BASIC (01-09)

PR 01015.035 New York

A. PR 09-037 Entitlement and Paternity of Child and Surviving Spouse Number Holder - Robert G~, SSN ~

DATE: December 20, 2008

1. SYLLABUS

Although New York follows the Lord Mansfield Rule (a child born to a married woman is the child of her husband), Section 531 of the New York Family Law Act is a statutory exemption to the rule. Because a order of filiation was declared by a court of competent jurisdiction by someone other than the husband of the mother, the presumption in Lord Mansfield could be overcome.

In addition, when the mother filed for benefits, there is a preponderance of evidence, including the filial order, her statement in court regarding paternity, and the payment of child support by someone other than the NH, that she committed fraud or similar fault.

2. OPINION

Question

For the reasons cited below, we believe a Social Security Administration (SSA) adjudicator could find that Cheryl G~ committed fraud or similar fault in applying for survivor's benefits on Tyler's behalf on Robert G~'s account.

Opinion

For the reasons cited below, we believe a Social Security Administration (SSA) adjudicator could find that Cheryl G~ committed fraud or similar fault in applying for survivor's benefits on Tyler's behalf on Robert G~'s account.

BACKGROUND

According to the applications filed for survivor's benefits, Cheryl G~ was married to Robert G~ on March 20, 1985. Beginning December 1, 1994, Cheryl G~ and Robert G~ were living apart and continued to so until Robert G~'s death in New York on October 12, 1995. During this time period, Tyler G~ was born to Cheryl G~ on July 31, 1995. On October 25, 2008, Cheryl G~ filed applications for survivor's benefits (mother's and child's) on the account of deceased wage earner, Robert J. G~.

On June 13, 2008, Timothy P~ contacted the Social Security Administration alleging that he was the biological father of Tyler G~. Mr. P~ also alleged that Cheryl G~ knew this when she applied for, and began receiving, survivor's benefits on the account of deceased wage earner Robert G~. Specifically, Mr. P~ alleges: 1) he and Cheryl G~ lived together during the period of Tyler's conception; 2) he recently petitioned for visitation rights as Tyler's father and was granted such rights; 3) Cheryl G~ admitted in court that Timothy P~ voluntarily paid child support for Tyler, although there was no court order; and 4) no DNA testing was ever done to determine paternity of Tyler.

Mr. P~ has submitted the following documents in support of his allegations:

--Birth Announcement for "Tyler J. T.J.," born July 31, 1995, with parents identified as Cheryl G~ and Timothy P~.

--A September 1995 paternity petition filed by Cheryl G~ in the Monroe County Family Court, State of New York, declaring: a) on or about July 4, 1994, petitioner (Cheryl G~) began having sexual intercourse with respondent (Timothy P~), which continued through July 1995, and resulted with petitioner becoming pregnant and giving birth out of wedlock to Tyler J. G~ on July 31, 1995; b) petitioner engaged in sexual intercourse with only Timothy P~ at the probable time of conception of Tyler; and c) petitioner was married to Robert G~ on March 20, 1989, ceased having sexual relations with Robert G~ in April 1994, and separated from Robert G~ in July 1994.

--Additional documents relating to this paternity petition include: a) a summons dated September 27, 1995; b) a Notice of Court Appearance dated January 8, 1996 referring to a default hearing scheduled for February 23, 1996; and c) an Order of Dismissal dated March 15, 1995 dismissing Cheryl's G~'s paternity petition finding that the allegations of the petition had not been established.

--Photocopies of receipts for child support payments dated September 2002 through August 2003, indicating that Timothy J. P~ made such payments to Cheryl G~ for Tyler's support.

--A Petition for Paternity filed by Timothy J. P~ against Cheryl G~ on March 12, 2008, alleging: a) petitioner (Timothy J. P~) had sexual intercourse with Cheryl G~ (respondent) on or about April 4, 1994, continuing to April 4, 1996, which resulted in respondent giving birth out of wedlock on July 31, 1995 to Tyler J. G~; b) petitioner is the father of Tyler; and c) at the time of the conception, Cheryl G~ was married to Robert G~. Petitioner Timothy P~ also declared that a similar petition was made five years ago, "no show," and that by filing this petition, he was making application for child support enforcement services.

--A petition for visitation filed by Timothy J. P~ (petitioner) against Cheryl G~ (respondent) on March 12, 2008, for visitation of Tyler J. G~, stating that it would be in the best interests of Tyler because "[h]e is my son, and I would like to be part of his life, to school him, love him forever."

