TN 1 (12-05)

PR 01010.054 West Virginia

A. PR 10-115 Rebuttal of Acknowledgement of Parent-Child Relationship Between Number Holder (Jasper E~) and Xavier E. E~ SSN: ~

DATE: July 6, 2010

1. SYLLABUS

Although blood test results may be admissible in a paternity proceeding to establish paternity, the Supreme Court of Appeals of West Virginia is reluctant to admit genetic blood testing to disprove paternity when such an admission is not in the best interests of the child. Therefore, in our opinion, a West Virginia court would not require or rely upon genetic blood tests disproving paternity to rebut the NH’s acknowledgement of paternity.

In this case a West Virginia court would find that the circumstances favor preserving the presumption of legitimacy created by the NH’s Declaration of Paternity, the NH’s ceremonial marriage to the claimant’s mother, the fact that the NH named the claimant on his application for disability benefits, and the fact that the NH did not attempt to rescind his acknowledgement at any time, and, particularly after the genetic testing.

2. OPINION

QUESTION PRESENTED

This is in response to your June 10, 2010, request for an opinion as to whether the Number Holder’s (NH) acknowledgement that he is the father of Xavier is rebutted by two subsequent DNA test results showing a zero percent probability of paternity. You also inquired as to what the effective date of Xavier’s entitlement to benefits would be if a parent-child relationship exists.

CONCLUSION

We believe that the Acknowledgement of Paternity executed by the NH on January 17, 2009, together with his subsequent marriage of the NH to Xavier’s mother in November 2009, is sufficient to deem Xavier the legitimate child of the NH under the Social Security Act (Act) and relevant state statutes. Moreover, our research indicates that although blood test results may be admissible in a paternity proceeding to establish paternity, the Supreme Court of Appeals of West Virginia is reluctant to admit genetic blood testing to disprove paternity when such an admission is not in the best interests of the child. Therefore, in our opinion, a West Virginia court would not require or rely upon genetic blood tests disproving paternity to rebut the NH’s acknowledgement of paternity. We believe that benefits may be paid retroactively for six months prior to the

Application filed on March 23, 2010.

BACKGROUND

The information that you provided indicated that Xavier E~ was born on January 8, 2009, to Lisa L~. The NH and Lisa L~ signed and had notarized a Declaration of Paternity Affidavit on January 17, 2009, nine days after Xavier’s birth. A copy of Xavier’s birth certificate indentifies the NH as Xavier’s father. You indicated that the information supplied for Xavier’s numident also lists the NH as Xavier’s father. You indicated that the NH listed Xavier as his child on an application for disability benefits on June 10, 2009. A copy of the certificate of marriage indicates that the NH married Lisa L~ on November 22, 2009, about ten months after Xavier’s birth. A statement from Lisa L~ indicates that although she and the NH lived together before and after their marriage, neither lived with Xavier because the Department of Health and Human Resources (DHHR) took custody of Xavier in the hospital at birth when it was discovered that he was suffering from withdrawal symptoms from her prescription drug abuse. You indicated that the NH was domiciled in West Virginia at the time of his death on January 22, 2010.

You stated that on March 23, 2010, the DHHR filed an application for Surviving Child’s Benefits on the NH’s record on behalf of Xavier while he was in their custody. You provided the genetic test reports of specimens obtained from Xavier and the NH which DHHR attached to the application. The genetic test report of specimens obtained from the NH and Xavier, obtained June 8, 2009, indicated that the probability of paternity was zero percent and concluded that the alleged father, Jasper E~, cannot be the biological father of Xavier E~, since they do not share the necessary paternal markers in multiple genetic systems. A repeat test with a specimen obtained from Jasper E~ on November 9, 2009, also resulted in a zero percent probability of the NH’s paternity.

