PR 01015.002 Alaska

A. PR 00-116 Parent/Child Relationship - State of Alaska David P~, Decedent, ~

DATE: April 2, 1999

1. SYLLABUS

Alaska does not follow the Lord Mansfield Rule. There is no authority indicating that the rule was ever in effect in Alaska.

2. OPINION

You have requested a legal opinion regarding whether the Lord Mansfield's Rule still applies in the State of Alaska.

FACTUAL BACKGROUND

Mr. David P~ filed for disability insurance benefits in June 1992, and was approved with an onset date of May 1, 1988. At the time he filed for benefits, he did not mention any marriages or children. He died in March 1998, in Anchorage, Alaska, his place of domicile.

Ms. Gloria P~ filed a claim for the funeral benefit and for benefits based on having a child under age 16 in the household. She presented a marriage certificate showing she and David were married in New Mexico in February 1970. They did not get a divorce.

Gloria has two children, Jose L. P~, who was born on May 15, 1989, and Toy P. A. R~, who was born on August 19, 1994.

Gloria claims that Jose is not David's child, but that Toy is. Social Security records show that when Toy applied for her Social Security number (SSN), Placido R~ was shown as the father and continues to be shown as the father. On Jose's SSN application, no father was shown in August 1989, but the name of Jose L~ was added to the record in December 1995.

Toy was born in Washington, and there is no father listed on her birth certificate. Welfare records show that Gloria and her two children received benefits from August 1990 to January 1999. There is no indication of a father in the household during this period. The Washington State Department of Support Enforcement was having David pay child support as a stepfather and not the natural father.

DISCUSSION

The Lord Mansfield's Rule, which arose in England in the mid-eighteenth century, stated "that as 'to children born in wedlock *** the law of England is clear that the declarations (or testimony on the stand) of a father or mother cannot be admitted to bastardize the issue born after marriage. *** It is a rule founded in decency, morality [sic] and policy. ***'" Vasquez v. Esquibel, 141 Colo. 5, 346 P.2d 293 (1959). In other words, this Rule "renders inadmissible testimony by either spouse on the question of whether the husband had access to the wife at the time of conception." Black's Law Dictionary, p. 851 (Fifth Edition); Program Operations Manual System (POMS) GN 00306.020-.025 (under the Lord Mansfield's Rule, the mother and the legal husband at the time of birth or conception are barred from giving testimony that might prove that the child is illegitimate). We have been unable to find authority indicating that the Lord Mansfield's Rule was ever in effect in Alaska. We, therefore, suggest that the agency change the POMS GN 00306.026 to reflect that Alaska does not follow the Rule.

Alaska Stat. § 18.50.160(d) provides:

If the mother was married at conception, during the pregnancy, or at birth, the name of the husband shall be entered on the birth certificate as father of the child unless (1) paternity has been lawfully determined otherwise by a tribunal, in which case the name of the father, if determined by a tribunal, shall be entered; or (2) both the mother and the mother's husband execute affidavits attesting that the husband is not the father and that another man is the father, and the mother and the other man execute affidavits attesting that the other man is the father.

The legislative history of this statute shows that this version was reenacted in 1995. See 1995 Alaska Laws Ch. 57, Section 1 (S.B. No. 115).

In addition to applying the foregoing statute in a marriage situation, the Alaska Supreme Court has adopted the long-standing common law rule that a child born to a married woman is presumed to be the natural child of her husband and legitimate. However, this presumption may be overcome by "clear and convincing evidence" that the child is not of the marriage. State, Dep't. of Revenue v. Weatherelt, 931 P.2d 383, 387 (Alaska 1997) and State of Alaska, Dept. of Revenue, Child Support Enforcement Div. v. A.H., 880 P.2d 1048, 1050 (Alaska 1994), both citing Smith v. Smith, 845 P.2d 1090, 1092 (Alaska 1993).

