On November 6, 2007, you asked us to advise you whether a deoxyribonucleic acid (DNA)
test excluding H~ (H~) as the father of E~ (E~) and C~ (C~) was sufficient evidence
to rebut the presumption of legitimacy under Virginia law for a child born in wedlock.
In addition, you asked whether a parent-child relationship continued to exist between
E~ and E~ and/or C~and whether benefits should continue to be paid on the basis of
such relationship. If not, you asked when we would cease benefits for E~ and C~on
the earnings record of E~.
Based on our review of the facts and relevant Virginia law, we believe that the December
18, 2006 DNA test disproving paternity likely would be sufficient evidence to rebut
the presumption of legitimacy of E~ and C~. As a result of this DNA test, the parent-child
relationship of E~ to E~, and E~ to C~, both terminated on December 18, 2006. Although
E~'s parent-child relationship technically ended on December 18, 2006, E~'s benefits
do not cease, because his July 1, 1997 entitlement decision cannot be reopened pursuant
to our regulations. On the other hand, C~'s benefits should cease on December 18,
2006, the date of the DNA test disproving paternity, because his December 2004 entitlement
decision can be reopened.
E~ became entitled to disability benefits in January 1994. He married K. R. (R~) in
November 1996, and E~ L. E~ was born May. The validity of the marriage is not in question.
R~ filed an application for child's benefits on E~'s behalf in May 1997, and, on July
1, 1997, he was found entitled to benefits beginning in June 1997.
R~ had a second child, C~, on February, while she continued to be married to E~. R~
filed an application for child's benefits on C~'s behalf in December 2005, and, on
December 21, 2005, he was found entitled to benefits beginning December 2004.
DNA tests performed on December 18, 2006 excluded E~ as the father of either E~ or
C~. The Commonwealth of Virginia, Circuit Court for Dickenson County, granted a divorce
between E~ and R~ on September 28, 2007. On October 3, 2007, the Court awarded sole
custody to R~.
E~ stated on October 1, 2007 that he still considered E~ and C~to be his children,
that he had made investments on their behalf, and that he wanted them to receive his
property if anything should happen to him. However, when a claims representative informed
E~ that R~ would be receiving benefits as representative payee for the children, E~
asked that the benefits to E~ and C~be terminated.
R~ applied to become representative payee for E~ and C~on October 9, 2007. R~ indicated
that although she had not been sure either child was E~'s, she did not definitely
know that he was not the father until she received the DNA test results. R~ became
the representative payee for E~ and C~. Once R~'s representative payee status became
final, E~ again requested that benefits to E~ and C~based on his earnings record be
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.
42 U.S.C. ' 416(h)(2)(A); 20 C.F.R. 404.355(b)(1) (2007). E~ was a resident of Virginia
at the time both applications for childs' benefits were filed. Accordingly, Virginia
law of intestacy applies in this case.
Virginia law construes inheritance rights in terms of a child's legitimate status.
Va. Code Ann. § 64.1-5.1. Virginia law requires that the father and child relationship
be established by "clear and convincing evidence, including scientifically reliable
genetic testing . . ." Va. Code Ann. § 64.1-5.1(3)(b). However, under Virginia law,
a presumption of law exists in favor of the legitimacy of a child born in wedlock.
Va. Code Ann. § 64.1-5.1(3)(a); Wyatt v. Dep't of Social Services, 397 S.E.2d 412, 415 (Va. App. 1990). The presumption of legitimacy is not rebutted
by proof of circumstances which can only create doubt and suspicion. Cassady v. Martin, 266 S.E.2d 104, 106 (Va. 1980). Rather, to rebut the presumption of legitimacy,
the evidence must be clear and convincing, or "strong, distinct, satisfactory and
conclusive." Wyatt, 397 S.E.2d at 415. Courts have considered DNA evidence to rebut the presumption
of legitimacy, when weighted with all of the evidence. Id. at 415; NPA v. WBA, 8 Va. App. 246 (1989) (holding that evidence consisting of blood test results which
conclusively disproved paternity, in conjunction with the wife's admission of intercourse
with another during a period of separation, was sufficient to overcome the presumption
of legitimacy). Virginia courts have not addressed whether DNA test results alone
are sufficient to rebut the presumption of legitimacy.
A presumption of legitimacy exists in this case because both E~ and C~ were born during
a valid marriage between E~ and R~. However, DNA testing revealed a 0.00% probability
that E~ was the father of E~ or C~. In addition, R~'s statement that she had never
been sure whether E~ was the father of E~ or C~ suggests that she may have had sexual
relations with another man at the time of E~ and C~'s conceptions. The DNA test results
weighed with R~'s statements that she now believes E~ was not the father and that
she was never sure that he was their father may be clear and convincing evidence to
rebut the presumption of legitimacy. See Va. Code Ann. ' 64.1 5.2(7) (providing that clear and convincing evidence of paternity
may include "[t]he results of scientifically reliable genetic tests, including DNA
tests, weighted with all the evidence"); see also Va. Code Ann. ' 20 49.1(B)(1) (providing that blood tests results that affirm at
least a 98% probability of paternity have the same legal effect as a judgment to determine
Once the presumption of legitimacy has been rebutted, the next question is whether
the initial decisions awarding child's benefits to E~ and C~ may be reopened. The
Social Security Administration may reopen initial determinations in the following
Within 12 months of the date of the notice of initial determination for any reason;
Within four years of the date of the notice of initial determination, if we find good
cause to reopen the case; or
At any time for specific reasons set forth in 20 C.F.R. ' 404.988(c) and explained