DISCUSSION

1. The Relevant Provisions of the Social Security Act.

The Act and implementing regulations provide that surviving child’s benefits may be granted based on the earnings record of a fully insured individual if the child, as defined in 42 U.S.C. § 416(e), 1 has (1) filed an application for child’s insurance benefits; (2) was unmarried at the time of application; (3) under the age of eighteen; and (4) was “dependent” upon the insured. 42 U.S.C. § 402(d)(1); 20 C.F.R. § 404.350(a) (2009). Section 402(d)(3) of the Act further provides that a child may be deemed to be dependent, and therefore, the legitimate child of the insured, if he satisfies the provisions of 42 U.S.C. §416(h)(2)(A) (would be able to inherit personal property from an intestate NH according to the law of the state where the NH was domiciled at the time of death); and, if not, then, alternatively, he may satisfy the provisions of § 416(h)(2)(B) 2 or § 416(h)(3). 3

1. Xavier Can be Deemed to be the Child of the NH Under § 416(h)(2)(A).

We believe that Xavier can be deemed to be the child of the NH under § 416(h)(2)(A) of the Act because he could inherit the property of the NH as an illegitimate child under the intestacy statute of West Virginia, where the NH was domiciled at the time of death. The relevant West Virginia statute provides that children born out of wedlock shall be capable of inheriting from their mother and father, if, prior to the death of the father, paternity shall be established by either (1) acknowledgement that he is the child’s father; (2) adjudication on the merits pursuant to a paternity proceeding under W.Va. Code § 48-24-101; or (3) by order of a court of competent jurisdiction issued in another state. W.Va. Code § 42-1-5(b) (2010). If paternity has not been established prior to the death of the putative father, then the statute requires “clear and convincing” evidence of paternity after his death. W.Va. Code § 42-1-5(c) (2010).

We believe that a West Virginia court would find that the NH’s acknowledgement that he was the child’s father, which is sufficient to establish an obligation for child support without a hearing, satisfies both the provision for acknowledgment before death, as well as the clear and convincing standard of proof after death. Both the NH and Xavier’s mother signed a Declaration of Paternity on January 17, 2009, within seven days of Xavier’s birth, as required by the West Virginia statute entitled “Birth registration acknowledgment and recission of paternity.” W. Va. Code § 16-5-10 (2009). 4 This statute provides that a notarized affidavit of paternity, signed by the mother and the man to be named as the father, acknowledging that the man is the father of the child, legally establishes the man as the father of the child for all purposes, including child support (without the necessity of a hearing). W.Va. Code § 16-5-10 (h). 5 The statute further provides that a parent wishing to rescind an acknowledgement of paternity may file within sixty days of the acknowledgment a complaint stating that he wishes to rescind the acknowledgment. If the complaint is filed more than sixty days after the date of the execution of the affidavit of acknowledgment, the complaint must include specific allegations concerning elements of fraud, duress, or material mistake of fact. The family court may set aside the acknowledgment only upon a finding, by clear and convincing evidence, that the declaration of paternity was executed under circumstances of fraud, duress, or material mistake of fact. W.Va. Code § 16-5-10 (h)(5)(A)-(E).

There is no indication, based upon the evidence that you provided, that the NH attempted to rescind his acknowledgement of paternity at any time before he died. We believe that a court would find that the NH’s marriage to Xavier’s mother after the genetic test results showed that he was not the biological father, indicates that he did not intend to rescind his acknowledgment of paternity due to fraud, duress, or material mistake of fact. 6 Therefore, we believe that the NH’s acknowledgement of paternity established him as Xavier’s father “for all purposes” and would satisfy the standard of clear and convincing evidence of paternity.

2. The Acknowledgement Was Not Rebutted by Genetic Blood Tests.

We note that the West Virginia Supreme Court of Appeals has been reluctant to admit blood test results for the purpose of disproving paternity. For example, in a child support case, the court, when reviewing a lower court’s order requiring blood testing when a putative father had previously signed an affidavit establishing his paternity at the time of the child’s birth, overturned that order and prohibited the blood testing. State of West Virginia Dept. of Health and Human Resources o/b/o Laura F.M. v. Cline, 197 W.Va. 79, 475 S.E. 2d 79 (W.Va. 1996). Also, the court, in a case involving a Petition to Declare Legitimacy of an Infant Child and to Establish Paternity Rights, held that once a man and woman properly acknowledge that the man is the father of a child in a paternity proceeding under W.Va. Code 48A-6-6(b), then absent a challenge to that acknowledgement by a person with standing to challenge it, no blood testing shall be required to disestablish paternity. State of West Virginia, ex rel. David Allen B. v. Sommerville, 194 W. Va. 86, 459 S.E.2d 363, 366 (W.Va. 1995) (finding that circuit court could not require blood testing in a challenge by grandparent who had no standing).

