "Helen A. E~" and the state withheld the father's information.

E~ filed for child support with Pennsylvania domestic relations and Savanna and E~ had blood work completed so a paternity test could be conducted. Three hearings were scheduled, but B~ failed to appear for the hearings. B~'s blood tests were also scheduled for the same time as the hearings, but since he failed to appear for the hearings, no blood tests were ever conducted. As a result of B~'s failure to appear at the hearings and undergo blood tests, domestic relations declared him the father of Savanna. On June 3, 2003, the Social Security Administration (SSA) received a garnishment order that indicated Savanna was B~'s child.

In August 2004, E~ filed a claim for child benefits on behalf of Savanna. In her application, E~ stated that she did not know if B~ was Savanna's father, as she was having relationships with two men, B~ and another man, at the time of conception. Since a paternity test was never completed, she does not know who fathered Savanna.

We have reviewed the materials you provided and researched the relevant portions of Pennsylvania's domestic relations and inheritance laws as they relate to establishing paternity. Our research indicates that the evidence constitutes clear and convincing evidence of paternity.

DISCUSSION

The Social Security Act provides that, in determining whether an applicant is the child of an insured individual, the Commissioner will apply the inheritance law of the state in which the insured individual was domiciled at the time the application was filed or, if the insured individual is dead, of the state in which the insured individual was domiciled at the time of his death. 42 U.S.C. § 416(h)(2)(A); 20 C.F.R. § 404.355(b)(1)(3) (2004). Because B~ was domiciled in Pennsylvania at the time the application was filed, Pennsylvania intestacy law applies.

Under Pennsylvania law, when a child is conceived or born during a valid marriage, a court must address the following issues: First, one considers whether the presumption of paternity applies to a particular case. If it does, then one considers whether the presumption has been rebutted. Second, if the presumption has been rebutted or is inapplicable, one then questions whether estoppel applies. Brinkley v. King, 701 A.2d 176, 180 (1997).

The presumption of paternity is "always the starting point in a contest involving the parentage of a child born during coverture." B.S. and R.S. v. T.M., 782 A.2d 1031, 1034 (Pa. Super. Ct. 2001). The presumption of paternity provides that a child conceived or born during a marriage will be presumed to be a child of the marriage. B.S. and R.S., 782 A.2d at 1034. This presumption is "one of the strongest presumptions known to the law." Sekol v. Delsantro, 763 A.2d 405, 408 (Pa. Super. Ct. 2000). However, this presumption is not applicable to every child born in wedlock. Rather, the presumption applies only in cases where its application would advance the purpose of the presumption, the preservation of marriage. Lynn v. Powell, 809 A.2d 927, 930 (Pa. Super. Ct. 2002).

Pennsylvania courts have refused to apply the presumption in cases where the married couple has acknowledged that the child is not the biological child of the marriage. Lynn, 809 A.2d at 930; B.S. and R.S., 782 A.2d at 1036-37. If the married couple has acknowledged that the child is not the husband's, then there is no dispute from which the marriage must be protected. B.S. and R.S., 782 A.2d at 1036. In addition, the Court has held that if a married couple was separated at the child's birth and later reconciled, the presumption would not apply. B.S. and R.S., 782 A.2d at 1036-37.

In determining whether the presumption will be applied, Pennsylvania courts look at the "unique set of facts" in the case before them. B.S. and R.S., 782 A.2d at 1037. In B.S. and R.S., in which the court determined that the presumption of paternity did not apply, the married couple was separated at the time of the child's conception, later reconciled, and both parties acknowledged that the husband was not the biological father of the child.