in POMS GN 04020.001ff. 1
20 C.F.R. ' 404.988 (2007); POMS GN 040001.010.
Consequently, E~'s entitlement determination may not be reopened because the July
1, 1997 decision entitling E~ to child's benefits was made well beyond both the one-year
and four-year benchmarks provided by the regulations. Additionally, the DNA testing
does not fall within any of the eleven specific reasons that reopening can occur "at
any time" as set forth in 20 C.F.R. §404.988(c)(1)-(11) (2007). Absent evidence of
"fraud or similar fault," or other conditions permitting reopening of a determination
after four years, we have no legal process by which to reopen the favorable determination
to terminate E~'s benefits. The information provided does not demonstrate that any
of the conditions for reopening are met in this case.
Because the decision entitling C~to child's benefits was made on December 21, 2005,
more than one year ago but less than four years ago, the Agency may reopen its decision
for good cause. The Agency will find that there is good cause to reopen a determination
or decision if:
New and material evidence is furnished;
A clerical error in the computation or recomputation of benefits was made; or
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 (2007); POMS GN 04010.001. In this case, the Agency may find good cause to reopen the award of benefits to
C~ because new and material evidence has been submitted that shows that E~, the Number
Holder, is not the father of C~.
New and material evidence is evidence which:
Was not part of the claims . . . file when the final determination or decision was
Relates back to the original determination or 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 04010.030. Here, the evidence submitted includes DNA test results proving that E~ is not C~'s
father. This evidence is new, in that it was not part of the claims file when the
final determination or decision was made. It is material because it relates back to
the question of paternity as of C~'s birth in February 2004. See POMS GN 04010.030C (providing as an example a situation where a revised court order, received after
the initial determination, showed that a child was not the child of the number holder).
The only remaining question in determining whether the new evidence is material is
whether the evidence shows facts that would have resulted in a conclusion different
from the original decision, had the evidence been introduced or available at the time
of the original determination. POMS GN 04010.030. The evidence submitted by R~ and E~ is material because a different determination
would have been reached with respect to the paternity of C~if the DNA test results
had been available in December 2005. As previously stated, under Virginia law, DNA
test results showing a 0.00% probability of paternity weigheted with all the other
evidence would be clear and convincing to rebut the presumption of legitimacy. Wyatt, 397 S.E.2d at 415; NPA, 8 Va. App. at 246. Therefore, the new evidence is material and justifies a reopening
based on good cause.
Upon reopening, the Agency must determine the date of the termination of the parent-child
relationship between E~ and C~. POMS GN 00306.055 directs that where a state law confers inheritance rights based on an adjudication
of paternity (but does not legitimate the child), and the provision is effective prospectively
only, the claimant’s status as the number holder’s child is established effective
with the following dates:
if one piece of evidence satisfies the applicable standard of proof (e.g., blood test
results constitute clear and convincing evidence), the date of that piece of evidence;
if more than one piece of evidence is needed to satisfy the applicable standard of
proof, the date of the latest necessary piece of evidence.
Under Virginia law, a child may be granted inheritance rights based on the establishment
of a parent-child relationship by "clear and convincing evidence," but this determination
does not legitimate the child. Va. Code Ann. § 64.1-5.1. Because Virginia law confers
inheritance rights based on an adjudication of paternity, but does not legitimate
the child, and the DNA test results weighted with the other evidence of record constitute
clear and convincing evidence disproving paternity, the parent-child relationship
between E~ and C~ should have been terminated as of December 18, 2006, the date of
the DNA test.
Based on the above, we have concluded that DNA test results, weighted with the other
evidence, rebut the presumption that E~ and C~ are the children of the Number Holder,
E~. Accordingly, neither E~ nor C~ is entitled to child's benefits under E~'s account.
C~'s award of benefits should be reopened to terminate the parent-child relationship
as of December 18, 2006, the date of the DNA test disproving paternity. However, unless
the Agency obtains evidence of "fraud or similar fault" or another condition permitting
reopening after more than four years have elapsed, E~'s benefits should be continued.
Michael Mc Gaughran
Regional Chief Counsel
Kelly C. Connelly
Assistant Regional Counsel
1 A determination may be reopened at any time if: (1) it was obtained by fraud or similar
fault; (2) another person files a claim on the same earnings record and allowance
adversely affects the claim; (3) the Number Holder previously determined to be dead
is later found to be alive; (4) you did not prove that a person was dead and death
is later established; (5) the Railroad Retirement Board has awarded duplicate benefits;
(6) there are gratuitous credits on the earnings record; (7) no insured status; (8)
clerical error that appears on the face of the evidence; (9) you are convicted of
a felony; (10) your earnings record is adversely affected by World War II; and (11)
your conviction is overturned. 20 C.F.R. § 404.988(c)(1)-(11).