Moreover, more recently, the Supreme Court of Appeals of West Virginia remanded a case decided by a lower court that had admitted blood testing to determine the paternity of a child born during a marriage, but where the mother had listed a different man on the birth certificate. In remanding the case the Supreme Court of Appeals cautioned that blood test results do not necessarily rebut a legal presumption of paternity that arises from an acknowledgement of paternity. See State of West Virginia Dept. of Health and Human Resources, Child Support Enforcement Division v. Michael George K, 207 W.Wa. 290, 531 S.E. 2d 669 (W.Va. 2000) (stating that blood test results are not a “trump card” that establishes or dictates legal paternity in all cases). The court stated, in interpreting the child support provision of W. Va. Code § 48A-6-6, which permits reliance upon the Declaration of Paternity in § 16-5-10, that even if proof of fraud, duress, or material mistake of fact exists, the statute does not say that upon such proof the acknowledgment must be voided. Rather, the ultimate decision should involve the consideration and weighing of all applicable preferences, presumptions, and equitable principles including, as a paramount factor, the best interests of the child.

We believe that a West Virginia court would find that the circumstances of this case favor preserving the presumption of legitimacy created by the NH’s Declaration of Paternity, the NH’s ceremonial marriage to Xavier’s mother, the fact that the NH named Xavier on his application for disability benefits, and the fact that the NH did not attempt to rescind his acknowledgement at any time, and, particularly after the genetic testing.7 Although the NH held the child out as his own for a relatively short time, from the child’s birth in January 2009 through the NH’s death in January 2010, we believe that a court would find that it is in the child’s best interest to preserve the status of legitimacy that the NH’s acknowledgment conferred, and that the child would be harmed by a determination that he was not the child of the NH. Therefore, we believe that a West Virginia court would not rely on the genetic blood tests to rebut the presumption of the NH’s paternity, and we conclude that Xavier is the child of the NH and entitled to surviving child’s benefits on the NH’s record.

3. Date of Entitlement

The regulations provide that if the insured is deceased, a child is entitled to benefits beginning with the first month covered by the application in which the child meets all other requirements for entitlement. 20 C.F.R. § 404.352(a)(1). The child met the requirements for entitlement on January 17, 2009, when the NH acknowledged him. However, the child was not “covered by” an application until it was filed by DHHR on March 23, 2010. The regulations further provide that a child may receive retroactive survivor’s benefits for up to six months preceding the date of the application if all other requirements are met. 20 C.F.R. § 404.621(a)(2). Therefore, benefits may be paid retroactively for six months prior to March 23, 2010. See POMS GN 00204.030(B)(1).

Eric P. K~
Regional Chief Counsel
By: _______________________
Patricia M. S~
Assistant Regional Counsel

B. PR 06-012 Rebuttal of Presumption of Parent-Child Relationship Between Calvin D. J~ and the Number Holder (Jason W. C~), SSN: ~

DATE: November 17, 2005

1. SYLLABUS

Under West Virginia law, a DNA test showing 99.9999 percent probability that the claimant is the child of the deceased number holder is clear and convincing evidence sufficient to rebut the presumption of legitimacy and establish a parent/child relationship between the claimant and the deceased. The use of such blood evidence is limited to cases where its admission will cause no harm to the child and does not grant inheritance rights retroactively.

2. OPINION

QUESTION PRESENTED

This is in response to your October 13, 2005 request for an opinion as to (1) whether the presumption of legitimacy between the Number Holder and Calvin D. J~ has been rebutted under West Virginia law; (2) whether a parent-child relationship between the Number Holder and J~ has been established; (3) the effective date of that relationship; and (4) whether J~ is entitled to retroactive benefits.

CONCLUSION

We have reviewed the information that you provided and have researched relevant West Virginia law regarding the presumption of legitimacy of a child born during a valid marriage. Based on our research, we have concluded that the evidence is sufficient to overcome the presumption that Calvin D. J~ (Calvin) is not the Number Holder's child. Accordingly, Calvin is entitled to child's benefits under the Number Holder's account.

FACTUAL BACKGROUND

Mable J~ and Randall D. J~ were married on April 24, 1999. According to Mable, she and her husband lived together at all times after their marriage except for a four day separation from December 26 to December 29, 2003. During the four day period, Mable had sexual relations with the Number Holder, a resident of Spencer, West Virginia. On September 21, 2004, approximately nine months after sexual relations between Mable and the Number Holder, Mable gave birth to Calvin.

Calvin's birth certificate and an application for his social security number identify Mable and Randall J~ as Calvin's parents.