In this case, E~ claims that either B~ or another man is the father of Savannah, as she had relations with the two men at the time of conception. If E~ was separated from B~ at the time of conception, the presumption of paternity would be inapplicable because the policy that underlies the presumption, i.e., the preservation of marriage, would not apply. King v. Brinkley, 701 A.2d at 181. Unfortunately, with the evidence in our file, it is not possible to definitively determine whether E~ and B~ were separated at the time of conception. However, since E~ claimed that she is not sure whether B~ is the father, it is arguable that the marriage does not need to be protected. This position is further supported by the fact that Pennsylvania domestic relations had scheduled three court hearings and three blood tests to determine whether B~ is Savanna's father. Under the King v. Brinkley analysis, B~ would not be required to undergo these blood tests if the Pennsylvania courts had not already determined that the presumption of paternity did not apply in this case. Accordingly, Pennsylvania courts would most likely determine that the presumption of paternity does not apply because, although there is a dispute as to paternity, there is no indication that the marriage of E~ and B~ must be protected.

The next question, then, is whether estoppel should be applied in this case. Estoppel applies to prevent an individual who has accepted and supported a child as his own from denying paternity. Lynn, 809 A.2d at 930. Estoppel will not apply if the husband has "failed to accept the child as his own by holding it out and/or supporting the child." Sekol, 763 A.2d at 410, n.6. Estoppel is founded on the principle that if a certain person has acted as the parent and bonded with the child, the child should not be required to suffer the potentially damaging trauma that may come from being told that the father he has known all his life is not in fact his father. J.C. v. J.S., 826 A.2d 1, 4 (Pa. Super. Ct. 2003). Estoppel will be applied if "the family remains intact up to and beyond the birth of the child." Amrhein v. Cozad, 714 A.2d 409, 412 (Pa. Super. Ct. 1998).

Again, it is unclear from the file whether B~ accepted Savannah as his own child, held himself out to be the father of Savannah, or the family remained intact beyond her birth.

Estoppel would apply in this case, however, because Pennsylvania domestic relations declared that B~ was the father of Savannah and ordered him to pay support. On June 3, 2003, SSA received a garnishment order for Savannah's support and B~ has been paying child support at least since that date, if not earlier. Furthermore, B~ was given the opportunity to rebut the presumption that he was Savannah's father by both Pennsylvania domestic relations and SSA. He failed, however, to appear for the scheduled blood tests and court hearings and, for this reason, Pennsylvania domestic relations declared him Savannah's father. B~ also failed to respond to SSA's inquiries regarding the paternity of Savannah. For these reasons, estoppel would apply and there is clear and convincing evidence that Savannah is the child of B~ and would inherit under Pennsylvania's intestacy laws.

Finally, the regulations provide that if the insured is living, his child is entitled to benefits beginning with the first month covered by the application throughout which the child met all other requirements for entitlement. 20 C.F.R. § 404.352(a)(2). When an application (based on the number holder's disability) is filed after the first month that a child met the requirements for benefits, the child may receive retroactive benefits for up to twelve months preceding the date of the application, with benefits beginning in the first month of the twelve-month period in which the child met all of the requirements for entitlement. 20 C.F.R. §404.621(a)(1).

In this case, the claimant's application was filed on August 17, 2004. The parent-child relationship was established, to the best of our knowledge, on June 3, 2003, the date of the garnishment order. Accordingly, the claimant is entitled to retroactive benefits for the twelve-month period preceding the date of her application.

CONCLUSION

For the reasons stated above, it is our opinion that, absent new evidence to the contrary, there is clear and convincing evidence to establish that B~ is Savannah's father under Pennsylvania intestacy law. The effective date of the parent- child relationship, to the best of our knowledge, is June 3, 2003, the date of the garnishment order. Since the effective date proceeds the protective filing date of the claimant's application, August 17, 2004, by more than twelve months, 20 C.F.R. § 404.621(a)(1) provides that retroactive payments may be made for the twelve-month period proceeding the protective filing date of the claimant's application.

Donna L. C~
Regional Chief Counsel

By:__________________________
Kathleen H~
Assistant Regional Counsel

F. PR 04-049 Effective Date of Parent-Child Relationship Between Number Holder (Lonnie W~) and Troy A. W~, SSN ~

DATE: December 17, 2003

1. SYLLABUS

Under Pennsylvania law, the presumption of legitimacy would not apply to this case, in which the married couple was separated at the time of the child's conception and both members of the couple acknowledged that the husband was not the child's biological father. There is no dispute as to paternity from which the marriage must be protected. Moreover, estoppel (which would prevent an individual who has accepted and supported a child as his own from denying paternity) would not apply to this case. The family was not intact during the child's conception and birth; and the NH does not appear to have either held himself out to be the child's father or to have financially supported the child.

