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.
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
The Office of the Regional Chief Counsel
Office of the General Counsel, Region III
P.O. Box 41777, Philadelphia, PA 19101
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
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.
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.
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
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. 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
Elizabeth A. C~
Assistant Regional Counsel