You asked whether the admissions of a claimant's mother and statements collected from
family members and others can rebut the Alabama presumption of paternity for a child
born in wedlock.
For the reasons stated below, we believe a Social Security Administration (SSA) adjudicator
could find the evidence submitted in this case sufficient under Alabama law to rebut
the presumption of paternity and conclude the child, Hunter G. L~ (Claimant), would
not be entitled to benefits based on the account of the number holder (NH), Danny
NH is a resident of Alabama. NH married Claimant's mother, Anita C~ (Mother) on November
14, 2001. On November 19, 2001, Mother gave birth to Claimant. Claimant's birth certificate
lists him as the child of Mr. and Mrs. Danny E. L~. NH and Mother were divorced in
Neshoba County, Mississippi on April 10, 2006. Neither the Judgment of Divorce nor
the Property Settlement Agreement acknowledges the existence of Claimant or addresses
the issues of custody, visitation or support. On April 14, 2006, a motorcycle accident
left NH severely brain damaged and unable to communicate.
On October 24, 2006, Mother filed a claim on Claimant's behalf for auxiliary child's
benefits on NH's account. When questioned by a claims representative, Mother admitted
that NH was not Claimant's biological father. On November 1, 2006, Mother submitted
a signed statement under oath (SSA-795) that NH is not the biological father of Claimant
but placed his name on Claimant's birth certificate and accepted all responsibility
for the child since birth. Mother stated she and NH had been living together since
she was three months pregnant. Mother also admitted that both families were aware
of the circumstances surrounding Claimant's birth. Mother contends she does not know
the identity of Claimant's biological father.
The claims representative contacted NH's mother, Vida B~, who provided a signed statement
(SSA-795) that Mother was four to five months pregnant when she met and began dating
NH. NH's mother said she referred to both Mother's children as NH's step-children.
NH's brother, Donny L~, provided a similar statement by phone. The claims representative
also contacted Robert T~, the divorce attorney for NH and Mother, who said Mother
told him the couple had no children. Neither the brother nor the attorney submitted
Entitlement to Child's Insurance Benefits - In General
To qualify for auxiliary child's benefits on the record of an individual entitled
to disability benefits, a claimant must be that individual's child. See § 202(d) of the Social Security Act (Act), 42 U.S.C. § 402(d); 20 C.F.R. § 404.350(a)(1)
(2006). A “child” for purposes of this regulation means an individual who is related
to the insured person as a natural child, legally adopted child, stepchild, grandchild,
stepgrandchild, or equitably adopted child. See § 216(e) of the Act, 42 U.S.C. § 416(e); 20 C.F.R. § 404.354 (2006). Only the provisions
relating to a natural child or stepchild could apply to this claim.
A claimant can qualify as an insured person's stepchild if the claimant was conceived
prior to the marriage but born during the course of the marriage and the insured is
not the claimant's natural parent. See 20 C.F.R. § 404.357 (2006). However, a claimant will not be entitled to benefits as
a stepchild on the earnings record of a number holder who is a former stepparent divorced
from the child's natural parent. GN 00306.230(A)(3)(b). In this case, Mother and NH divorced approximately six months before the
application for auxiliary child's benefits was filed. Therefore, Claimant is not entitled
to benefits as NH's stepchild.
A claimant can qualify as the insured person's natural child if, among other methods,
the claimant could inherit the insured's personal property as his or her child under
the intestacy laws of the state where the insured has his permanent home when the
claim for child's benefits was filed. See § 216(h)(2)(A) of the Act; 20 C.F.R. § 404.355(b) (2006). Because NH is domiciled
in Alabama, the question is whether an Alabama court would consider Claimant to be
NH's child for purposes of intestate succession.
Alabama Law Applied to this Claim
Since NH is unmarried, his intestate estate would pass to his linear descendants beginning
with his surviving children. ALA. CODE §§ 43-8-1(15), 43-8-42(1) (2006). A man is
presumed to be the father of a child who is born either during the course of the marriage
between the man and the child's mother or within 300 days after the marriage. ALA.