2. OPINION

QUESTION PRESENTED

On November 17, 2003, you asked us to advise you as to whether a parent-child relationship existed between the Number Holder (Lonnie W~, Jr.) and Troy A. W~. In particular, you asked us whether the presumption of legitimacy of children born in wedlock in Pennsylvania had been rebutted by evidence that Kenneth L~ was the biological father of Troy A. W~.

CONCLUSION

Based on our review of the facts and relevant law, we have determined that a parent-child relationship has not been established between Lonnie W~, Jr., and Troy A. W~.

BACKGROUND

In your request, you indicated that Troy A. W~ was born on June 28, 1991. Lonnie W~, Jr., and Darlene R~, Troy's mother, were married but separated at the time of Troy's birth. However, Troy's birth certificate names Lonnie W~, Jr., as his father.

An application for a social security number (NUMI) completed on July 15, 1991 indicates that Lonnie W~, Jr., is Troy's father. However, a NUMI completed in January 1992 indicates father information withheld by the state. A NUMI completed in January 1999 indicates that Troy's father is Kenneth L~. In September 1993, Kenneth L~ was ordered to pay child support for Troy A. W~.

On October 3, 2003, Lonnie W~, Jr., completed a Statement of Claimant or Other Person indicating that Troy was not his biological child. He stated that Troy lives with him but receives support from his father, Kenneth L~. Darlene R~ also completed a Statement of Claimant or Other Person indicating that Lonnie W~, Jr., was not Troy's biological father and that she received child support payments from Kenneth L~.

Under Pennsylvania law, when a child is conceived or born during a valid marriage, a court must address the following issues:

First, one considers whether the presumption of paternity applies to a particular case. If it does, then one considers whether the presumption has been rebutted. Second, if the presumption has been rebutted or is inapplicable, one then questions whether estoppel applies.

Brinkley v. King, 701 A.2d 176, 180 (1997). The presumption of paternity is "always the starting point in a contest involving the parentage of a child born during coverture." B.S. and R.S. v. T.M., 782 A.2d 1031, 1034 (Pa. Super. Ct. 2001).

The presumption of paternity provides that a child conceived or born during a marriage will be presumed to be a child of the marriage. B.S. and R.S., 782 A.2d at 1034. This presumption is "one of the strongest presumptions known to the law." Sekol v. Delsantro, 763 A.2d 405, 408 (Pa. Super. Ct. 2000). However, this presumption is not applicable to every child born in wedlock. Rather, the presumption applies only in cases where its application would advance the purpose of the presumption, the preservation of marriage. Lynn v. Powell, 809 A.2d 927, 930 (Pa. Super. Ct. 2002).

Pennsylvania courts have refused to apply the presumption in cases where the married couple has acknowledged that the child is not the biological child of the marriage. Lynn, 809 A.2d at 930; B.S. and R.S., 782 A.2d at 1036-37. If the married couple has acknowledged that the child is not the husband's, then there is no dispute from which the marriage must be protected. B.S. and R.S., 782 A.2d at 1036. In addition, the Court has held that if a married couple was separated at the child's birth and later reconciled, the presumption would not apply. B.S. and R.S., 782 A.2d at 1036-37.

In determining whether the presumption will be applied, Pennsylvania courts look at the "unique set of facts" in the case before them. B.S. and R.S., 782 A.2d at 1037. The facts in the case of Lonnie W~, Jr. and Troy A. W~ are similar to the facts in the case of B.S. and R.S. In both cases, the married couple was separated at the time of the child's conception and birth and later reconciled. In addition, in both cases, the husband and wife reconciled despite having acknowledged that the husband was not the biological father of the child. Accordingly, Pennsylvania courts would most likely determine that the presumption of paternity does not apply in the case of Lonnie W~, Jr. and Troy A. W~ because there is no dispute as to paternity from which the marriage of Lonnie W~, Jr. and Darlene R~ must be protected.