On October 12, 2004, three weeks after Calvin's birth, the Number Holder was killed by a blunt force injury to his head in an altercation outside of his home.

On May 31, 2005, Mable applied for a lump sum death payment and monthly survivor benefits for Calvin. As proof of paternity of the Number Holder, Mable submitted a DNA paternity test showing a 99.9999 percent probability that the Number Holder was Calvin's father. The combined paternity index was 18,053,257. Additionally, Sherry C~, sister of the deceased Number Holder, provided a statement that the Number Holder told her that Calvin looked like him and that the Number Holder thought Calvin was his son.

DISCUSSION

The general criteria for entitlement to child's insurance benefits are found in 42 U.S.C. § 402(d)(1). Section 402(d)(1) provides that every "child" of an individual who dies fully or currently insured under the Act is entitled to child's insurance benefits if the child has applied for such benefits, is unmarried, under the age of 18, and was dependent upon the insured individual at the time of the insured's death. Id. A child is deemed dependent if he was (1) living with or supported by the wage earner at the time of his death, or (2) is the legitimate child of the wage earner. 42 U.S.C. § 402(d)(3).

If a child is illegitimate, he may nonetheless be deemed legitimate for purposes of the Act (and deemed dependent and entitled to benefits) if he can establish that he would be entitled to inherit personal property from the deceased wage earner under the intestacy laws of the wage earner's state of domicile at death under 42 U.S.C. § 416(h)(2)(A).

Calvin's paternity does not squarely fit into the Act's criteria for receiving child's benefits since Calvin was born into a marriage (and hence was legitimate) but not into a marriage between his biological parents. Thus, while he was technically neither the legitimate child of the Number Holder nor an illegitimate child (because he was born in wedlock), for purposes of the Act, the section on illegitimacy would be applicable because the relationship at issue is between Calvin and the Number Holder. Therefore, a determination must be made as to whether Calvin could inherit from the Number Holder's estate under the intestacy laws of West Virginia POMS GN 00306.670, the Agency's guideline for establishing child relationships and dependency, also looks to West Virginia's Intestacy laws in making the determination of paternity. West Virginia Code § 42-1-5 and the POMS state that a child can establish paternity when the putative father (insured) is deceased, by "clear and convincing" evidence. Clear and convincing evidence is defined as the degree of proof which will produce in the mind of the adjudicator a firm belief or conviction of paternity. While the POMS state that no particular amount, type, or combination of evidence is sufficient to meet the standard, it states that undisputed genetic blood or tissue test results which show a statistical probability of paternity of 98% or greater shall constitute clear and convincing evidence of paternity. Thus, the DNA results in this case would compel a finding of paternity for the Number Holder.

Having determined that Calvin would generally qualify for child's insurance benefits under West Virginia's intestacy laws and under the POMS, we will now analyze whether the presumption of Calvin's legitimacy can be rebutted under the common law of West Virginia. Because West Virginia follows the Lord Mansfield Rule, there is a strong presumption that a child born during a marriage is the husband's child. Young v. Prichard, 542 S.E.2d 925, 929 (W. Va. 2000); See State v. Reed, 149 S.E. 669, 671 (W. Va. 1929). West Virginia law, however, clearly recognizes that the presumption of legitimacy may be rebutted with "clear and satisfactory evidence" of non access of the husband, impotency, or sterility. See State ex rel J.L.K. v. R.A.I., 294 S.E.2d 142, 146 n.9 (W. Va. 1982); L.A.M. v. M.L.M., 250 S.E.2d 40, 43 (W. Va. 1978) (citing 9 Wigmore, Evidence § 2527 (Chadbourn Rev. 1961)); see also, POMS GN 00306.025 (stating generally that the presumption of legitimacy may be rebutted by sterility or absence of the husband during the entire period of possible conception and, in some states, by blood/genetic tests).

POMS GN 00306.025, Lord Mansfield Rule, recognizes that many states such as West Virginia apply the Lord Mansfield Rule, which bars the mother of the child and her legal husband at the time the child was conceived or born from giving testimony that might prove that the child is illegitimate, i.e., that the child is the natural child of a man other than the husband. Where the applicable state law does not permit introduction of such evidence, the Agency will not accept it for purposes of determining the child's status under state law. The Agency recognizes, however, that the statements of the mother and her legal husband may furnish leads to other competent evidence which SSA may use in rebutting the presumption of legitimacy.