--An Order of Filiation entered May 22, 2008, in the Monroe County Family Court of New York, declaring Timothy P~ the father of Tyler G~.

Discussion

Entitlement to Child's Insurance Benefits - In General

An individual may be eligible for child's insurance benefits ("CIB") due to the death of a wage earner, if he is the "child" of the wage earner as defined section 216(e) of the Act, 42 U.S.C. § 416(e), and was a dependent of the wage earner at the time of his death. 42 U.S.C. § 402(d)(1). Section 216(e)(1) of the Act defines a "child" as the "child or legally adopted child of an individual." 42 U.S.C. § 416(e)(1). Section 216(h) of the Act specifies how family status is to be determined. Section 216(h)(2)(A) provides that

[i]n determining whether an applicant is the child or parent of a fully or currently insured individual for purposes of this title, the Commissioner of Social Security shall 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 such applicant files application, or, if such insured individual is dead, by the courts of the State in which he was domiciled at the time of his death . . . .

42 U.S.C. § 416(h)(2)(A).

Mr. G~ was domiciled in New York at the time of his death, and therefore New York law governs. Your reference to the Lord Mansfield rule in relation to the statements made by Cheryl G~ as regarding Tyler's biological father, is well noted. Although the Lord Mansfield Rule generally prohibits the use of testimony of either a husband or wife to non-access to rebut the presumption of legitimacy of a child born within their marriage (see POMS GN 00306.015, GN 00306.025 and GN 00306.026), Section 531 of the New York Family Law Act is recognized as a statutory exemption to that rule. Family Court Act, § 531. See State of New York ex rel H. P., 90 A.D. 2d 434 (Dec. 30, 1982) (Section 531 of the Family Court Act is a statutory exemption to the Lord Mansfield Rule); see also Anonymous v. Anonymous, 43 Misc. 2d 1050 (Family Court, Sept. 1, 1964 (A married woman may bring a paternity action as well as an unmarried woman. The term, "child born out of wedlock" means not only a child born to a mother who is not married, but also a child born to a married woman where the father is not the husband). Here, we have Order of Filiation from the Monroe County Family Court declaring Timothy J. P~ as the father of Tyler, even though Cheryl G~ was married to Robert G~ at the time of Tyler's birth. We believe, this is sufficient to rebut the presumption of paternity during the marriage and that Tyler should be considered a non-marital child.

The requirements in New York for inheritance by non-marital children involve an order of filiation declaring paternity issued by a court of competent jurisdiction, a signed instrument acknowledging paternity, paternity established by clear and convincing evidence with the father having openly and notoriously acknowledged the child as his own, or use of a genetic blood marker administered to the father during his lifetime. N.Y. Est. Powers & Trusts L. § 4-1.2(a)(2). See POMS GN 00306.575. There is no evidence that any of these criteria were met with respect to establishing that Robert G~ was the father of Tyler G~. To the contrary, the only order of filiation declaring paternity is the order of filiation dated May 22, 2008, from the Monroe County Family Court of New York, declaring Timothy P~ as the father of Tyler G~. We also have the petition for paternity and petition for visitation filed by Timothy P~ in which Timothy P~ openly and notoriously acknowledges Tyler as his own child. Nothing similar has been provided suggesting a claim that Robert G~ is Tyler's father.

Another test for establishing eligibility for child's insurance benefits is provided in Section 216(h)(3). This statutory section provides in relevant part:

(C) in the case of a deceased individual------

(i) such insured individual----(I) had acknowledged in writing that the applicant is his or her son or daughter,

(II) had been decreed by a court to be the mother or father of the applicant, or

(III) had been ordered by a court to contribute to the support of the applicant because the applicant was his or her son or daughter, or

(ii) such insured individual is shown by evidence satisfactory to the Commissioner of Social Security to have been the mother or father of the applicant, and such insured individual was living with or contributing to the support of the applicant at the time such insured individual died.

42 U.S.C. § 416(h)(3)(C). See POMS GN 00306.100.

Here too, there is no evidence that these statutory requirements were met with respect to establishing Robert G~ as Tyler's father. Significantly, Cheryl G~ declared in support of the paternity petition she filed in September 1995 that she separated from Robert G~ in July 1994. There is nothing to indicate that she and Tyler resumed living with Robert G~ after Tyler's birth, that they were living with Robert G~ at the time of his death, or that Robert G~ ever contributed to Tyler's support. There is, however, evidence that Timothy P~ contributed to Tyler's support, as reflected in the child support payment receipts dated September 2002 through August 2003.