The next question, then, is whether estoppel should be applied in this case. Estoppel applies to prevent an individual who has accepted and supported a child as his own from denying paternity. Lynn, 809 A.2d at 930. Estoppel will not apply if the husband has "failed to accept the child as his own by holding it out and/or supporting the child." Sekol, 763 A.2d at 410, n.6. Estoppel is founded on the principle that if a certain person has acted as the parent and bonded with the child, the child should not be required to suffer the potentially damaging trauma that may come from being told that the father he has known all his life is not in fact his father. J.C. v. J.S., 826 A.2d 1, 4 (Pa. Super. Ct. 2003).

Estoppel does not apply in this case for two reasons. First, estoppel will be applied if "the family remains intact up to and beyond the birth of the child." Amrhein v. Cozad, 714 A.2d 409, 412 (Pa. Super. Ct. 1998). In this case, the family was not "intact" during Troy A. W~'s conception and birth because Lonnie W~, Jr., and Darlene R~ were separated. Accordingly, Pennsylvania courts would not apply estoppel to find that Lonnie W~, Jr. was the father of Troy A. W~.

Second, Lonnie W~, Jr., does not appear to have either held himself out to be the father of Troy A. W~ or to have financially supported Troy A. W~. Lonnie W~, Jr., is indicated as Troy A. W~'s father on his birth certificate and provides Troy A. W~ with day-to-day care, but he has also acknowledged that he is not Troy A. W~'s biological father. Further, Darlene R~, Troy A. W~'s mother, has sought and obtained a court order requiring Kenneth L~, as the biological father, to provide for Troy A. W~'s financial support. Finally, as indicated in your memorandum, Lonnie W~, Jr., was not providing one-half support for Troy A. W~. We have not found a case in Pennsylvania addressing this exact fact pattern. However, it is likely that a reviewing court in Pennsylvania would find that paternity has not been established by estoppel absent additional evidence demonstrating that Lonnie W~, Jr., has held himself out to be the father of Troy A. W~ or provided significant financial support to Troy A. W~.

CONCLUSION

For the above reasons, we conclude that a parent-child relationship has not been established between Lonnie W~, Jr., and Troy A. W~.

James A. W~
Regional Chief Counsel

By:__________________________
Kelly C. C~
Assistant Regional Counsel

G. PR 00-602 Parent-Child Relationship Between Number Holder Donal J. M~ and Justin S. H~; SSN: ~

DATE: September 12, 2000

1. SYLLABUS

There is clear and convincing evidence in this case that rebuts the presumption of legitimacy in Pennsylvania. The child's mother signed a marital statement where she acknowledged that no minor children were born as issue of her marriage to the NH. This permits a deduction that the NH did not have access to her during the relevant conception period and is consistent with other information in the file. Blood test results revealing a 98.4% probability of paternity do not alter this conclusion. A 98.4% probability of paternity has no presumptive weight consistent with statutory law. Moreover, the doctrine of estoppel is inapplicable to this case, since the NH failed to accept the child as his own by holding him out and/or supporting the child.

2. OPINION

This is in response to your July 18, 2000, request for our opinion on whether Justin S. H~ (Justin) (SSN: ~) is entitled to child's insurance benefits (CIB) on the social security number account of Donal J. M~ (Donal). You asked whether the Commonwealth of Pennsylvania would find there has been a rebuttal of the presumption that a child born in wedlock is the natural legitimate child of the mother's husband. Based upon our review of Pennsylvania law, and given the information which you provided to us and the findings which you have already made, we believe a Pennsylvania court would find that the presumption of legitimacy was rebutted in this instance.