Because the only evidence of "non-access" in this record is from Mable, the Lord Mansfield Rule would preclude any consideration of that evidence. Notably, even if such evidence from Mable could be considered, a marital separation of less than one week during the potential period of conception is insufficient to clearly and satisfactorily demonstrate conception-precluding non-access. We also note that there is no evidence that Randall was either impotent or sterile. Thus, under the "traditional" methods of rebutting the presumption of legitimacy of a child born during a marriage, Mable could not rebut the presumption of Calvin's legitimacy. Therefore, the critical issue becomes whether the DNA evidence of the Number Holder's paternity is a permissible method of rebutting the presumption of paternity under West Virginia law.

When Lord Mansfield contemplated his rule to protect the legitimacy of children born in wedlock, DNA evidence did not yet exist and the social purpose of the rule - to prevent parents from imposing the stigma of illegitimacy on children born in their marriage - has diminished in today's society. See, e.g., Michael K.T. v. Tina L.T., 387 S.E.2d 866, 869-70 (W. Va. 1989) (stating that "it has been recognized that the stigma of illegitimacy is diminishing in the wake of a society which is composed of so many non-traditional households (e.g. single parents, step-parents, etc.)."

In Michael K.T., the Supreme Court of Appeals of West Virginia did note in dicta that West Virginia's own statute enacted to allow mothers to obtain support payments from putative fathers (West Virginia Code § 48-24-103(a)(3)) provides that undisputed blood or tissue test results which show the requisite statistical probability of paternity (presently 98 percent) legally establish the paternity of any man sued for support. Id. at 870. The language of West Virginia's paternity statute is a strong indication that blood test evidence would be deemed sufficient to overcome the presumption of legitimacy in paternity cases.

Although Michael K.T. was a divorce proceeding in which the husband's attempt to use blood test results was to disprove his own paternity to avoid child support, the case holding lends general support for the use of blood evidence in West Virginia in cases involving disputed paternity. The Court ruled that the presumption of legitimacy that arises when a child is born or conceived during a marriage is rebuttable and that blood test results may be used to rebut the presumption of legitimacy where the equities surrounding the particular facts and circumstances of the case warrant admission of blood test results. Id. at 870-71. The Court would preclude the use of blood test evidence to disprove paternity when the individual attempting to disestablish paternity has held himself out to be the father of the child for a sufficient period of time such that disproof of paternity would result in undeniable harm to the child. Id. at 871-72. Thus, even in a case where a parent to the marriage is attempting to disprove his own paternity, use of blood evidence is admitted if no harm would come to the child. By so finding, the Court implicitly ruled that blood evidence may be used to rebut the presumption of legitimacy in certain cases.

CONCLUSION

We believe that the intestacy laws of West Virginia, the acknowledgement in West Virginia Code § 48-24-103(a)(3) that test results which show a statistical probability of paternity of more than ninety-eight percent legally establish the paternity of any man sued for support, and the dicta from Michael K.T. case all suggest that DNA evidence may be considered to rebut the presumption of Randall's paternity in this case. Even if we were to examine Calvin's best interests based on our limited information, it appears from Calvin's age, it is unlikely that he would be harmed from a determination that the Number Holder was his biological father.

Finally, the regulations provide that if the insured is deceased, the children are entitled to benefits beginning with the first month covered by the application in which they meet all other requirements for entitlement. 20 C.F.R. § 404.352(a)(1). The regulations provide that children may receive retroactive benefits for up to twelve months preceding the date of the application. 20 C.F.R. § 404.621. However, benefits can only be paid from the first month that all requirements for entitlement are met. 20 C.F.R. § 404.620(a)(1).

In this case, both the application for benefits and the latest necessary piece of evidence to establish paternity were provided in May 2005. Therefore, retroactive benefits should not be paid in this case.

Donna L. C~
Regional Chief Counsel
By: _______________________
Stephen T. G~
Assistant Regional Counsel

C. PR 05-153 Rebuttal of Presumption of Parent-Child Relationship Between the Number Holder (Ronald C. P~) and Shiann C. M. P~, SSN: ~

DATE: May 3, 2005

1. SYLLABUS

While the Lord Mansfield rule may bar acceptance of the testimony of the mother and her husband that they had been separated for more than a year prior to the claimant's birth, testimony from third parties and evidence of the number holder's sterility may serve as clear and satisfactory evidence to overcome the presumption of paternity in this case.