In, Weatherelt, the husband was named as the father on the birth certificate. However, when the husband and wife filed for divorce, they asserted that there were no children born of the marriage or adopted. In contesting paternity, the husband asserted that he could not have fathered the child because he had a vasectomy 10 years before the child's birth, and had a zero sperm count. Subsequent paternity tests excluded the husband as the father. 931 P.2d at 385-87.

In A.H., the mother and her husband each submitted affidavits attesting that the child was not the husband's child. The Alaska Supreme Court held that these affidavits constituted "clear and convincing evidence" sufficient to rebut the husband's paternity.

A.H., 880 P.2d at 1050.

In Smith, the Alaska Supreme Court relied on Lanford v. Lanford, 151 Colo. 211, 377 P.2d 115, 116 (Colo. 1962) and Alber v. Alber, 93 Idaho 755, 472 P.2d 321, 324 (Idaho 1970). In Lanford, the wife testified that while she was apart from her husband, she had sexual intercourse with another man. The husband contended that the child was conceived at this time. 151 Colo. at 212. The Colorado Supreme Court held that the presumption can "be overcome only by proof that the husband is impotent, or by proof that he had no access to the wife at a time, when according to the course of nature, he could be the father of the child." 151 Colo. at 214. In Albers, the court held "that either the husband or wife may testify as to nonaccess during the period of conception" to rebut the presumption of paternity. Id.

In the present case, the evidence shows that David did not acknowledge that he had any marriages or children. Toy's birth certificate does not list David as the father. Further, welfare records do not show that David was in the household for the period of August 1990 to January 1999. Finally, child support records show that David was paying child support as Toy's stepfather not as her natural father. We believe that this evidence meets the "clear and convincing" standard for rebutting the presumption of paternity.

In addition to foregoing evidence, you may wish to develop David's work history. This may further show that he had no access to Gloria at the time of conception.

We have also looked to whether Toy would inherit from David's estate. When an insured worker is deceased, SSA must apply the law of intestate succession of the State of the worker's domicile at the time of the worker's death to determine whether the applicant is the worker's natural child. 42 U.S.C.A. § 416(h)(2)(A). SSA will apply the law in effect in that State at the time it adjudicates the child's claim. If the claimant does not have inheritance rights under that law, SSA will apply the State law in effect from the time the child first could be entitled to benefits until the time SSA adjudicates the claim, and will apply the version that is most beneficial to the child. See 20 C.F.R. §§ 404.354-404.356 (63 Fed. Reg. 57590-57594). Here, the decedent was domiciled in Alaska at the time of his death. Thus, the question becomes whether Toy would be entitled to inherit from David under Alaska intestacy law.

For purposes of intestate succession by, through, or from a person, an individual is the child of the individual's natural parents, regardless of their marital status, and the parent and child relationship may be established as indicated under AS 25.20.050. Alaska Stat. § 13.12.114(a). Alaska 25.20.050(a) states:

A child born out of wedlock is legitimated and considered an heir of the putative parent when (1) the putative parent subsequently marries the undisputed parent of the child; (2) for acknowledgments made before July 1, 1997, the putative parent acknowledges, in writing, being a parent of the child; (3) for acknowledgments made on or after July 1, 1997, the putative father and the mother both sign a form for acknowledging paternity under AS 18.50.165; or (4) the putative parent is determined by a superior court without a jury or by another tribunal, upon sufficient evidence, to be the parent of the child. Acceptable evidence includes evidence that the putative parent's conduct and bearing toward the child, either by word or act, indicates that the child is the child of the putative parent. That conduct may be construed by the tribunal to constitute evidence of paternity. When indefinite, ambiguous, or uncertain terms are used, the tribunal may use extrinsic evidence to show the putative parent's intent.

The facts in this case do not show that Toy would be entitled to inherit from David's estate. There are no acknowledgments of paternity. In fact, there is evidence that David did not recognize Toy as his natural child. Although David supported Toy, he did so as her stepfather and not as her natural father.


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PR 01015.002 - Alaska - 03/31/2011
Batch run: 03/31/2011
Rev:03/31/2011