BACKGROUND

According to the information which you provided, we understand the facts to be as follows: Donal and Kyle B. H~ (Kyle) were married on September 4, 1982. On November 28, 1983, Kyle gave birth to Justin. On Justin's birth certificate, Kyle listed Donal as Justin's father. Justin's name at the time was Justin S. M~. On January 19, 1987, Donal and Kyle entered into a marital settlement agreement in the State of Florida, where they agreed "there have been no minor children born as issue of the marriage." On March 4, 1987, a county court judge for the State of Colorado, granted Kyle's petition to change Justin's name from Justin S. M~ to Justin S. H~. Since then, Kyle has made several unsuccessful attempts to obtain child support for Justin from Donal. In one attempt, she filed a complaint for child support in the Court of Common Pleas of York County, Pennsylvania (Court of Common Pleas). The Court of Common Pleas issued an order, dated January 26, 1998, dismissing Kyle's complaint due to the January 19, 1987, marital settlement agreement, and the results of blood tests which gave a 98.4% probability of paternity. It appears that Kyle did not appeal this order. On July 12, 1999, Donal died in Pennsylvania, where he was presumptively domiciled. On August 9, 1999, Kyle filed a CIB application on Justin's behalf.

Other evidence which you submitted reveals Justin had not lived with Donal during the 13 months prior to the filing of the CIB application. In fact, Kristine M~ (Kristine), Donal's mother, informed the Agency that Justin and Donal had never lived in the same household. Kristine also informed the Agency that Justin was not Donal's son and Donal had never recognized or acknowledged Justin as his son. Moreover, an RSI Team noted in a FAX cover sheet that Kyle had raised doubts as to Justin's legitimacy by her statements that Donal's brother, David W. M~ (David), could be Justin's father. Finally, in a pleading which Donal filed in the Court of Common Pleas, Donal averred he was enlisted in the U.S. Navy and was out to sea on the U.S.S. Benjamin S~ around the time of Justin's conception.

DISCUSSION

1. Applicable Law

Congress provided in section 202(d)(1)(C) of the Social Security Act (Act) that an unmarried minor child, of an individual who died insured under the Act, may receive CIB if he was "dependent upon such individual" prior to his death. A child who is legitimate or legally adopted by the insured individual is deemed dependent and, thus, is entitled to benefits. Section 202(d)(3) of the Act. Ordinarily, under Pennsylvania law, a natural child who is born of a valid marriage is presumed to be a legitimate child of that marriage. Miscovich v. Miscovich, 688 A.2d 726, 728-29 (Pa. Super. Ct. 1997), aff'd, Miscovich v. Miscovich, 720 A.2d 764 (Pa. 1998). While this presumption is rebuttable, the evidence offered to rebut the presumption must be clear and convincing. Miscovich, 688 A.2d at 729. Generally, this presumption can be overcome only by clear and convincing evidence that a husband was incapable of procreation or he had no access to his wife during the relevant period. Woy v. Woy, 663 A.2d 759, 761 (Pa. Super. Ct. 1995). Clear and convincing evidence is testimony that is clear, direct, weighty, and convincing as to enable the jury to come to a clear conviction, without hesitancy, of the truth of the precise facts in issue. In re Trust Estate L~, 192 A.2d 409, 413 (Pa. Super. Ct. 1963). The "testimony" of a child's mother, if credible, may alone be sufficient to rebut this presumption. Woy, 663 A.2d at 761. Furthermore, an order of child support from which no appeal is taken can also be determinative of the issue of paternity. Everett v. Anglemeyer, 625 A.2d 1252, 1254 (Pa. Super. Ct. 1993).