2. OPINION

QUESTIONS PRESENTED

This is in response to your March 30, 2005 request for an opinion as to (1) whether the presumption of legitimacy between the Number Holder and Shiann C. M. P~ (Shiann) has been rebutted under West Virginia law; (2) whether a parent-child relationship between the Number Holder and Shiann has been established; (3) the effective date of that relationship; and (4) whether Shiann is entitled to retroactive benefits.

CONCLUSION

We have reviewed the information that you provided and have researched the relevant provisions of West Virginia law regarding the presumption of legitimacy of a child born during a valid marriage. Based on our research, we have concluded that the evidence is sufficient to overcome the presumption that Shiann is the Number Holder's child. Accordingly, Shiann is not entitled to child's benefits under the Number Holder's account.

The Office of the Regional Chief Counsel
Office of the General Counsel, Region III

FACTUAL BACKGROUND

The following is a summary of the relevant facts in this matter. The Number Holder married Anna M. M~ (Anna M.) on December 26, 1989 in Ohio. Shiann was born during the marriage on January 7, 2004. Shiann's birth certificate does not identify the father.

Applications for a Social Security number (NUMI) for Shiann were completed on January 28, 2004 and November 9, 2004. While the first NUMI does not indicate any father information, the subsequent NUMI indicates that the father is unknown.

The Number Holder has been receiving disability benefits since May 2001. Anna M. filed applications for wife's and child's benefits based on the Number Holder's account on November 9, 2004. On November 17, 2004, a West Virginia Department of Health and Human Resources employee, Ms. R~, contacted the Agency because Anna M. admitted that she and the Number Holder had been living separate and apart for more than one year. Ms. R~ further advised the Agency that both the Number Holder and Anna M. admitted that Shiann was not the Number Holder's child. In a later report of contact, Ms. R~ advised the Agency that Anna M. stated that she and the Number Holder were getting a divorce, and that the Number Holder was demanding paternity testing to prove that the child was not his, in light of a vasectomy that he underwent years ago.

Based on this report of contact, an Agency employee met with the Number Holder and Anna M. on December 8, 2004, to confirm Ms. R~' information. During the meeting, the Number Holder and Anna M. signed a joint Statement of Claimant and Other Person in which the couple attests that they were separated from November 21, 2002, through September 2004. During this time period, the Number Holder and Anna M. did not see or visit one another.

In fact, Anna M. stated that she lived with Shiann's biological father for a portion of this time period. The Number Holder also provided medical records documenting that he had a vasectomy.

DISCUSSION

Child's benefits may be granted based on the earnings record of an insured person who is entitled to disability benefits if the applicant is the insured's child, and is dependent on the insured. 42 U.S.C. § 402(d)(1); 20 C.F.R. § 404.350(a) (2004). In determining whether an applicant is the insured's child, the Commissioner will apply the inheritance law of the state in which the insured 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) (2004). The Number Holder was domiciled in West Virginia at the time Shiann's mother filed the applications for benefits. Accordingly, West Virginia law applies.

In West Virginia, paternity must be established by clear and convincing evidence, defined as "that measure of degree of proof which will produce in the mind of the trier of facts a firm belief or conviction as to the allegations sought to be established." Moore v. Goode, 375 S.E.2d 549,

554-55 (W. Va. 1988) (citing Wheeling Dollar Savings & Trust Co. v. Singer, 250 S.E.2d 369, 374 (W. Va. 1987)). Ordinarily, there is a strong presumption that a child born during a marriage is the husband's child. Young v. Prichard, 542 S.E.2d 925, 929 (W. Va. 2000). Indeed, West Virginia appears to still follow the Lord Mansfield rule, which bars a child's mother and her legal husband at the time the child was born from giving testimony that might show that the child is the natural child of a man other than the husband. See State v. Reed, 149 S.E. 669, 671 (W. Va. 1929). On the other hand, West Virginia clearly contemplates that the presumption of legitimacy may be rebutted with "clear and satisfactory evidence" of non-access of the husband, impotency, or sterility. See State ex rel J.L.K. v. R.A.I., 294 S.E.2d 142, 146 n.9 (W. Va. 1982); L.A.M. v. M.L.M., 250 S.E.2d 40, 43 (W. Va. 1978) (citing 9 Wigmore, Evidence § 2527 (Chadbourn Rev. 1961)).