Reopening and Revising a Determination on the Basis of Fraud or Similar Fault

SSA may reopen a determination at any time if it was obtained by fraud or similar fault. See 20 C.F.R. § 404.988(c)(1) (2008). In deciding whether a determination was obtained by fraud or similar fault, SSA takes into account any relevant physical, mental, educational or linguistic limitations. See POMS GN 04020.010D.1. The record contains no evidence that Cheryl G~ suffered from such a limitation.

Unrestricted reopening of an initial determination is allowed when there is evidence that a person, with intent to defraud, either: (1) makes or causes to be made a false statement or misrepresentation of a material fact or (2) conceals or fails to disclose a material fact for use in determining rights to Social Security benefits. See POMS GN 04020.010A.1. Similar fault exists when a person knowingly makes an incorrect or incomplete statement or knowingly and deliberately conceals information that is material to the determination. See POMS GN 04020.010A.2. Intent is not required for a finding of similar fault. Id. The existence of fraud or similar fault must be established by a preponderance of the evidence. See POMS GN 04020.010B, C.

In this case, at a minimum an adjudicator could find that "similar fraud" was committed by Cheryl G~ in applying for survivor's benefits for her son, Tyler, on the account of wage earner, Robert G~.

When Cheryl G~ filed her paternity petition in September 1995, she swore to the Monroe County Family Court that she last had sexual relations with Robert G~ in April 1994, she had separated from him in July 1994, and that Timothy P~ was the father of Tyler. In October 1995, after filing a paternity petition with the Court, Cheryl G~ applied for benefits for Tyler and for herself as the mother of Tyler on the account of Robert G~. In Cheryl G~'s application for mother's benefits in support of Tyler's application, she identified Tyler G~ as the "child of the deceased." This is an incorrect statement and directly contradicts Cheryl G~'s declaration in September 1995 that Timothy P~ is Tyler's biological father. There is nothing to support a claim that Tyler G~ is the "child of the deceased" as discussed above. Rather, there is evidence that Tyler is the child of Timothy P~ based upon the numerous documents submitted by Timothy P~. From all accounts, Cheryl G~ was fully cognizant of this fact when she applied for benefits. She therefore made a false or incorrect statement that was material to the determination of whether Tyler was eligible for benefits on the account of Robert G~. No evidence has been provided to the contrary.

CONCLUSION

We believe an SSA adjudicator could find Tyler is not eligible for survivor's benefits on the account of Robert G~, and that the evidence presented is sufficient to reopen and revise the prior determination on the basis of fraud or similar fault.

Mary Ann S~
Acting Regional Chief Counsel
By: ______________
Karen T. C~
Assistant Regional Counsel

B. PR 09-031 Kaylin H. M~: Child's Benefits Application

DATE: December 15, 2008

1. SYLLABUS

In this case, a claimant who was declared by a New York Family Court Order of Filiation to be the child of another man cannot inherit from our number holder's estate despite the fact that the NH was married to the claimant's mother at the time of birth. As such, that child cannot be entitled under Section 216(h)(2) of the Act. The Lord Mansfield rule does not apply in New York when Orders of Filiation are involved.

Additionally, the claimant cannot qualify under Section 216(h)(3) of the act because there is no evidence that any one of the following took place:

(1) the NH acknowledged in writing that the Claimant was his child,

(2) court decreed the NH to be Claimant's father,

(3) the NH was ordered to contribute to Claimant's support, or;

(4) the NH was living with, or contributing to, the Claimant's support at the time the application for benefits was filed.

2. OPINION

Question

Whether the Order of Filiation declaring that Tyler H~ (Tyler) is Kaylin M~ (Kaylin/Claimant) father, entitles Kaylin to benefits on the record of Evan M~ (Evan, number holder, or NH), where Evan was married to Kaylin's mother at the time of Kaylin's birth?

Opinion

Based on the documents presented to the Agency, the Order of Filiation provides that Tyler is Kaylin's father and as such, Kaylin is not the "child" of Evan for purposes of qualifying for child's benefits on Evan's account.

Facts

Kathleen H~ (Kathleen) and Evan H. M~ (Evan) were married in 1993.

Kaylin was born in 1998. Kaylin's birth certificate, issued March 23, 1998, listed her parents as Kathleen and Evan, or the NH.

In June 1998, genetic test results revealed that "Tyler H~ is not excluded as the biological father of the child, Kaylin M~. Based on genetic testing results obtained by FLRP analysis (DNA Probes), the probability of paternity is 99.7%."