2. Analysis

We believe there is clear and convincing evidence in this case which rebuts the presumption of legitimacy. Kyle's mother signed a marital settlement agreement where she acknowledged that no minor children were born as issue of her marriage to Donal. This permits a deduction that Donal did not have access to Kyle during the relevant conception period. Kyle's acknowledgment in the agreement appears credible based on the information which you provided us. First, it is consistent with the claims which Donal made, through pleadings which he filed in the Court of Common Pleas, where he suggested he may not have had access to Kyle during the conception period because he was out to sea. Second, it is consistent with the RSI Team's notation that they had evidence that Kyle had raised a doubt as to Justin's legitimacy because of a relationship she had had with Donal's brother. While you did not provide the evidence upon which the RSI Team based this evidentiary finding, the RSI Team's finding on this point is consistent with Kyle's acknowledgment in the marital settlement agreement and the claims which Donal made before the Court of Common Pleas. Finally, the information which you sent us suggests Kyle never appealed the Court of Common Pleas order dismissing her complaint for child support. In fact, we find it material that the Court of Common Pleas, a Pennsylvania court, gave probative weight to the marital agreement when it dismissed Kyle's complaint for child support. Given the law in Pennsylvania, the action of this Pennsylvania court indicates that it found the agreement to be probative evidence which rebutted the presumption that Justin was Donal's legitimate son. Thus, when considered in total, we believe there is clear and convincing evidence which rebuts the presumption that Justin was Donal's child even though he was born during Donal's marriage to Kyle.

In making our recommendation, we considered blood test results revealed a 98.4% probability of paternity. However, this evidence does not alter our conclusion. Under Pennsylvania law, blood tests normally do not become relevant to determining parentage until the common law presumption of legitimacy is rebutted by clear and convincing evidence. Woy, 663 A.2d at 761.

Moreover, generally, under Pennsylvania law, "any finding of less than 99% probability is entitled to no presumptive weight, indicating the lack of absolute certainty in this process" [of testing]." Reed v. Boozer, 693 A.2d 233, 239 (Pa. Super. Ct. 1997). See also 23 Pa. Cons. Stat. Ann. § 4343(c)(2) (West 2000) (providing genetic test results indicating a 99% or greater probability that the alleged father is the father of the child creates a presumption of paternity which may be rebutted only by clear and convincing evidence that the results of the genetic tests are not reliable in that particular case). The court's decision in Woy certainly suggests that a 98.4% probability of paternity has no presumptive weight consistent with statutory law. Thus, the blood test results do not alter our recommendation that the presumption of legitimacy was rebutted here.

Moreover, while Pennsylvania courts recognize that the doctrine of estoppel should be considered when determining whether there has been a rebuttal of the presumption of legitimacy, we believe this doctrine is inapplicable to Justin's case given the information which you provided us. The doctrine of estoppel states that a parent is estopped from challenging a child's paternity when he has, by his conduct, accepted a given person as his child. Jones v. Trojak, 634 A.2d 201, 206 (Pa. 1994). However, the doctrine does not apply when evidence establishes that the father failed to accept the child as his own by holding him out and/or supporting the child. Id. In this instance, Kristine, Donal's mother, advised the Agency that Donal had never recognized or acknowledged Justin as his son. Donal had never lived in the same household with Justin and, indeed, had never seen Justin. You provided us with no information which suggests Kyle disputed Kristine's statements. In fact, in Justin's CIB application, Kyle partially confirms Kristine's statements by acknowledging Justin and Donal had not lived together in the thirteen months prior to her filing of the application. Given this evidence, therefore, we do not believe the doctrine of estoppel is applicable here.

CONCLUSION

Thus, based upon our review of Pennsylvania law and the facts which you provided us, we recommend that the courts of Pennsylvania would find the presumption of legitimacy was rebutted here.


Footnotes:

[1]

Claimant’s birth certificate was not available for review.

[2]

In addition to being the “child” of the disabled wage earner, an applicant for child’s insurance benefits must be dependent on the wage earner, apply for benefits, be unmarried, and meet certain age and school requirements. 42 U.S.C. § 402(d)(1)(A)-(C); see also 20 C.F.R. § 404.350 (2014) (interpreting the Act and further defining the requirements for child’s insurance benefits).

[3]

Clear and convincing evidence means “‘testimony that is so clear, direct, weighty, and convincing as to enable the trier of fact to come to a clear conviction, without hesitancy, of the truth of the precise facts in issue.’” Paulshock v. Bonomo, 661 A.2d 1386, 1388 (Pa. Super. 1995) (citation omitted).


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PR 01010.042 - Pennsylvania - 04/20/2015
Batch run: 04/20/2015
Rev:04/20/2015