CODE § 26-17-5(a)(1) (2006). This statutory presumption does not require that the
child be conceived during the marriage, only that the child is born during the course
of the marriage. See Ex parte C.A.P., 683 So. 2d 1010, 1012 (Ala. 1996). Since NH was married to Mother at the time of
Claimant's birth, Claimant is presumed to be the natural child of NH and entitled
to inherit from NH's estate.
This presumption can only be rebutted by clear and convincing evidence. ALA. CODE
§ 26-17-5(b) (2006). Generally, SSA will look for clear and convincing evidence that
the husband was sterile, did not have access to the wife, or other evidence which
would have made sexual relations between the husband and wife impossible at the time
of conception. GN 00306.021. SSA also recognizes that the manner by which such evidence is evaluated varies from
state to state. GN
In Alabama, the clear and convincing evidence standard requires a showing that it
is “naturally, physically or scientifically impossible for the husband to be the father”
of the child. Leonard v. Leonard, 360 So. 2d 710, 713 (Ala. 1978). In Leonard, the wife of the decedent opposed a claim to an intestate share of the estate by
four individuals who were born to a woman who was married to another man at the time
of their birth. The children claimed that they were the product of an adulterous relationship
between their mother and the decedent. See Leonard, 360 So. 2d at 711-712.
The Alabama Supreme Court said the husband and wife are not allowed to testify that
the child is illegitimate, but may testify about the circumstances from which non-access
by the husband and the impossibility of paternity may be inferred. See Leonard, 360 So. 2d at 713. Furthermore, evidence that someone other than the husband is
the father of the child in question is insufficient. Id. The party attempting to rebut the presumption of paternity must show that the husband
could not have had sexual relations with the mother at the probable time of conception.
See Leonard, 360 So. 2d at 713; see also Adams v. State, 428 So. 2d 117, 120 (Ala. Civ. App. 1983) (allowing testimony from a mother that
her husband was out of the country and not present at the time of conception).
The clear and convincing evidence test has been met where both the mother and her
husband testified that she became pregnant before their relationship began. See C.T.J. v. A.S.J., 816 So. 2d 61, 64 (Ala. Civ. App. 2001). Due to NH's impairment, he is unable to
provide a statement regarding the nature of his relationship, if any, to Mother at
the time of Claimant's conception. Mother stated that she was three months pregnant
when she began living with NH. Mother has not made an explicit statement as to when
her relationship with NH began and whether he could have impregnated her. However,
Mother has stated unequivocally that NH is not Claimant's biological father and she
does not know the identity of the biological father. We believe that an SSA adjudicator
could find this to be more than a statement that Claimant is illegitimate. Mother's
statements to SSA could be viewed as an implicit recognition of non-access by NH at
the time of conception. Furthermore, NH's mother said Mother was already pregnant
when she met and began dating NH. It would appear from the evidence gathered that
both Mother and NH conveyed to their respective families that NH was not Claimant's
We recognize that an argument could be made to the contrary since historically a statement
by a mother that her spouse is not the father of a child has been insufficient to
meet this standard. See Franks v. State, 161 So. 549, 551 (Ala. Ct. App. 1935). However, given the similarity between this
case and C.T.J. above, we believe a SSA adjudicator could find the evidence in this case to be sufficient
to rebut the statutory presumption of paternity. Mother's statements to members of
her family and an SSA claims representative demonstrate a belief that it would have
been impossible for NH to be Claimant's biological father.
Therefore, while an SSA adjudicator could conclude that the evidence here is insufficient
to prove access was impossible, there is more support under Alabama law for concluding
the evidence presented is sufficient to rebut the presumption that NH is Claimant's
father. If the adjudicator concludes Claimant could not inherent from the NH through
intestacy under Alabama law, Claimant would not be entitled to child's benefits. See 20 C.F.R. § 404.350(a)(1); see also 20 C.F.R. § 404.355.
Mary A. S~
Regional Chief Counsel
Christopher G. H~
Assistant Regional Counsel