On December 4, 2003, an Order of Filiation was issued by the Kings County, New York Family Court declaring that Tyler is Kaylin's father. Tyler did not appear before the court to show cause why the declaration of paternity should not be made. The court based the Order of Filiation on an "inquiry of the facts and circumstances of the case and after hearing the proofs and testimony offered."

On January 5, 2004, Evan and Kathleen were divorced.

A January 8, 2004, Order of Support issued by the Kings County, New York Family Court declares that Tyler is chargeable with the monthly financial support of Kaylin. Tyler was present before the Court and admitted that he was chargeable with Kaylin's support.

Subsequently, on July 9, 2004, an amended birth certificate was issued by Nassau County reflecting Kaylin's parents as Tyler and Kathleen.

In October 2007, Kathleen filed an application for Child's Benefits on Kaylin's behalf and on Evan's record.

Evan and Kathleen are New York State residents.

Discussion

To qualify for child's benefits on the earnings record of an insured individual, a claimant must be the "child" of the insured individual. See Social Security Act (Act) § 202(d)(1), 42 U.S.C. § 402(d)(1); 20 C.F.R. § 404.350(a)(2008). "Child" includes the natural child of an insured individual. See Act § 216(e), 42 U.S.C. § 416(e); 20 C.F.R. § 404.355(2008). Generally, a claimant's status as the child of the number holder is governed by either section 216(h)(2)(A) of the Act or section 216(h)(3) of the Act. Here, the Claimant cannot establish she is the child of the NH under either provision.

Section 216(h)(2)(A) of the Act requires a showing that the Claimant could inherit the NH's personal property as his child under the intestacy laws of the state where the NH was domiciled at the time of the application. See Act § 216(h)(2)(A); 20 C.F.R. §§ 404.355(a)(1), (b)(1), (4) (2008). Because the NH in this case was domiciled in New York at the time of the application, the question is whether the Claimant would be considered the NH's child for purposes of intestate succession under New York law.

New York State follows the Lord Mansfield Rule, an English common-law evidentiary rule, which prohibits the use of the testimony of either a husband or wife to non-access to rebut the presumption of legitimacy of a child born within their marriage. POMS GN 00306.026. However, the Lord Mansfield Rule is not followed during a Family Court proceeding to establish paternity that results in an Order of Filiation. Family Court Act § 531. See State of New York ex rel H v. P., 90 A.D.2d 434 (December 30, 1982)(Section 531 of the Family court Act is statutory exemption to the Lord Mansfield Rule). Here, the Family Court issued an Order of Filiation indicating that Tyler is Kaylin's father. Therefore, under New York State law, although Kaylin was born during the mother's marriage to Evan, she falls within the definition of "non-marital child."

Pursuant to N.Y. E.P.T.L. § 4-1.2(a)(2)(A), a non-marital child is the legitimate child of his father so that he and his issue can inherit from his father and his paternal kindred, if a court of competent jurisdiction has, during the lifetime of the father, issued an order of filiation declaring paternity. Here, because the order of filiation declared that Tyler is Kaylin's father, under New York law, Kaylin could not inherit Evan's personal property under New York's intestacy laws.

To establish child status under section 216(h)(3) of the Act, Claimant must show she was the NH's daughter and show one of the following: (1) the NH acknowledged in writing that the Claimant was his daughter, (2) a court decreed the NH to be Claimant's father, (3) the NH was ordered to contribute to Claimant's support, or (4) the NH was living with, or contributing to, the Claimant's support at the time the application for benefits was filed. See Act § 216(h)(3); 20 C.F.R. §§ 404.355(a)(3), (4)(2008). See also, POMS GN 00306.11B.1. The Claimant has not presented any evidence to satisfy these criteria.

In this case, there is an amended birth certificate showing that Tyler, and not Evan, is Kaylin's father.1 Further, the Family Court issued an order of filiation declaring that Tyler is Kaylin's father and also ordered Tyler to contribute to Kaylin's support. In addition, there is no evidence that Evan was contributing to Kaylin's support (and, in fact, the divorce judgment orders him to support another child and does not mention Kaylin). Accordingly, Kaylin is not eligible for benefits on Evan's account under 216(h)(3).

Mary Ann S~
Acting Regional Chief Counsel
By: ______________
Sixtina F~
Assistant Regional Counsel


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PR 01015.035 - New York - 02/09/2009
Batch run: 02/09/2009