The question remains as to the types of evidence which West Virginia courts will find meet the "clear and satisfactory evidence" standard. In L.A.M., a wife instituted a divorce action against her husband. In his answer, the husband denied that he was the father of a child born during the marriage and asserted facts tending to show he did not have access to his wife at the time of conception. The sole evidence of non-access to the wife was the husband's testimony. The Court held that the presumption had not been overcome since non-access of the husband had not been "clearly and satisfactorily" proved by the husband's mere self-serving denial of paternity. Id. at 43. The Court's ruling implies that the husband's testimony, coupled with other evidence of non-access, may have been sufficient to rebut the presumption of legitimacy.

We believe that clear and satisfactory evidence exists to overcome the presumption of legitimacy in the present case. Unlike the facts in L.A.M., where only the husband disputed paternity, the present case involves an acknowledgment by both the Number Holder and Anna M. that the Number Holder did not have access to Anna M. at the time Shiann was conceived. In addition, Anna M. admitted that during the time period that she and the Number Holder were separated, she lived with a man to whom she referred as Shiann's biological father.

Even if the Lord Mansfield rule would operate to bar this testimony, there is other evidence of non-access. Ms. R~, the West Virginia Department of Health and Human Resources employee, could testify to the Number Holder and Anna M.'s admissions. There is also evidence of sterility, insofar as the Number Holder provided the Agency with medical records revealing that he had a vasectomy on September 5, 1975, and a zero sperm count at a follow-up visit two weeks later.

Because clear and satisfactory evidence exists to rebut the presumption that the Number Holder is Shiann's biological father, there is no parent-child relationship. Accordingly, Shiann is not entitled to child's benefits under the Number Holder's account.

Donna L. C~
Regional Chief Counsel

By:____________________________
Elizabeth A. C~
Assistant Regional Counsel


Footnotes:

[1]

“Child” is defined in part in this section of the Act as (1) the child or legally adopted child of an insured, or (2) a stepchild if, in the case of a deceased insured, he has been a stepchild for not less than nine months immediately preceding the day on which the insured died. There is no evidence that the NH legally adopted Xavier. The NH and Lisa L~ were married for approximately three months before the NH died; therefore, Xavier cannot satisfy the stepchild provision.

[2]

Section 416(h)(2)(B) provides that if a child is not deemed to be a child under section 416(h)(2)(A), then the child may be deemed to be the child of the insured if the mother or father went through a marriage ceremony resulting in a purported marriage, which, but for a legal impediment, would have been a valid marriage.

[3]

Section 416(h)(3) provides that an applicant who is the son of a fully insured individual, but who is not the child of the insured under 416(h)(2), shall, nevertheless, be deemed to be the child of a deceased insured (1) if the insured had acknowledged in writing that the applicant was his child, had been decreed by a court to be the father of the applicant, or had been ordered by a court to contribute to the support of the applicant and such acknowledgement was made before the death of the insured; or (2) the insured is shown by evidence satisfactory to the Commissioner to have been the father of the applicant and the insured was living with or contributing to the support of the applicant at the time the insured died.

[4]

The statute provides that if the mother was not married at the time of birth, the name of the father shall not be entered on the certificate of birth without an affidavit of paternity signed by the mother and the person to be named as the father. The affidavit may be joint or individual and each signature shall be individually notarized. W. Va. Code, § 16-5-10(g).

[5]

Section 48-24-106 of the child support provisions, provides that paternity may be established by a written notarized acknowledgment pursuant to the provisions for the affidavit of paternity.

[6]

We note that the subsequent marriage of the NH and Xavier’s mother may be a legitimating act that entitles Xavier to inherit from the NH pursuant to W.Va. Code § 42-1-6 (2009). Although there were no recent cases interpreting this statutory provision, we note that a 1968 case states that the purpose of the statute is remedial in nature and should be liberally construed in favor of legitimacy. See State v. Bragg, 152 W. Va. 372, 163 S.E.2d 685 ( W.Va. 1968) (finding that although common law marriage is not recognized in West Virginia, court could apply statute providing that children of marriages deemed null in law should be deemed legitimate because of benevolent purpose of statute to relieve children of stigma of illegitimacy, as well as to ameliorate the harsh burdens which otherwise attach to children of illegitimate birth).

[7]

We note that in the statement that Lisa L~ submitted